White Paper: The Judicial Attack on Thailand's Democracy

THE JUDICIAL ATTACK ON THAILAND’S DEMOCRACY

DEMOCRAT PARTY GAMES

a WHITE PAPER by

AMSTERDAM & PARTNERS LLP14 JULY 2013

1. IntroductionThe purpose of this White Paper is to alert the international community to an ongoing assault—carried out largely under the standard of the Democrat Party of Thailand, but engineered by a broader coalition of groups hostile to former Prime Minister Thaksin Shinawatra—designed to remove a democratically elected government by illegal means.

This alert to protect Thai democracy is even more pertinent and urgent given the recent military coup in Egypt. The actions of the Egyptian Army bluntly revealed to any of those who were still in doubt how fragile burgeoning democracies can be, particularly in countries where a lack of civilian oversight and accountability holds sway. The insipid response of the international community to the Egyptian coup and the violence and deaths that occurred on the streets of Cairo and elsewhere in the aftermath of the Egyptian Army’s actions lend a stark warning to what might occur in Thailand should anti-democratic forces take significant action.

The government of Prime Minister Yingluck Shinawatra, which was elected and duly constituted in July 2011, is responsible to protect its citizens from (among other things) crimes against humanity, such as the brutal slaughter of dozens of unarmed civilians under the Democrat administration of former Prime Minister Abhisit Vejjajiva during the “Red Shirt” pro-democracy demonstrations in Bangkok in April/May 2010. The Yingluck administration is working toward justice for those victims, and toward ensuring that no such atrocities occur ever again in Thailand. While the Thai government’s responsibility toward its citizens flows from basic principles of democratic governance, it is also enshrined in principles of international law, including the concept of Responsibility to Protect.1 Responsibility to Protect principles not only urge states to protect their citizens against mass atrocity crimes, such as the crimes against humanity inflicted upon the Thai citizenry during the 2010 Red Shirt demonstration; they also oblige the international community to encourage and assist individual states to meet those responsibilities. Further, if an individual state is failing in its duty, the concept of Responsibility to Protect calls upon the international community to take collective action within the framework of the UN Charter.2

Protecting innocent civilians from brutal slaughter is no simple task in Thailand, as doing so requires breaking a cycle of lawless coups and killings that dates back decades. The same groups that have been responsible historically for this cycle of impunity—the almost exclusive beneficiaries of the status quo that held before the first truly democratic Constitution was adopted in 1997—are now using every

1. Responsibility to Protect (referred to as “R2P”) was endorsed by the United Nations General Assembly (UNGA) in the 2005 World Summit Outcome Document.2. See UNGA Resolution A/60/L.1, at ¶¶ 138, 139, available at: http://www.globalr2p.org/about_r2p

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AMSTERDAM & PARTNERS | WHITE PAPER 2013

conceivable method to remove a duly elected government, primarily through an extra-parliamentary campaign of street action and judicial manipulation. This White Paper describes the efforts by the anti-Thaksin coalition to undermine the results of the 2011 election, and it calls upon the international community to throw its full-throated support behind the Yingluck government as it strives to advance true democracy in Thailand, while preventing a repeat of April/May 2010.

2. Thailand in ContextIn the July 2011 general election the people of Thailand duly elected the Pheu Thai Party to form their present government. They did so by giving the Pheu Thai Party a majority of members in the Thai parliament and by providing Pheu Thai with a 48.41% share of the vote, one of the highest vote shares for a single party in Thailand’s history. By August 2011 Yingluck Shinawatra was sworn in as Prime Minister and, with other small parties joining the Pheu Thai coalition, the government’s democratic and parliamentary mandate was cemented.

The 2011 victory would be the fifth-straight general election win for the various embodiments of the Thai Rak Thai Party formed in 1998 by Thaksin Shinawatra and his political allies. In 2001, 2005 and 2006, Thai Rak Thai secured pluralities or overwhelming majorities in the Thai parliament, becoming the most successful democratic political entity in Thailand’s history.

However, by September 2006 the Thai Rak Thai government had been ousted in an illegal military coup, Prime Minister Thaksin and the entire leadership of the party had been banned from electoral politics, and Thai Rak Thai itself was dissolved. Furthermore the coup makers abrogated the 1997 Constitution and set up a judicial process to criminalize former Prime Minister Thaksin.

Yet, despite these setbacks, the vast majority of Thai citizens kept their faith in elections and democratic politics, and in the December 2007 general election, they returned the People’s Power Party—the new incarnation of Thai Rak Thai— to parliament in sufficient numbers to form a government. In response, a relatively small but violent anti-democratic protest movement known as the Peoples’ Alliance for Democracy (PAD or the yellow shirts) staged a demonstration in mid-2008 at the Makkawan Bridge in downtown Bangkok. They did so with the express aim of overthrowing the system of electoral democracy and instigating another military coup.

In late 2008, the PAD, following on a series of violent protests that involved the use of explosives and firearms, occupied both the Government House and Bangkok’s two international airports. The Thai Army demonstrated an unwillingness to intervene to expel the increasingly violent PAD, stymieing the government’s ability to administer

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the country lawfully, leading to a political stalemate.

This stalemate was broken by the Constitutional Court, which had been infused with massive new powers by the military junta-backed 2007 constitution. On December 2, 2008, the Constitutional Court—which had already removed Samak Sundaravej, the People’s Power Party Prime Minister, for receiving a tiny honorarium for appearing in a televised cooking show—dissolved three coalition parties in the elected government led by the People’s Power Party and banned the leading members of each party from electoral politics for five years. By this time, hundreds of politicians from pro-Thaksin parties had been banned from politics for five years. In so doing, the Constitutional Court made clear, yet again, that it was not an independent institution, but rather an entity allied with the Democrat Party and the anti-Thaksin coalition, established by the very individuals who masterminded the 2006 coup.

Most of the remaining People’s Power Party representatives responded by forming the Pheu Thai Party, although a small faction broke off and created a coalition with the opposition Democrat Party led by Abhisit Vejjajiva. Abhisit enjoyed the direct support of the Thai Army, which had “advised” the various other political parties in a notorious nighttime meeting to join the Democrat Party coalition. The Army’s arm-twisting enabled Abhisit to cobble together a parliamentary majority to form a new government.

The Democrat Party, with its support concentrated primarily in Bangkok and southern Thailand, has never won a parliamentary majority in a free and fair election. It last enjoyed the status of the largest party in the Thai parliament after the September 1992 general election with 79 of the parliament’s 360 members. To assume power in December 2008, the Democrat Party had been forced to rely upon its close alliance with the violent PAD. Abhisit appointed Kasit Piromya—who had taken part in the occupation of Bangkok’s airport—as Foreign Minister. Other prominent Democrat Party members, including Finance Minister Korn Chatikavanij, had openly expressed their support for the PAD and its illegal actions, along with their position that members of parliament should be appointed rather than elected.

By April 2009, hundreds of thousands of ordinary Thais—dubbed “Red Shirts” because of their unifying attire, and led by the United Front for Democracy Against Dictatorship (UDD)—descended on Bangkok to protest the unmandated power grab by Abhisit and the Democrat Party. Their straightforward demand was for free and fair elections, to give the citizens of Thailand, not the courts or shadowy military elements, the ultimate say over who should govern the country.

Prime Minister Abhisit’s response was not to call a general election, but to declare a state of emergency and to deploy thousands of soldiers onto the streets. Abhisit labelled the Red Shirts “national enemies,”3 and escalated measures to censor

3. http://www.theage.com.au/articles/2009/04/14/1239474872736.html

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opposition media. In this confrontation, several civilians were killed and hundreds were injured as the soldiers dispersed the demonstrations, while the UDD/Red Shirt leadership was arrested and imprisoned.

Over the course of the following year, Prime Minister Abhisit reinforced his regime and initiated the most draconian censorship campaign in Thailand’s recent history, further criminalizing both the UDD/Red Shirts and their elected representatives. By March 2010, the UDD/Red Shirts began to re-assemble in Bangkok.

Once again, their demand echoed the 2009 demonstrations; they insisted that Abhisit dissolve parliament and test his democratic legitimacy in free and fair elections. As the number of protesters grew to an estimated 250,000, it became clear that support for the UDD/Red Shirt movement had solidified. After a series of standoffs, the Abhisit regime declared a state of emergency on April 8th, 2010. Two days later, on April 10, soldiers killed almost two dozen unarmed civilians, many with sniper shots to the head or chest. A group of shadowy, unidentified “Men in Black” surreptitiously appeared, and may be responsible for killing five Thai Army soldiers. No connection was established between the Men in Black and the predominantly peaceful UDD/Red Shirt movement, but Abhisit publicly blamed the Red Shirts and their leaders for the attack that killed the five soldiers, and used the incident as an excuse to ratchet up the Army’s presence and activities.

