Critics slam Thailand's activist judges

Judges increasingly are calling the shots in a tumultuous political situation. Are they playing fair?

Sukree Sukplang/Reuters
Temporary digs: Thai Prime Minister Somchai Wongsawat (c.) met recently with his cabinet at the new government offices in Bangkok's airport.

Sworn in last month as Thailand's fourth prime minister in two years of turmoil, Somchai Wongsawat hasn't enjoyed much of a honeymoon on the job.

For one thing, he can't even enter his office, as a royalist protest group stormed the compound in August and refuses to leave. Instead, his cabinet meets at an unused VIP airport terminal that has been converted into offices.

Then there's the niggling matter of a lawsuit filed by a senator last week that alleges a conflict of interest in Mr. Somchai's stock portfolio. A similar complaint led to the removal last month of his predecessor Samak Sundaravej over his TV cooking show. Somchai's political party is expected to face the same court in the next few months in a campaign fraud case that could lead to its breakup, a fate handed down to a forerunner party.

As Thailand girds for the next round in its political war of attrition, many eyes are turned to the judiciary whose rulings are increasingly setting the parameters for a fragile democracy. That represents a significant break from the past in a country that is more accustomed to military coups than judicial activism in settling political disputes.

But the partiality of the bench has been called into question by politicians caught in its purview. Others gripe that excessive legal safeguards are undermining the effectiveness of government, gumming up policymaking at a time when global financial turmoil demands a steely response.

Judges' increased clout raises concerns

In a deeply polarized nation, a more muscular role for judges also raises delicate questions over their political loyalties, particularly to the influential crown.

In a widely noted speech in 2006, King Bhumibol called on senior judges to sort out a disputed parliamentary election. It was later annulled by the courts.

The following year, a military-backed constitution – Thailand's 18th since 1932 – gave the judiciary and other state agencies an enhanced role in curbing the power of elected officials. These measures were a reaction to the overbearing style of Thaksin Shinawatra, a businessman-turned-prime minister who was ousted two years ago by a coup and accused of corruption and abuses of power. He fled to London in August to avoid trial.

But the pendulum has swung too far in the opposite direction, says Rungrawee Chalermsripinyorat, an analyst in Bangkok for the International Crisis Group, a think tank.

"The 2007 Constitution now restricts the executive to the point that governing is almost impossible," she says. "There is a need to strike a balance between giving the executive sufficient power to govern and ensuring effective checks and balances."

Calls for a bipartisan review

Somchai, a former judge who is married to Mr. Thaksin's politician sister, has called for a bipartisan review of the Constitution to defuse the political crisis.

His opponents in parliament and on the streets are wary of any changes that benefit his pro-Thaksin People's Power Party, which heads a six-party coalition.

Two other coalition parties are also facing campaign fraud charges that may lead to their dissolution, pitching Thailand into another election less than a year after the last ballot. Somchai is being investigated for owning shares in an Internet company that tenders for government contracts.

In addition to rulings on political conduct, Thai courts have also weighed in on governance issues. A foreign minister resigned in July after being rebuked by judges over his diplomatic support for Cambodia over a disputed border temple. Members of Thaksin's cabinet were also recently in the dock over a lottery scheme introduced in 2003.

This flurry of judgments is a necessary corrective to past abuses, says Kaewsan Atibodhi, a former senator and law professor who served on an official panel that investigated Thaksin's wealth. "It's not a question of judicial activism but of law enforcement. They must be active so that the law works. In the time of Thaksin, this didn't happen," he says.

Public criticism of court rulings, such as the removal of Mr. Samak for the seemingly trivial offense of working on a cooking show, is mostly muted, as contempt of court laws are strictly applied. A similar reticence applies to the monarchy, which is shielded by lèse-majesté laws that carry long jail sentences and are increasingly being used to silence domestic dissent.

In a statement from London, Thaksin criticized the courts in August for hounding him and his family, and claimed they were a tool of his enemies. That charge, while self-serving and seemingly crafted to support a political asylum plea in Britain, resonates with Thaksin supporters. They believe that Bangkok's royalist establishment holds sway over senior judges and that the rule of law is a fig leaf for continued elite rule.

"From an American point of view, this [judicial activism] is natural, that crucial decisions are made by judges," says Michael Montesano, a visiting research fellow at the Institute of Southeast Asian Studies in Singapore. "But from Thai point of view, the question is who are these people and who gives them their orders?"

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