Alexander Hamilton wrote in the Federalist Papers that, where powers of the government are properly separated, the judiciary poses the least threat to constitutional rights and has no physical force of its own. Though written in 1787, it still holds true that effective judgments rely on the police, corrections officers, and bureaucrats. Although liberty has nothing to fear from the judiciary alone, he warned that it has everything to fear from its union with other parts of government and a truly independent judiciary is a safeguard; a non-independent one is a grave threat.
Decades after Hamilton and his peers successfully advocated their draft constitution, a French aristocrat observed that the great strength of America’s political system lay in its courts. Alexis de Tocqueville marveled at judges’ authority invoked at every turn yet granted them no overt political powers by the constitution. Constitutional rights were guarded through strict interpretation of law and adherence to judicial practice. In this way, he concluded, the courts formed the strongest barrier against tyranny.
Courts in Thailand by contrast, have never been an obstacle to tyrants. The notion of judicial review of government actions, which briefly captured public attention before the 2006 coup, has never caught up thereafter in Thailand. Nor has its senior judiciary ever ruled against a military takeover. On the contrary, it has at each instance affirmed that, might is right and has rewritten the law accordingly, even where, in the words of a professor in Bangkok, this has been “against morality and people’s common sense.”
The new draft constitution written under the scrutiny of the army, described as a “judges’ charter” is confusing people. There is justified alarm at its contents, which include many new judicial powers related to the appointment of senators (they won’t be elected anymore) and representatives of independent bodies, as well as expanded authority over electoral affairs and administration. The chief drafter, a former air force squadron commander, said that his committee had deliberately sought to enlarge the role of the courts to prevent political problems like those of past years. However, judges worry that this will push them into an overtly political role and undermine their fragile and limited integrity. This raises the question whether they have too little power, or will they get more.
The cause for this confusion is the inability to differentiate, as Hamilton did two centuries ago, between an independent judiciary and a compromised one. Thailand’s senior judges have proven themselves unwilling and incapable of resisting the authority of the other parts of government. There is no reason to believe that under a new constitution with expanded powers this would be any different. That is exactly what the current constitution is truly about – not expanding the power of the judiciary, but expanding the power of others through it.
Perhaps the strongest indication of the deeply regressive ideology behind the draft constitution, and everything of which it is a part, is mentioned in its section 68. This says that in times of “national crisis” a council comprising of the prime minister, chairpersons of upper and lower houses, the leader of the opposition, and the chairpersons of the Constitutional Court, Supreme Court, Administrative Court and independent organizations be established to sort things out. However, the context of sorting things and its rationale are left to one’s imagination. At least one drafter kept insisting that the council should have included representatives of the army and the police, so that they could help find a solution than the urge to grab their guns and run to the parliament as it quite often happens.
The drafting group has lately agreed, under withering criticism from all quarters, to tentatively withdraw section 68. Nonetheless, the provision remains important because it exposes the extremely primitive thinking that has gone into the whole charter; not that the judiciary is a check on the power of the parliament or military, but rather, the best it can do at times of greatest urgency is to help other parts of the government. The notions of separate powers that exist in Thailand do not exist in the minds of the people who have prepared this mock constitution.
A properly formulated charter defining, expanding, and protecting the power of courts in Thailand can only be a good thing, though no such document exists. On the contrary, it is a hurried attempt at devising ways and means for the ‘old order’ to exercise its prerogatives through a judiciary whose responsibilities over a century have been configured to its national figurehead, rather than its citizens. This is not a judges’ charter but a generals’ charter dressed in judges’ clothing. Thailand’s judiciary is not on the rise but rather as usual just on for the ride.
One obvious way out of this mess, that was available from the beginning until recent times is the 1997 Constitution. Thailand must bring it all back and abandon the pretence carried along since last September. It should stop wasting time and resources on a fraudulent constitution. Upon a new elected government, appropriate persons can be appointed to study and propose constitutional amendments. Similarly, a sensible, open, and coherent debate on matters of national importance can be held.
None of this might happen now, amidst the retarded political and social conditions that are part of its military dictatorship. If Thailand has to move forward, then it better be towards the 1997 Constitution, otherwise the current draft charter and the people behind it may drag the country much further back than that.
1997 Constitution of Thailand: http://thailand.ahrchk.net/docs/constitution_eng.pdf