THAILAND: THE PLOT AGAINST DEMOCRACY Behind the Thai Establishment’s Disenfranchisement Agenda A White Paper by Robert Amsterdam, Amsterdam & Partners LLP 18 March 2014

1. Introduction

On February 2, 2014, tens of millions of Thai citizens turned out to cast their votes in early general elections called by Prime Minister Yingluck Shinawatra. In most of the country, the elections proceeded without incident. In Bangkok, however, voters found many polling stations closed after hundreds of protesters belonging to the People’s Democratic Reform Committee (PDRC) prevented ballots from being delivered or intimidated election officials into closing polling stations. It was much the same story in Southern Thailand, where the protesters not only stopped the voting in nine provinces, but also prevented the registration of any candidates for 28 constituencies. At the end of the day, the PDRC had prevented 12 million people from exercising their right to votes. What is more, the PDRC had denied the whole country a fully functioning government, stopping the elections in enough districts to keep the House of Representatives from meeting to choose a new Prime Minister. The PDRC sabotaged the election for one simple reason: since 2001, the Thai people have voted consistently and overwhelmingly for candidates and parties supporting former Prime Minister Thaksin Shinawatra. After a military coup threw him out of office in 2006, Thaksin’s enemies have managed to keep him out of the country, find him guilty of a trumped-up conflict of interests offense, seize over a billion dollars of his money, write a new constitution, dissolved two of his political parties, remove two Prime Ministers who had his backing, and disqualify over 200 of his allies from office. What they have failed to do is convince voters to vote against their interests, despite

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heavily stacking the deck against Thaksin in both of the elections completed since the coup, in 2007 and 2011. In 2011, voters resoundingly elected his sister Yingluck Shinawatra as Prime Minister and were poised to do so again in 2014. Having exhausted other remedies, Thaksin’s enemies demanded “reform before elections,” by which they meant that elections should take place after an unelected government was done “cleansing” Thailand of the Shinawatra family as well as its allies and supporters. The campaign to usurp democracy is led by the opposition Democrat Party, which boycotted the elections after its members resigned from parliament en masse to join the PDRC’s protests. Together with former Prime Minister Abhisit Vejjajiva, PDRC leader and Democrat Party former Secretary-General Suthep Thaugsuban faces multiple murder charges relating to a brutal crackdown that took the lives of more than 80 pro-democracy “Red Shirt” protesters in 2010. Suthep’s PDRC, however, is only a front for Thailand’s powerful establishment. As in previous occasions, in which the establishment had relied on the “Yellow Shirt” People’s Alliance for Democracy (PAD) to batter elected governments in preparation for military or judicial intervention, the aim of the PDRC’s multi-million dollar protests, sponsored by Thailand’s largest corporations, is to make the situation sufficiently ungovernable to provide the army or the courts an excuse to remove Yingluck and hand power to an appointed so-called “People’s Council.” The illegal and often violent actions leading up to the PDRC’s efforts to stop the elections have benefited from the assistance of institutions dominated by ultra-conservatives. Different branches of the military have supplied the PDRC with weapons and gunmen, while soldiers guard locations around the rally sites to dissuade the police from trying to clear them. The courts have sided with the PDRC, stripping the government of the authority to enforce the law, end the occupation of public spaces, and resume disrupted public services. The Election Commission has colluded with the PDRC’s sabotage of the elections and continues to deploy stalling tactics with the goal of delaying their completion. The National Anti-Corruption Commission and the Constitutional Court are considering cases that could result in the impeachment of Prime Minister Yingluck, or even the removal of the entire government, based on charges as frivolous and contrived as those that led to the downfall of previous elected administrations.

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The direct result has been a breakdown in the rule of law and a heightened potential for large-scale violence. Despite immense provocation, the government of Yingluck Shinawatra has behaved with utmost restraint, in sharp contrast to the behavior of the leaders of the Democrat Party in 2010. Should Yingluck’s government be removed, the PDRC’s public proclamations and genocidal language have left little doubt that any resistance will be met with broad-based repression. As the international press has reported, the PDRC has put together lists of thousands of government supporters who will be targeted for extra-judicial arrest and execution in case it succeeds. Since the beginning of the protests in November 2013, PDRC members have already committed several acts of murder, assault, kidnapping, and torture against members of the public thought to be supporting the government or the pro-democracy “Red Shirts.” The purpose of this White Paper is to alert the international community to an ongoing assault on democracy and the rule of law in Thailand, carried out by a coalition that includes members of the military, the courts, the public administration, the business world, the Democrat Party, and other extreme right-wing groups, like the People’s Alliance for Democracy (PAD), which have coalesced in the PDRC. Further, it calls on the international community to throw its full-throated support behind the Yingluck government, aiding in its efforts to protect Thailand’s civilian population against the denial of its right to self-determination and against the imminent prospect of widespread violence.

2. Of Coups Military, Judicial, and Permanent

The continuing breakdown of the rule of law in Thailand originates in the military coup that ousted elected former Prime Minister Thaksin Shinawatra on September 19, 2006. The coup also abolished a democratic constitution, the “People’s Constitution” of 1997, that guaranteed the people of Thailand political rights and civil liberties they had rarely enjoyed before. As in prior instances, the military used the issue of “corruption” as the excuse for the coup, vowing to implement democratic reforms before restoring civilian rule. It did not take long, however, for the coup’s real agenda to come to light. Aside from the campaign of political and legal persecution launched against former Prime Minister Thaksin and his political party, a group of conservative

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activists and scholars appointed by the junta drafted a new constitution far less democratic than the one the military had illegally abrogated. The aim of the “Coup Constitution” of 2007 was to empower a network of unelected officials to: a) Alter the result of free elections, through wide-ranging authority to dissolve political parties, remove elected representatives from office, and strip elected officials of their political rights; and b) Interfere with the activities of elected officials to carry out the agenda endorsed by the voters. The “Coup Constitution” not only insulated courts and agencies so empowered from democratic accountability, but also instituted selection procedures that ensured their appointment would remain in the hands of the junta’s conservative allies and supporters. As intended, the “Coup Constitution” of 2007 has ushered in a state of “permanent coup d’état,” whereby a group of unelected and unaccountable officials constantly abuse the law to deny the Thai people’s right to self-determination.

The linchpins of the Thai establishment’s assault on democracy are four institutions whose operation was changed significantly by the 2007 “Coup Constitution:” the Senate, the Constitutional Court, the Election Commission (ECT), and the National Anti-Corruption Commission (NACC). The “Coup Constitution” of 2007 made major changes to the composition of each of these bodies:

-Whereas the Senate had been fully elected before the coup, its membership of 150 senators now includes: a) One senator elected per province (at present, there are 77 provinces in Thailand); and b) A group of appointed senators chosen by a “Senator Selection Committee” that includes representatives of the courts and the public administration, but no elected official. -The membership of the Constitutional Court was reduced from 15 to 9. Of the 9 justices, 3 are chosen by a General Assembly of the Supreme Court, 2 are chosen by a General Assembly of the Supreme Administrative Court, and 4 are chosen by a Selection Committee (subject to Senate confirmation) composed of the President of the Supreme Court, the President of the Supreme Administrative Court, the Chair of the NACC, the Speaker of the House of Representatives, and the leader of the opposition.

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-The ECT has five members. Three members are chosen by a Selection Committee (subject to Senate confirmation) composed of the President of the Supreme Court, the President of the Supreme Administrative Court, the President of the Constitutional Court, the Speaker of the House of Representatives, the leader of the opposition, and two judges elected by a General Assembly of the Supreme Court and a General Assembly of the Supreme Administrative Court. Two additional members are selected by a General Assembly of the Supreme Court. -The NACC has nine members chosen by a Selection Committee (subject to Senate confirmation) composed of the President of the Supreme Court, the President of the Supreme Administrative Court, the President of the Constitutional Court, the Speaker of the House of Representatives, and the leader of the opposition.

Besides expanding the role of the judiciary in the selection process, the “Coup Constitution” of 2007 has greatly reduced the democratic accountability of the Constitutional Court, the ECT, and the NACC, by means of: 1) Reducing the role of elected officials in the nomination process; 2) Making the confirmation of nominated members of these three bodies subject to the approval of a new Senate where almost half of the members are selected by the judiciary and administrative bodies like the ECT and the NACC. By design, the reforms left the Constitutional Court, the ECT, and the NACC stacked with ultra-conservative judges, academics, and activists. Many had served in bodies appointed by the military junta after the 2006 coup such as the Constitutional Tribunal, the National Legislative Assembly, and the Constitution Drafting Assembly. Since Thailand formally returned to civilian rule in late 2007, these officials have continued the same work the military junta had recruited them to do: protect the power of the Thai establishment against the will expressed by the people in elections.

