—Eugénie Mérieau, University of Goettingen
On 27 September 2017, Thailand’s Supreme Court convicted ex-prime minister Yingluck Shinawatra to a 5-year jail sentence. Almost ten years ago, it had convicted her elder brother, ex-premier Thaksin Shinawatra to a 2-year imprisonment[1]. Both rulings exhibited a similarity: they were read in abstentia – Yingluck and Thaksin having fled abroad instead of appearing before the court.
Despite being ten years apart, both ex-prime ministers shared the same fate: they were elected with a large majority of votes[2] then removed by a military coup d’etat following a Constitutional Court’s ruling invalidating their re-election[3]. Once removed from power, they were both banned from politics for five years[4], prosecuted, then charged and sentenced to non-suspended jail terms by the Supreme Court.
In both highly politicized cases, public prosecutors relied on the idea of “damages” caused to the State – a ground rather associated with legitimacy than legality.
Following the 2006 coup, the military junta created a special commission to investigate Thaksin’s actions and send the cases to the Supreme court: it was named “Commission to investigate actions that have caused damages to the State”[5]. In the case of Yingluck, the Public Prosecutor alleged a 500,000 Million THB in loss incurred to the State for its rice subvention scheme[6]. Yet the rhetoric of “damages”, although cited by the Supreme Court, was not used to build its legal reasoning – rather, it relied on “corruption”, on the basis of which it convicted Thaksin for the existence of a land deal between his wife and a government agency and Yingluck for “negligence” to prevent acts of corruption committed by a member of her government.
Both Thaksin and Yingluck rejected their trial as unconstitutional. Thaksin considered that the commission especially set up by decree by the coup leaders to prosecute him following the coup was unconstitutional, while Yingluck argued that the implementation of her rice – subsidy scheme, as a government policy, was to be scrutinized by the parliament, not the courts – questioning the constitutionality of the Supreme Court’s own investigation. While Thaksin’s plea of unconstitutionality was sent to the Constitutional Court[7], Yingluck’s was simply dismissed by the Supreme Court.
What this demonstrates is the Court’s increased confidence in the exercise of discretionary powers. Most of Thaksin’s government members had escaped prison terms, yet the entire Yingluck’s governmental team in charge of the rice policy was heavily jailed: Yingluck’s former minister of Commerce, Boonsong Teriyapirom, was sentenced to 42 years, while four of his colleagues were sentenced to jail terms ranging from 24 to 40 years.
Against this background, a first glance at Thai judicial politics seems to depict an all-too-familiar account of a politicized judiciary lacking independence, acting as the mouthpiece of a military government whose aim is to silence political rivals. However, the picture is far more complex than it seems. First, Thailand’s judiciary is independent. The government, either civilian or military, does not appoint the Thai Supreme Court judges, who enjoy life tenure and are recruited on the merits through competitive examinations. A judicial committee, mostly composed of career judges elected among themselves[8], guides internal promotions. Second, judiciaries have worked similarly against the Shinawatras under civilian or military governments: Thaksin’s conviction happened under civilian rule – the prime minister at the time was actually of the same political party as Thaksin – , while Yingluck’s took place under a military government.
So how to explain why the Court acts the way it does? The Supreme Court’s Special Division for Holders of Political Positions, created by the “post-political”[9] 1997 Constitution, aimed to suppress corruption committed by members of the government while in office. The inspiration came from France, who had adopted a special high court for prosecuting its ministers[10]. It is composed of nine judges elected separately for each case during an Extraordinary General Assembly of the Supreme Court. But as candidates are not so numerous, volunteers usually can get a hold of the cases they desire to adjudicate. For instance, one of the judges in charge of Yingluck’s case, Thanit Keswaphitak, had previously sat in the panel who condemned Thaksin to jail in 2008 and, as a Constitutional Tribunal judge, ordered the dissolution of Thaksin’s party in 2007.
Then, would « judicial harassment » against the Shinawatras only be a personal quest by a handful of zealous judges? Or is it part of a wider “hegemonic preservation strategy”[11] shared with the Constitutional Court (and the army)[12]? Unfortunately, in Thailand, strong contempt of court laws deter any discussion of the court’s actions in the demystifying terms of judicial politics.
Suggested Citation: Eugénie Mérieau, Thailand’s Supreme Court and the Prosecution of Thailand’s Successive Prime Ministers, Int’l J. Const. L. Blog, Oct. 11, 2017, at: http://www.iconnectblog.com/2017/10/thailands-supreme-court-and-the-prosecution-of-thailands-successive-prime-ministers
[1] Supreme Court’ Special Division for Holders of Political Positions, Red case 1/2550, 11 August 2008.
[2] In 2001, Thaksin was elected with 40% of the votes, and obtained 248 seats in parliament, 2 seats short of an absolute majority; in 2005, he was reelected with almost 60%, what gave him 75% of the seats. In 2011, Yingluck, obtained an absolute majority of 265 seats in parliament with 48% of the votes.
[3] The 19 September 2006 coup followed the Constitutional Court’s invalidation of the April election due to “the positioning of the ballot booths”. Likewise, the 22 May 2014 coup followed a Constitutional Court’s ruling on the unconstitutionality of the February election due to „the fact that elections were not held on the same day in the entire Kingdom“– plus, Yingluck was dismissed by the Constitutional Court on different grounds in early May.
[4] Thaksin was banned from politics for five years when his political party was dissolved by the Constitutional Tribunal on 31 May 2007. Yingluck was banned from politics for five years as part of an impeachment procedure in the Senate after her removal by the Constitutional Court.
[5] Its English name was euphemized as “Assets Examination Committee”.
[6] Press release of the Supreme Court, 27 August 2017.
[7] Decision 11/2551, 5 August 2008.
[8] According to the 2007 Constitution, the Judicial Commission comprises 15 members: 13 judges elected among themselves, and two other members appointed by the Senate (art. 226); see also article 196 of the 2017 Constitution.
[9] Tom Ginsburg “Constitutional afterlife: The continuing impact of Thailand’s postpolitical constitution”, International Journal of Constitutional Law, 7(1): 83–105, 2009.
[10] The « Cour de Justice de la République » was created in 1993 to try ministers for misconduct in the exercise of their missions. Former President François Hollande and incumbent Emmanuel Macron have vowed to abolish it.
[11] Ran Hirschl, Towards Juristocracy, New Haven: Harvard University Press, 2004.
[12] I have made the argument here: Eugénie Mérieau, “Thailand’s Deep State, Royal Power and the Constitutional Court (1997-2016)”, Journal of Contemporary Asia, 2016, pp. 445-466.
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