By now, the UDD/Red Shirts had fully occupied two large areas in central Bangkok and brought the day-to-day life in some areas of the Thai capital to a grinding halt. After the unjustified killings of April 10, the demonstrators added to their demands that those responsible be arrested and charged. Abhisit responded with an offer to hold elections some six months later, in November 2010, but only after the UDD/Red Shirts had met strict preconditions, including dispersing the demonstrations. The UDD/Red Shirt leadership rejected the offer, sensing a trap. On May 13—in a prelude to the civilian bloodbath that would soon follow—a prominent supporter of the demonstrations, Major-General Khattiya Sawasdipol, aka Seh Daeng, was dramatically killed by a single sniper bullet to the head while giving a press interview to the New York Times. Over the next seven days, dozens of innocent, unarmed civilians were brutally murdered on the streets of Bangkok while the world looked on. Many were horrifically gunned down by snipers perched on rooftops with high-powered rifles, the images sometimes captured by amateur videographers using mobile phones and circulated around the world via the Internet. Abhisit’s troops set up live-fire zones in strategic areas—shooting anyone and everyone who ventured into view, including one 14-year-old boy—and appeared to intentionally target medical workers who responded to assist the wounded.

On May 19, 2010, the Army stormed the UDD/Red Shirt barricades, dispersed the crowds, and arrested the leadership. Shortly thereafter, several buildings in

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downtown Bangkok were suspiciously set ablaze, some of them after having been placed under Army control. These events were subsequently used as justification for criminal charges of terrorism against the UDD/Red Shirt leaders. When the dust finally settled thousands of unarmed demonstrators had been injured, hundreds were under arrest, and dozens were dead. More arrests would follow in the days and weeks ahead as the Abhisit government grew increasingly repressive, shutting down virtually all UDD/Red Shirt media outlets and dozens of other outlets considered oppositional.

The Democrat Party clung to power, but only until a general election was held in July 2011. Given the opportunity, the Thai people again expressed themselves at the ballot box, handing Pheu Thai a landslide victory and an absolute majority of the seats in the House of Representatives. On the strength of its promises of democratic and constitutional reform, Pheu Thai was able to form a coalition government that now controls more than 300 of the 500 seats in the House. Conversely, the Democrat Party won even fewer seats than it had held in 2007.

Further, despite Abhisit’s attempt to link the UDD/Red Shirts to “terrorism” during the 2010 demonstrations in Bangkok, several prominent UDD/Red Shirt figures were elected to parliament under the Pheu Thai banner, underscoring the electorate’s rejection of the Democrat Party’s platform and its support for the newest manifestation of Thai Rak Thai.

3. Democracy Under AttackFrom the beginning of the 2011 election campaign, speculation was rife that Pheu Thai might suffer the same fate as its predecessors if it won at the polls. As expected, judicial efforts to overturn the election began even before the final tallies were in, as the opposition Democrat Party filed a number of complaints requesting that the courts initiate proceedings leading to Pheu Thai’s dissolution.4

At first, these efforts seemed to yield little effect. In the past, the Democrat Party has consistently been the principal beneficiary of the judicialization of politics and the politicization of the judiciary that have characterized the period since the military coup of September 19, 2006. Indeed, it is only thanks to a series of judicial rulings that the Democrat Party was able to form a government in 2008, despite not having won an election in twenty years. Following the 2011 elections, however, the courts appeared reluctant to intervene, perhaps in recognition of the overwhelming mandate Pheu Thai had received from the electorate. At the same time, the decision to let the election results stand was understood by supporters of the government to signify little more than a temporary truce, as

4. http://online.wsj.com/article/SB10001424052702303678704576441323472724988.html

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cases that could lead to dissolution of Pheu Thai slowly made their way through the judicial process. In fact, the attempts to undo the July 2011 elections endure to this day, through continuous appeals—lodged with the National Anti-Corruption Commission, the Election Commission, and the Constitutional Court—to disqualify prominent politicians from office, disband political parties, or block legislation from being implemented or to prevent constitutional reform.

Furthermore, it is clear that anti-democratic elements, which have previously coalesced around the PAD and their allies in the Democrat Party, are still willing and able to mobilize. One new, significant threat from these elements appeared in late 2012 in the form of a loose coalition of anti-democratic groups calling themselves Pitak Siam (Protect Siam), led by former Thai Army General Boonlert Kaewprasert, who is widely known for vehemently opposing democracy.

The Pitak Siam strategy was to bring thousands of supporters onto the streets of Bangkok to provoke violent confrontation with the aim of toppling the democratically-elected government of Yingluck Shinawatra. Boonlert publicly stated that Pitak Siam would “set up a group of persons to look after things” and attempt to “freeze” Thai democracy for up to five years.5

Meanwhile, in the face of the threat to democracy posed by Pitak Siam, the Democrat Party refused to stand in defense of the democratic process, choosing instead to offer support for the effort to overturn the election.6 Leading Democrats Abhisit Vejjajiva and Chavanond Intarakomalyasut made public statements designed to undermine Thai democracy and the elected government; Abhisit demanded that the government “take responsibility if violence erupts at the Pitak Siam anti-government rally this Saturday.” In addition, petitions to the Constitutional Court to ban the Pitak Siam demonstration pursuant to Article 68—which protects the right of democratically-elected governments to hold office under a constitutional monarchy—were roundly rejected despite overwhelming evidence that Pitak Siam explicitly aimed to overthrow democracy.7

Although Thai police dealt efficiently and effectively with Pitak Siam, the ad hoc coalition between the Thai courts, the Democrat Party and the disparate elements that were formerly part of the PAD—including the Thai Patriot Network, Thai Spring, Multi-Colored Shirts, Thai People Love the Country Protect the Land Network—continue to seek opportunities to undermine Thai democracy through extra-parliamentary and extra-judicial means.

The latest attempt to use these extra-judicial and extra-parliamentary means to unseat the government was made in mid-2013 by a small but effectively managed

5. http://asiancorrespondent.com/92540/the-smear-campaign-against-pitak-siam/. 6. http://thaipoliticalprisoners.wordpress.com/2012/11/21/abhisits-continuing-mendaciousness.7. http://www.prachatai.com/english/node/3437.

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and carefully strategized “protest” group on the streets of Bangkok and other Thai cities. Originally called “Thai Spring,” it was soon dubbed the “White Mask” group because they adopted the white “V for Vendetta” Guy Fawkes mask long associated with the progressive Occupy and Anonymous movements. Analysts are already confirming that Thai Spring/White Masks are little more than a re-incarnation of the extreme right-wing violent nationalist groups that previously coalesced around the PAD, Pitak Siam and similar.8 The White Mask group calls itself “anti-Thaksin” but their real enemy is democracy itself—the White Mask group are noted for making calls for the democratically-elected Pheu Thai government to be “overthrown.” Furthermore, the White Masks have also launched a number of violent attacks on pro-democracy Red Shirt/UDD activists.9

Such is the collusion between the White Mask groups and extreme right-wing sentiment that these masked activists have reportedly taken to the routine singing of a notorious neo-fascist Thai song entitled Nak Phaen Din or “Scum of the Earth.”10 In addition the leadership associated with the White Masks, such as “Green Politics coordinator” Suriyasai Katasila are beginning to make bizarre and outlandish claims that the Yingluck Shinawatra-led Pheu Thai government are deliberately “creating the conditions for a coup”11—the implication being that the present government is somehow seeking to stage a coup against itself.

What shouldn’t be underestimated is the White Mask group’s sophistication. The carefully calibrated air of contrived “spontaneity” gives them the image of a “grassroots” protest movement similar in tone to the Arab Spring groups of the last few years. This image is being pushed by the Thai Democrat Party’s English language-mouthpiece, the Bangkok Post, who have gone to quite ludicrous lengths of deception to portray the White Masks as a legitimate protest group rather than as a confection of the most anti-democratic elements in Thailand.

The powerful and wealthy extreme nationalist media mogul, Sonthiyan Chuenruethainaitham, founder of the Independent News Network and T-News outlets—both of which endlessly spout extreme-rightwing, anti-democratic invective—has emerged as one of the shadowy backers of the White Masks.