The Power to Remove

At the time of the 2006 coup, the dissolution of political parties was governed by the 1997 Constitution and the 1998 Organic Act on Political Parties. Consistent with most democratic countries, Section 66 of the Organic Act

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gave the Constitutional Court the power to order the dissolution of political parties found to have acted to overthrow “the democratic system of government with the King as Head of State,” to have attempted to assume power through unconstitutional means, to have endangered the security of the state, or to have committed other irregularities such as accepting funds from abroad. One of the generals’ first orders of business upon seizing power in 2006 was to replace the unlawfully abrogated 1997 Constitution with an Interim Charter. Though the junta announced that the 1998 Organic Act on Political Parties would remain in force, a crucial amendment to the Act was introduced ten days after the coup. With the “Announcement of the Council for Democratic Reform No. 27,” the junta ordered the following:

Should the Constitutional Court or any other organ acting on behalf of the Constitutional Court give the order to dissolve any political party for committing an act prohibited by the Organic Law on Political Parties B.E. 2541 (1998), the electoral rights of the Executive Board of such political party shall be revoked for a five-year period as from the issuance of such order.

The decree gave the junta the power not only to disband Thai Rak Thai, the party of deposed Prime Minister Thaksin Shinawatra, but also to remove its leaders from Thailand’s political scene. The generals replaced the Constitutional Court with a handpicked Constitutional Tribunal, empowered by the Interim Charter with the same prerogatives of the old Court. This ensured that the new rules introduced by the generals would be applied and enforced in a manner consistent with the junta’s intent. On May 30, 2007, while the country remained under military rule, the Constitutional Tribunal appointed by the junta dissolved Thaksin Shinawatra’s Thai Rak Thai party, which had won general elections in 2001 and 2005. The charges for which Thai Rak Thai was dissolved stemmed from the conduct of its officials during the (later annulled) April 2006 elections, which had been boycotted by the Democrat Party. In an attempt to boost the credibility of the results, Thai Rak Thai was accused of having bribed two small parties into participating in the elections, as well as to have conspired with members of

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the Election Commission fraudulently to amend details in the registration of at least one such party to permit its participation. The scheme was alleged to have been arranged and carried out by two members of Thai Rak Thai’s executive committee, General Thammarak Issarangkura na Ayudhya and Pongsak Raktapongpaisar, but the Court reasoned that, given their position within the party, Thai Rak Thai could be held responsible for their actions.1 In ordering Thai Rak Thai’s dissolution, for allegedly conspiring to assume power through unconstitutional means and “actions contravening the law,” the Constitutional Tribunal also disqualified 111 of its executives from voting and from seeking elected office for a period of five years. Controversially, the Tribunal based this decision on the “Announcement of the Council for Democratic Reform No. 27” issued after the coup, even though the alleged offenses took place six months prior to the imposition of the new rules. As a result of the retroactive application of a decree imposed by a military junta, 111 members of Thai Rak Thai were deprived of their political rights owing to an episode of misconduct in which only two of them were alleged to have participated. The Tribunal made no attempt to establish whether any of the 109 executives not personally involved in the alleged offenses had any knowledge of the illegal actions. Most Thai Rak Thai leaders were denied an opportunity to speak for themselves in court. Thailand returned to civilian rule with the elections of December 23, 2007 heralded. The junta, however, had done much to prevent allies of former Prime Minister Thaksin Shinawatra from coming back to power. Aside from the dissolution of Thai Rak Thai and the redesign of the constitution, the junta had committed substantial resources to defeating the People Power Party (PPP), founded by former members of Thai Rak Thai. Shortly after the PPP was established, the junta issued an order to suppress its activities, which led the PPP to file a complaint against the junta before the Election Commission. The Election Commission, however, dismissed the complaint on the grounds that the junta enjoyed blanket immunity under the 2006 Interim Charter and the “Coup Constitution” of 2007.2

                                                                                                               1http://www.nytimes.com/2007/05/30/world/asia/30iht-thai.5.5934187.html

2 http://thailandpost.blogspot.com/2007/12/junta-never-harmed-ppp.html

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While the military’s campaign was successful insofar as it kept the People Power Party from earning an absolute majority in the House of Representatives, its actions could not keep the party from winning a plurality of seats. As a result, and despite the fact that the Election Commission disqualified some of its candidates for alleged irregularities, the People Power Party was able to form a coalition government under the leadership of the late Samak Sundaravej. The government was supported by a number of smaller parties in the House of Representatives. Anticipating that the Democrat Party might not win the 2007 elections, despite the assistance provided by the military and much of Thailand’s public administration, the junta had made sure that the “Coup Constitution” of 2007 would not only incorporate the provisions on party dissolution promulgated after the coup, but would further expand upon the anti-democratic powers given to the courts and various administrative bodies. While preserving the Constitutional Court’s authority to strip party executives of their political rights upon ordering a party’s dissolution, regardless of their knowledge or involvement in the wrongdoing, the 2007 “Coup Constitution” broadened the Constitutional Court’s authority in two ways. First, Section 237 expanded the definition of acts that may be grounds for dissolution to include electoral irregularities. Second, Section 237 specified that it was no longer necessary to demonstrate the party’s responsibility for the actions of an individual. The Constitutional Court, upon the referral of the Election Commission, could now dissolve a political party based on “convincing evidence” that “any leader or member of the executive committee of a political party connived in the commission of the act, or had knowledge of the conduct in question but failed to thwart or correct it in the interest of ensuring an honest and fair election.” Days after the 2007 election, reports surfaced that the Election Commission had opened investigations into as many as eighty-three races won by candidates under the People Power Party’s banner, while Democrat Party politicians lodged a formal petition to get the PPP disbanded on the grounds that the party was a proxy for the banned Thai Rak Thai.3 PPP Deputy Leader Yongyuth Tiyapairat was also cited in an attempt to bribe local officials to

                                                                                                               3 http://news.bbc.co.uk/2/hi/asia-pacific/7171454.stm

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campaign in support of his sister in Northern Thailand. Given Yongyuth’s status within the party, it became immediately clear that his case would serve as the grounds upon which the People Power Party would later be dissolved.4 After they had pledged their support for the new government, similar proceedings were initiated against the smaller parties Chart Thai and Matchima Thippatai, based on the Election Commission’s annulment of the election victories of an executive from each party (Monthien Songprachai and Sunthorn Wilawan, respectively).5 On September 9, 2008, in response to charges brought forth by opposing politicians and the Election Commission, the Constitutional Court appointed by the Senate in May 2008 (whose members remain in office to this day) issued its first major ruling. The Court forced Prime Minister Samak to resign, citing the fact that Samak had hosted a cooking class on television, allegedly in violation of the prohibition against elected officials receiving compensation from other sources. Samak argued, unsuccessfully, that he was not employed by the television station and that, although the programs had aired during his tenure as Prime Minister, they had been recorded before he became premier. On September 18, 2008, Samak was replaced by PPP leader Somchai Wongsawat. Legal proceedings against the three governing parties continued beyond Samak’s replacement. Eventually the Election Commission referred the cases to the Constitutional Court, recommending dissolution. In early December 2008, as the People’s Alliance for Democracy’s (PAD) occupation of the Bangkok’s international airports entered its second week, the Constitutional Court ordered the three parties dissolved. In addition, the Court stripped all 104 members of the parties’ executive committees of their political rights, forty-one among them sitting members of parliament. The dissolution of the People Power Party, Chart Thai, and Matchima Thippatai was enough to force Somchai to resign, and bring down the government, but the number of MPs stripped of their office was still not large enough to give the Democrat Party a majority. The government of Abhisit Vejjajiva (2008-2011) was only formed after intense lobbying on the part of the military, which convinced a large

                                                                                                               4 http://www.nationmultimedia.com/home/EC-ruling-may-start-meltdown-for-PPP-30061635.html 5 http://www.nationmultimedia.com/home/Is-end-in-sight-for-stricken-Chart-Thai--30062022.html

