The contradictory reasoning of the Constitutional Court regarding the dismissal of former Prime Minister Paetongtarn Shinawatra has aroused scepticism, as the same phone call was seen as evidence of both “honesty” and “unethical conduct” at the same time.

On 29 August, the Thai Constitutional Court ruled by a 6-3 majority to remove PM Paetongtarn Shinawatra from office over the leaked conversation with Cambodia’s former leader Hun Sen.

Legal academic Worachet Pakeerut from Thammasat University’s Faculty of Law gave a brief interview to Prachatai regarding the Court’s ruling, noting that in this case, the same fact ended up being interpreted in completely different ways.

The legal academic began by explaining the nature of dismissal cases related to ethical standards in Thailand. Normally, the Supreme Court has jurisdiction over such cases, which are initially investigated by the National Anti-Corruption Commission and then forwarded to the Supreme Court.

However, another procedure exists. The current Constitution stipulates that a violation of ethical standards is a prohibited qualification for ministerial positions. Under this approach, a dismissal petition can be filed directly with the Constitutional Court.

In Paetongtarn’s case, the petition was submitted by the Senate Standing Committee on Armed Forces and State Security, chaired by Pol Gen Sawat Thatsana.

Paetongtarn faced two charges: dishonesty and a serious violation of ethical standards. While the Constitutional Court addressed both, its verdict was contradictory.

Paetongtarn was cleared of dishonesty

The first issue the Court dealt with was related to honesty. The Court stated that while Paetongtarn and Hun Sen had a conversation, the situation between the two countries was tense, and a JBC meeting was ongoing. However, Hun Sen threatened to ban the import of Thai goods. Paetongtarn therefore engaged in unofficial negotiations with him.

The Court found no evidence that she acted in accordance with Hun Sen’s demands. The negotiations did not result in any changes to the closure of the border crossings or the command of the 2nd Army Region. The Court concluded that Paetongtarn had acted in order to protect national interests and therefore was not guilty of dishonesty.

Worachet observed that, given that Paetongtarn was acquitted of dishonesty, the same reasoning should also have cleared her of violating ethical standards.

Paetongtarn was found guilty of a violation of ethical standards

According to the Court, given that Paetongtarn testified that the closure of the border crossings had less effect on the Thai side than on Cambodia, which relied heavily on Thailand, her offer to Hun Sen of simultaneous reopening of the border crossings was to satisfy Hun Sen’s demand rather than Thailand’s interests and security.

In addition, during a meeting on national security held the following day, she did not disclose the details of her conversation with Hun Sen. The Court ruled that this damaged the Prime Minister’s image and public trust, concluding she failed to perform her duties with righteousness and in accordance with the law.

The court ruled that Paetongtarn had severely violated ethical standards sufficient to remove her from office.

“In the same context, how can it be construed in such a contradictory way? In terms of evaluating the facts to reconcile with the rules that the Court uses to decide the case, it is problematic. This is the first case I have seen with such a twist,” said Worachet.

The legal academic also attributed this problematic ruling to the Constitutional Court’s procedure of making its deliberation point by point based on the petitioner’s complaint.

“In fact, there should first be a discussion of the overall picture of the case and then a look at the direction of the case. Actually, the issue of violation of ethical standards should have been taken up first. Once that issue was decided, there is no point in ruling on honesty,” noted Worachet.

Worachet reiterated that interpreting ethical standards is highly subjective, as seen in the recent dismissal of former PM Srettha Thavisin, arguing that such issues should not be grounds for removing a prime minister from office.

“Many of the expressions we use are value terms, which are difficult to explain by relying on legal principles. There is a lack of legal concepts to explain them. In the end, it became a matter of values by feelings,” remarked Worachet.

He also noted that ethics are intangible, and deliberations on these cases cannot be settled in the same way as legal cases. This makes it difficult to persuade the public that the rulings of those in power are based on “principles.”

Ethical standards should be treated as a political matter, not a legal one. However, in Thailand, this problem has emerged ever since judicial activism expanded the Court’s authority to resolve political disputes.

This was evident in the Court’s deliberation over government policy decisions, such as whether to close or reopen border crossings in Paetongtarn’s case. Worachet observed that it is not within the Constitutional Court’s jurisdiction to evaluate whether the administration’s policies serve the national interest, except for those directly related to laws.

The legal academic noted that the Court has exerted excessive control over the government, making it difficult to introduce new policies for fear they could later be ruled as harmful to national interest. This, he argued, will affect not only the executive branch but also the bureaucracy overall, as oversight agencies gain expanded powers under such interpretations.