The Bangkok Post recently reported12 that Sonthiyan said that “that he supports the group, believes it is doing the right thing, and is confident it will continue to grow.” Sonthiyan went on to say that his company has been selling the White Masks to protesters and that “10,000 masks have been sold so far and orders are

8. http://asiapacific.anu.edu.au/newmandala/2013/06/24/a-sign-of-progress/ 9. http://www.khaosod.co.th/en/view_newsonline.php?newsid=TVRNM01UTTROalk1TXc9PQ==&sectionid=TURFd01BPT010. http://asiapacific.anu.edu.au/newmandala/2007/09/11/scum-of-the-earth/11. http://www.nationmultimedia.com/politics/White-mask-rallies-spread-30208468.html 12. http://www.bangkokpost.com/news/politics/356749/government-spooked-by-v-for-thailand-masked-movement

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still coming in.” Yet Sonthiyan seems to be a bit out of step with his fellow Thais when he suggests that “Thaksin and his family must now ask themselves how they can continue to live in a place where people hate them.”

At the time of the publication of this paper in mid-July the White Mask group was planning further protests and repeating their commitment to “overthrowing the government” and “ending corruption.” Given the elements from the former PAD and Pitak Siam that are involved with the White Masks the capacity to create disorder by this nascent protest movement should not be underestimated even if they are unlikely to ever come close to the same popularity as the democratically-elected government.

As if echoing the sentiments of the White Mask group and in the aftermath of the Egyptian coup, the leadership of the Thai Democrat Party have once again made it clear that they see a Thai coup as one possible option to remove the democratically-elected Pheu Thai-led government.

Democrat Party leader Abhisit Vejjajiva13 made a number comments in the days following the Egyptian coup that were widely interpreted to be threats to the Yingluck Shinawatra-led Thai government. Reflecting on present efforts being made by the democratically elected government to the curtail the powers granted to the judiciary by the military junta-sponsored 2007 Thai Constitution, Abhisit stated that if a government “interferes” with the judiciary “it will lead to confrontation and coup.”

Abhisit also suggested that should “conflict” arise—something his party have previously supported and actively taken part in—“the political leader usually resigns.” Abhisit went on to say that a refusal to resign “will lead to tension and violence.”

These comments by Abhisit once again reflect the mindset of the Democrat Party and its willingness to rationalise anti-democratic forces and to engage with their mobilisation. Interestingly, on this occasion, even the usually supportive Bangkok Post objected to Abhisit’s comments by making it very clear that a coup was not the way forward.

In an editorial entitled “Can a Coup be Justified?” the Bangkok Post recently wrote:

A coup is always possible, and those who favour military force in politics will always find justification. A segment of the population will show support. They include those critics opposed to the government, and others who believe in the magic of simple solutions to complicated problems. But it does not wash. A military coup never is legitimate. It inevitably sinks the country

13. http://bit.ly/1cTNmGy (Spring News TV July 4th 2013)

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economically, causes chaos to governance, and, in the case of another coup in Thailand, will bring both opprobrium and major economic & political sanctions from around the world.14

We would ask, in this instance, that the international community reflect on the Bangkok Post’s words and make it clear that they are opposed to any curtailing of democracy in Thailand.

3.1 Actions Against Individual Politicians

The opponents of Pheu Thai have focused their judicial efforts principally on two groups: Red Shirt leaders who became Members of Parliament, and top-ranking officials in the elected government, particularly Prime Minister Yingluck Shinawatra.

The Disqualification of Jatuporn Prompan

Jatuporn Prompan was born on October 5, 1965 in the southern province of Surat Thani. As a student leader at Ramkhamhaeng University, he participated in the pro-democracy demonstrations that forced General Suchinda Kraprayoon to resign after massacring up to a hundred unarmed protesters in May 1992. Having joined Thai Rak Thai in the late 1990s, Jatuporn was elected to the House of Representatives in 2007, on the list of the People Power Party. After the dissolution of the People Power Party in late 2008, Jatuporn remained in parliament, joining the newly established Pheu Thai. At the same time, Jatuporn became one of the core leaders of the UDD/Red Shirt movement. As a leader of the UDD, Jatuporn organized demonstrations in Bangkok in April 2009. Following a bloody Army crackdown that forced the UDD to call off the protests, Jatuporn was arrested, along with other Red Shirt leaders, for participating in a gathering that had been declared illegal as a consequence of the government’s imposition of an Emergency Decree.

One year later, Jatuporn again led Red Shirt demonstrations in central Bangkok between March 12 and May 19, 2010, giving impassioned speeches against the Abhisit government. In the weeks following the bloody end to the demonstrations, Jatuporn and other UDD leaders were officially charged with participating in an illegal gathering, in contravention of the government’s declared state of emergency. Later, Jatuporn was among the leaders indicted on terrorism charges, stemming from the arson of some three dozen buildings that took place on May 19, 2010, after UDD leaders were already in police custody. Unlike most of the other core leaders of the UDD, who spent up to nine months in custody before being granted bail, Jatuporn’s status as a member of parliament allowed for his quick release. Though subject to conditions that limited his movements and activities, Jatuporn led

14. http://www.bangkokpost.com/opinion/opinion/358953/can-a-coup-be-justi-fied

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frequent, peaceful demonstrations calling for justice, accountability, and the freeing of hundreds of political prisoners still in custody for violating the Emergency Decree and other alleged offenses.

On April 10, 2011, Jatuporn took to the stage during a commemoration organized at the Democracy Monument on the occasion of the first anniversary of the government crackdown. In a fiery forty-five minute speech, Jatuporn lambasted the Abhisit administration and the Royal Thai Army for using the pretext of “protecting the monarchy” as an excuse to criminalize the Red Shirt movement and murder its members the year before, despite the fact that the UDD’s sole demand had been dissolution of the House of Representatives. Jatuporn further criticized the Constitutional Court for judicial bias, making reference to leaked video recordings that captured some of the justices colluding with Democrat Party officials.

Days later, representatives of the Royal Thai Army filed a complaint for lese majeste against Jatuporn on behalf of Commander-in-Chief Prayuth Chan-ocha, who alleged that Jatuporn’s speech had violated the monarchy. While a year-long investigation subsequently concluded that the charges were baseless, the Department of Special Investigations petitioned the Criminal Court to revoke Jatuporn’s bail. The Court granted that request on May 12, 2011, only three days after Jatuporn’s parliamentary immunity had lapsed as a result of the dissolution of the House of Representatives. Jatuporn was held in Bangkok Remand Prison until August 2, 2011.

One week after his bail was revoked, Jatuporn’s name was included in the party list that Pheu Thai submitted for the election of July 3, 2011; Jatuporn appeared as the eighth-ranked candidate on the party’s national list. The Election Commission endorsed the list after verifying that the candidates met the required legal qualifications. In advance of the election, Jatuporn’s lawyers repeatedly filed motions requesting that the Criminal Court grant bail or temporary release to allow him to vote. Those requests were denied, depriving Jatuporn of his right to vote. The Democrat Party immediately seized upon Jatuporn’s inability to cast a vote, alleging that he therefore lacked the qualifications to serve in parliament. At first, the Election Commission certified the election results, allowing Jatuporn to be sworn in as a member of the new House of Representatives, which first met on the day of his release. In late November 2011, however, the Election Commission ruled by a 4-1 vote that Jatuporn should be disqualified as a Member of Parliament, asking the Speaker of the House of Representatives to refer the case to the Constitutional Court for a final ruling. On May 18, 2012, the Constitutional Court ruled that Jatuporn’s detention on election day, and consequent non-participation in the election, disqualified him from serving as a Member of Parliament under provisions of the 2007 Constitution and the 2007 Organic Act on Political Parties.

The reasoning of the Court was as follows:

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• Jatuporn was prohibited from voting under Article 100(3) of the 2007 Constitution, which specifies “being detained by a warrant of the Court or by a lawful order” on election day as one of the prohibitions leading to disenfranchisement.

• Jatuporn ceased to be a member of the Pheu Thai party on the day of the election, July 3, 2011, on the basis of provisions contained in the 2007 Organic Act on Political Parties. Specifically:

• Article 20(3) of the Organic Act states that party membership terminates upon being subject to prohibitions mentioned in Article 19 of the same Act.

• Article 19(1) of the 2007 Organic Act provides that “a person who is eligible to be a member of a political party” must not be “subject to any of the prohibitions” under Article 8(1) of the same Act, which lists the qualifications individuals must possess to register a political party.