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faction of the dissolved PPP (reconstituted in the Bhum Jai Thai Party), the minor party Pheu Paendin, and MPs left over from Chart Thai’s dissolution to switch their support. Whereas Thailand’s provisions on party dissolution represent an unacceptable restriction on fundamental democratic freedoms, their selective and discriminatory enforcement has effectively turned legislation designed to fight corruption and election fraud into an instrument by which Thailand’s politicized judiciary can alter the composition of parliament, overturn the choices made by voters, and take opponents of the establishment out of contention. The rules on party dissolution have consistently been applied in a biased and one-sided manner. Concurrently with the dissolution of Thai Rak Thai in May 2007, the Constitutional Tribunal was called upon to rule on similar charges referred by the Office of the Attorney General against the Democrat Party. The charges also stemmed from the party’s activities during the brief campaign for the 2006 elections. In its filing recommending the dissolution of the Democrat Party, the Attorney General alleged that high-ranking officials Sathit Wongnongtoey and Secretary-General Suthep Thaugsuban were involved in attempts to bribe small parties into sitting out the elections. Members of the Democrat Party were also alleged to have bribed officials belonging to another small party into registering for the election, and subsequently to hold a press conference in which they falsely accused Thai Rak Thai of having paid them to do so. While the junta-appointed Constitutional Tribunal upheld the latter charge, it conveniently cleared top party officials of the attempted fraud, saving the Democrat Party.6 The Tribunal ruled that the Democrat Party should not be held responsible, in the absence of evidence pointing to the leadership’s participation or knowledge of the illegal acts. None of its executives faced any legal or administrative penalty as a result. Since that judgment, the Democrat Party has been saved from dissolution on several other occasions. Weeks before Abhisit Vejjajiva became Prime Minister in late 2008, the Election Commission ruled on a case of vote buying

                                                                                                               6 http://www.nationmultimedia.com/home/The-Tribunal-clears-Democrat-and-Taikorn-from-hiri-30035587.html

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that implicated four Democrat Party candidates, including three sitting MPs. The only official whom the Election Commission cleared of wrongdoing was Vithoon Nambutr, the only one among them who also served as a member of the party’s executive committee.7 In April 2010, the Election Commission referred two dissolution cases against the Democrat Party: one involving illegal donations amounting to 258 million baht, the other centering on the misuse of funds amounting to 29 million baht. After spending six months questioning witnesses, examining evidence, and hearing closing arguments from both sides, the Court ruled that the cases had been inadmissible all along, based on the timing of their referral by the Election Commission.8 In a series of videos posted on YouTube in mid-October 2010, Democrat Party officials were seen lobbying Constitutional Court judges to render a favorable decision on the party’s dissolution cases. In these videos, the judges openly discussed the political implications of clearing the Democrat Party, especially the possibility that absolving the Democrats might buttress the Red Shirts’ claims about “double standards.” The justices also described how they managed to rig a judicial entry exam to favor their own relatives and cronies. While criminal proceedings were initiated against the persons believed to have recorded and posted the videos,9 the Constitutional Court judges have not faced any legal or disciplinary sanction for their conduct. The minor parties persuaded to switch their support to Abhisit were extended the same protections from party dissolution the Democrats enjoy. At least two of those parties benefited from their newfound immunity almost immediately. In May 2009, the Election Commission declined to bring party dissolution charges against Bhum Jai Thai, after Boonjong Wongtrairat (a member of Abhisit Vejjajiva’s cabinet) was caught distributing public money, blankets, and name cards to villagers in his home constituency.10 Two months later, the Election Commission spared Pheu Paendin from dissolution. While one of its executives had been disqualified from his position as MP based on vote buying in the 2007 election, the Election Commission ruled that the party could not be held liable for his actions. Though Noppadol Polsue had been

                                                                                                               7 http://www.bangkokpost.com/news/local/3553/democrats-safe-from-dissolution 8 http://m.bangkokpost.com/topstories/209253 9 http://www.economist.com/node/17472738 10

http://www.bangkokpost.com/news/local/16252/ec-absolves-boonjong-of-power-abuse

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appointed to Pheu Paendin’s Executive Committee in July 2007, the party registrar had failed to endorse the appointment until three days before the election. Therefore, the politician was not officially a member of the executive committee at the time of the offenses in October 2007.11 The government put in place by the judiciary and the military in 2008, against the wishes of the electorate, could only cling to power until a new general election was called for July 3, 2011. A year earlier, Abhisit’s determination to avoid an early election had led him to unleash the full brunt of military force on pro-democracy “Red Shirt” protesters, leaving more than 80 of them dead. Given the opportunity in 2011, the Thai people again expressed themselves at the ballot box, handing the Pheu Thai Party, the newest manifestation of the defunct Thai Rak Thai, a landslide victory and an absolute majority in the House of Representatives. The Democrat Party won even fewer seats than it had in 2007. As expected, the Democrat Party soon kicked off its efforts to overturn the elections, focusing principally on two groups: Red Shirt leaders who became MPs and top-ranking officials in the elected government, particularly Prime Minister Yingluck Shinawatra. At first, these efforts yielded little effect. Although two leaders of the Red Shirts, Jatuporn Prompan

12 and Karun

Hosakul,13

were later stripped of their parliamentary seats on questionable grounds, the Election Commission and the courts did not stop the elections from being certified. Meanwhile, Prime Minister Yingluck survived several attempts by the opposition to have her barred from politics, based on allegations including perjury,

14 illegal concealment of assets,15

inconsistent asset declarations,

16 and “vote-buying” for cooking noodles for constituents at

campaign rallies,17

as well as over her ministerial18

and bureaucratic19

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http://www.bangkokpost.com/news/local/150636/puea-pandin-saved-from-dissolution 12 http://www.bangkokpost.com/lite/topstories/294016/charter-court-disqualifies-jatuporn 13

http://www.nationmultimedia.com/politics/Abhisit-tells-Sodsri-off-for-explaining-her-vote-30184740.html 14

http://www.nationmultimedia.com/national/DSI-to-look-into-claims-against-Yingluck-30158405.html 15

http://www.nationmultimedia.com/business/SEC-investigation-on-Yingluck-pending-30158895.html 16

http://www.nationmultimedia.com/politics/Yinglucks-job-may-be-on-the-line-over-two-hot-iss-30202250.html 17

http://www.nationmultimedia.com/national/EC-bombshell-on-Yingluck-30160164.html 18

http://www.nationmultimedia.com/politics/Action-on-new-ministers-unlikely-30175159.html

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appointments. None of these charges was found to have any merit, but the opposition was not deterred. In December 2012, the opposition concentrated its efforts on the government’s alleged mishandling of its flagship rice-pledging policy, a program whereby the government buys rice from farmers at a fixed price higher than market value. The Democrat Party petitioned the National Anti-Corruption Commission with allegations of money laundering.20 The opposition also challenged the government’s decision to issue a new passport for former Prime Minister Thaksin Shinawatra.21 In connection with the same incident, the Democrat Party has filed an impeachment motion against Foreign Minister Surapong Tovichakchaikul for alleged “unconstitutional conduct” in asking Japanese authorities to issue Thaksin a special permit entry.22 Additionally, the government has faced allegations of abuse of power in relation to the Infrastructure Act, which would have seen the government borrow 2 trillion Baht in order to invest in the country’s infrastructure. The former drafters of the Constitution petitioned the National Anti-Corruption Commission to try Prime Minister Yingluck and her Ministers in the Supreme Court for allegedly violating Section 169 of the Constitution, which stipulates that all government spending be included in the budget bill.23 In 2013, members of the Democrat Party also complained to the NACC, charging malfeasance in connection with a water management project the government unveiled after the terrible floods Thailand suffered in 2011. The NACC is investigating the charges to verify whether there are grounds to impeach the Prime Minister and members of her cabinet.24

The case in which Prime Minister Yingluck is most likely to face impeachment in the immediate term is related to the government’s rice-pledging policy. In late 2013, before resigning from parliament to join the

                                                                                                                                                                                                                                                                                                                                             19

http://www.nationmultimedia.com/breakingnews/NACC-probes-Boonsong-Yingluck-Sukampol-30195592.html 20

http://www.nationmultimedia.com/politics/Democrats-to-pursue-rice-scam-30195420.html 21

http://www.nationmultimedia.com/politics/Yinglucks-job-may-be-on-the-line-over-two-hot-iss-30202250.html 22

http://www.nationmultimedia.com/national/Impeachment-motion-filed-against-Surapong-30163646.html 23

http://www.nationmultimedia.com/politics/PM-Cabinet-to-face-probe-over-Bt2-tn-loan-bill-30203350.html 24 http://englishnews.thaipbs.or.th/panel-set-probe-pm-yingluck-water-project/

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PDRC protests, Democrat Party leader Abhisit Vejjajiva filed a complaint with the NACC accusing the Prime Minister of negligence, for failing to make sure that the rice-pledging scheme was free of corruption. At this stage the “corruption” in question is only alleged, as nobody has been prosecuted in connection with the policy. In a highly unusual development, the NACC took only a few weeks to investigate accusations that generally take months or years; for example, an investigation by the NACC over Abhisit Vejjajiva’s role in a rice-price guarantee scheme in 2010 is still ongoing. On February 18, 2014, the NACC formally informed the Prime Minister that sufficient evidence was found to charge her with negligence. The NACC’s official charge sheet, presented to defense counsel on February 27, 2014, accuses Prime Minister Yingluck of violating Section 157 of the Penal Code:

Section 157. Whoever, being an official, wrongfully exercises or does not exercise any of his functions to the injury of any person, or dishonestly exercises or omits to exercise any of his functions, shall be punished with imprisonment of one to ten years or fined of two thousand to twenty thousand Baht, or both.

