Destroying democracy to save it?

Verdict sets a dangerous precedent

Critics fear the court verdict paves the way for generals to 'save democracy' with tanks again in the future

By DANIEL TEN KATE
Bangkok Post, 9 June 2007

Although coup leader Sonthi Boonyaratkalin's amnesty idea was shot down faster than his tanks secured Bangkok last September, the general can be forgiven for thinking that anything he uttered would become law. After all, a few days earlier a court he set up after a coup he ordered punished Thai Rak Thai executives using a law he decreed. In one fell swoop, six of the nine justices who said party executives should be banned for five years for ''undermining democracy'' effectively gave legal legitimacy to Gen Sonthi for overthrowing democracy altogether.

So to him amnesty wasn't a huge leap. To legal experts and most of the general public who opposed deposed premier Thaksin Shinawatra, however, it didn't make much sense. How could the general simply change the punishment for a crime that was deemed so devastating to democracy?

Well, probably the same way he did so when he issued Announcement No. 27 on Sept 30, 2006 which stripped the voting rights from executives of dissolved parties for five years, making them ineligible to stand for office.

It was the Constitution Tribunal's endorsement of this decree that particularly has verdict critics up in arms. In validating the junta's Announcement No. 27, as well as blasting Mr Thaksin's decision to call an election in February 2006 and calling Thai Rak Thai ''dangerous to democracy'', critics say the judges essentially set a legal precedent for staging a coup.

''The verdicts seemed to justify the coup d'etat and also Announcement 27 of the coup group, which has ruined the judicial system,'' said Kanin Boonsuwan, a constitutional law expert who has written several books on the Constitution Tribunal.

''In the verdicts, the judges referred to power from coups d'etat so many times and justified the legitimacy of coup d'etats many times,'' he added. ''In past times, the coup groups used power to tackle everything _ executive, legislative and judicial. They could order people in prison or hand a suspect a life punishment. But that also meant they were responsible for everything. They didn't let the court do the job.

''But this time they used the court to execute an order of the military. Now when they return the power to a democratic system, there will be lots of confusion and the people will not accept the legitimacy of the court anymore.''

After the 1991 coup led by Gen Suchinda Kraprayoon, the military set up a court to indict members of the deposed Chatichai Choonhavan administration with the aim of confiscating their assets. But when the case reached the Supreme Court, the justices tossed it out.

The Constitution Tribunal, by contrast, is stacked with eight Supreme Court judges and one from the Supreme Administrative Court.

This makes it even more troubling that the court decided to enforce an ex post facto law, which flies in the face of accepted international legal principles and the spirit of both the 1997 Constitution and the new one being drafted.

Many countries explicitly ban retroactive laws, including the United States, Canada, the European Union, Indonesia, Iran, Japan, Turkey and others.

Indeed, Article 32 of the 1997 Constitution says ''a punishment to be inflicted on such person shall not be heavier than that provided by the law in force at the time of the commission of the offence''.

This clause is repeated in Article 39 of the draft constitution that will be put to a referendum in September.

The legal argument in favour of the five-year ban, espoused by National Legislative Assembly chairman Meechai Ruchupan and others, is that Announcement No. 27 involves a political case. Article 32 only mentions specifically that retroactive punishments apply to criminal cases, and the Constitution doesn't specifically mention that administrative and political punishments should not be retroactive. Therefore, they argue, the punishments in non-criminal cases can be applied retroactively.

Even so, many in the legal community oppose this interpretation. To impose the rule of law_something the coup leaders said was among their main goals _ citizens must be confident that laws are transparent and binding unless everyone agrees to change them.

''In the past, the Supreme Court sometimes ruled that retroactive laws were prohibited for criminal penalties but not administrative or political penalties, but many lawyers oppose this,'' said Vorajet Pakirat, a law lecturer at Thammasat University. ''I think it's unreasonable that we continue to walk in the way of the Supreme Court, because sometimes the administrative penalty can be harsher than the criminal penalty. It's unjust.''

Three judges who voted against the five-year ban agreed. The old punishment under the 1998 Organic Act on Political Parties said executives of dissolved parties cannot form a new party or sit on an executive board for five years, but they could still run in elections.

Panya Thanomrod, president of both the Tribunal and the Supreme Court, argued that post-coup law could not take retroactive effect under any circumstances in voting against the five-year ban. But he could not convince his fellow judges.

The legal justification supporting the five-year ban is one in a large number of examples of how this case misses the forest through the trees. It's as if the whole trial took place in a bubble world in which the election boycott and the Sept 19 coup never took place. Thai Rak Thai was held to the strictest and most draconian interpretations of the law, while Gen Sonthi's sweeping announcements gave the Constitution Tribunal broad legal leeway to bring down the hammer.

''The Constitution Tribunal ruled that the junta's decrees were legitimate but said dissolving parliament in times of crisis was not legitimate, even though that's an international standard for democracy,'' said Giles Ungpakorn, an anti-coup activist and political scientist at Chulalongkorn University. ''What's more worrying is that the Constitution Tribunal talked about previous precedents and the tradition of Thai governance, and mentioned the coups in October 1976 and February 1991 as though they were legal standards. This is a real step backwards. Those were standards for dictatorships.''

Besides stripping the voting rights from executives of dissolved parties for five years, Announcement No. 27 also gave the Constitution Tribunal authority to dissolve parties on behalf of the Constitution Court, which the coup-makers tossed out after seizing power. However, the court itself never received royal endorsement and the judges never resigned from their Supreme Court positions as the disposed constitution required.

''Judges in the Constitution Court under the 1997 Constitution had to resign from active posts in judicial courts so they would be free to consider all cases concerning political problems and conflicts,'' said Mr Kanin. ''But this never happened. Many Supreme Court justices are not happy with that, because they feel that the courts are not free any more. The whole judicial system is being used to tackle the executive's problems, to destroy its enemies.''

From the moment the coup-makers threw out the old Constitution Court and issued Announcement No. 27, it appeared clear that Thai Rak Thai was targeted for execution. Certainly many party members saw the writing on the wall and quickly jumped ship in a last-ditch effort to save themselves.

Moving forward, the legal intricacies of the Constitution Tribunal verdicts will disappear as the big picture comes into focus. The court severely punished Thai Rak Thai for breaking a law under the 1997 Constitution while upholding the military's right to rip that constitution to shreds.

In the long term, tribunal critics fear that the court verdict will diminish respect for the judiciary and pave the way for military leaders like Gen Sonthi to ''save democracy'' with tanks again in the future.

''If the state can enact a law and apply it retrospectively, how can the people trust the law?'' said Mr Vorajet. ''What's worse is that the court verdict supported the coup indirectly. If we take the verdict of the Constitution Tribunal as precedent, then a coup d'etat in Thailand can happen again and again.''