• In turn, Article 8(1) specifies that individuals subject to “prohibitions entailing electoral disenfranchisement under the Constitution” are barred from forming a political party.

• The Criminal Court’s denial of temporary release for the purposes of voting, therefore, was held to have automatically terminated Jatuporn’s membership in the Pheu Thai Party, even in the absence of an official resignation.

• Article 101(3) of the 2007 Constitution provides that a candidate to the House of Representatives must, among other things, be “a member of any and only one political party.” On that basis, the Constitutional Court held that the termination of party membership on election day caused Jatuporn to lose the qualification to be a candidate.

• Article 106(4) of the 2007 Constitution lists disqualification under Article 101 as a reason for the termination of an individual’s membership in the House of Representatives. Jatuporn was thereby disqualified from serving in parliament.

Whereas the Constitutional Court was able to invoke a legal technicality upon which to justify the termination of Jatuporn’s status as member of parliament, every stage in the two-year process that led to this outcome, from the initial arrest on May 19, 2010 to the Constitutional Court’s ruling on May 18, 2012, was marred by violations of Jatuporn’s civil and political rights, as guaranteed in the International Covenant on Civil and Political Rights (ICCPR), customary international law, and Thailand’s own constitution.

First, international organizations have widely questioned the appropriateness of the

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criminal charges that Jatuporn still faces in connection with his involvement in the 2010 Red Shirt rallies. Specifically, the charge of participation in an illegal gathering stemmed from the previous government’s unlawful abuse of its emergency powers. Article 4 of the ICCPR permits the suspension of certain rights, such as the right to demonstrate, only in instances where a public emergency “threatens the life of the nation” and only “to the extent strictly required by the exigencies of the situation.” Under no circumstances can a State of Emergency be used to “undermine the rule of law or democratic institutions.” According to the International Commission of Jurists, Human Rights Watch, the International Crisis Group, Amnesty International, and the Asian Legal Resource Center, among others, Thailand’s 2005 Emergency Decree, and the Thai government’s recourse to emergency powers in 2010, failed this crucial test.

Similar doubts have been raised over the political nature of the terrorism charges on which Jatuporn and other fellow Red Shirt leaders were indicted in August 2010. While the Red Shirts were accused by the government of committing various acts of violence, there exists no evidence pointing to the Red Shirt leaders’ role in planning the attacks, or even having knowledge of the attacks. Moreover, authoritative observers have publicly cast doubt on whether even the worst offenses could be reasonably described as “terrorism.” In the aftermath of the protests, the International Crisis Group urged Thailand to drop terrorism charges against the UDD leaders because the UDD never targeted civilians, but were labeled “terrorists” based on an exceedingly broad definition.15

Similarly, the United Nations Special Rapporteur on Human Rights and Counter-Terrorism, Martin Scheinin, expressed serious reservations about whether any of these offenses might qualify as “terrorism,” owing to the fact that the Red Shirts have never been accused of “serious violence against members of the general population or segments of it.”16 In truth, the terrorism charges were simply a way to justify the government’s violent crackdown, whose rules of engagement specifically authorized security forces to kill “terrorists” without specifying what criteria actually qualified a person as a “terrorist.”

The revocation of Jatuporn’s bail on May 12, 2011 constituted a punitive act, conveniently timed by the Criminal Court to coincide with the lapse of his status as member of parliament after the dissolution of the House of Representatives. By then, Jatuporn had been out on bail for almost a year; in that time, he was never alleged to have tried to flee the country, or to have committed offenses similar to those on which he is awaiting trial. Tellingly, what triggered Jatuporn’s re-arrest was Thailand’s Army Chief’s displeasure with his criticism of the Royal Thai Army’s conduct during the massacre of Red Shirt protesters the year before. While the

15. http://www.crisisgroup.org/~/media/Files/asia/south-east-asia/thailand/192_Bridging%20Thailands%20Deep%20Divide.pdf, at p. 21. 16. http://legalift.wordpress.com/2011/02/20/un-special-rapporteur-criticizes-thailands-terrorism-law/.

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complaint filed on behalf of General Prayuth Chan-ocha alleged that Jatuporn had committed lese majeste in his speech on April 10, 2011, the speech contains neither criticism of the monarchy nor any threat of violence and unrest. Simply put, Jatuporn was punished by the Criminal Court for exercising his rights to free expression, as guaranteed by Thai law, on the vague notion that his words were meant to “incite the crowd.”

While the Thai Constitution specifically provides for the disenfranchisement of persons “detained by a lawful order” on election day, whether or not such persons were convicted of a crime, preventing those accused of a crime from exercising the right to vote is at odds with the presumption of innocence sanctioned in Article 39 of the Thai Constitution. But whereas an argument could at least be made that it would be impractical to allow all prisoners awaiting trial to safely travel to the polls on election day, there is no question that the termination of an accused person’s membership in a political party in the absence of proven wrongdoing constitutes a form of punishment in the absence of a criminal conviction, of the kind that Article 39 of the Constitution explicitly prohibits. The violation is made all the more egregious by the fact that the punishment in question restricts the fundamental right to free association, protected in the Thai Constitution.

Aside from violating Jatuporn’s fundamental right to free association and to the presumption of innocence, the Constitutional Court’s decision to disqualify him from parliament was based on a tendentious interpretation of the relevant statutes. As Jatuporn’s lawyers pointed out, the provisions of the Organic Act on Political Parties upon which the Constitutional Court ruled that Jatuporn’s membership in Pheu Thai was automatically terminated on election day are in conflict with provisions of the Constitution that list the qualifications that individuals must possess to present their candidacy for election and serve in parliament. In that regard, the Constitutional Court’s decision is one of several instances in which Thai courts have failed to treat the Constitution as Thailand’s controlling legal framework, but have instead permitted other laws to override it.

Article 102(3) of the Constitution only bars those convicted of a crime, not those accused of a crime, from submitting their candidacy; similarly, Article 102(4) states that only those convicted of a crime, not those accused of a crime, lose their right to stand for election once a candidacy is submitted. Moreover, Article 106 of the Constitution, citing Article 102, only prohibits those convicted of a crime, not those accused of a crime, from serving in the House of Representatives. As a result, lawyers argued that Jatuporn’s disqualification, technically grounded in provisions in the Organic Act on Political Parties that regulate party membership, are in conflict with the relevant provisions in the Constitution, which do not contemplate that those accused (but not convicted) of a crime should be deprived of their right to stand for election or serve in the House of Representatives. Jatuporn’s lawyers requested that the Court resolve the conflict by giving precedence to the Constitution, the highest law of the land. Few, however, were surprised by the Constitutional Court’s eventual

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ruling, which disqualified Jatuporn not by invoking the relevant provisions in the Constitution, but rather through the back door of the rules on party membership.

The ruling against Jatuporn sets a dangerous precedent for a country with Thailand’s recent track record. Based on this ruling, from now on any candidate for political office—an aspiring legislator, a contender for the position of Prime Minister, or even the entire list of candidates fielded by a political party—can be disqualified from serving in office if detained “by lawful order” on election day. Not only is no conviction required; the candidate can be disqualified on that basis even if the arrest results in no formal criminal charges. In a country where the judiciary suffers from insufficient independence, and where the courts have served as the primary instrument by which unelected elites have altered the results of elections, these sweeping powers reserved for the judicial branch pose a grave threat to democracy and the future conduct of Thai elections.

Attempts to Block Post-Election Certification of Pheu Thai Candidates

After the July 2011 election, the Election Commission delayed endorsing Thaksin’s former lawyer Pichit Chuenban, as well as Red Shirt leaders and Pheu Thai MPs Jatuporn Prompan, Nattawut Saikua, Wiputhalaeng Pattanapumthai, and Dr. Weng Tojirakarn, due to their association with the Red Shirt protests in 2010. The Pheu Thai Party, well versed in the strategies employed by the opposition, stood by its candidates with unwavering solidarity until the charges were eventually dropped and the government could be formed.17

Other Pheu Thai Party members have been threatened with disqualification in attempts by the opposition to limit the mandate of the government. In July 2012, Karun Hosakul was successfully disqualified by the Election Commission, and later by the Supreme Court, for slandering a Democrat Party Member of Parliament during his campaign speeches.18 The disqualification took a controversial turn as one of the Election Commissioners who was opposed to the disqualification said that there was no precedent within either the Election Commission or the Supreme Court for a case in which an election winner had slandered his competitor. The Election Commission has also considered whether Red Shirt leader Korkaew Pikulthong could remain a Pheu Thai MP after his bail had been revoked by the Criminal Court.19

Attempts to Disqualify Yingluck Shinawatra

Yingluck Shinawatra faced several attempts by the opposition to have her barred from politics in the lead-up to the 2011 general election. Two PAD members petitioned

17. http://www.nationmultimedia.com/national/Yingluck-to-remain-PM-candidate-30160346.html.18. http://www.nationmultimedia.com/politics/Abhisit-tells-Sodsri-off-for-explaining-her-vote-30184740.html.19. http://www.nationmultimedia.com/politics/No-change-in-Korkaew-status-30195424.html.