In the specific instance, the NACC accuses the Prime Minister to have failed, through inaction, to prevent damage to the country and individual persons caused by the rice-pledging policy. Prime Minister Yingluck was deemed negligent in five main respects:

- The rice-pledging scheme distorted market prices “inappropriately” and created a potential for corruption at all levels, yet the government continued the policy after this was brought to its attention. -Members of parliament from the opposition Democrat Party alleged corruption in no-confidence debates beginning in 2012, yet the government continued the policy after the allegations were made. -The rice-pledging scheme was shown since 2012 to be running a deficit, yet the government continued the policy, incurring further losses. -The rice-pledging scheme decreased the competitiveness of Thai rice by

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inflating prices and reducing quality, resulting in loss of international market share, yet the government continued the policy, causing damage to the country’s agricultural sector. -As a result of the government’s failure to structure the rice-pledging policy appropriately, rice farmers were upset over delays in the payments.

The NACC considers this grounds for the Prime Minister’s impeachment despite producing no evidence of corruption. The NACC treats it as a given that there was corruption in the rice pledging scheme and takes what Democrat Party MPs claimed in parliamentary debates as fact. It makes no effort to verify the allegations, nor does it even describe what the allegations were. What the NACC claims is that once opposition MPs alleged corruption, the Prime Minister should have stopped the policy; the fact that she did not is grounds for impeachment. Even more tendentious is the NACC finding grounds for impeachment in the fact that a subsidy scheme such as the one in question inflated market prices or ran a deficit, which is what subsidies do by definition. Here, the NACC is making a judgment about the effectiveness and appropriateness of the policy that is only for the electorate to make. The nine unelected bureaucrats on the NACC have no authority to set government policy. The fact that they would argue the Prime Minister’s impeachment based on their disapproval of policy outcomes goes to show just how little regard the NACC and other administrative and judicial bodies in Thailand have for the will of the electorate, principles of due process, and the separation of powers. The NACC is expected to make a final decision on whether to refer the Prime Minister for impeachment by the Senate within the next month. Should the NACC find a prima facie case for her “guilt” on the charges listed above, Prime Minister Yingluck would be suspended from her duties pending the conclusion of the Senate’s proceedings. Her impeachment requires a supermajority of 60 percent, facilitated by the fact that a majority of the appointed senators are fierce opponents of the Prime Minister and have cooperated with the Democrat Party in many of the previous attempts made to strip her of her office.

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The Power to Obstruct

The Pheu Thai Party based its 2011 election campaign platform on an agenda of reforms, and above all, reforms to the Constitution. Individual members of Pheu Thai have advocated that Thailand should replace its 2007 “Coup Constitution” with its 1997 “People’s Constitution.” Rather than attempt to reintroduce the old document, however, the government of Yingluck Shinawatra initially proposed that the Constitution be re-written by a Constitution Drafting Assembly, as has happened several times in the past. Contrary to most prior instances, the coalition’s position was that the Constitution Drafting Assembly should be for the most part elected by the people, one for each of Thailand’s seventy-seven provinces, and should limit the number of appointed experts to twenty-two. The draft produced by the Constitution Drafting Assembly would then be put to the people for approval in a referendum. Instead of attempting to amend the Constitution in parliament, as it is empowered to do under Section 291 of the present charter, the government then sought to amend Section 291, broadening it to allow for the establishment of a Constitution Drafting Assembly like the one described above. By May 2012, the proposed amendment had been debated and approved by an overwhelming majority (340-101) of members of the House of Representatives and Senate in two of the three readings required by the Constitution. Parliament was scheduled to begin its final reading of the constitutional amendment on June 5, 2012. Upon passage of the second reading in May 2012, members of the Democrat Party and some appointed Senators appealed to the Constitutional Court, alleging that Pheu Thai and other parties in the government’s coalition, in pushing the constitutional amendment, had violated Section 68 of the Constitution. Section 68 provides:

Section 68. No person shall exercise the rights and liberties prescribed in the Constitution to overthrow the democratic regime of government with the King as Head of State under this Constitution or to acquire power to rule the country by any means not in accordance with the modes provided in this Constitution.

  17  

Faced with the challenge of explaining how a procedural amendment to Section 291 of the Constitution could be seen as an attempt “to overthrow the democratic regime of government with the King as Head of State,” the plaintiffs argued that the amendment would enable Pheu Thai to pursue their “hidden agenda” to overthrow the current regime of government. This is in keeping with an old conspiracy theory based on which the PAD, the Democrat Party and the military have accused former Prime Minister Thaksin Shinawatra of scheming to overthrow the monarchy. The accusation, though never substantiated, was one of the ways in which the 2006 military coup and the 2010 massacre of Red Shirt demonstrators were explained to the public. The Department of Special Investigations later concluded that there was no evidence in support of an alleged conspiracy to overthrow the monarchy that the administration of Abhisit Vejjajiva and the Army claimed to have uncovered in 2010.

25 In other words, the concocted conspiracy was just an

excuse to criminalize the Red Shirt movement and the Pheu Thai Party. The complaints filed with the Constitutional Court in May 2012 were based on this discredited underlying claim. The plaintiffs argued that the amendment to Section 291 of the Constitution would lead to the election of a Constitution Drafting Assembly dominated by supporters of the Yingluck government, who would in turn write a new constitution overthrowing “the democratic regime of government with the King as Head of State.” The claim was made despite the government’s stated position that constitutional provisions related to the monarchy should not be amended.

26 In practice, the

Constitutional Court was asked to scrutinize what may have been in the minds of legislators who voted in favor of amending Section 291 of the Constitution, and to conduct the sort of “trial of intentions” permitted in no democratic country with any respect for the rule of law. The complaints lodged with the Constitutional Court were especially dangerous because, under Section 68 of the Constitution, the Court is empowered to order the dissolution of any political party found to have attempted “to overthrow the democratic regime of government with the King as Head of State.” Upon receiving the complaint, the Constitutional Court agreed to review the presumed “hidden intentions” of political parties that proposed the                                                                                                                25

http://www.nationmultimedia.com/national/DSI-poised-to-drop-lese-majeste-conspiracy-case-30179098.html 26

http://m.bangkokpost.com/opinion/293652

  18  

amendment to Section 291. In so doing, the Court reached well beyond its own authority, because Section 291 does not contemplate any role for the Constitutional Court in amending the Constitution. This is a prerogative reserved for the legislative branch, acting on a proposal submitted by either the executive or a group of parliamentarians. Nor does any provision in the Constitution empower the Constitutional Court to order the parliament to suspend its deliberations on constitutional amendments, yet this also occurred. On June 1, 2012, Thailand’s Constitutional Court took the extraordinary step of issuing an injunction ordering the National Assembly to cease all deliberations on a proposed amendment to the 2007 Constitution, pending a review of its constitutionality.

