Critics divided on independent bodies and the extent of their powers
April 12, 2014 00:00 By Pravit Rojanaphruk
Will there be a "judicial coup" soon? The answer is much more complicated than merely asking if there will be a military coup with tanks rolling down the streets of Bangkok.
Opponents of a “judicial coup”, like the former dean of Chiang Mai University’s Law Faculty Somchai Silpapreechakul, says the exercising of power by the Constitutional Court and the National Anti-Corruption Commission (NACC) against caretaker premier Yingluck Shinawatra is beyond their bounds of power and should be regarded judicial intervention. However, opponents think not.
Somchai acknowledges that Thai society is still unfamiliar with the notion of a “judicial coup” and there’s no one common Thai translation appropriate to it. Also there’s room to debate whether the action of the two organisations in the weeks to come – that could lead to the removal of Yingluck and possibly the whole caretaker Cabinet – do constitute a judicial coup or not.
“In my view, a judicial coup occurs when the courts and judicial institutions perform duties beyond the bounds of their authority and interpret their power beyond their limits,” Somchai said.
The law lecturer said that in his view, the Constitutional Court had no mandate to rule on the legality of the Yingluck Cabinet’s transfer of National Security Council (NSC) chief Thawil Pliensri in 2011 as Yingluck is now in a caretaker capacity. It should also be questioned whether the PM has the authority to transfer senior officials at all, he said.
As for the NACC, Somchai said the speed at which the anti-graft body is pursuing Yingluck’s case on alleged dereliction of duty over the rice pledging scheme, when compared to the slowness of many other cases, lead to doubt about whether the NACC was unfairly pursuing the case.
Somchai also noted apparent hesitation by the Election Commission (EC) to hold an election as another example of a possible facet of a judicial coup. He said instead of holding election within 60 days as stipulated by the Constitution, the EC is now insisting it will not hold a poll until there’s no serious risk of obstruction by opponents of the election.
“Are there laws legitimising the NACC, the Constitutional Court and the EC to do all these things?” he asked, adding that two key points that must be examined on whether such acts constitute a judicial coup or not are: whether or not the organisation really has the authority, and whether or not what they do is legitimate.
Somchai acknowledges, however, there will be differing views and debate. Chaiwat Thirapantu, a leader of the anti-government People’s Democratic Reform Committee (PDRC) told The Nation there’s no such thing as a judicial coup – what the Constitutional Court and the NACC do will be legal and constitutional.
“How can it be called a judicial coup when it’s legal?” Chaiwat asked.
Somchai says greater debate and education is needed to make the public understand what he believes is a subtle form of coup.
He said merely protesting against a “judicial coup” on the streets wouldn’t be enough and called for a boycott of institutions that act in interventionist way.
“We must explain about legitimacy and point out how problematic it is,” he said.