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the Department of Special Investigations, the Securities and Exchange Commission (SEC), the National Anti-Corruption Commission, and the Office of the Attorney General to investigate Yingluck’s alleged perjury during Thaksin Shinawatra’s asset-seizure case.20 Furthermore, former Finance Minister Korn Chatikavanij demanded that the SEC perform a speedy investigation into Yingluck’s alleged hidden assets before the election in an attempt to block her candidacy.21

Immediately after the election, the Election Commission delayed endorsing Yingluck’s election victory, citing a pending inquiry into several “legal matters,” most notably allegations of vote-buying after she cooked and distributed noodles to constituents at campaign rallies.22 In addition, the Election Commission fielded complaints against Yingluck regarding her brother Thaksin’s influence over the campaign.

Further, since taking office in August 2011, Prime Minister Yingluck has withstood several attempts by the opposition to have her disqualified. In the beginning of 2012, the Office of the Ombudsman warned that Yingluck could face disqualification over her ministerial appointments, in particular the choice of Red Shirt leader Nattawut Saikua as Deputy Agriculture Minister, who was allegedly guilty of “moral wrongdoing” due to his involvement in the Red Shirt protests.23 This process dragged on for several months before the Ombudsman finally dropped the case.

Yingluck also faced petitions by the Democrat Party to have her disqualified due to her bureaucratic appointments, in particular her choice of permanent secretary of defence.24

In December 2012, the opposition concentrated its efforts on the government’s alleged mishandling of the rice pledging policy, a policy pledge made during the 2011 campaign whereby the government buys rice from Thai farmers at a fixed price that is higher than market value. The Democrat Party has petitioned the National Anti-Corruption Commission with allegations of money laundering, as well as ties between those involved and Thaksin Shinawatra.25

More recently, the opposition pursued the disqualification of Yingluck by the National Anti-Corruption Commission due to allegations of inconsistent asset declarations

20. http://www.nationmultimedia.com/national/DSI-to-look-into-claims-against-Yingluck-30158405.html.21. http://www.nationmultimedia.com/business/SEC-investigation-on-Yingluck-pending-30158895.html.22. http://www.nationmultimedia.com/national/EC-bombshell-on-Yingluck-30160164.html.23. http://www.nationmultimedia.com/politics/Action-on-new-ministers-unlikely-30175159.html.24. http://www.nationmultimedia.com/breakingnews/NACC-probes-Boonsong-Yingluck-Sukampol-30195592.html. 25. http://www.nationmultimedia.com/politics/Democrats-to-pursue-rice-scam-30195420.html.

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with regards to a loan that Yingluck extended to a company in which her husband was a stakeholder.26 The charges were dropped following an investigation. Pheu Thai also continues to face threats of dissolution, as the opposition has challenged its decision to issue a new passport for former Prime Minister Thaksin Shinawatra.27 In connection with the same incident, the Democrat Party has filed an impeachment motion against Foreign Minister Surapong Tovichakchaikul on the grounds of “unconstitutional conduct” on his behalf, for asking the Japanese authorities to issue Thaksin a special permit entry.28

Additionally, the government has faced allegations of abuse of power in relation to the Infrastructure Act, which will see the government borrow 2 trillion Baht in order to invest in the country’s infrastructure, a sector that has been neglected due to the country’s lack of political continuity. The former drafters of the Constitution petitioned the National Anti-Corruption Commission to try Prime Minister Yingluck and her Ministers in the Supreme Court for allegedly violating Article 169 of the Constitution, which stipulates that all government spending be included in the budget bill.29

The most recent charges against the Prime Minister involve the Pheu Thai Party’s campaign during Bangkok’s gubernatorial election. The Election Commission received a complaint that she abused her authority during the election by misleading voters. Specifically, it is alleged that she helped Pheu Thai-backed candidate Pongsapat while on the campaign trail with him, in violation of Article 60 of the Local Organic Act, which bans public officials from carrying out activities that benefit candidates.30

3.2 Attempts/Threats to Dissolve Pheu Thai

1. Over Jatuporn’s Case:

Immediately after the Constitutional Court ruled to disqualify Jatuporn from Thailand’s House of Representatives, officials in the Democrat Party announced plans to request that Pheu Thai be dissolved on the basis of the Court’s finding. The Democrat Party has argued that Pheu Thai—which won the 2011 elections in a landslide—“inappropriately endorsed” Jatuporn’s candidacy, and that, in turn, Jatuporn’s inclusion in the party’s slate of candidates caused the election to be

26. http://www.nationmultimedia.com/politics/Yinglucks-job-may-be-on-the-line-over-two-hot-iss-30202250.html.27. http://www.nationmultimedia.com/politics/Yinglucks-job-may-be-on-the-line-over-two-hot-iss-30202250.html.28. http://www.nationmultimedia.com/national/Impeachment-motion-filed-against-Surapong-30163646.html.29. http://www.nationmultimedia.com/politics/PM-Cabinet-to-face-probe-over-Bt2-tn-loan-bill-30203350.html30. http://www.nationmultimedia.com/politics/Graft-charges-continue-to-haunt-Yingluck-30203776.html.

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conducted in a “dishonest and unfair manner.” Should the Election Commission agree with that reasoning, it may request that the Constitutional Court dissolve Pheu Thai under Article 237 of the 2007 Constitution.

The argument is without serious legal merit, for a variety of reasons. First, Jatuporn did not lack the qualifications to be a candidate at the time the party lists were submitted, as required by Article 102 of the Constitution. To reason otherwise is to conclude that anyone detained by an order of the court automatically forfeits his or her membership in a political party, even if that does not entail the failure to vote in an election. The Organic Act on Political Parties, however, provides for the termination of party membership only in cases where a person is deprived of the right to vote, or the exercise thereof.

Second, Jatuporn’s candidacy was endorsed by the Election Commission of Thailand, which, according to Article 43 of the “Organic Act on the Election of Members of House of Representatives and the Senate,” must examine the qualifications of each of the candidacies submitted before it approves and publishes the candidate slates. Moreover, Article 25 of the same Act empowers the Election Commission to intervene, prior to the election, in cases where candidates for office are suspected of having lost the right to stand for election, and to ask the Supreme Court to render a ruling on the matter. In spite of the publicity received by Jatuporn’s detention, the Election Commission never made any such request to the Supreme Court before the election, and even certified the election’s result, paving the way for Jatuporn to be sworn in as a Member of Parliament.

Even more implausible is the notion that Jatuporn’s candidacy would have caused the election to proceed in a “dishonest and unfair manner.” Had Jatuporn been excluded from Pheu Thai’s national list in advance of the election, whether as a result of the party’s own decision, the Election Commission’s failure to endorse his candidacy, or intervention by the Supreme Court, there is no evidence to suggest that Pheu Thai would have garnered more or less votes in the election.

Still, the frivolousness of the Democrat Party’s case is little comfort, considering that Thailand’s politicized Constitutional Court has the power to disband a political party simply by asserting – under what are broad, vague and selectively enforced provisions—that at least one of the party’s executives caused the election to proceed in a “dishonest and unfair manner.” Indeed, something quite similar has happened more than once in the past six years. Consequently, the prospect that the courts might intervene to dissolve Pheu Thai and effectively overturn the results of another election has always been very real, regardless of the merit of the arguments or the resulting infringement of the Thai people’s right to self-determination.