27 Based on the weakest of rationales,

the Constitutional Court committed an egregious violation of the separation of powers, a founding principle of any representative democracy. Moreover, the Constitutional Court’s injunction breached the provisions of Section 68 of the Constitution, upon which it had decided to act. Section 68 requires that individuals or groups thought to have committed an act aiming “to overthrow the democratic regime of government with the King as Head of State” be investigated by the office of the Attorney General; at the conclusion of the investigation, it is up to the Attorney General to “submit a motion to the Constitutional Court for ordering the cessation of such an act.” In this instance, the Constitutional Court received no such motion from the Attorney General. The Constitutional Court simply took the matter into its own hands and enjoined the parliament from exercising its constitutional powers. Further, the Constitutional Court ordered the accused to provide a defense of their motives before any investigation was even conducted. In announcing the decision, a spokesman for the Constitutional Court conceded that the National Assembly would face no penalty should it fail to heed the injunction, as no law gives the Constitutional Court the power to give such an order; he warned, however, that ignoring the unlawful order “may reflect an intent as claimed in the petitions.”

28

The Constitutional Court issued its injunction on the same day that a few hundred activists from the PAD, in cooperation with members of the opposition Democrat Party, blocked all roads to Thailand’s parliament,                                                                                                                27

http://www.bangkokpost.com/news/local/296309/constitution-court-under-fire-over-charter-bill-vote 28

http://www.bangkokpost.com/news/politics/296184/charter-vetting-put-on-ice

  19  

preventing the House of Representatives from meeting to debate a controversial “Reconciliation Act.” Two prior meetings of the House had been disrupted by the PAD’s threat to storm the halls of the National Assembly, and by the intemperate outbursts of Democrat Party MPs, some of whom physically assaulted the House Speaker and other parliamentarians. Once again, the anti-Thaksin coalition had teamed up to delegitimize the democratic process and prevent the representatives of the Thai people from fulfilling their legislative functions under the Constitution, laying the groundwork for the removal of a duly elected government, whether by military or judicial fiat. On July 13, 2012, the Constitutional Court issued its ruling concerning on the amendment of Section 291. While the Court declined to dissolve the Pheu Thai Party, there was no reason to celebrate the verdict, which set out principles that are unacceptable in a democratic country founded upon the rule of law.

-First, the Constitutional Court claimed the power to declare “constitutional” something that the Constitution explicitly prohibits. It did so by concluding that it had jurisdiction to rule on complaints alleging violations to Section 68 of the Constitution without a prior investigation by the Attorney General, which the Constitution explicitly requires.

-Second, the Constitutional Court claimed the power to declare “unconstitutional” something that the Constitution allows. It did so by arguing that the National Assembly does not have the power to amend the Constitution, consistent with the procedures set out by the Constitution, in a manner that would allow a Constitution Drafting Assembly to write a new charter, despite the fact that the Constitution contains no such prohibition.

In practice, the Constitutional Court established that its authority to interpret the Constitution extends so far as to permit it to simply make up non-existing constitutional requirements, or ignore existing constitutional requirements, whenever it is necessary to stop an elected government from implementing its agenda.

  20  

Aside from showing utter disregard for the will of the electorate and the rule of law, the Constitutional Court was deliberately vague in its ruling, refusing to make clear whether its finding should be taken as a “suggestion” or an “order” that could lead to further judicial action in the event it was contravened. This left the government in a quandary over whether to pursue the amendment to the constitution that has already passed two of the required three readings in parliament, only to risk being stopped in its tracks and possibly removed by the Court, or whether to begin the more lengthy process of amending the constitution one section at a time. Given the continuing threat of the Pheu Thai Party’s dissolution, the government chose to “play it safe,”

29 concentrating on clarifying or correcting

sections of the 2007 “Coup Constitution” most contrary to democratic principles, with the objective of: 1) Reducing the authority of the Constitutional Court to interfere with the legislature and dissolve political parties (Sections 68 and 237); 2) Making the Senate fully elected. The opposition obstructed each of these efforts. Appointed Senators submitted a petition to block the amendment of Section 68, seeking the dissolution of the six parties jointly sponsoring the proposed amendment. When the Constitutional Court accepted the petition, Democrat Party MPs threatened the supporting members with impeachment if the Court were to consider the amendments an attempt to overthrow the constitutional monarchy.

30

Furthermore, the Democrat Part opposed the idea of an elected Senate, which Abhisit Vejjajiva told the media would be “filled with government lapdogs,”

31

as well as the amendments to Sections 68 and 237, arguing that the amendments ran counter to the intent of a Constitution passed by a military government following an illegal coup.

32

Despite facing obstacles at every turn, an amendment related to the election and qualification of Senators, which provided for an elected 200-member Senate, was passed by parliament in its third reading on September 28, 2013. On November 4, 2013, parliament also voted final approval for an amendment to Section 190, which made some international agreements not                                                                                                                29

http://www.nationmultimedia.com/politics/Pheu-Thai-wants-to-avoid-grounds-for-another-disso-30191407.html 30

http://www.nationmultimedia.com/politics/Court-will-rule-on-charter-bid-30203349.html 31

http://www.nationmultimedia.com/politics/Charter-changes-would-deepen-rift-Abhisit-30203259.html 32

http://www.nationmultimedia.com/politics/Charter-showdown-looms-30203110.html

  21  

subject to the legislature’s approval.33

Both amendments to the Constitution were immediately challenged by the Democrat Party and appointed Senators, who requested that the Constitutional Court rule them unconstitutional. The Constitutional Court sided with the plaintiffs in both cases. On November 20, 2013, the Constitutional Court rejected the amendments made to the selection and qualification of Senators, finding among other things that an elected Senate would undermine the checks and balances required under the existing system of government. Therefore, the Constitutional Court ruled that in passing the amendment, the parliament had engaged in an attempt “to overthrow the democratic regime of government with the King as Head of State,” contrary to Section 68 of the Constitution. Based on the Constitutional Court’s ruling, the Democrat Party filed a petition asking the NACC to investigate the 381 legislators who voted in favor of the amendment. On January 7, 2014, the NACC agreed to charge 308 of them for misconduct and possible referral for impeachment by the Senate.

34 The day after, the

Constitutional Court also struck down the amendment to Section 190, ruling that exempting some international agreements from parliamentary approval violated Sections 3, 68 and 125 of the Constitution, “tantamount to an attempt to overthrow the current political system.”

35 In an additional outrage

to the separation of powers, on March 12, 2014 the Constitutional Court also declared unconstitutional one of the Yingluck government’s main legislative accomplishments, its 2 trillion baht Infrastructure Act.

36

The Permanent Coup d’État

As a result of reforms made by the “Coup Constitution” of 2007, Thailand has been thrust in a state of “permanent coup d’état,” in which the will of the people and the constitutional powers of the elected government are trampled over on an ongoing basis. Thanks to its control over appointments to the courts, independent agencies, and the Senate, the Thai establishment has not only prevented the passage of badly needed democratic reforms; it has also

                                                                                                               33 http://www.bangkokpost.com/news/politics/378156/section-190-passes-final-reading-in-stormy-session 34 http://bangkokpost.com/news/local/388445/nacc-to-charge-308-lawmakers 35 http://www.nationmultimedia.com/politics/Bill-unconstitutional-30223812.html 36 http://www.bangkokpost.com/breakingnews/399507/constitution-court-says-2-2-trillion-baht-loan-bill-breaches-the-charter

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robbed elected officials and their constituents of the power to set policy. Even before the latest rounds of court decisions interfering in the legislative process, a major work on the judicialization of politics in Asia described judicial involvement in Thai politics since the 2006 coup as “unprecedented not only in Thailand but throughout Southeast Asia and beyond.”

37 Dr. Björn

Dressel went on to describe the boldness exhibited in judicial interventions, the disregard shown by the courts for standards of procedural justice, and the far-reaching implications that judicial decisions have had for democratic governance. Since the work’s publication, things have only gotten worse. While the courts have yet to remove the Yingluck government, Thailand’s “permanent coup d’état” has all but sabotaged the democratic system of government.

3. The Assault on Democracy

In the “Coup Constitution” of 2007, the Thai establishment has an inventory of tools by which it can remove elected officials and prevent legitimate governments from working. What it lacks is a way to keep the Thai people from electing the representatives they most trust. This is what drives the protests that have been taking place since October 2013. The Democrat Party-backed protesters want not only to remove Prime Minister Yingluck, but also to address what is from their perspective the main design flaw in the “Coup Constitution” of 2007: letting the Thai people choose the candidates and parties most likely to serve their interests. The bleating about “reform before election” and about removing all traces of the “Thaksin regime” comes down to reforming the system in order to prevent the people from determining their own future.

