Among all the responses to the judicial sacking of the prime minister of Thailand, Samak Sundaravej, this week, the New Mandala blog summed it up:
Hosting a TV cooking show = Guilty!
Staging a coup and tearing up a constitution = No problem!
As the blog post suggests, arguments about the technicalities of whether or not Samak was employed to be a television chef during his time in office, thus violating the 2007 constitution, miss the point. Although that may have been the matter upon which the court was asked to decide, this is not what the rest of us should dwell upon.
Let it not be forgotten that in September 2006 when the generals took power in Thailand, the upper courts did as they have always done at these times: nothing. The junta quietly chucked out the constitution and its court while farcically purporting to uphold judicial independence.
In May the following year, the coup was tacitly endorsed in a verdict of the court’s successor, a military-appointed tribunal, on the simpleminded premise that as every other military takeover was legitimized through the courts, then why not this one too.
It did not have to be that way. The senior judiciary was better placed to have taken a stand then than during any previous coup. It had, throughout the year, been at the forefront of public debate, and the 1997 constitution, which its members had sworn to uphold, even contained a clause allowing rightful resistance to unconstitutional takeovers.
There was also one small precedent that it had the opportunity to employ. In March 1993, after the 1991 regime leader had already been removed from office through weight of public protest, the Supreme Court found that a committee set up by that government to investigate the former one was unconstitutional and overruled it. The work of a military regime had at least been partly repudiated through a court of law.
The thinking that went into that verdict was not entertained by the superior judges in 2006. They lacked the brains, the heart, the stomach and the backbone for such an historic task. Unlike their counterparts in Pakistan, who have in this same period literally risked their lives for the principles that they represent, the justices in Thailand again let principles slide in favor of expediency. The opportunity was lost, the law of the dictator was enforced in defiance of common sense, and business went on as usual.
This is the legacy from which the current batch of judges emerged and which they carried with them for their verdict on Tuesday.
It is also for this reason that the rent-a-protest leaders, who as in 1992 have shown a keenness to risk other people’s lives for their own selfish goals, have openly expressed a strategy of using the courts to get what they want. Their latest announcement is in some parts virtually incomprehensible, but on at least one point is strikingly lucid. The justice system, it insists, needs to be used to address “the evils of the Thaksin regime.”
There have been comparisons made in recent weeks between the rallies in Bangkok and the mobilizing of fascist, anti-democratic groups on the streets of Europe many decades ago. But it is in this targeting and redirecting of the work done by the courts that current events most closely resemble those of 1930s Germany.
In the Weimar period, the judiciary was increasingly manipulated and used to serve a particular set of interests, those of the emerging Nazis and their allies, against their political opponents. The courts throughout this time stuck to the letter of the law while defying its spirit, hollowing it out so that virtually anything could be made to fit inside but still be defended in legal terms.
Among the types of political cases brought to the courts, there was a category of artificially-created offenses, in which a crime may technically have been committed within the narrow terms of a statute but could only be made sensible if divorced from its historical and social setting, and reduced to minute details.
This is precisely the type of case brought against Samak, one in which the court’s responsibility was reduced to the narrowest questions of fact, cleaved off from the bigger setting. Thus legality could be applied and rationality abandoned. The court’s verdict could be justified on scrupulous legal grounds, just as were those of the Weimar and Nazi eras, but in every other respect would be absurd.
The sorts of questions that the September 9 judgment provokes in the minds of thinking people are not about the differences between an employee and a business partner for the purposes of article 267 in the constitution, but rather, about what sort of a legal system is capable of removing a prime minister for cooking on television but is unable to do anything about army generals who tear up the supreme law, sack top courts and siphon off billions for their own private projects.
This incongruity is the nub of New Mandala’s pithy post. Until it is addressed, there will surely be more chaos, and more coups, in Thailand.
Update news: Rule of law (Bangkok Pundit)
Background: Thailand Military Coup 2006 (AHRC)
Thailand’s struggle for constitutional survival (article 2)