2. Over Role of Red Shirt Leaders in 2011 Campaign:

On July 8, 2011, Wiratana Kalayasiri, the Democrat Party’s legal expert, filed a petition with the Election Commission seeking a recommendation to the Constitutional Court

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for dissolution of the Pheu Thai Party on the ground that the party had allegedly permitted banned politicians to take part in its election campaign. The petition asserted that members of the defunct Thai Rak Thai party were believed to have taken part in Pheu Thai’s affairs, such as selecting candidates and creating policies, and that Article 97 of the Political Party Act required dissolution of the Pheu Thai Party as a result. The petition also asked the Election Commission to consider whether Pheu Thai could be dissolved on the ground that certain members of the People’s Power Party had purportedly joined the Yingluck election campaign.31

Similarly, on July 13, 2011, leading PAD activist Chaiwat Sinsuwong launched legal proceedings aimed at invalidating the outcome of the July 3 vote on grounds of “unfairness” due to the lapse of supervision by the Election Commission. Among other allegations, Chaiwat asserted that the Election Commission had wrongfully endorsed certain electoral candidates despite their previous records as “instigators” to disrupting peace. The petition called for dissolution of the Pheu Thai Party because of its relationship with the Red Shirts, including purported financial backing by Prime Minister Yingluck.32

3. Over Banned Politicians:

Immediately following Pheu Thai’s landslide victory in the 2011 general election, one of the opposition’s strategies was to call for Pheu Thai’s disbandment because of the influence of Thaksin Shinawatra on party policies. Having voted overwhelmingly for a party that campaigned with the slogan “Thaksin thinks, Pheu Thai acts,” the majority of the electorate clearly welcomed Thaksin’s involvement in the policies of the government.33 However, both Democrat Party Members of Parliament and members of the PAD used Thaksin’s involvement as a basis to petition the Election Commission to disband Pheu Thai and bar the party members from politics for five years, citing Article 97 of the Political Party Act.34

Democrat Party members have made similar threats to dissolve the Pheu Thai Party based on the disqualification of other Pheu Thai Party candidates. For example, the Election Commission disqualified Dissathat Kamprakob from membership in the parliament after he was found to have been a resident for less than five years of the constituency for which he was elected. Immediately thereafter, the Democrat Party announced that it would investigate whether the Pheu Thai Party had “aided and abetted” the alleged fraud, and that it would seek to dissolve the Pheu Thai Party if it was not satisfied with the outcome.35

31. http://www.nationmultimedia.com/national/Democrat-seeks-Pheu-Thai-dissolution-30159882.html.32. http://www.nationmultimedia.com/breakingnews/Chaiwat-asks-EC-to-dissolve-six-parties-30160170.html.33. http://www.nationmultimedia.com/national/Invalidate-July-3-vote-impeach-EC-say-activists-30160244.html.34. http://www.nationmultimedia.com/politics/Party-dissolution-threats-charter-amendments-among-30173080.html.35. http://www.nationmultimedia.com/politics/Democrats-consider-seeking-Pheu-

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4. Over Campaign Promises:

On July 17, 2011, Wirat Kalayasiri, a Democrat Party Member of Parliament, threatened to seek dissolution of the Pheu Thai Party if certain purported campaign promises were not implemented by early 2012. The specific issues involved legislation over the daily minimum wage, technology for students, and salaries for college graduates. According to Wirat, failure to implement the policies would give rise to allegations that Pheu Thai had “deceived the people,” which—according to Wirat—would constitute a violation of Article 53 of the MPs and Senators Election Act, leading to potential dissolution of the party.36

5. Over Charter Amendment in 2012:

The Pheu Thai Party based its 2011 election campaign platform on an agenda of reforms, and above all, reforms to the Constitution. Individual members of Pheu Thai have long advocated that Thailand should replace its 2007 Constitution, written under military rule, with its 1997 Constitution. Abolished by the generals who seized power in the 2006 military coup, the 1997 Constitution is widely recognized as the most democratic among the eighteen constitutions Thailand has lived under since 1932. Rather than attempt to reintroduce the old document, however, the government of Yingluck Shinawatra has proposed that the Constitution be re-written by a Constitution Drafting Assembly, as has happened several times in the past few decades. Contrary to prior instances, the coalition’s position is that the Constitution Drafting Assembly should be for the most part elected by the people, one for each of Thailand’s seventy-seven provinces, and should limit the number of appointed experts, who had dominated previous panels, to twenty-two. The draft produced by the Constitution Drafting Assembly would then be put to the people for approval in a referendum.

Instead of attempting to amend the Constitution in parliament, as it is empowered to do under Article 291 of the present charter, the government has sought to amend Article 291, broadening it to allow for the establishment of a Constitution Drafting Assembly of the kind described above. By May 2012, the proposed amendment had already been debated and approved by an overwhelming majority (340-101) of members of the House of Representatives and Senate in two of the three readings required by the Constitution. The National Assembly was scheduled to begin its third and final reading of the constitutional amendment on June 5, 2012.

a. Complaints to the Constitutional Court

Upon the passage of the second reading in May 2012, members of the Democrat Party and some appointed Senators submitted complaints to the Constitutional Court, alleging that Pheu Thai and other parties in the government’s coalition, in pushing the constitutional amendment, had violated Article 68 of the Constitution.

Thai-dissolution-30178145.html.36. http://www.nationmultimedia.com/national/Failed-promises-could-draw-lawsuits-30160496.html.

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Article 68 provides:

No person shall exercise the rights and liberties prescribed in the Constitution to overthrow the democratic regime of government with the King as Head of State under this Constitution or to acquire power to rule the country by any means not in accordance with the modes provided in this Constitution.

Faced with the challenge of explaining how a procedural amendment to Article 291 of the Constitution constitutes an attempt “to overthrow the democratic regime of government with the King as Head of State,” the plaintiffs argued that the apparently innocuous amendment would enable Pheu Thai and its allies to pursue their “hidden agenda” to overthrow the current regime of government. This is in keeping with an old conspiracy theory peddled by the PAD, the Democrat Party and the Royal Thai Army, who have long accused former Prime Minister Thaksin Shinawatra and his supporters of scheming to overthrow the monarchy. The accusation, though never substantiated in any way, was the basis upon which the 2006 military coup and the 2010 massacre of Red Shirt demonstrators were explained to the public. Most recently, Thailand’s Department of Special Investigations concluded that a famous alleged conspiracy to overthrow the monarchy, which the administration of Abhisit Vejjajiva and the Royal Thai Army announced they had uncovered in 2010, was based on no evidence.37 In other words, the concocted conspiracy was nothing more than an excuse to criminalize the Red Shirt movement and the Pheu Thai Party.

The complaints filed with the Constitutional Court in May 2012 are based on this discredited underlying claim. Specifically, the plaintiffs argued that the amendment to Article 291 of the Constitution would pave the way for the election of a Constitution Drafting Assembly dominated by supporters of the current government. In turn, the plaintiffs alleged, these unnamed and yet-to-be-selected members of the Constitution Drafting Assembly would write into the new Constitution provisions that would seek “to overthrow the democratic regime of government with the King as Head of State,” in spite of the government’s stated position that constitutional provisions related to the monarchy should not be amended.38 In essence, the Constitutional Court is being asked to scrutinize what may be in the minds of legislators who voted in favor of amending Article 291 of the Constitution, and to conduct the sort of “trial of intentions” permitted in no democratic country with any respect for the rule of law. The Court’s position is rendered all the more puzzling by the fact that the proposed amendment to Article 291 would have the government cede the initiative and direction of the constitutional project to the people, giving the people an unprecedented opportunity to chart their own democratic future.

37. http://www.nationmultimedia.com/national/DSI-poised-to-drop-lese-majeste-conspiracy-case-30179098.html 38. http://m.bangkokpost.com/opinion/293652

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It was telling that the ruling sought by the plaintiffs would legitimize the suspicion that increasing the role of the people in the constitutional reform process, accomplished through the procedure spelled out in the existing Constitution, threatens “to overthrow the democratic regime of government with the King as Head of State.” The Court has in fact never expressed similar unease about the actions of the military junta that resorted to using force in 2006 to topple democracy and abolish a lawful Constitution. Indeed, one of the petitions asking the Constitutional Court to stop the amendment process under Article 68 specifically mentions the possibility that an elected Constitution Drafting Assembly might repeal Article 309 of the 2007 Constitution, whose provisions declare each of the measures taken by the military junta in 2006 and 2007 to be “lawful and constitutional,” as one of the specific threats the amendment process poses to “the democratic regime of government with the King as Head of State.”

