Constitution court rewards criminality

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December 5, 2008 ·

By Awzar Thi
Column: Rule of Lords

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History repeated itself in Thailand this week when a top court for the second time in as many years dissolved the biggest political party, along with two of its partners, and effectively banned its leader and executive members from politics.

The Constitution Court, which inherited the job from an interim tribunal that issued a similar order against the former ruling party last May, unanimously disbanded the three coalition partners in accordance with section 237 of the 2007 Constitution.

Under this remarkable clause, which an unelected panel wrote into the charter on behalf of the 2006 coup makers, political parties must be dissolved if it can be shown that they failed to prevent electoral offences from occurring in their ranks.

In football, this would be the equivalent of a rule that if one player gets a red card, the whole team is disqualified from the league, with the captain and coach sent into early retirement.

The ruling allowed the political extremists, who had brought thousands of human shields to occupy the airports for a week, to declare victory and go home in time for the king’s birthday on Friday.

Irrespective of the formal grounds for the sentence, in timing and content it has been perceived as endorsing the extremists’ ideology and goals. In effect, the court has indicated that while vote buying cannot be tolerated, hijacking public facilities, vandalizing property, shooting at people and vehicles, illegally detaining fellow citizens, attacking state officers and setting up a proxy police force not only can be tolerated but can even be rewarded.

Perhaps appropriately, the verdict was handed down with pro-government demonstrators outside (shown above) calling the judges stooges, forcing them to change venue and smashing a transformer to shut off their electricity supply. The aggressive public attacks on the court and its personnel are unusual for Thailand, and speak not only to the intensity of the current conflict but also to how far vested interests have drawn the judiciary into the fray.

The judges insisted that having found the politicians guilty of wrongdoing they had no alternative other than to dissolve the three parties. But is this true? Could they not, in principle at least, have done otherwise?

One problem is that the court was called to decide on a narrow legal question that was itself predicated upon a series of other significant political and judicial events over the last couple of years.

As has been customary in Thailand, the top courts did nothing in response to the 2006 military takeover, and allowed themselves to be used for its purposes. The May 2007 judgment tacitly endorsed the regime, and the court that sat this week was set up under the regressive Constitution that followed in its wake. This September, in an equally surreal judgment, it sacked the prime minister for cooking on television.

The court could not contradict the earlier rulings. Nor could it call into question the contents of the section upon which the fate of the government hung, and which the Parliament had been set to amend last month (before it was besieged).

But that does not mean that it had no alternative. Judges around the world have often refused to rule on pressing political questions, aware that to do so would damage the fragile public confidence in their work and threaten their integrity.

Perhaps the most significant case of this sort in recent years was that which handed George W. Bush his first term as U.S. president.

Although the Supreme Court then made itself responsible for sorting out the mess caused by ballot problems in Florida, four dissenting judges warned that it had been dragged into an issue that it could not satisfactorily resolve and to which it did not belong. One of them, Justice Stephen Breyer, recounted an important lesson from history to explain why.

In 1876, a panel was established to figure out who had won that year’s presidential election. Five of the 15 members were judges. They were expected, as in so many things in Thailand these days, to lend an air of impartiality and fairness.

One of the justices cast the deciding vote. The losing party accused him of accepting bribes, and he was widely lambasted. But whether he was dishonest or not is beside the point for the purposes of the historical lesson, Breyer made clear. What matters was that the presence of the judges did not give the panel more legitimacy.

“Nor did it assure the public that the process had worked fairly, guided by the law,” he wrote. “Rather, it simply embroiled Members of the Court in partisan conflict, thereby undermining respect for the judicial process.”

History has vindicated Breyer and his dissenting peers. Public esteem of the U.S. Supreme Court has slipped to perhaps its lowest level in decades, as a result of the judgment in favor of Bush over Al Gore, and other judgments since. The court may have put someone in government, but as in 1876 it did not give credibility to that person or government. It merely brought more censure and dispute to its own doors.

Thailand’s Constitutional Court has again taken someone out of government, but it too has not added credibility to anyone or anything. Instead, it has once more played the fool, and once more made a mockery of the justice that it purportedly represents.

Did it have an alternative? Of course it did. It could, and should, simply have refused to decide. That it didn’t is not for want of an alternative. It’s because it wasn’t looking for one.

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