The saga involving "suicidal" Judge Khanakorn Pianchana, who was recently transferred to the Research Justice Division with Chiang Mai's Court of Appeal Region 5, has prompted many to question how much control independent judges have over their rulings.
The fact nowadays is they are far less independent than they were decades ago, all thanks to the junta-sponsored 2017 constitution.
Judge Khanakorn shot himself in the chest in his courtroom in Yala province on Oct 4 after acquitting five Muslim suspects in a security case due to the absence of hard evidence. He recovered, and this week, the Judicial Commission decided to have him transferred to the research division, while ordering a probe to see if he violated any disciplinary codes.
In a statement posted on Facebook before he tried to take his life, the judge alleged that senior judges disagreed with his verdict. They wanted the five defendants to be found guilty, he said.
This revelation has brought the operation of the judicial system out in the open, resulting in a series of debates and seminars. iLaw, a group of independent legal experts, recently came up with an in-depth analysis on the independence of judges, and its comparison of the 1997, 2007 and 2017 constitutions revealed worrying signs in the justice system.
The now-dissolved 1997 charter is perhaps the only one that gave clear, specific provisions on the independence of judges. It also specified that rulings issued by judges could not be subject to supervision by senior judges. It also forbade senior members of the judiciary from re-opening case files, and most importantly, it said that judges could not be transferred without their consent unless it was part of a routine reshuffle, if the judge was facing disciplinary action or was a defendant in a criminal case.
The now-dissolved 2007 constitution, sponsored by the 2006 coup regime, watered down the provisions on judges' independence by, for instance, making the transfer of judges without their consent easier.
The current constitution is the least progressive when it comes to the judiciary's independence. Its provision on the matter is so broad that the judiciary had to set up two procedures, in 2017 and 2019, for the reporting of "important cases" including those related to national security.
Both procedures give regional justice chiefs the right to review case files and drafts of rulings on important cases handled by certain judges. The 2019 procedure, meanwhile, allows regional justice chiefs and judges to "communicate", but insists that any changes made should not change the direction of the original ruling, unless there are "special reasons".
Also, the fact that each regional justice chief can transfer judges under his or her supervision has further affected the independence of judges.
It is critical that every judge is allowed to decide a case based solely on the law and facts without pressure of any kind from their senior colleagues. The 2017 constitution should be amended, so judges have total independence like they did under the 1997 charter.
Meanwhile, the Judiciary Commission should focus its investigation into Judge Khanakorn's claim about interference in his ruling. The commission's decision to have him transferred and investigated to see if he violated disciplinary codes will raise more questions than give answers.
The judiciary's independence is critical to both the rule of law and functioning of democracy. Equally essential is the independence of the judiciary.