The Revolving Door

The decision made by the Thai establishment not to prevent Prime Minister Yingluck from taking the office in 2011 signified only a temporary truce. Besides the parliamentary obstruction and legal harassment of the new government, the establishment soon began to plan street actions it hoped would lead to democracy’s destruction. The first significant threat of this sort

                                                                                                               37

Dressel, Björn, The Judicialization of Politics in Asia, Routledge 2012, p. 79.

  23  

appeared in late 2012 in the form of a loose coalition of anti-democratic groups calling themselves Pitak Siam (Protect Siam), led by former Thai Army General Boonlert Kaewprasert, who is widely known for vehemently opposing democracy. The Pitak Siam strategy was to bring thousands of supporters onto the streets of Bangkok to provoke violent confrontation with the aim of toppling the democratically-elected government of Yingluck Shinawatra. Boonlert publicly stated that Pitak Siam would “set up a group of persons to look after things” and attempt to “freeze” Thai democracy for up to five years.

38

In the face of the threat to democracy posed by Pitak Siam, the Democrat Party refused to stand in defense of the democratic process, choosing instead to offer support for the effort to overturn the election.

39 Leading Democrats

Abhisit Vejjajiva and Chavanond Intarakomalyasut made public statements to undermine democracy and the elected government; Abhisit demanded that the government “take responsibility if violence erupts at the Pitak Siam anti-government rally this Saturday.” In addition, petitions to the Constitutional Court to ban the Pitak Siam demonstration pursuant to Section 68, which protects the right of democratically-elected governments to hold office under a constitutional monarchy, were roundly rejected despite overwhelming evidence that Pitak Siam explicitly aimed to overthrow democracy.

40

Although Thai police dealt efficiently and effectively with Pitak Siam, the ad hoc coalition between the Thai courts, the Democrat Party and the disparate elements that were formerly part of the PAD—including the Thai Patriot Network, Thai Spring, Multi-Colored Shirts, Thai People Love the Country Protect the Land Network—continued to seek opportunities to destroy Thai democracy through extra-parliamentary and extra-judicial means. The next street-based effort to unseat the government was made in mid-2013 by a small but effectively managed and carefully strategized "protest" group. Originally called "Thai Spring," it was soon dubbed the "White Mask" group because they adopted the white Guy Fawkes mask associated with the progressive Occupy and Anonymous movements. Thai Spring/White Masks

                                                                                                               38

http://asiancorrespondent.com/92540/the-smear-campaign-against-pitak-siam/. 39

http://thaipoliticalprisoners.wordpress.com/2012/11/21/abhisits-continuing-mendaciousness. 40

http://www.prachatai.com/english/node/3437.

  24  

were, in fact, a re-incarnation of the extreme right-wing violent nationalist groups that had previously coalesced around the PAD, Pitak Siam and similar groups.41 The White Mask group repeated the same aims as Pitak Siam, making calls for the democratically-elected Pheu Thai government to be "overthrown." Furthermore, the White Masks also launched a number of violent attacks on pro-democracy Red Shirt/UDD activists.42 The most recent threat to Thai democracy manifested itself in late October 2013 in a protest rally that began to coalesce around the former Democrat Party Secretary General and Deputy Prime Minister Suthep Thuagsuban, and an organization called the “Civil Movement for Democracy” (CMD), which would later morph into the People’s Democratic Reform Committee (PDRC). After accomplishing their original aims, forcing the government to hastily abandon an Amnesty Bill that covered all crimes connected to Thailand’s political crisis since 2006, the protesters dedicated themselves to preventing ordinary Thais from exercising their most basic democratic right, the right to vote, and to deny them that right for the foreseeable future. The Democrat Party leadership has gone to great lengths to deny their links to the PDRC, and for good reason: for a political party to be aligned with a movement against the democratic process itself is clearly illegal under the Constitution. But in fact, the party has operated as a revolving door to the top membership of the PDRC, and closely coordinated its mass resignation of MPs with the protesters to force the elections and trap Yingluck’s government in a reduced caretaker role. On numerous occasions, Abhisit has said that contrary to the PDRC, the party “supports elections,” even if it chose to boycott the current one.43 Never a man to be inconvenienced by evidence, these statements conflict with other statements Abhisit has given, including in November 2013 when he said that he was working together with the protest groups to “oust the Thaksin regime”44 while another Democrat Party MP told the media that “We appreciate the campaign and wish to become Suthep's main supporters.” The                                                                                                                41 http://asiapacihc.anu.edu.au/newmandala/2013/06/24/a-sign-of-progress/ 42http://www.khaosod.co.th/en/view_newsonline.php?newsid=TVRNM01UTTROalk1TXc9PQ==&sectionid=TURFd01BPT0= 43 http://www.bangkokpost.com/news/local/386081/city-braces-for-protest-paralysis 44 http://www.nationmultimedia.com/politics/Abhisit-Democrats-will-strive-to-oust-the-Thaksin-30220844.html

  25  

well-known blogger on Thai politics, Bangkok Pundit, summed up the Democrat Party’s role precisely by writing that “the Democrats try to deny any connection with the protesters and the protesters deny connections with the Democrats, but, of course, no one believes this fiction.”45 The Democrat Party’s revolving door to the PDRC shows a number of high level allies and former cabinet members in Abhisit’s last government taking up leadership positions in the anti-democratic movement.

A PDRC quick roll call reveals the following individuals:

• Thaworn Senneam - Democrat Party MP, Former Deputy Interior Minister. He has also served as Deputy Secretary General of the Democrat Party

• Chumphon Julsai - Democrat Party MP

• Nataphol Teepsuwan - Democrat Party MP and General Manager of the Democrat Party

• Puttipong Punnakan – Democrat Party MP and former Democrat Party

government spokesperson

• Akanat Prompan – Democrat Party MP and now PDRC spokesman (also stepson of Suthep Thuagsuban)

• Issara Somchai – Democrat Party MP and former Acting Minister of

Social Development and Human Security

• Wittaya Kaewparadai – Democrat Party MP, Minister of Public Health and deputy leader of Democrat Party

• Satit Wongnongtoey – Democrat Party MP and Minister of Prime

Minister’s Office (under Abhisit Vejjajiva)

• Suthep Thuagsuban – Democrat Party MP and Deputy Prime Minister

In summary, the PDRC protests, far from being disconnected from the Democrat Party, actually reflect their real mindset: they are opposed to

                                                                                                               45 http://asiancorrespondent.com/118567/ft-democrats-should-contest-the-election/

  26  

elections and democracy, and they are willing to use almost any method possible in order to impose their will on the Thai people.

The PDRC’s Vocabulary of Violence

Throughout their brief but turbulent three-year term as an unelected government, the Democrat Party discovered the utility of using intimidation and violence against their opponents. Violence, both formal and informal, became a vocabulary of power for Abhisit and the party leadership, an instrument used to discourage opponents, threaten voters, and hold office despite the absence of popular support. It is to this vocabulary that Suthep’s PRDC has turned. After the amnesty bill was removed from the table, the PDRC began to focus its efforts on a violent campaign to disrupt the democratic process. Suthep’s mob, which is paid handsomely from a bottomless war chest, has invaded government ministries, blocked major thoroughfares, and has even discussed raiding the stock exchange and taking down Thailand’s air traffic control, which would be considered an act of terrorism in most countries. The PDRC has deployed violence and intimidation to block the registration of candidates, while individual voters attempting to cast their ballots have been violently attacked, punched, kicked, choked, threatened, and insulted, leading many districts to close their polling stations. The most infamous of these attacks occurred on the day before February 2 vote when a number of PDRC activists attempted to block a ballot distribution center in the northern Bangkok suburb of Laksi. A counter-protest made-up of local people that had arrived to open-up the ballot distribution was then attacked46 by armed, hooded gunmen, clearly affiliated to the PDRC with many them seemingly equipped with Thai Army-issue war weapons. There were several serious injuries most notably to an elderly man who was shot in the neck47 and an American journalist who received a bullet wound in his leg.48                                                                                                                46 http://www.bbc.co.uk/news/world-asia-25997318 47 http://thairedshirts.org/2014/02/12/injured-from-lak-si-shooting-in-need-of-financial-help/ 48 http://www.nationmultimedia.com/breakingnews/American-photojournalist-shot-injured-in-Lak-Si-cl-30225791.html

  27  

There are numerous other examples of the criminal conduct of the PDRC under the sponsorship of the Democrat Party. Former Democrat Party MP Issara Somchai made explicit death threats to a Red Shirt leader known as “Ko Tee”, stating he would “speak to Ko Tee with a bullet.”49 At a later date Issara also held hostage three persons whom he claimed had attempted to throw fireworks at the PDRC protest stating he would “interrogate” them himself, refusing to hand them over to the police.50 Issara is now wanted for attempted premeditated murder after a Red Shirt sympathizer caught by the PDRC was held against his will and tortured for five days, before he was thrown into a river and left for dead on the orders of the Democrat Party politician.51

There have been several other recorded incidents of PDRC guards holding persons captive and beating and torturing them. The most egregious of these cases was described in a Prachatai article which reported the kidnapping and beating of an impoverished garbage-picker named Kamthong who had dared to stray into a PDRC controlled area while wearing a t-shirt upon which was printed a pro-democracy statement.52 Mr. Kamthong was held for several hours, beaten and tortured and questioned on his Red Shirt affiliations. The Prachatai article also describes the brutal attack by PDRC guards on a passing motorcycle driver, who was so scared he refused to speak to Prachatai journalists from his hospital bed where he was being treated for broken ribs and other injuries.

