Last Tuesday 25 April, Thailand’s King Bhumibol Adulyadej made an extraordinarily blunt public statement on his country’s political crisis. It was only his third direct political intervention in his 60-year reign.
The revered monarch said Thailand’s political situation was ‘a mess,’ and that the one-Party elections on April 2 were ‘undemocratic.’ The rebuke to the governing Thai Rak Thai (TRT) party of caretaker PM Thaksin Shinawatra wasn’t lost on anyone. But the opposition Parties and the people power movement weren’t spared either the King insisting that it wasn’t up to him to find a solution or appoint a new Prime Minister, as opposition and People’s Alliance for Democracy (PAD) leaders had requested.
Instead the King exhorted the leading judges of the country’s three superior courts Supreme, Administrative and Constitutional to find a legal solution to the political mess that has seen Parliament without a quorum of MPs since the snap elections a month ago.
Thaksin at a press conference in April
Following the King’s televised speech, all players suddenly agreed to abide by the courts’ decision. The opposition parties abruptly dropped their calls for a royally-appointed Prime Minister and pledged to stand in fresh elections. TRT said it would not push to convene Parliament without the full complement of 500 MPs. The leaders of the street protests that crippled Bangkok and forced the snap election also agreed to respect the courts’ decision.
Now the much-touted May 2 deadline 30 days after the election, by which time Thai law requires the new government to convene and elect a new Prime Minister is likely to pass without event, while the courts rule on the election cases before them.
The irony of the King’s mere word catalysing the restoration of democracy is one of the peculiarities of Thailand’s system of constitutional monarchy. But without it, the courts would have continued to stay out of the crisis and the deadlock would likely have continued.
Judicial review is a relatively novel concept in Thailand. Thai commentator Chang Noi points out that although the 1997 Constitution was supposedly based on the principle of the separation of powers, in actuality the charter focused on the Executive and the Legislature. Instead of the Judiciary providing checks and balances, limits on Executive power were to be achieved through newly formed ‘independent bodies’ such as the Constitutional Court, the National Counter-Corruption Commission (NCCC) and the Election Commission. Membership of these bodies is by supposedly apolitical Senate appointment. But in reality, Thaksin and TRT rapidly managed to stack the purportedly independent bodies with cronies by shoring up support in the Senate many TRT MP’s wives, for example, are Senators.
It was in large part the perceived corruption of these ‘democratic’ institutions by Thaksin (although the Constitutional Court acquitted him of corruption charges when he first came into office) that fomented the anti-Thaksin movement in the first place. The Election Commission was also seen as pro-TRT in its conduct of the April 2 election.
Yet apart from the Constitutional Court, the Judiciary has remained relatively untainted by the corruption that allegedly flourished under Thaksin’s rule. The Criminal Court has thrown out high-profile defamation suits Thaksin brought against members of the media who dared to criticise him. While the Administrative Court (where judges are appointed chiefly by their peers rather than politicians), has also demonstrated its independence of the powerful Executive, notably in rejecting the planned privatisation last year of the electricity utility, EGAT.
King Bhumibol Adulyadej
After the King’s speech, the Administrative Court granted the injunction to halt the second round of by-elections on April 29 in the southern provinces. The King’s instruction to the courts affirmed a pivotal role for the Judiciary in Thailand’s political process which they hadn’t taken up before.
The courts are still being careful not to overstep their jurisdiction. After the King’s criticism of the April 2 election as ‘undemocratic,’ the unprecedented meeting of senior judges last Friday was widely expected to result in an annulment of the election. But the judges soon quite reasonably announced that each court could only rule on the legal issues of the cases before them, ‘in a timely manner.’
Many analysts still expect the elections to be voided after the courts pick through the tangle of legal challenges. But getting there may not be simple. Thailand expert Dr John Funston of ANU points out that, while the Supreme and Administrative Courts seem inclined toward annulment and fresh elections, the Constitutional Court appears reluctant to overturn the snap poll.
There are around a dozen relevant cases pending before different courts. Most are petitions to annul the elections on points of process. The major opposition Parties (who are currently without seats in Parliament after their boycott of the elections) have filed a petition calling for annulment on the grounds that Thaksin acted illegally when he dissolved Parliament in February and called the snap election.
The first major decision on the election by the Administrative Court (announced after the judges’ meeting last Friday) appeared to support the ‘unconstitutionality’ of the snap poll, on the grounds that the secrecy of the ballot had been compromised by actions of the Election Commission.
If the Constitutional Court does indeed ‘go in the same direction’ as the Supreme and Administrative Courts look set to (as Jaran Pakdithanakul, Secretary-General of the Supreme Court said last Friday), fresh elections in which all Parties will participate are likely to be held after the King’s 60th anniversary celebrations in June.
And what of Thaksin? The caretaker PM returned from his ‘informal’ meetings with the leaders of Britain, France and Russia on Sunday after being snubbed by the leaders of Malaysia and the Philippines. He has returned to a changed landscape, with the royally endorsed emphasis on judicial review a real and symbolic challenge to the power he hoarded in the Executive.
But with acting caretaker Prime Minister Chidchai Vanasatidya commenting provocatively on the weekend that Thaksin would be free to run for PM again in the event of court annulment of the elections, it appears Thaksin who received a majority of votes in the April 2 polls could turn the possible defeat by the courts into a victory. That would incense his opponents who only compromised with TRT on the condition that Thaksin step aside and may spark fresh unrest.
One thing is clear: Constitutional reform is required, if only to prevent a similar mess happening again. Dr Funston suggests that any reform would need to ensure the independence of bodies like the Senate, the Election Commission and the NCCC, as well as protecting the autonomy of the media which has been monstered under Thaksin.
The most likely way forward looks like annulment followed by fresh elections to create a new government, whose first task would be to draft a new Constitution. At the very least, the elevation of the status of the Judiciary to increase the checks and balances on Executive power will ultimately strengthen the foundations of the country’s turbulent democracy even if it took the King to say so.
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