BANGKOK - Thailand's courts are increasingly being called in to decide on
issues that could impact on the divided country's political trajectory - judges
will have to decide on crucial cases involving supporters and detractors of
self-exiled former premier Thaksin Shinawatra.
In a month of high-profile cases, the ruling Democrat party was found not
guilty in two separate electoral fraud charges, a group of anti-Thaksin
People's Alliance for Democracy (PAD) protesters were sentenced to prison for
raiding a state TV station and the rival Thaksin-aligned United Front for
Democracy Against Dictatorship's (UDD) imprisoned leadership was denied bail
and remained in legal limbo on terrorism charges.
In the months ahead, Thailand's courts will be called on to further untangle
the country's entrenched political conflict, now entering a sixth year of
protest-driven instability. Among other high-profile
cases, the courts will be tasked with ruling on the politically charged
terrorism accusations pending against UDD leaders and whether top military
officers - and perhaps even the prime minister - should be held accountable for
the majority of the 91 deaths that occurred during last year's protests and
crackdown. There is also an unfolding investigation into allegations that
certain UDD members were involved in a plot to overthrow the monarchy the
courts will likely eventually have to rule on.
A more prominent role for the courts is indicative of the ongoing
"judicialization" of Thai politics, a concept cited by academics where, in its
ideal, moral and impartial judges play a larger role in resolving complex
political problems and move the country away from its traditional reliance on
King Bhumibol Adulyadej's crisis mediations. Yet a series of recent court
rulings have highlighted the inherent tensions that such a transition will
entail in such a highly politicized environment.
Prime Minister Abhisit Vejjajiva has relied on rule of law arguments to justify
government crackdowns on the political opposition and their aligned media
outlets. In response, the opposition has claimed a "double standard" in court
rulings that have worked in his government's favor and to Thaksin's detriment.
However, a number of rulings, including the court's refusal on several
occasions to overturn UDD co-leader and parliamentarian Jatuporn Prompan's
release on bail and an acquittal in tax evasion charges against Thaksin's
children, have gone the opposition's way.
Thailand has traditionally relied to an extent on reconciliation and amnesty,
which has proven successful at resolving deep-seated political conflicts; now,
the clear need for a stronger rule by law could entail penalizing - and
potentially jailing - politically powerful players.
In a long-anticipated ruling, Abhisit and his ruling Democrat party were
acquitted by the Constitutional Court late last year in two separate cases that
threatened to dissolve the party and ban party executives from politics for
five years on electoral fraud charges. The acquittals, made on legal
technicalities rather than the merits of the cases, sparked protests from
Thaksin-aligned opposition members who pressured the Election Commission to
pursue the fraud allegations.
If the court had decided against the Democrats and the party was dissolved,
Thai politics would have descended into yet another tailspin as Abhisit's
fragile five-party coalition would have likely collapsed. The two non-guilty
verdicts fed into the UDD's and opposition Puea Thai party's "double standards"
narrative in which they have claimed traditional elites and their political
allies enjoy de facto immunity from prosecution.
Intense scrutiny, explosive threats
In both cases, the Election Commission chairman and political party registrar
Apichart Sukhagghanond was ruled to have not followed proper procedures in
forwarding the cases to the Constitutional Court - violations that opposition
members have contended could have been flagged much earlier than they were. A
UDD faction has already brought a police complaint against Apichart for
The court had come under public scrutiny before the rulings. Pasit Sakdanarong,
secretary to the Constitutional Court president, secretly filmed conversations
involving judges and posted them to the video-sharing site YouTube. One video
of a conversation at a restaurant between Pasit and parliamentarian Wirat
Romyen, a member of the Democrat Party's legal defense team in the cases,
appears to show Wirat lobbying for measures that would assist with the party's
Other videos appeared to show court members discussing strategies to deflect
blame over an alleged examination fixing scheme to favor preferred court
applicants. The Constitutional Court immediately brought stiff charges under
the controversial Computer Crime Act against Pasit and those involved in
circulating the controversial videos.