The complaints lodged with the Constitutional Court are especially insidious because, under the provisions of Article 68 of the Constitution, the Court is empowered to order the dissolution of any political party found to have attempted “to overthrow the democratic regime of government with the King as Head of State.” As a result, these provisions offer the quickest and most direct way in which the Constitutional Court may dissolve Pheu Thai and its allies. Presented with the opportunity to act by the chaos fomented inside and outside parliament by the Democrat Party and the PAD, and perhaps more importantly the need to block any amendment to a constitution written at the behest of a military junta, the Constitutional Court appears to have taken the express route to another “judicial coup.”

b. The Constitutional Court Exposes Itself

Amazingly, the Constitutional Court agreed to review the presumed “hidden intentions” of political parties that proposed the amendment to Article 291 of the Constitution. In so doing, the Court overstepped the bounds of its constitutional authority; Article 291 of the Constitution does not contemplate any role for the Constitutional Court in the process of amending the Constitution, which is a prerogative reserved for the legislative branch, acting on a proposal submitted by either the executive or a group of parliamentarians.

Nor does any provision in the Constitution empower the Constitutional Court to order the parliament to suspend its deliberations on constitutional amendments, yet this also occurred. On June 1, 2012, Thailand’s Constitutional Court took the extraordinary step of issuing an injunction, in contravention of the law and in excess of the Court’s constitutional authority, ordering the National Assembly to cease all deliberations on a proposed amendment to the 2007 Constitution, pending a review of the amendment’s constitutionality. 39 In issuing its injunction, therefore, the Constitutional Court – based on the weakest of rationales—committed an egregious

39. http://www.bangkokpost.com/news/local/296309/constitution-court-under-fire-over-charter-bill-vote

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violation of the separation of powers, a founding principle of any representative democracy.

Moreover, the Constitutional Court’s injunction actually breached the provisions of Article 68 of the Constitution upon which it decided to act. Article 68 requires that individuals or groups suspected of having committed an act aiming “to overthrow the democratic regime of government with the King as Head of State” be investigated by the office of the Attorney General; at the conclusion of the investigation, it is up to the Attorney General to “submit a motion to the Constitutional Court for ordering the cessation of such an act.” If it approves the motion, the Constitutional Court has the option to order the dissolution of any political party found to have engaged in the act. In this instance, the Court received no such motion from the Attorney General. Contrary to both the letter and the spirit of the Constitution, the Court simply took the matter into its own hands and enjoined the parliament from exercising its constitutional powers. Further, the Court ordered the accused to provide the Court with a defense of their motives before any investigation is even conducted. In announcing the decision, a spokesman for the Constitutional Court conceded that the National Assembly would face no penalty should it fail to heed the injunction, as no law gives the Court the power to issue such an injunction; he warned, however, that ignoring the unlawful order “may reflect an intent as claimed in the petitions.”40

The Constitutional Court issued its injunction on the same day that a few hundred activists from the PAD, in cooperation with members of the opposition Democrat Party, blocked all roads to Thailand’s parliament, preventing the House of Representatives from meeting to debate a controversial “Reconciliation Act.” Two prior meetings of the House had been disrupted by the PAD’s threat to storm the halls of the National Assembly, and by the intemperate outbursts of Democrat Party Members of Parliament, some of whom physically assaulted the House Speaker and other parliamentarians. Once again, the anti-Thaksin coalition had teamed up to delegitimize the democratic process and prevent the representatives of the Thai people from fulfilling their legislative functions under the Constitution, laying the groundwork for the removal of a duly elected and legally constituted government, whether by military force (as in 2006) or by judicial intervention (as in 2008).

Subsequently, on July 13, 2012, the Constitutional Court issued yet another ruling concerning Article 68. While the Court stopped short of dissolving the Pheu Thai Party, or finding some other creative way to remove the government, there was no reason to celebrate the verdict. The Constitutional Court’s verdict set out four principles that are unacceptable in a democratic country founded upon the rule of law:

• The Constitutional Court has the power to declare “constitutional” something that the Constitution explicitly prohibits. In this regard,

40. http://www.bangkokpost.com/news/politics/296184/charter-vetting-put-on-ice.

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the Constitutional Court concluded that it had jurisdiction to rule on complaints alleging violations to Article 68 of the Constitution without a prior investigation by the Attorney General, which the Constitution explicitly requires.

• The Constitutional Court has the power to declare “unconstitutional” something that the Constitution allows. In this respect, the Court argued that the National Assembly does not have the power to amend the Constitution, in accordance with the procedure mandated by the Constitution, in a manner that would allow a Constitution Drafting Assembly to write a new charter, despite the fact that the Constitution contains no such prohibition.

• A Constitution can only be rewritten in its entirety as a result of a military coup. While the Court ruled that the National Assembly cannot exercise its constitutional powers to amend the existing Constitution in order to allow the charter to be re-drafted, the Court has no issue with the legality of the junta’s abolishment of the 1997 Constitution.

• A government elected by the people of Thailand can only stay in office if it refrains from actually making use of its powers under the Constitution, especially for the purposes of implementing its agenda or fulfilling its campaign promises. When it does move, as it did in this case, the Constitutional Court has the authority to make up additional constitutional requirements mandating that the government stop what it is doing.

While each of these aspects of the Court’s ruling is outrageous in its own right, rolling all four into one verdict underscores the moral bankruptcy of the Constitutional Court and its utter disregard for the law.

As Thai legal scholars—including a former Senator and Dean of Thammasat University’s Department of Law—have pointed out, the Court’s decision to ignore the Constitution’s own provisions, and to arrogate powers well in excess of its constitutional authority, threatens the functioning of democracy by undermining the separation of powers and the authority of branches of government subject to election by the people. As a result, the decision by the Court represents “an intentional exercise of power contrary to the provision of the Constitution or law,” which Article 270 of the Constitution mentions as grounds upon which government officials, including Constitutional Court justices, may be removed from their posts by a supermajority of the Senate, in accordance with the provisions of Article 274.41

In a major work on the judicialization of politics in Asia, Dr. Björn Dressel—a Senior Lecturer at the Crawford School of Public Policy at Australian National University’s College of Asia & the Pacific—has described judicial involvement in Thai politics since the 2006 coup as “unprecedented not only in Thailand but throughout

41. http://prachatai.com/journal/2012/06/40810.

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Southeast Asia and beyond.”42 He went on to describe the boldness exhibited in recent judicial interventions, the disregard shown by the courts for standards of procedural justice, and the far-reaching implications that judicial decisions have had for democratic governance. As the Constitutional Court continues to interfere in the legislative process, especially for the purposes of blocking constitutional amendments aiming to make the country more democratic, it is likely to inflict even greater damage to the democratization of the country.

6. Over Subsequent Efforts on Charter Amendments:

The constitutional provision on party dissolution is arguably the most powerful weapon wielded by the anti-Thaksin coalition, and has been a tried and tested maneuver by the Constitutional Court. Few in Thailand worry that the government might fall out of favour with the electorate or lose the confidence of parliament due to a lack of “job performance.” The real threat is the ability of the establishment to order the disbandment of the party and the banning of party members from politics for five years on dubious legal grounds.43

The multiple attempts to dissolve the Pheu Thai Party based on dubious legal grounds seemed for a moment to have had their desired effect, as senior Pheu Thai member Phumtham Wechayachai admitted to media that the party was “playing it safe” for fear of dissolution. A new election would mean setting up a new party, presumably for a new victory in the voting booth. It is a process with which party members are simply exhausted, according to Phumtham, and they have therefore avoided activities that are “open to legal interpretation” by the Constitutional Court.44

The recent rounds of attempts to amend the Constitution have faced obstacles at every turn, most of which have little basis in the law and practice of a modern democracy. A group of appointed Senators known as the Group of 40 has announced its opposition to the amendments, most recently on grounds that the efforts are “mired in conflicts of interest” and therefore violate Article 122 of the Constitution. The questions raised about the motives behind amendments to the Constitution highlight the lack of legal underpinnings to the opposition’s arguments. Moreover, it comes as no surprise that Senators allied with the anti-Thaksin coalition would oppose an amendment seeking to reinstate a wholly-elected Senate. Far from weakening checks and balances – which is what the appointed Group of 40 suggests it would do – an elected Senate would be accountable to the electorate rather than various legal “principles” subject to twisted interpretation.45

42. Dressel, Björn, The Judicialization of Politics in Asia, Routledge 2012, p. 79.43. http://www.nationmultimedia.com/politics/Charter-change-is-the-real-battle-30193516.html. 44. http://www.nationmultimedia.com/politics/Pheu-Thai-wants-to-avoid-grounds-for-another-disso-30191407.html. 45. http://www.nationmultimedia.com/politics/Push-for-charter-change-mired-in-conflict-of-inte-30202395.html.

