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Some decades after Hamilton and his peers successfully advocated for 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 how judges' authority was invoked at every turn, yet the constitution granted them no overt political powers. 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 the rise of tyranny.
The 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 hold 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."
Therefore, the fact that the new draft constitution, written under the army's watch, is being described as a "judges' charter" suggests that people are getting confused. There is justified alarm at its contents, which include many new judicial powers relating 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 the sort of political problems that had arisen in the last couple of years. But judges have worried that this will push them into an overtly political role and undermine their fragile and limited integrity. So have they held too little power, or are they going to get too much?
The cause for this confusion is in the failure 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 other parts of government. There is no reason to believe that under a new constitution with expanded powers they would be any different. And that's what this constitution is really all about: not expanding the power of the judiciary, but expanding the power of others through it.
Perhaps the clearest indication of the deeply regressive ideology behind the draft constitution, and everything of which it is a part, can be found in its Section 68: that in times of "national crisis" a council comprising the prime minister, the chairpersons of upper and lower houses, the leader of the opposition, and the chairpersons of the Constitution Court, Supreme Court, Administrative Court and independent organizations be established to sort things out -- the whys and wherefores being left to the imagination. At least one drafter kept insisting that the council should have included representatives of the army and police, so that they could help find a solution and not feel the urge to grab their guns and head on down to Parliament quite so often.
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 at all, but rather, that the best it can do -- especially at times of greatest urgency -- is just to help other parts of government out somehow. The separation of powers, which only exists in Thailand notionally anyway, does not exist at all 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 could only be a good thing. This is no such document. It was never intended to be, and nor shall it be. On the contrary, it is a hurried attempt at devising ways and means for the old order to persist in exercising its prerogatives through a judiciary whose responsibilities have for over a century been configured with reference to a national figurehead, rather than its citizenry. This is no judges' charter; it is a generals' charter dressed in judges' clothing. Thailand's judiciary is not on the rise; as usual, it is just on for the ride.
There is one obvious way out of this whole mess, one that was available from the start and which has obtained currency in recent days. Bring back the 1997 constitution. Bring it all back. Abandon the pretence that has been carried along since last September. Don't waste any more time and money on a fraudulent constitution. After a new government is elected, appropriate persons can be appointed to study and propose constitutional amendments, and a sensible, open and coherent debate can be held on matters of national importance. None of this can or will happen right now, amid the retarded political and social conditions that are part and parcel of military dictatorship. If Thailand has to go forward to the past, then it had best be 1997; the draft charter and people behind it aim to drag the country back much further than that.
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(Awzar Thi is the pen name of a member of the Asian Human Rights Commission with over 15 years of experience as an advocate of human rights and the rule of law in Thailand and Burma.)