Earlier in the PDRC rallies on November 30 2013 there were violent clashes at Rajamangala Stadium,53 where Democrat Party activists attacked a Red Shirt gathering resulting in several deaths. At that time former Democrat Party MP Sathit Wongnongtoey exhorted a PDRC rally to “go there”54 and support those attacking the Red Shirts, despite evidence that the situation had already caused a number of deaths.

                                                                                                               49 http://www.rsutv.tv/index.php/detail/index/3199 50 http://m.thairath.co.th/content/pol/397185 51 http://www.bangkokpost.com/news/crimes/398720/former-mp-faces-attempted-murder-rap 52 http://www.prachatai.com/english/node/3845 53 http://asiapacific.anu.edu.au/newmandala/2013/12/10/ramkhamhaeng-a-view-from-inside-the-stadium/ 54 http://www.youtube.com/watch?v=-le0u_l8CRg at 2mins 45secs

  28  

In February 2014 a female deputy government spokesperson, Sunisa Loetphakkhawat, was held hostage by PDRC guards in the Siam Square area after Ms. Sunisa went to a doctor’s appointment nearby.55 After being identified by PDRC activists Ms Sunisa was dragged by her hair and arm, threatened until she gave up her mobile phone password. She claims that at one point the PDRC guards attempted to hood her and drag her into a waiting vehicle.56 Thanks to the intervention of local Thai media Ms. Sunisa was quickly released.

In response to an infamous attack on a German photojournalist, Nick Nostitz, PDRC leader and former Democrat Party MP, Chumphon Julsai, labelled him a “Red Shirt journalist”57 from the stage through a loudspeaker, apparently justifying the attack. Mr Nostitz was violently beaten by a group of PDRC thugs despite wearing a green press armband issued by the Thai Journalists Association.58 Threats towards the media from the PDRC have now become commonplace with individual attacks on journalists59 and the seizure of TV stations.60 The PDRC appears willing to attack children of their opponents as well. After PM Yingluck’s 11-year-old son was harassed at his school by Democrat supporters,61 an existing Democrat Party Deputy Spokesperson, Mallika Boonmetrakul, commented on her Twitter account62 that such harassment was a “good thing” as PM Yingluck’s son would ask his mother why he was getting such treatment. Following this, PDRC leader Suthep then made comments that were taken as explicit threats towards Yingluck’s son, stating that he would soon find he had “no country to live in”63 and that he might become an “orphan.”64

                                                                                                               55http://thainews.prd.go.th/centerweb/newsen/NewsDetail?NT01_NewsID=WNPOL5702260010002 56 http://www.bangkokpost.com/news/local/397115/lt-sunisa-detained-by-pdrc-protest-guards 57 http://www.prachatai.com/english/node/3756 58 http://asiapacific.anu.edu.au/newmandala/2013/11/29/assault-on-nick-nostitz/ 59 http://englishnews.thaipbs.or.th/protesters-threaten-television-reporter/ 60 http://www.bangkokpost.com/news/politics/382613/media-groups-blast-pdrc-tv-takeover 61http://www.khaosod.co.th/en/view_newsonline.php?newsid=TVRNNE5UYzNORGcyT1E9PQ 62 https://twitter.com/Nalinee_PLE/status/406477431109730305/photo/1 63http://www.khaosod.co.th/en/view_newsonline.php?newsid=TVRNNE56RTVOVEk1T1E9PQ==&sectionid=TURNd01BPT0= 64 http://news.voicetv.co.th/democracycrisis/97975.html

  29  

There has also been suspected and proven Thai military involvement in violent, criminal actions carried out under the auspices of the PDRC/Democrat Party. On January 21, in Thailand’s Northeastern Udon Thani province, there was a failed assassination attempt65 against prominent Red Shirt leader Kwanchai Praipana. The key suspect in the attempted murder quickly named three Thai Army non-commissioned officers as being the organizers of the murder attempt.66 More recently a number of Thai Navy SEALs have become intimately connected to the PDRC movement with two SEAL officers being arrested at the PDRC rallies67 after numerous reports68 of SEAL involvement. As a result the Thai Navy admiral who was commanding officer of the SEAL unit was transferred to a new post, something that resulted in a sympathetic PDRC rally outside Thai Navy headquarters.69  

Bureaucratic and Judicial Sabotage

The Democrat Party’s use of street violence and intimidation to harass voters and disrupt the democratic process is part and parcel of a larger strategy to use the establishment’s influence over administrative and judicial bodies to remove elected officials. One of the most important administrative offices involved in this strategy is the Election Commission (ECT), which wields considerable powers under the 2007 “Coup Constitution” in the event of a caretaker government, including approvals over budgets, cabinet appointments, and basic procurement contracts. This unelected five-member Commission is tasked with overseeing every aspect of organizing elections, with an established tendency to side with the Democrat Party. The ECT has not been supportive of the elections from the start. It has continuously proposed issuing a new royal decree postponing the election date, which of course provides the PDRC with more

                                                                                                               65 http://www.abc.net.au/news/2014-01-22/thailand-unrest-red-shirt-leader-shot/5213732 66 http://www.bangkokpost.com/news/local/394005/suspect-in-kwanchai-shooting-accuses-soldiers 67 https://www.wsws.org/en/articles/2014/02/28/thai-f28.html 68 http://englishnews.thaipbs.or.th/capo-orders-probe-arrest-navy-seal-troopers-near-protest-site/ 69 http://englishnews.thaipbs.or.th/anti-government-protesters-give-seal-commander-morale-boost/

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time and prolongs their control over the government.70 Sometimes, the reasoning from the ECT is highly idiosyncratic. For example, a commissioner proposed delaying the elections of some districts until April because his astrologist told him that “things would be calmer” then. A commissioner also explained his opposition to elections to the New York Times by claiming that “our society today cannot only live by the law” when its survival is at stake.71 After numerous refusals from the caretaker government, which argued it did not have the authority to postpone the election date specified in the Royal Decree, the EC filed a case with the Constitutional Court to decide whether the election could be postponed and which body had the authority to do so.72 The Constitutional Court worked swiftly to issue a decision just two days after it received the letter, ruling that the elections can be postponed and it was up to the EC and the caretaker administration to set a date for the new elections. This ruling yet again ignored what the Constitution provides in black and white, which is that an election must be held between a minimum of 45 days and a maximum of 60 days from the date the lower house of parliament is dissolved (Section 108). Despite the Constitutional Court’s ruling, Yinglick Shinawatra decided to follow the law and go ahead with elections on February 2, 2014. The PDRC violently attempted to stop the election from happening, or at least, to stop the people from voting. The caretaker government has made several complaints to the ECT for not being able to ensure the elections are held in a proper manner, with no legal action being carried out against the protesters disrupting the voting, hinting that “members may have an ulterior motive for not carrying out their duties.”73 Among other things, the combination of PDRC violence and ECT obstruction led to advanced voting being cancelled in 39 out 50 Bangkok offices.74 The ECT also had a hand in ensuring that the elections would not produce a sufficient number of MPs to reopen the House of Representatives, instructing

