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Thai high court ruling dissolving parties in coalition government imperils country

Awzar Thi [member, Asian Human Rights Commission, Hong Kong]: "The verdict to dissolve three parties in Thailand's coalition government and ban the prime minister and his party executives from politics for five years is the latest in a series of increasingly surreal judgments that have brought the country's senior judiciary to the center of its political mayhem. It follows a ruling by the Constitutional Court's predecessor last May to terminate the party of the ousted Prime Minister, Thaksin Shinawatra, from which the newly-disbanded People's Power Party was born. It also follows another unanimous ruling from the court this September to throw out the then-Prime Minister, Samak Sundaravej, for cooking on TV.

Like the cooking show verdict, the judges this time ruled on a narrow legal question under section 237 of the 2007 Constitution. According to this clause, any member of parliament found to have committed or abetted an offense under the electoral act, or contrary to any order or announcement of the Election Commission, shall be deprived of voting rights. These offences could be minor, may change from time to time with new orders from the commission, and do not even constitute criminal acts. But anyhow, if it can be shown that the party leader or any executive member knew about the offense and failed to do anything about it, then it is mandatory that the party is dissolved and its executive banned.

Imaginary scenarios for how a similar law might apply to other professions don't need to be stretched very far to realize the section's absurdity. For instance, human rights defenders in Thailand have for years raised concerns about the lack of command responsibility in the police force. Officers both condone the criminal acts of their subordinates and actively defend them when they are accused of wrongdoing. Suppose that instead a provision was introduced that not only a policeman found guilty of taking a small bribe be removed from the force, but so too must his entire unit, and his station be shut down: that would be the equivalent for the police of section 237 as it now applies to political parties. Similarly, a doctor found to have committed some trivial malpractice would have her license revoked along with those of her entire medical board, and her hospital would have to be closed. How about a journalist who inserted a wrong fact in a newspaper? There are plenty of them in Thailand, some of whom strongly supported the use of this section against politicians. Why not fire their editorial boards and lock their publishing houses if they print anything that is later proven false?

Not surprisingly, when campaigning for office at the end of last year and upon taking government, the People's Power Party indicated that section 237 was one part of the constitution that it would like to change. As the panel of military appointees that drafted the charter without consulting the public apparently stuck the clause in at the last minute, and as the party had an electoral mandate and the legal authority to amend it, not only should this have been possible - it was necessary as a commitment that the party had given to voters. Still, the idea of an elected government amending the deeply undemocratic constitution of an unelected one proved offensive for opponents going under the misnomer of People's Alliance for Democracy, who for the last three years have campaigned zealously against anyone and anything associated with the former premier. Having occupied the prime minister's official compound during August, in October and November they blockaded parliament, preventing lawmakers from debating amendments. While the legislature was unable to carry out its duties, the judiciary went ahead. The Constitutional Court, despite also being forced by demonstrators to move between buildings in order to deliver its verdict, declared on December 2 that since members of the three coalition partners were guilty of wrongdoing under the electoral law, it could do nothing other than dissolve them.

The alliance, which by this time had occupied the airports in a manner that bore all the hallmarks of a military-planned and backed operation, had the audacity to declare the court's judgment a "victory for the people" and announce that it would withdraw from the premises that it had occupied around the city. But it has done so conditionally, pledging that, "If a proxy government of the Thaksin regime is set up again or if there is an attempt to amend the Constitution or the law to whitewash the wrongdoings of those in the Thaksin regime, to benefit politicians, or to lessen the power of the King, the PAD will return." The announcement is both a promise and a threat. The alliance has not called off hostilities, but has merely declared a ceasefire for the king's birthday period. It will be back, just as will members of parliament seeking to amend the constitution and others sympathetic to the former prime minister. But whereas of all these it is the alliance that is devoid of any legal authority for its activities, ironically it is the one that today has been able to claim that the courts are on its side. And so it would seem. There is a lot more constitutional game-playing still to come in Thailand."

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.
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