Judicial precedent 'needed' to prevent coups
Military takeovers have become a political mechanism for change
Today eight years ago the military did what many feared it would do -- engineer the coup that toppled the Pheu Thai Party-led government. Naming itself the National Council for Peace and Order, the coup maker argued it had to seize power to break the legal and political impasse. To its critics, there can never be justification for usurping power.
Former prime minister Abhisit Vejjajiva is one such critic. He shares his thoughts with the Bangkok Post on those who can undo the act and prevent another military coup -- the judiciary.
Should the judiciary have a role to play in refusing to acknowledge a coup? Is that even conceivable?
Before we get to the question of whether it's possible or conceivable, we have to first say that Thailand has been through too many coups. We can see all over the world that coups have become addictive. Once there's been a successful coup, it then becomes part of a normal political mechanism for change. In many countries where there have been coups, they tend to recur. If you look back at the last three or four coups in Thailand, at least in our living memory, you'll see that when they do happen, number one, they don't shock anybody. I can remember back in the days of Khun Chatichai (Choonhavan)'s government, people had been talking about the possibility of a coup. That was in 1991.
In the most recent coups, in both times there had been problems in the streets between supporters and opponents of the government of the day. There was fear of violence. The military stepped in and carried out a coup and again; it was not really a shock to anybody.
You can sense that a general feeling was one of relief that somehow the impasse and the problems were ending. And that's because now it's been built into the system that a coup is one way out. Politically, that's why I say they (coups) have become addictive.
On the legal side, because in previous coups precedent has been set, whoever seizes power then has the right to issue laws, having torn up a previous constitution. The judiciary then says that OK, the constitution is no longer there and these orders (signed by the coup makers) become laws. That gives them (coup makers) the legal tool. Whoever has the ability to seize power then becomes sovereign and they issue laws.
The challenge for Thailand and some other countries that are going through these kinds of experiences is "can we ever break out of this cycle?" Politically, of course, if we can somehow try to make sure that whatever political changes that would be effected can be constitutional, that would clearly help. From my point of view, I think politicians who call themselves democratic also need to learn the lesson that it is important to try not to create conditions that provide excuses or reasons for a coup.
I recognise that some of the reasons given for carrying out the coup may not hold water totally. But I think it will also be hard to deny that there isn't an element of truth in some of the charges such as corruption and a threat of violence. Politically, that's a challenge for all future governments to not try to create the kind of conditions that allows that to be used as an excuse for a coup.
Having said that, you come back to the legal challenge. There's always this question when they write a constitution: How can we prevent coups from happening? Some of the provisions in recent constitutions would say that people have the right to resist any kind of unconstitutional changes. But practically it is almost impossible to do. In any case, everybody says that whatever you write in the constitution, once the coup is carried out, the first thing they (the coup makers) do is say that the constitution is no longer there. This cannot stop the coup.
This is why the only legal tool that you have is the judiciary. Set a new precedent and say that anybody coming to power unconstitutionally, whatever they issue, be it orders and laws, are not legitimate and legal. Now, obviously, there is a risk that means that the coup makers would have committed a legal offence. Therefore, they obviously would resist that. There's also the risk of clashes (between supporters and opponents of the coup).
But there is no other way to nullify the coup and set a new precedent that you simply cannot seize power, tear up the constitution and issue new laws. It is possible, or is it even conceivable? There have been past court rulings that suggest that the judiciary has ideas about this. Going back to the 1991 coup, the coup makers seized the assets of a few ministers of the Chatichai government they overthrew. Eventually, the court ruled that the coup makers didn't have the power to seize the assets.
Clearly, there's an instance where the court tells the coup engineers they cannot do something. That is within the court's power. If that's the case, surely the court can also rule that the other acts of the coup makers are also not legal. I believe that in recent rulings of the Constitutional Court or the Administrative Court, you begin to see views (of some judges) which also say some of the laws issued by the coup makers are not legal.
Abhisit Vejjajiva: Courts are a legal tool
We have this general term 'Ratthathipat', which effectively means if you are a coup maker, you are the law. What do you make of that?
