What you need to know
The three branches of the Thai government have long operated with impunity regardless of electoral results, writes Thai constitutional law scholar Khemthong Tonsakulrungruang.
By Khemthong Tonsakulrungruang
The Thai people are understandably excited by the prospect of the upcoming general election. Billboards have sprung up everywhere and campaigns flood news channels. This will be the first since 2014; even then, however, the election ended up being invalidated.
After five years of junta rule, the Thai economy is now crumbling, talent has been wasted, and wealth has accumulated only among a select few.
Parties promise stimulation packages and new technology, as well as fairer, more evenly distributed growth. This is all well and good, but we mustn’t forget the elephant in the room: government accountability.
Even with good policies, governments must protect themselves from unforeseeable interruptions and ensure cooperation among all of their branches. In a Thai context, that means the government must be prepared for military intervention as well as judicial run-ins, and that bureaucracy has to be responsive to politicians’ wishes.
But Thailand’s current political landscape is very different from before. Particularly, the three most important mechanisms: the military, the bureaucracy, and the judiciary, have evolved into hostile – even rogue – players.
The military is no longer haunted by its embarrassing defeat in 1992. Since then, it has staged two coups and has been linked to atrocious crimes of unlawful detention, torture, harassment, intimidation, and even assassination. Only last month, three mutilated bodies were found in the Mekong, believed to have been the work of the army.
Bruised but surviving, international condemnation and internal dissent don’t seem to shake the regime. Even blatant corruption has failed to mobilize the masses against it. In other words, it has successfully set a new normalcy of government corruption and coercion. The military junta – or the National Council for Peace and Order (NCPO) – has successfully installed its coup regime into normal civil service in the form of regional Internal Security Operations Commands that can intervene in the decisions of provincial governors should it wish to do so.
Thai bureaucracy has also changed. In 2001, former Prime Minister Thaksin Shinawatra pushed hard for his reform agenda. He ordered top civil servants to read self-improvement books and threatened to remove them if they failed to meet his goal.
Naturally, the bureaucracy became his opposition, accusing him of manipulation, giving more momentum to the Yellow Shirt protests.
The 2007 Constitution, however, gave government employees more power, even preventing the cabinet and MPs from being involved in personnel management.
This proved fatal to Yingluck Shinawatra in 2014 when the Constitutional Court dismissed her for the undue reshuffling of civil servants.
Many believe that Thailand is witnessing the resurgence of bureaucratic polity where bureaucrats are gaining control of policy-making from elected politicians.
One example of this is the 20-year national strategic plan which will bide any civilian government for the next two decades.
Politicians are portrayed as greedy and short-sighted and are blamed for bad policies. In contrast, career bureaucrats claim to be experts capable of objectively making policies without political or public input.
The problem is exacerbated under the NCPO who, for the past five years, have exercised dictatorial power to remove and appoint at will. As the NCPO continues to feed Thai cronyism and drive the deterioration of the merit system, the country is left with a dysfunctional government that only worsens in performance.
Lastly, the judiciary and watchdog agencies, both of which are immersed in a political quagmire, no longer seem to strive for justice. The judiciary, especially the Constitutional Court, has been involved in toppling all Thaksin-backed governments since 2006.
Cases against Thaksin supporters tend to proceed more quickly and result in harsher sentences, while cases against anti-Thaksin protesters usually stall, get acquitted, or receive much lighter sentences. Studies show detectable bias in favor of those anti-Thaksin and against the Thaksin faction.
It is a worrying sign when the public can accurately predict the outcome of a case based on its political implications. Worse, the judiciary remains a staunch supporter of the military regime. In both the Court of Justice as well as the Constitutional Court, it accepts the NCPO’s orders as law and endorses the coup.
The junta’s proxy party looks set to lose. At least, it is predicted not to win a popular vote. The next government will face untrustworthy praetorian and ossified, rebellious subordinates.
Crushed from above and below, it is impossible to survive, let alone execute any sound economic plan.
This is why accountability matters. All three branches operate virtually with impunity. Crime, negligence, and injustice go unpunished.
Holding them accountable for their actions is necessary, and could possibly prevent the next political crisis. And even if the junta manages to maneuver to become a government, a lawful opposition can rightfully advocate for accountability.
This is not going to be easy. First, there must be a balance between justice and vengeance. For the sake of practicality, the winning party cannot punish every single individual who cooperates with the military regime.
More challenging are the legal hurdles. Some cases are decided and others have expired. A new government must justify new investigations and re-trials, which could easily be seen as a violation of the rule of law.
Most importantly, the will of the people is needed to enforce justice upon the three powerful institutions. But if a new government compromises, sooner or later, they will obstruct, conspire, and engineer another crisis, and possibly a coup, as they did in 2006 and 2014.
Shortly after the 2014 coup, many sighed in relief, celebrating the break from the demonstrations that paralyzed Bangkok. But few paid attention to the warning about the lack of accountability.
Five years later, they express the same relief over an election that they believe might remove the junta. Is that pragmatism or naivety? Without accountability, Thailand’s economy would not progress much further than where it is now.
The News Lens has been authorized to publish this article from Policy Forum – Asia and the Pacific’s platform for public policy analysis, opinion, debate, and discussion.
TNL Editor: Nick Aspinwall (@Nick1Aspinwall)
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