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Well-known pro-democracy activists and an academic have concluded that in addition to reforming its military, Thailand needs to reform its judicial institutions as well to get out of the endless cycle of coups d’état.

Resistant Citizen, an anti-junta activist group, on Monday, 22 February 2016, organised a well-attended public seminar on Judicial Institutions under Special Circumstances at Thammasat University, Tha Prachan Campus, Bangkok.

The discussants at the seminar were Apichat Pongsawat, a democracy activist and official of the Law Reform Commission of Thailand, Pansak Srithep, an anti-junta activist from Resistant Citizen, Rangsiman Rome, a graduate law student of Thammasat and member of New Democracy Movement (NDM), and Piyabutr Saengkanokkul, a well-known law scholar from Thammasat. It was moderated by Anon Nampa, a human rights lawyer.

The public seminar on Judicial Institutions under Special Circumstances held at Thammasat University, Bangkok, on Monday, 22 February 2016

Bowing down to the coup-makers

Rangsiman said at the discussion that judicial institutions in Thailand are outdated and are not designed to be compatible with the democratic system of governance.

“From my study, between 1947-1957, there were many verdicts from the courts which accepted the authority of coup-makers. Therefore, the courts significantly contributed to the success of the coups. In 1952, for example, the court ruled then that a coup d’état against one government might be unlawful at first until people accepted the [coup-makers] as a government. But, then [the coup-makers] will become the de facto government and whoever rebels against them will be charged with treason,” said Rangsiman.

He pointed out that under the current legal framework, Articles 113 and 114 of the Criminal Code stipulate that people prosecuted for treason shall be punished with 3-15 years imprisonment or even with death. However, no coup-maker has ever been punished under these laws.

Rangsiman added that there were instances in 1972, 1991, and 1993 when the Thai courts protested against the coup-makers. In 1993, the Supreme Court wrestled with the coup-makers against attempts to form a special judicial committee similar to the courts which would be able to rule on cases. However, the Thai judicial institutions at that time were merely protecting their own status quo.    

“From one angle, the courts might be afraid of guns just like us, but as time goes by, I don’t think that coup-makers would dare to touch the courts. I think the courts can play a role in safeguarding democracy, but they just never did so,” said the NDM democracy activist.

Rangsiman concluded that he now thinks that Thailand needs to reform its judicial institutions even before its military because the courts repeatedly lent a hand to coup-makers.     

 Rangsiman Rome

“I think that the Thai judicial institutions have never protected the Thai people and just left us to protect ourselves,” said the Thammasat graduate student.

Analysing the verdicts of the Thai courts in cases filed against the 2014 coup-maker, Piyabutr, a Thammasat law scholar, said at the seminar that lawsuits filed against the current junta can be divided into two categories: criminal lawsuits under Article 113 filed at the Court of Justice, and cases filed at the Administrative Court to rule whether the junta’s National Council for Peace and Order (NCPO)’s orders are lawful or constitutional or not.

He explained that the latest criminal lawsuit against the junta was the one filed by Resistant Citizen with Pansak and 14 other activists as plaintiff; last week the Appeal Court confirmed the ruling of the Court of First Instance and dismissed the case, saying that actions and orders of the junta are legitimate under Section 48 of the Interim Charter.   

He added that the two others were a case filed at the Administrative Court by Wattana Muangsuk, a former MP from the Pheu Thai Party, against the NCPO’s travel ban imposed on 150 politicians, and a case in which a fisherman filed against the junta’s invocation of Section 44 of the Interim Charter, a section giving absolute power to the regime, to regulate the fishing industry. The Administrative Court dismissed both cases, citing Section 47, a section legitimising every announcement of the NCPO, and Section 44 of the Interim Charter.

Piyabutr concluded that the verdicts in these cases are connected to the lawmakers who drafted the Interim Charter in the aftermath of the coup. He said that throughout Thai history, lawmakers appointed to draft interim charters repeatedly installed legal mechanisms to provide amnesties for coup-makers.

The Thammasat law scholar said that these legal mechanisms appeared for the first time in the 1972 Interim Constitution imposed a year after Field Marshal Thanom Kittikachorn, a military dictator, staged the 1971 coup d’état and were repeated in Interim Constitutions after series of coups in 1976, 1977, 1991, 2006, and 2014.

Piyabutr added that after the 1991 and 2006 coups, sections granting amnesties for coup-makers were even written into the 1992 and 2007 Constitutions. He implied that under the 2016 draft constitution written by the NCPO-appointed drafters such a section will surely appear when it too passes.

Piyabutr Saengkanokkul

This, he said, leaves only the Constitutional Court, which has the authority to rule whether the junta’s orders go against the constitution or not. However, the 2007 Constitution leaves very little room for people to submit cases to the Constitutional Court because they have to go through the Office of the Ombudsman first. Nonetheless, from several landmark rulings of the Constitutional Court after the 2006 coup d’état, one cannot in general pin much hope on it.

Giving examples from other countries, Piyabutr said that the courts reacted differently to coups d’état in their countries, ranging from Fiji in which the judges completely rejected the authority of the coup-makers or resigned from their posts in protest against the coup-makers, to Pakistan and Chile where the judges chose to do the opposite.

“It definitely takes a lot of courage for the courts to fight against guns with paper,” said the Thammasat law academic. He added that in the case of Thailand, if the courts choose not to go against the coup-maker directly, the courts should at least interpret laws in line with human rights principles as far as possible.

Piyabutr said further that unlike military officers who have to attend classes on democracy, a senior judge once told him that those who are to become judges do not have to attend such classes. Therefore, in Thailand, coup-makers might not have to intervene in the courts at all because the military and the judicial institutions already share similar ideologies which are against democratic principles.            

Lack of independence, checks and balances and efficiency  

Apichat, the first activist to be detained for about one month and indicted for staging a peaceful protest against the coup in Bangkok in May 2014, said that judicial institutions in Thailand, regardless of the current special circumstances under the military government, have many structural problems.

“The judicial system that we have is a closed system which is difficult to access, criticise, and check on”, said Apichat. “Under existing laws, the court can be criticised and questioned. But the courts usually cite Article 226 of the Civil Code against their critics.”

Apichat Pongsawat

Adding to this, Pansak, a key member of Resistant Citizen, said that people who dare criticize the courts are usually former judges themselves and that most people fear that they will be charged under Article 226 if they criticise court verdicts.  

In addition to inaccessibility, Apichat said that judicial institutions in Thailand are very inefficient. “The Court of First Instance on average takes two years to reach a verdict while the Court of Appeal and the Supreme Court take 4-15 years on average to finalise cases,” he said.

The Law Reform Commission official pointed out that in the past, the lengthy court process and its inaccessibility resulted in scapegoats in many cases.

Shedding light on the independence of the courts in his case, Apichat said that the judge who ruled on the case in which he was indicted for protesting against the coup told him that the verdict first had to be sent to the chief judge of the Court of Justice for approval before it could be read. This is against the principle that the courts must be independent.

Apichat concluded that in the current political context of junta rule, “under the law, the judges must believe in democratic principles. But, the courts never make formal statements about this to inform the people.”

Pansak Srithep

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