Thaksin and his aligned Puea Thai politicians have long been at odds with the
Constitutional and Administrative courts, which acted together to annul the
April 2006 elections Thaksin's then Thai Rak Thai (TRT) party would have
handily won. After Thaksin's military ouster later that year, a military
appointed Constitutional Tribunal dissolved TRT and banned 111 of its members,
including Thaksin, from politics for five years on electoral fraud charges in
The Constitutional Court later ruled against Thaksin nominee prime minister
Samak Sundaravej in September 2008 on charges related to his receiving payments
for hosting a TV cooking show while in office. It also dissolved the then
ruling Thaksin-aligned People's Power Party in December 2008 amid crippling PAD
protests, paving the way for the Democrat-led coalition to take power based on
2007 election results where the Democrats placed a distant second.
In October 2008, the Supreme Court for Criminal Cases of Political Post Holders
sentenced Thaksin to two years in prison on corruption charges related to a
land deal his wife entered into with a state agency during Thaksin's tenure. In
February 2010, the same court ordered the seizure of US$1.4 billion of $2.2
billion worth of Thaksin's personal assets that had been frozen in Thai banks.
A bomb was defused in front of the court days before the ruling and a
UDD-aligned media outlet insinuated in an article that presiding judges should
be assassinated if they ruled to confiscate Thaksin's assets. The UDD's
protests commenced two weeks later, replete with English language signage that
claimed the red shirt wearing movement was fighting broadly against "double
standards" in Thai society.
Recent rulings have challenged that narrative and indicate the courts are
getting tougher with street protesters on both sides of the political divide. A
group of 82 People's Alliance for Democracy (PAD) protesters, known as the
Srivijaya warriors, were sentenced on December 30 to prison terms ranging from
nine months to two-and-a-half years. The charges stemmed from the protest
group's armed seizure of the National Broadcasting Service of Thailand (NBT)
television station in August 2008. All of those convicted have been granted
temporary bail and plan to appeal the ruling.
Despite the heavy sentences, opposition critics have complained the ruling did
not affect the PAD's leadership. The PAD was instrumental in paving the way for
Thaksin's 2006 military ouster and until recently was perceived to share common
political cause with the Democrat party and military. The protest group's
leaders face criminal charges for their alleged role in seizing and shutting
down Bangkok's two international airports in late 2008. The opposition has
complained that while the PAD's leadership is free on bail on the pending
charges, the UDD's leaders have been detained.
In another knock to the UDD's "double standards" narrative, 10 high-profile
civil society organization leaders, including prominent PAD supporters and
labor union representatives, were arrested on December 30 for entering and
disrupting parliament during a December 2007 rally. They had protested against
the passage of eight bills by a military-appointed legislature that they
claimed would undermine civil liberties and democracy. State enterprise labor
unions were pivotal in organizing and providing numbers at the 2006 protests
that ushered Thaksin's demise. They face maximum sentences of 20 years in
prison if convicted.
Opinion surveys have shown that Thailand's courts have fared better than other
state agencies in terms of public perceptions. A countrywide poll conducted by
the Asia Foundation in 2009 revealed that Thai respondents gave the highest
marks to the courts for integrity, ranking them above the army, Election
Commission and media. Parliament ranked at the bottom of the poll, registering
even lower than the perennially corrupt police.
Peter Leyland, a professor of public law at London Metropolitan University, has
argued that the problem in Thailand is not the constitution, but the inability
of the country's political elite to defer to bodies like the Constitutional
Court. Leyland has drawn attention to Buddhist approaches to conflict
resolution - as opposed to law-based ones - and issues to do with hierarchy and
patron-client ties in Thai politics, which he has argued interfere with the
ability of the courts to independently adjudicate. He has suggested that
substituting law for politics in Thailand's context is an "unobtainable ideal".
Following the recent Constitutional Court decisions in favor of the Democrats,
48% of respondents in a Dusit Poll found that the decisions "could lead to more
political division" and increase public perceptions that "double standards
really exist". Analysts worry that political cases put the legitimacy of the
entire judiciary at risk, with the general public not making distinctions
between the Constitutional Court and the wider court system.
How Thailand balances calls for reconciliation and the need to strengthen rule
by law will largely define the country's political course in the approaching
and uncertain post-Bhumibol era.
Seth Kane is a visiting research fellow at the Bangkok-based Institute of
Security and International Studies.