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The anti-Thaksin coalition and the Democrat Party continue to showcase themselves as an alliance opposed to the development of democratic principles in Thailand. Indeed, it is difficult to conceive that any group or party that claims to favor democracy could possibly advance an argument against the creation of a wholly elected Senate. Nevertheless, during the latest round of parliamentary debates on the constitutional amendments, Democrat Party members argued that an elected Senate would only favor specific groups within Thailand. Indeed, immediately before asserting that the Democrat Party adheres to democracy and transparency, its leader, Abhisit Vejjajiva, told the media that an elected Senate would be “filled with government lapdogs.”46 Democrat Party Members of Parliament have also argued against the amendments on the grounds that they run counter to the intent of the Constitution itself, which was passed by a military government following an illegal coup.47

Recently, a senator of the Group of 40 submitted a petition to block the amendment of Article 68—which currently allows individuals to petition directly to the Constitutional Court—on the grounds that it would restrict the people’s right to participate in upholding the democratic system. Ironically, the petition also seeks dissolution of the six parties that are jointly sponsoring the proposed amendment. When the Constitutional Court accepted the petition, Democrat Party Members of Parliament were quick to threaten the supporting members with impeachment if the Court were to consider the amendments an attempt to overthrow the constitutional monarchy.48 Thus, the conduct of the Senator and the Democrat Party Members of Parliament is itself a microcosm the issue Pheu Thai seeks to solve by the amendments. These petitions are designed to intimidate the Legislature into submitting to the establishment, and they hamper the ability of the elected government to function properly.49

The current standoff between the elected government and the anti-Thaksin coalition underscores the deeper conflict between democratic and reactionary forces in Thailand. When the Constitutional Court accepted a petition to consider the constitutionality of the proposed amendments, 312 Members of Parliament announced that they would not accept the authority of the Court on this legislative matter. One senior Pheu Thai member openly accused the Constitutional Court of “one-sided” interpretations of the Constitution. The latest crisis has even prompted the government to consider dissolving the House, in the hope that a new election would persuade the Constitutional Court that the electorate truly backs the current government. Unfortunately, Thailand’s history demonstrates that popular opinion

46. http://www.nationmultimedia.com/politics/Charter-changes-would-deepen-rift-Abhisit-30203259.html.47. http://www.nationmultimedia.com/politics/Charter-showdown-looms-30203110.html48. http://www.nationmultimedia.com/politics/Court-will-rule-on-charter-bid-30203349.html.49. http://www.nationmultimedia.com/politics/Senator-asks-court-to-rule-on-move-to-change-Artic-30203262.html.

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holds very little weight in the face of the establishment’s self-interest. Consequently, the government is right to consider impeachment of the Constitutional Court justices.50

7. Over Water Management Project:

After the terrible floods that engulfed Thailand in 2011 the Pheu Thai government have sought to establish a much-needed water management project to alleviate possible future floods. This is a project of national importance that needs to be completed to ensure the lives and livelihoods of ordinary Thais. The Democrat Party have sought to stymie efforts to complete this water project and are now seeking to use its proposed implementation as a vehicle to impeach the entire Pheu Thai cabinet.

In July 2013 the chief opposition whip, Chulin Laksanawisit MP, led his fellow Democrat Party MPs51 to exercise their right according to Article 270 and 271 of the Constitution to submit a petition to the president of the Senate to remove PM Yingluck’s entire cabinet due to alleged malfeasance connected to the water management project.

The petition says that the project is “corrupt” and therefore violates five laws, namely:

1) Articles 57 and 67 of the Constitution

2) Article 103/7 of the Organic Act on the Prevention and Suppression of Corruption of 1999

3) The National Environment Quality and Preservation Act of 1992

4) The Crime of State Auction Act of 1999

5) Article 157 of the Criminal Code.

This latest attempt by the Democrat Party to abrogate normal democratic procedure is further evidence of an opposition bent on seeking to place its own interest above that of Thailand’s national interest even if the lives of ordinary Thais may be the eventual cost.

4. ConclusionThe tactics employed by the Democrat Party to try to undermine the Yingluck government—indeed, to disqualify her and many of her fellow Pheu Thai members from politics, and dissolve the Pheu Thai Party itself—have nothing whatsoever to do with the rule of law.

50. http://www.nationmultimedia.com/politics/House-dissolution-an-option-Phumtham-30205987.html.51. http://prachatai.com/journal/2013/07/47492

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The Constitutional Court’s power to dissolve political parties and bar party members from politics stems from two pieces of legislation passed by the post-coup military government: Announcement 27 (2006) and Article 237 of the 2007 Constitution. The former provision empowered the Constitutional Tribunal – which was composed of nine judges that were handpicked by the military—to bar from politics for five years members of a party that was dissolved due to illegal activities, even if the activities were performed prior to the military coup. The latter provision empowers the Constitutional Court to dissolve a political party if one member of its executive committee is found guilty of fraud, and further bar all members of the executive committee of the party from politics for a period of five years. Application of those two provisions is rife with bias. While the Thai Rak Thai Party and the People’s Power Party have both suffered under these clauses following election victories, opposition parties have been consistently spared, despite demonstrable similar “violations.”

This politicization of the judiciary has been condemned by the international community, most notably by the Inter-Parliamentary Union (IPU). In April 2011 —in a resolution that was passed unanimously by its Governing Council—the IPU expressed deep concerns that 175 parliamentarians from the People’s Power Party had been stripped of their parliamentary mandates and suspended from politics due to alleged offenses for which they were not responsible.52

The IPU resolution also underscored the fact that Thailand is a party to the International Covenant on Civil and Political Rights, which protects the right to freedom of association and the right to take part directly in the conduct of public affairs. Further, the IPU noted that Announcement 27 and Section 237 of the Thai Constitution had the effect of “removing a sizeable segment of the national political elite from the political process.” Additionally, the IPU raised concerns over the direct impact of that outcome upon the electorate, who were consequently deprived of their voice in parliament, and requested a review of Article 237 of the Constitution. In a second resolution adopted in October 2011 on the heels of Pheu Thai’s election victory, the IPU reiterated its concerns; however, the IPU was encouraged by the Thai delegation’s announcement that the constitutional amendment process was under way, to conform the Constitution to democratic principles and Thailand’s international human rights obligations.53

Separately, the IPU adopted two unanimous resolutions condemning the disqualification of Jatuporn Prompan. The IPU based its resolutions on the grounds that the disqualification directly contravenes Thailand’s international human rights obligations, in particular its obligations as party to the International Covenant on Civil and Political Rights, which guarantees the “right to take part in the conduct of public affairs” and “to vote and to be elected at genuine periodic elections” without “unreasonable restrictions.”54 The IPU noted that Jatuporn’s disqualification

52. http://www.ipu.org/hr-e/188/th03.htm.53. http://www.ipu.org/hr-e/189/th03.htm.54. http://www.ipu.org/hr-e/191/th183.htm; http://www.ipu.org/hr-e/192/th183.htm.

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contravenes the Thai Constitution, which stipulates that only those convicted of a crime—as contrasted with those who have merely been accused of such—lose their right to run for political office. Moreover, the IPU was dubious about the court’s right to decide the party membership of individuals, noting that such memberships should be a private matter between the person and the party, and that in Jatuporn’s case there had been no dispute between him and Pheu Thai. The IPU expressed the view that the Thai authorities should reconsider Jatuporn’s disqualification, as his case has ramifications that extend beyond his own, but also concerns the broader “constitutional and institutional relationship between the House of Representatives and the courts.”

While the IPU has thus condemned the underhanded tactics of the Democrat Party and the anti-Thaksin coalition to invalidate the legitimate elections results in July 2011, the problem is broader and more profound than a single election. The anti-Thaksin coalition—through its willing accomplices on the Constitutional Court—stands poised to dissolve the Pheu Thai Party, just as it dissolved the People’s Power Party, and the Thai Rak Thai before it. While it is impossible to predict what tortured logic the Constitutional Court is likely to employ this time, it is certainly foreseeable that its decision on the constitutionality of the proposed constitutional amendments will once again undermine its own legitimacy.

The time has come for the international community to take up its Responsibility to Protect and come to the aid and support of the Yingluck government, as it stands up to a coalition that has acted illegally in Thailand with such impunity for so long that it is simply blind to the rule of law.

Documents

White Paper: The Judicial Attack on Thailand's Democracy