                                                                                                               70 http://www.bangkokpost.com/news/politics/388810/ec-plans-talks-with-govt-over-poll-strife 71 http://www.nytimes.com/2014/01/23/world/asia/thailand-election.html?_r=0 72 http://www.bangkokpost.com/news/politics/391113/constitution-court-accepts-ec-case) 73 http://www.bangkokpost.com/news/politics/389117/pheu-thai-blasts-ec-poll-efforts and http://www.bangkokpost.com/news/politics/391562/cmpo-ec-must-be-held-responsible 74 http://www.bangkokpost.com/news/politics/391555/voting-cancelled-in-39-bkk-districts

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election officials in provinces where the registration of candidates was being blocked by the PDRC not to move the registration venue to a more secure location. This is what left 28 constituencies in Southern Thailand without any registered candidates, guaranteeing that the lower house could not meet the quorum of 475 MPs (out of 500) required by the constitution to convene. When local officials in Nakhon Si Thammarat decided to move the registration to a Border Patrol Police camp, resulting in the successful registration of candidates for 7 constituencies, ECT members condemned them.75 Then the ECT refused to extend the registration period, as permitted by law.76 The ECT has also worked to delay the by-elections that are needed to fill the twenty-eight vacant seats, insisting that the government must issue a new set of Royal Decrees to set the date of the by-elections. Over a month after the election, the ECT asked the Constitutional Court to issue a ruling on the matter,77 which is still outstanding. As Thailand is kept by the PDRC, the ECT, and the Constitutional Court from having a new parliament and a new government with full powers, other courts have joined in the effort to cripple the Yingluck administration. Besides obstructing the approval of arrest warrants for PDRC members, whenever the police has apprehended protest leaders wanted on serious charges the Criminal Court immediately granted them bail, permitting them to re-join the rallies and commit further offenses.

78On March 7, 2014, moreover, the

Supreme Administrative Court ordered the reinstatement of former National Security Council Secretary-General Thawil Pliensri to his former position,

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despite the fact that Thawil regularly appears on the PDRC protest stage, in full regalia, to call for the government to be overthrown. The worst damage, however, was done by a mid-February ruling of the Civil Court. In response to a petition by the PDRC, the Civil Court prohibited the government from:

1) Dispersing any PDRC rally; 2) Seizing any property or instrument used in PDRC rallies;

                                                                                                               75 http://www.nationmultimedia.com/politics/Bid-to-get-around-blockades-in-South-30223283.html 76 http://www.nationmultimedia.com/politics/Election-on-track-EC-30223479.html 77 http://www.nationmultimedia.com/politics/EC-seeks-charter-court-ruling-on-new-poll-for-no-c-30228356.html 78 http://www.nationmultimedia.com/politics/CMPO-considers-lifting-emergency-decree-30228900.html 79 http://www.nationmultimedia.com/politics/Thawil-wins-reinstatement-new-hot-potato-for-premi-30228693.html

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3) Searching or razing structures at PDRC rallies; 4) Banning the sale or purchase of any product at PDRC rallies; 5) Closing off roads; 6) Restricting gatherings of five or more people; 7) Preventing the PDRC’s from using (and occupying) any roads; 8) Restricting the PDRC from using any building’s facilities; 9) Ordering anyone not to enter, or to exit, any demonstration site.

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With this ruling, the Civil Court made it illegal for the government to enforce the law, requiring it instead to allow the PDRC to break it at will, trespass on public and private property, block traffic, and prevent public employees from working. The ruling, which ignored the acts of murder, assault, kidnapping, and torture committed by the PDRC, as well as the police’s daily seizure of weapons and drugs carried by PDRC protesters, referred to an earlier verdict by the Constitutional Court, which found the PDRC rallies had been peaceful, unarmed, and consistent with Section 68 of the constitution (unlike the government’s amendment of the constitution). Four years earlier, the same Civil Court had given Abhisit Vejjajiva the green light for his brutal crackdown on Red Shirt protesters in May 2010, on the grounds that the Red Shirts had inconvenienced the public, despite the far less disruptive nature of the Red Shirt protests.

81

After over four months of protests, Prime Minister Yingluck is now expected to be removed either as a result of Senate impeachment, acting on a motion of the NACC, or by a decision of the Constitutional Court. The Thai establishment is angling for the removal of the entire government and for then creating a vacuum for which the 2007 Constitution provides no solution. Given that the Constitution requires that the Prime Minister be a member of the lower house, the government’s removal could be followed by a ruling of the Constitutional Court that gives the Senate the power to act in its stead to elect a new government and to exercise the functions of the entire parliament. It is expected that the legal grounds will be provided by Section 7 of the Constitution:

                                                                                                               80 http://www.bangkokpost.com/news/local/396065/govt-will-adjust-its-tactics-target-individual-protesters-say-thai-security-chiefs 81 http://saiyasombut.wordpress.com/2014/02/21/thai-court-renders-emergency-decree-meaningless-limits-officials-powers/

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Section 7. Whenever no provision of this Constitution is applicable to any case, it shall be decided in accordance with the constitutional practice of the democratic regime of government with the King as Head of State.

The Senate could then presumably amend the constitution to give the new government full powers and to establish the legal basis for implementing the PDRC’s undemocratic reforms. Preventing the 2014 general elections from being completed is essential to this agenda, as the only way for Thailand to have an unelected government is to keep the lower house closed. However far-fetched this scenario might sound, this is what the PDRC has been demanding.

82 Now that Thai democracy is hanging by a thread, the

disregard displayed by the judiciary for any semblance of the rule of law does not bode well for its survival.

4. Conclusion

In its preamble, the United Nations’ Universal Declaration of Human Rights affirms:

It is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.

Thailand epitomizes the relationship between the rule of law and political instability, violence, and upheaval referenced by the Universal Declaration in 1948. As demonstrated in this report, the arbitrary and discriminatory administration of justice in pursuit of an anti-democratic agenda is at the center of Thailand’s political instability. The continuing breakdown in the rule of law can be directly attributed to the abolishment of the democratic “People’s Constitution” of 1997 and its replacement with the “Coup Constitution” of 2007, which perpetuates restrictions to democratic rule by giving the judiciary and the bureaucracy the power to alter the results of freely conducted elections and to interfere in the activities of the legislative

                                                                                                               82 http://asiancorrespondent.com/120409/caretaker-government-section-7-and-the-senate/

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and executive branches. The situation is made worse by the fact that the courts and administrative bodies in question are staffed by officials with a proven track record of unprofessionalism, partisan meddling, lack of independence, disregard for the rights of the Thai people, disrespect for democracy, and willingness to break the law. The likely removal of Prime Minister Yingluck Shinawatra at the hands of the upper house, the courts, or the military, based on either the misapplication or nonobservance of the law, is almost sure to be followed by violence on a scale never before seen. On the one hand, the PDRC’s behavior and rhetoric has left little doubt that its reform agenda requires suppressing all support for the Prime Minister and the Red Shirts. This places the civilian population in Bangkok and in provinces where the government is strongly supported at an extreme risk of murder, arbitrary imprisonment, and torture, for which the PDRC already has a long track record. On the other hand, the majority of the Thai people will fight the denial of their right to self-determination, making a repeat of the army’s massacre of pro-democracy Red Shirts in 2010 a near certainty. In the long run, hopes for a durable peace in Thailand rest on the abolishment of the 2007 “Coup Constitution” and either the reinstatement of the 1997 “People’s Constitution” or the introduction of a new Constitution consistent with basic procedural and substantive requirements of democracy. The present Constitution is by virtue of its genesis and content not only illegitimate, but unlawful and incompatible with international obligations Thailand has contracted. In the short run, however, the international community must act to defend Thailand’s beleaguered democracy based on its Responsibility to Protect. Responsibility to Protect principles not only urge states to protect their citizens against mass atrocities, such as the crimes against humanity inflicted upon the Thai citizenry during the 2010 Red Shirt demonstration; they also oblige the international community to encourage and assist individual states to meet those responsibilities. Further, if an individual state is failing in its duty, the concept of Responsibility to Protect calls upon the international community to take collective action within the framework of the UN Charter.

83 Protecting innocent civilians from brutal

slaughter is no simple task in Thailand, as doing so requires breaking a cycle

                                                                                                               83

http://www.globalr2p.org/about_r2p

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of lawless coups and killings that dates back decades. Now that the same groups responsible for this cycle of impunity are using every conceivable method to remove a duly elected government and destroy democracy, the international community must act to defend the lives and freedoms of the Thai civilian population from imminent danger. It should do so by coming to the aid and support of the Yingluck government, as it stands up to a coalition that has acted illegally and with such impunity for so long that it is simply blind to any semblance of the rule of law.