When the referee chooses a team

By Daniel Ten Kate

20 July 2006

When the country’s highest judges collectively step out of line, can you sue them? That question is now being asked by a small group that calls itself the Constitution Protection Club. Led by a middle-aged man named Chootip Cheewat, the 20 or so members called on National Police Chief Pol Gen Kowit Wattana to charge the eight Constitutional Court judges who voted to nullify the April 2 election with malfeasance under Article 157 of the criminal code – the same statute being used to try the embattled election commissioners.

“These judges have no right or authority to make a decision on the election because that authority belongs to the Election Commission,” he declared yesterday morning as traffic passed by police headquarters on Rama I Road.

The group also wanted charges brought against Supreme Court President Charnchai Likhitjittha for refusing to appoint new candidates to fill the two vacant spots on the Election Commission. By refusing to do so, the group says, the Supreme Court has shirked its duty under Article 138 of the Constitution.

Although it is doubtful that the police will act on the request, the question itself reflects the problems the country’s top judges have faced in heeding His Majesty the King’s instruction to them on April 25 to “solve the problem.” Far from clearing things up, the actions of the judges since the nullification of the boycotted April 2 election have led to an unprecedented institutional stand-off that threatens to undermine public trust in the judiciary.

“The role of the judiciary outside of the courts should be very limited,” Jade Donavanik, dean of law at Siam University, said in an interview yesterday. “If the judges take the role of resolving the conflict further, it could cause a crisis of faith in the courts. And that will be a bigger problem for the country than not trusting politicians.”

“Right now the judges have almost gone too far,” he added. “If they walk down this road further, it will be very risky. They should do something else and change strategy, such as going back to the court room.”

After His Majesty dubbed one-party elections “undemocratic” on April 25, many analysts saw the nullification of the April 2 election as predestined. What was not inevitable, however, was the subsequent extra-judiciary call for the three remaining election commissioners – Wasana Permlarp, Prinya Nakchudtree and Virachai Naewboonnien – to resign.

The commissioners have thus far resisted the wave of negative public sentiment and clung to their posts. And as time marches on with no solution in sight, the judges have opened themselves up to more and more criticism.

Supreme Court Secretary-General Jaran Phakdeethanakul came under fire for recent comments in which he insinuated that Thai Rak Thai paid 16 billion baht for its 16 million votes. The remark prompted Prime Minister Thaksin Shinawatra on Tuesday night to call on the “courts, politicians and legal minds” to “behave more maturely.”

On top of that, cracks may be developing in the alliance between the heads of the Supreme, Administrative and Constitutional courts. Constitutional Court President Ura Wang-omklang did not attend a luncheon meeting on Tuesday with Charnchai and Administrative Court President Akkarathorn Chularat.

Afterwards, Charan said he remained “confident the courts will be able to bring democracy and its procedures into the right system,” but “a time frame cannot be specified.” He then repeated a call for the election commissioners to step down.

Criminal Court judges will get their first crack at the commissioners inside the courtroom next Tuesday, when they are set to rule on whether or not the trio should be tossed in jail for their role in administering the voided election.

Ruling party members already suspect the court will rule against the EC, a decision likely to be upheld by the Supreme Court – whose president initially told them to quit – on appeal.

It remains to be seen if all the goings-on outside the chamber will taint any of the major decisions the court is set to make. Although the court has gone out of its way – and its jurisdiction – to solve the country’s political crisis, some argue that it would already be solved if those who want Thaksin out could back up their allegations with any proof.

“Some lawyers interpret the law as per their own personal will, not according to legal principles,” Vorajet Phakheerat, a constitutional law expert at Thammasat University, said in an interview.

“That is not right and not good for the judicial system. If the government is wrong, we have to prove it is wrong and bring the prime minister to court.”

Furthermore, even if the judges do somehow kick out the election commissioners and dissolve the political parties, then what? The process of amending the Constitution, which is supposed to address the root causes of the political crisis, is not yet on the radar screen.

“Some people say that if you want to cut through all the laws and constitutional questions, we should just amend the Constitution first,” said Prudhisan Jumbala, a political scientist at Chulalongkorn University. “But the Constitution doesn’t allow that. So not much will be solved, even if we get a new EC and a new election.”

“As far as the masses are concerned, our country’s fight depends on a very, very small number of people,” he added. “We may be fooled by the 10 manipulators into thinking that we got a democracy in the end, but we’re probably going to get an oligarchy.”

Thai Day

Quote:but we’re probably going to get an oligarchy.”

Don`t hear that one very often.