Column: Rule of Lords

Many people have expressed genuine concern about the expanded role of the judiciary under Thailand's new army-backed constitution, which was pushed through a referendum and passed into law this August. 

Three top judges are now obliged to sit on panels that will select around half of the senate, as well as have more say on appointments to independent bodies: among them the commissions for elections, state audits and human rights. The Supreme Court has been given new powers to step into electoral disputes, and also to appoint interim members to the counter-corruption agency. 

Around the world, judicial officers enjoy special defenses against attacks on their professional and institutional integrity. In Thailand, harsh penalties for contempt of court and criminal libel have helped to dampen public criticism not only of court rulings but of the work done by judges in general. 

However, there have been times that widespread argument over big cases has spilled back into the courts. For instance, after three former election commissioners were jailed in 2006, eleven of their supporters were given suspended jail terms for contempt, and warned that they could face further charges if they did not shut up. The lawyer of the then-prime minister was also found guilty of contempt after giving a negative opinion of the verdict in an interview. 

Such rulings have made latent critics justifiably afraid of openly confronting Thailand's courts. Now that judges have an enlarged and increasingly prescribed political role on top of their judicial responsibilities, many wonder how far public debate on their work will be allowed and what the consequences may be, both for the country's judiciary and for its degraded political system. 

So let's be clear on at least one thing. Without regard to other factors, the criticizing of judges is not only legitimate, but also necessary for a robust and responsive judiciary. Criticism of court is not synonymous with contempt of court. 

Contempt of court, as its sole purpose, is to protect the integrity of judges in order that they can perform their jobs. This is not the same thing as protecting the standing of individual judges, or denying debate that touches on the role of the courts. On the contrary, senior jurists around the world have explicitly repudiated the use of law to silence critics and defend their personal status. They have recognized that where criticism is honest and legitimate, even if offensive, it does not breach this principle. 

Where contempt of court is invoked, it must be clearly justified and strictly limited to the exigencies of the case. Thus when the chief justice of Sri Lanka gave a one-year jail term to a litigant who filed repetitive motions and raised his voice during hearings, the United Nations Human Rights Committee found that the man's imprisonment amounted to arbitrary and illegal detention, as the sentence had been passed without due reason and was clearly disproportionate to the alleged offence. 

Even where a judge is unjustly accused of wrongdoing, the issue should go so far as to undermine confidence in the justice system itself before warranting a legal response. In Hong Kong, the courts have usually declined to initiate proceedings against vocal critics, preferring that the executive take responsibility to protect their work through public debate and policy. Thanks to their restraint and impartiality, the territory's judges continue to enjoy a high level of respect ten years after being placed under the ambit of Beijing, despite some unpopular decisions that have aroused hot public dissent. 

Although legitimate criticism of court rulings has obtained some acknowledgment in Thailand during recent years, there is still a long way to go. For example, the majority finding of the Constitutional Court to acquit Thaksin Shinawatra of assets concealment in 2001 attracted an unusually high amount of undisguised disagreement. The Criminal Court later found that a powerful newspaper columnist who described the ruling as "disgraceful" was guilty of contempt for his choice of words, but not of criminal libel, as he had commented in the public interest and kept to the facts. 

In 1999 a new law to establish administrative courts also incorporated a section to provide that reasoned criticism, in good faith, is not illegal. However, the ordinary criminal courts remain far less inclined to encourage debate about their role, and members of the public are still doubtful that they won't face reprisals if they speak out against judges. 

Unless the army pulls another coup and abandons the pretence of constitutional game-playing sooner rather than later, Thailand's judges are likely to come under unprecedented scrutiny in the coming year. Given their many new powers, they should be careful not to circumscribe debate on their role, or prohibit reasonable complaints about their actions, be they inside or outside the courts, lest they further damage their standing. 

Writing before the verdict in the 2001 assets case, political scientist Kasian Tejapira wrote that, "I'd rather... that not only should people 'pressure' the Constitutional Court, but they must also shake, criticize, submit petitions to, or even hold a demonstration to make the Constitutional Court aware of their opinions." 

That's the idea. Let us all shake, criticize and petition Thailand's courts, and see what happens. Because ultimately, justice doesn't depend upon judges: it depends upon everyone. And if no one can have their say, then the military regime that has made a mockery of all notions of law in Thailand during these past 12 months will surely have got its way.

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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. His Rule of Lords blog can be read at http://ratchasima.net)