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Thai Constitutional Court leans closer to military amid protests

Power mechanism in the kingdom explains Future Forward's dissolution

The Future Forward Party, led by Thanathorn Juangroongrunangkit, lasted less than two years before the Constitutional Court dissolved the party in February. (Photo by Akira Kodaka) 

BANGKOK -- Hundreds of protesters, most of them students and wearing masks, attended an anti-government rally at the campus of state-run Kasetsart University in northern Bangkok on Feb. 29 despite the government's call to cancel it to prevent the spread of new coronavirus infections.

"Prayut, get out!" they shouted repeatedly, referring to Thailand's Prime Minister Prayut Chan-ocha, while raising the three-finger salute popularized by "The Hunger Games," a 2012 U.S. film depicting civilian resistance to an authoritarian state. Similar rallies have been held day after day recently, spreading to more than 20 universities across Thailand.

The series of protests was triggered by the Constitutional Court's ruling on Feb. 21 to dissolve the opposition Future Forward Party.

The court issued the ruling on the grounds that a total of 191 million baht ($6.04 million) the FFP borrowed from party leader Thanathorn Juangroongrunangkit at the time of its foundation in 2018 was a donation in effect. In Thailand, a donation in excess of 10 million baht from any individual to a political party per year is legally prohibited.

The court also stripped Thanathorn and 15 other FFP executives of civil rights for 10 years.

In the general election in March 2019, the FFP won 6.3 million votes, largely from young people, on an anti-military platform and became the third-biggest party in the parliament. The election was the first in eight years during which time the military took power in 2014 through a coup.

Students raise three fingers in what resembles a pose against dictatorship at Kasetsart University in Bangkok on Feb. 29. (Photo by Akira Kodaka)

Following the election, Thanathorn came to be seen as a leading candidate for the next prime minister of Thailand.

The Thai Constitutional Court is under the strong influence of old-guard forces such as the military and royalist leaders. It successively issued tough rulings on their emerging political rivals led by former Prime Minister Thaksin Shinawatra.

The court has now turned its fire on Thanathorn, a strong critic of the military's intervention into politics. In November 2019, it stripped Thanathorn of his lawmaker status as he was found owning shares in a media company in violation of election laws when he registered to run in the general election.

The FFP could have avoided the loan problem if it had been more careful. But the court had been widely expected not to go as far as ordering its dissolution because many political parties are said to have received loans from specific individuals and organizations. Such a ruling against the FFP alone could provoke protests as "double standards."

The unexpected verdict was issued three days before the launch of parliamentary deliberations on a no-confidence motion against Chan-ocha and five other members of his cabinet. The ruling coalition consisting of 19 parties has a razor-thin majority in the parliament's lower house. Any abstainers or rebels in the governing camp would have made the vote on the motion hang in the balance.

Out of 16 FFP executives, 11 members of the House lost their lawmaker status. The ruling camp survived as the balance collapsed in favor of it.

Criticizing the judicial branch of government is legally banned in Thailand. But the ban is not the only reason why students and other FFP supporters are lashing out at the government rather than the Constitutional Court that ordered the emerging party's dissolution. Behind the crackdown on the FFP, they sense the same "political motive" that drove the Thaksin group out of power in the past.

The separation of the legislative, executive and judicial powers, which have checks and balances over each other, is the basic structure of a democratic state. But in an emerging country, the administration in power is often much more powerful.

A Future Foward Party supporter protests against dissolution of the party as she raises an item with a message against Thailand's Prime Minister Prayuth Chan-ocha in Bangkok on Feb. 21. (Photo by Akira Kodaka)

In Thailand, the judicial branch appears highly independent as it has forced three prime ministers of the Thaksin group out of power in the past.

But the expulsions were not a result of the separation of the three branches. The idea that the ostensibly independent Thai Constitutional Court stands on the side of old-guard forces, a steadfast mechanism of power, was so evident in these cases that no guesswork is necessary.

The history of the court traces back to 1997. The constitution, officially announced that year, reinforced the power of the prime minister to prevent the military's intervention into politics which had occurred as if an annual event. At the same time, seven independent organs, such as anti-corruption and human rights committees, were established to prevent the abuse of power by a "powerful prime minister." The Constitutional Court is one of them, and is given strong authority such as the right to strip cabinet members and lawmakers of their status and to dissolve political parties.

Germany, France, South Korea and many other countries have constitutional courts. The court in South Korea is powerful enough to impeach the president and dissolve political parties, but its judges are appointed by the government. The mechanism in South Korea is designed to reflect public opinion on the judiciary because the government is chosen through elections.

In Thailand, judges of the court are nominated by the senate and appointed by the king. All members of the senate were chosen through public elections under the 1997 constitution, making it possible to reflect public opinion on rulings by the court.

Thaksin became prime minister in 2001 under the 1997 constitution and exerted his influence on the court through the senate. Members of the senate, which is a nonpartisan legislative chamber, are banned from belonging to political parties. But chosen through public elections, they could not be immune to Thaksin's popularity and financial prowess at that time.

Although Thaksin was prosecuted for doctoring his financial statement just before he took office as prime minister, the court found him not guilty, contrary to widespread expectations of a conviction. With his party scoring a landslide victory in the 2001 general election, Thaksin became "a too-strong prime minister" beyond assumption under the constitution.

Three prime ministers in the Thaksin camp, including Yingluck Shinawatra, were ousted by the constitutional court decision.    © Reuters

In 2006, the military staged a coup for reasons of corruption in the Thaksin government, and toppled it. To fill loopholes in monitoring the administration, the junta reshuffled the independent organs to appoint half the senate under the 2007 constitution. The appointment was made by the selection committee consisting of the court and other independent organs.

While the selection committee chooses appointed members of the senate, the legislative chamber chooses members of the independent organs. The back-scratching relationship has naturally boosted the military's influence, making it impossible for the government and the lower house to rein in the court. The military has thus become able to use the court as its voice.

The mechanism of this kind made the court feel free to expel the Thaksin group after returning to power through a public election.

Most of the judges who dissolved the FFP were chosen under the 2007 constitution. Now, the court is becoming more sharply focused on representing the military.

Under the current constitution, officially announced in 2017 following the 2014 coup, members of the senate are basically appointed by the military. Judges of the court, picked after the termination of predecessors' terms, are more directly under the military's influence.

Justification, if any, of the Constitutional Court that does not hesitate to issue what appear to be arbitrary rulings against the Thaksin group, is probably based on the very fact that the group was in power in the past. As the administration led by the group resorted to controversial policies and deeds, the court barely played the role of keeping tabs on power.

The court's ruling to dissolve the powerful opposition party without concern about criticism as "double standards" has a different meaning from the past. In other words, the court has fundamentally changed its role to become an accelerator of the government rather than a brake on it.

Large-scale pro-democracy movements, led by students, had frequently occurred in Thailand even before the emergence of the Thaksin group. Brutal military crackdowns on protests such as the popular uprising of Oct. 14, 1973, Bloody Wednesday of 1976 and Black May of 1992, accompanied by lots of casualties, are painful chapters in the country's modern history.

Experts are starting to liken the recent series of protests to the beginning of bloodshed, as in the past.

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