Monday, June 30, 2008

The executive vs the judiciary?

Obviously by "executive" I mean the Prime Minister and his cabinet, not the de facto Head of State, HM King Bhumipol.

Casual observers could be forgiven for raising an eyebrow at Thailand's judiciary over the last month or so. After all, it was highly impressive for the Supreme Court to wrap up the "cake" (see what I did there?) case so quickly and with a conviction at that. And then, no sooner had they done that, the Administrative Court ordered an injunction against further action in the ongoing dispute of land around Preah Vihear which happened to be big news at the time.

But there is more interesting background to this situation. Thailand's court system is similar to the UK model. The administrative courts are those of the first instance and are the Criminal and Civil courts. Next up is the Appeals Court and then the Supreme Court. The Constitutional Court is a separate body with a different selection procedure.

The judiciary have been prominent in Thailand's political roller coaster for some time. Ever since the Constitutional Court's narrow decision in favour of Thaksin Shiniwat upon his taking of office in 2001, weary eyes have been cast between the legislative, executive and judiciary. Perhaps none more so than during the CC's decision to nullify the election of April 2006. The brave decision was made shortly after members of the Election Commission had been sentenced to jail for dereliction of duty by the Criminal Court.

After the coup of '06, Jakrapob Penkair claimed to have telephone recordings that exposed interference in the Court's decision to convict the EC commissioners. Penkair claimed the recording implied interference by Privy Councillor Prem Tinsulanonda.

Also after the coup, it was highly conspicuous that the junta ordered constitution increased the retirement age for court judges and changed the selection process for judges (a move which the Samak government have attempted to reverse).

Not long after the draft constitution began to take shape, the Constitutional Court disbanded the Thai Rak Thai party in a move which some claimed was politically motivated (however, the decision was certainly just).

And now, with many of the corruption charges against Thaksin and his family seemingly taking an eternity to reach court by moving steadily, the pastry gate scandal and the Preah Vihear temple affair have been resolved quickly.

What to make of this? It can't help but be noticed that the pastry gate affair, the PV temple affair and the PAD protests (which the court also made a decision on today) almost form a script for the next junta to use:

"In the interests of national security, the Council for the Protection of the Kingdom of Thailand with HM The King as Head of State has no decision but to step in and prevent the sale of Thai land by the People Power Party. Due to the protests lead by the PAD and the attempted interference in the judicial process by dark forces, we believe this decision is the only way to prevent Thai land being sold by dark forces, against the will of the people and the constitution of Thailand".

It must be noted however that the Courts of Thailand - particularly the Constitutional Court - have an image of being cleaner that the other two branches of government. Looking back, I can think of only one decision that appeared to disagree with my amateur understanding of Thai law. That case would be the Thaksin Shiniwat asset concealment case and, interestingly, a judge later admitted he had been "unsuccessfully lobbied" during that case. However, it is open to speculation as to how much influence and pressure is applied to the courts and by whom.

Whatever the reasons, expect the judiciary to continue to play a pivotal role as the ongoing political saga continues over the coming months. It gives me no pleasure to say that I predict a coup - with a speech resembling the example I just gave - around Christmas time this year.


Bangkok Pundit said...

"...t, the Administrative Court ordered an injunction against the sale of Preah Vihear which happened to be big news at the time..."

Sale? I note the title of your post is the executive vs the judiciary, so why is the administrative court getting involved?

Red and White said...

You're right "sale" was a sloppy term and I have changed it. Surely though the Admin Courts, as COFI are classed as the judiciary? They have appointed judges.

Bangkok Pundit said...

R&W: On Admin courts, they are certainly part of the judiciary. My brief comment was really aimed at if this is executive vs judiciary, why are the admin courts getting involved? Is this an administrative action? This was not to engage a long debate, just throwing up the question!

See the article quoting the Thammasat University Law Professor and Head of Public Law Department, linked to last night by me, who criticises the decision and of course the PAD want legal action taken against him.