If there is precedent that allows coup makers to make the laws that set the norms, then there will almost be no legal way to try and stop coups. When the courts, and maybe certain judges, begin to view that you simply cannot seize power and issue laws and enforce them, that suggests that you can challenge that precedent.
The next step may be to restore the constitution that has been abrogated. I know it is extremely difficult. It breaks with the precedent or you might want to call it tradition. The point is there is so much talk of not having any more coups. This is one way of helping push the society along that path of a more sustainable democratic system where everybody recognises that all changes must be in accordance with the constitution of the day.
You mention the judiciary. Are you referring to the judges of the Constitutional Court or the judges of the courts of justice?
I believe it depends on what kinds of cases are brought up. The judiciary does not initiate cases; it needs to have somebody to challenge the legality of something. The nature of the cases will determine which courts they will be deliberated in.
In the end, I believe that if you look around the world and if you look at history, if coup makers are going to be challenged, eventually, it would take some kind of concerted effort or resistance. But that final step would have to involve the judiciary to interpret the legality of cases. If you succeed once, you may succeed forever.
We should try to think about this and maybe build some support. For instance, many of us still believe that the current constitution needs to be rewritten.
It has been suggested that it should be written down in a provision in the charter that only constitutional changes (as opposed to coups) are acceptable. That would set a new tradition or precedent that could permit the courts to pick up that phrase to base their rulings on when deciding on cases relevant to coup powers.
Charter and law-related disputes must be referred to the Constitutional Court, making it the final authority in deciding on cases concerning coup powers. How is this affecting the attempt to change the precedent you suggested?
Imagine a situation where there is a coup and the coup leaders are giving out orders for people to report themselves and banning political gatherings only to be resisted by the people. The coup leaders or the coup-installed government then take these people to court.
Now the court might rule that these people are not guilty because the orders themselves are not legal to begin with. Or maybe the government challenges this court and says the matter will be settled in the Constitutional Court. You see the possibility of resistance and how the judiciary comes into play.
If you follow the current norms and say there's the sovereign power, and the coup makers can issue laws at will, all coups will be legal and we will enter the same cycle where I say both politically and legally, it becomes almost a legitimate way of ushering in a political change.
It's something I believe a lot of people, particularly the young generation, want to put an end to.
How possible do you think this new precedent will materialise, given the technical and legal hurdles it would face?
I still have hope that we will have a better constitution than the current one. Ideally, (the charter) should be written with widespread participation of the people. If that happens, we'll hopefully have a democratic constitution, one that people genuinely feel belongs to them.
If the constitution is well-designed so that we have a well-functioning political environment, strong and transparent government and good checks and balances, the chances of a coup may be reduced. But if a coup happens under these circumstances, one hopes that there will be resistance, and down the line, the judiciary will for once rule that you cannot rip up the constitution.
In a number of cases in recent times where there have been coups, there has been international pressure. For instance, regarding the problem now with the Myanmar regime, we have witnessed the international community split over whether to recognise it or allow it to participate (in global matters).
These factors will also play into the dynamics of what will happen if you want to unwind a coup.
Do you foresee a military takeover in the future? Do you reckon we will have another one?
When I joined politics 30 years ago, many people at the time, myself included, hoped and -- to a certain extent -- believed the 1991 coup would be the last and that democracy in this country would pick up momentum.
But then, during the second Thaksin Shinawatra government, there were protests and abuses of the constitution. Eventually, the coup came back. Its return was ensued by polarisation. The last coup was a repeat of that one.
The question is: Have we learned the lessons? As much as I hope that the last one would be the absolute last, I still see that we haven't yet learned the lessons.
Even if we try to draft a new constitution, I can see many people just trying to get back to an old framework rather than think about what went wrong and prevent a future coup.
If the new generation became a powerful, democratic force, it would certainly be more difficult for a coup to be staged. But then again, the legality would still be on the side of the coup maker if things stayed the way they are now.
The coup makers would strive to absolve what they did. They would have to do it. But the question now is: Should the rest of society accept it? If not, they would need the help of all sections of society, including the judiciary.
It's easy for one side to blame the other for why coups happen or why they are perpetuated. All sides play a part in leading things up to the coup. We may not be all equally guilty.
But if we pretend that some of the sides are not at all responsible, I don't think we've learned the lesson.