Column: Rule of Lords
A recording has been made public that indicates the extent to which Thailand's top jurists are compromised and their conduct, censurable.
An unidentified top echelon bureaucrat apparently recorded his phone conversation with the secretary of the Supreme Court, Virat Chinvinijkul, and a judge of the court, Pairoj Navanuch, during May 2006. Neither the then-secretary nor the judge has denied the veracity of the recording, in which the three openly discuss charges pending against members of the Election Commission. The former secretary, now himself a judge, has dismissed it as containing nothing new. This is not true. Quite aside from its contents, the recording has opened a small window on the working methods of Thailand's higher courts, and their apparent inability to distinguish between the upholding of law and the playing of politics.
To recall, in April 2006 members of the Election Commission, then headed by a police general and associate of the former prime minister, Thaksin Shinawatra, had allegedly helped the Thai Rak Thai party secure victory in a general election, boycotted by other major political parties. The courts subsequently invalidated the vote. However, three of the commissioners refused to resign and pave the way for a new poll in October. As they were constitutionally safeguarded against dismissal, a number of cases were brought against them, in an attempt to force them out of office. It was at this point that the official called the two members of the court for advice.
As the mainstream media has failed to report on the recording in any detail, it is worth doing so here. After greetings, the official asks the secretary to give him some idea of what is going on among the three upper courts. He is told that they are looking for a way to have the Election Commission resign and then appoint a new one. The bureaucrat asks for suggestions on how he can forewarn the government that the courts will convict the commissioners if they do not step down, and by implication, what sort of deal can be done. The exchange continues:
Court secretary: This..we discussed it too. I can say that the EC resigning would have a good effect on the cases being prosecuted. Certainly I can almost promise that it would have a good effect...
Bureaucrat: So they do something, give something..
Court secretary: Yeah... that's it. They'll be the sacrifice. Then everybody will have the feeling that, yeah, it's finished. We Thais know that it's like this.
Bureaucrat: Easily forgotten, easily forgiven. (Laughing)
Court secretary: Yes... what's done is done...
At a number of points, the discussion turns on the king's recent speeches to senior judges about the importance of their role at times of national crisis. These seem to have gone to their heads. The secretary acknowledges that the courts are under pressure to act, although they cannot be seen simply to go along with the palace because "the foreigners wouldn't accept it." Then he admits that they are in fact going along with the palace, every single day.
Court secretary: We can't seek an audience [with the king]. We listen to what comes out. Whatever the court proceeds to do, it can't be said that it's following orders. We're not doing so. [But] you know there's a "link", Mr Jiap [the nickname of Judge Pairoj].
Bureaucrat: (Laughs) I know it's Mr Jiap. He's become the [movie/play] director.
Court secretary: Do you know? "He" knows everything, because the link from Mr Jiap goes to the Sisao house [of Privy Council president General Prem Tinsulanonda]... because the Sisao house must report every morning at nine.
Bureaucrat: Oh... every morning?
Court secretary: Yes. He has to go and come back every morning. In the morning before going into the meeting [of Supreme Court judges] "father" calls the president [of the court]. In short, His Majesty knows every step that we take..
Thereafter, the bureaucrat speaks to Judge Pairoj directly. Having questioned him about information, from an army spy, that the chief justice had a late night private meeting with the king, which the latter repeatedly denies, discussion turns again to the topic at hand.
"Now, the way out [of the problem] that I suggest, it's the same as what the court secretary suggests?" the judge asks the official, who concurs and assures him that he can speak to the chairperson of the commission directly. "You must tell him [to resign], otherwise it won't be safe for him," the judge says, insisting that if the chairman does the right thing then the court cases would be "cleared up". He never did, and the courts played their cards -- jailing the commissioners and forcing them from their seats. The October election never happened either; a military coup ensured that.
Because the recording was released by a former spokesperson of the ousted government for political reasons, and because it draws a line from the president of the Supreme Court to a person just one-step short of the monarch, it has been shunned by the mainstream media and others who should have taken an interest in its contents. This is a shame. It deserves attention for a multitude of reasons.
No court is hermetically sealed off from the outside, and nor should it be. An effective judiciary needs to be worldly as well as aloof. There is no formula to guarantee impartiality. The guide to Hong Kong's judicial conduct advises that, "judges should exercise a high degree of alertness and that ultimately, caution and commonsense are the surest guides." That said, there are also circumstances under which it is more obvious than others are, that their integrity is likely to be prejudiced. "Thus a judge should avoid expressing views on controversial issues which are likely to come before the courts in a way that may impair the judge's ability to sit."
Amid all the political hullabaloo and military gobbledygook that abounds in Thailand these days, important normative questions about judicial conduct and authority have not been asked nor been heard. By what criteria can we measure the independence of Thailand's courts? What are the implications for a system of government established on the notional separation of powers whose parts are in cahoots rather than in balance? Can a justice system function under such conditions at all?
Perhaps even more disturbing than the contents of the recording is its failure to excite outrage, from either inside or outside the legal profession. That the Supreme Court judge and secretary heard wheeling and dealing, have apparently not felt any need to justify their actions suggests a far deeper malaise than the one afflicting Thailand's public institutions, one characterized by growing demoralization in government and civic affairs and diminishing faith in leadership and the integrity of public bodies, not least of all the courts.
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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.)
