Where will 'reform' place the judiciary?

opinion June 30, 2014 00:00

By The Nation

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Thais need to accept independent agencies and the vital role they play in our check and balance system

One of the biggest technical headaches concerning how to politically reform Thailand has to do with the judiciary. On June 21, the Pheu Thai Party asked those who overthrew it to keep in mind that the courts in the future shall never get involved in politics. 
It’s a request as controversial as the perceived role of the judges. And whatever comes out of the “reform” process in this regard will determine Thailand’s political course.
Pheu Thai, like the People Power Party and the Thai Rak Thai Party before it, has been at the “wrong” end of Thailand’s checks and balances. Whereas its opponents applauded such court rulings including the one that overturned the transfer of ex-National Security Council chief Thawil Pliensri.
Pheu Thai felt it had been “persecuted”. The Constitution Court and the National Anti-Corruption Commission, among other institutions, have been portrayed as tools of an “anti-democracy conspiracy”.
Critics of Pheu Thai insisted that the “conspiracy” claims were only meant to deflect attention from genuine wrongdoings. The Democrat Party, Pheu Thai’s main political rival, lost its most influential powerbroker when late Sanan Kachornprasart was banned from politics for five years for “false” debts in his assets report. 
Democrat political star Apirak Kosayodhin relinquished his Bangkok governorship after being implicated in a corruption scandal. Many senatorial election candidates disqualified by the Election Commission in 2001 had nothing to do with the then Thai Rak Thai Party.
So, has it been a case of the courts – and the related parts of the checks and balances – interfering with politics, or politicians were simply trying to look like victims instead of convicts? 
And when the Constitution Court in 2001 acquitted Thaksin Shinawatra of the infamous share-concealment scandal, in effect allowing him to serve as prime minister for over five years, was it “injustice” or a rightful ruling? 
If it were “justice served”, how come the Constitution Court was accused of being an anti-government political tool? If it were a bad verdict, how come Thai Rak Thai never said anything back then?
Not only does Thailand need checks and balances, the country must also change its mentality about checks and balances big time. Reform should start with getting the whole of Thailand to realise how important it is for all the three “pillars” of democracy – the executive branch, the legislature and the judiciary – to counter balance one another. 
Democracy, Thais must learn, is not just about going to vote. What happens after an election is decided and a government formed is equally essential.
Is the current system good? The “independent organisations” have structures tied, allegedly at least, to the political party “controls” the Senate. This complication made the Pheu Thai Party come under attack when it tried to push for a constitutional amendment that critics said would cement the already strong alliance between the legislature and the executive branch.
If we are to maintain a “three-pillar” style of democracy, a lot of changes are needed. The present system makes the executive branch want to control Parliament and the judiciary is always in danger of being alienated. 
Pheu Thai’s request that the courts shall never be “politicised” is a damning testimony about the vulnerability of the “independent organisations”. Whenever the checks and balances go against the powers-that-be, charges of “conspiracy” or “anti-democracy” emerge.
To have independent organisations that are free of political influences is a technical and political issue. It’s technical because the organisations’ structures cannot be too related to who holds the most parliamentary power. 
It’s political because going after elected representatives always subjects the act to an attack on politicians. This is why, on checks and balances, we need to work it out from scratch. And the first thing we should do – changing the mindset – is the most difficult.