In Thailand, Some Foresee a Coup by Legal Means

International New York Times | 31 March 2014

Prime Minister Yingluck Shinawatra left the office of the National Anti-Corruption Commission on Monday in Bangkok. Credit Barbara Walton/European Pressphoto Agency

BANGKOK — Five months of protests in Bangkok have snarled traffic, scared away tourists and deflated the Thai economy, but the thousands of protesters who have regularly descended onto the streets have failed to unseat the government or any of its top officials.

That may change in the coming weeks, as focus shifts from the protesters’ encampment in the heart of Bangkok to the courts and government agencies that have handed down a series of decisions favorable to the protest movement.

Although nominally independent, a number of the judges and top officials in the agencies handling cases against Prime Minister Yingluck Shinawatra’s government have had longstanding antagonistic relationships with Ms. Yingluck and her party.

“It no longer makes sense to attempt to explain the current political situation in Thailand by relying on legal principles,” Verapat Pariyawong, a lawyer and commentator, said in a Facebook posting. “The current situation is more or less a phenomenon of raw politics whereby the rule of law is conveniently stretched and stripped to fit a political goal.”

On Monday, Ms. Yingluck appeared briefly before the National Anti-Corruption Commission, which is pursuing a case against her on the grounds that she did nothing to stop alleged corruption in a rice subsidy program. If the commission finds that there is a prima facie case, she will be suspended as prime minister, a decision that could come within weeks.

Wicha Mahakhun, the member of the commission who is charged with handling the case, has sparred with Ms. Yingluck’s party before. He was appointed by the military in 2007 to rewrite the Constitution after the overthrow of Ms. Yingluck’s brother Thaksin Shinawatra, who was ousted as prime minister in a 2006 coup d'état.

The new Constitution was intended to blunt the governing party’s electoral power in part by making half of the Senate appointed by judges and the heads of agencies, instead of directly elected.

“We all know elections are evil,” Mr. Wicha said at the time, arguing that power must be transferred into the hands of judges rather than elected representatives, who he said had caused the country to “collapse.”

“People, especially academics who want to see the Constitution lead to genuine democracy, are naïve,” he said.

Three current judges of the Constitutional Court, which has repeatedly ruled against the government in recent months, were also members of the post-coup commission to rewrite the Constitution.

This power struggle between Ms. Yingluck — whose Pheu Thai party retains strong support among voters in the hinterland — and judges and agencies in Bangkok that want to blunt what they see as a destructive populist movement that encroaches on their power has been a central undercurrent of the five months of political stalemate.

The prospect that courts and agencies will remove Ms. Yingluck, and potentially her entire cabinet, from power is being described in Thailand as a judicial coup.

Some protesters in recent months have pleaded for the army to step in — the military in Thailand has a long history of overthrowing governments — but analysts say the head of the army appears to be wary both of bloodshed and of foreign reaction to a coup.

“We used to suspend democracy by military coup,” Sodsri Satayathum, a former election commissioner and another member of the 2007 committee charged with drafting a constitution, said at a seminar earlier this month. “Military coups do not work anymore,” she said.

Likhit Dhiravegin, a prominent academic and frequent commentator on television, said last week that an “orchestrated” judicial coup was already underway.

“This is a coup conducted inside the system by using regulations,” he said. “Don’t deny it — everybody knows about it, inside and outside the country.”

Tensions escalated late last year, when the governing party passed a constitutional amendment restoring the Senate as a fully elected body.

The Constitutional Court struck down the change, ruling in November that making the Senate fully elected was an attempt to “overthrow” democracy, a decision that has been criticized by constitutional scholars.

The Constitutional Court has also struck down an ambitious and costly infrastructure plan, partly because the judges ruled that high-speed trains, a major element of the plan, are not appropriate for Thailand. Critics say that is a judgment for legislators, not the courts.

The activism of the courts has renewed a debate about double standards in Thai society. Government supporters point out that the leader of the protest movement, Suthep Thaugsuban, a former deputy prime minister, is wanted on murder charges for his role in a crackdown that left dozens of “red shirts” — supporters of Mr. Thaksin — dead in 2010. He has ignored numerous requests to appear in court.

Government supporters also question the priorities of the National Anti-Corruption Commission. The rice subsidy case has swiftly been pursued when other cases that appear to be obvious examples of corruption have languished.

In the case of the rice subsidy allegations, Ms. Yingluck said over the weekend that the proceedings appeared rushed.

“We are wondering if we were treated as same as other persons holding political positions,” she said.

The National Anti-Corruption Commission sought to rebut that allegation Monday, saying that the investigation had been underway for nearly two years.

Whether or not Ms. Yingluck was guilty of “neglect of duty” in the rice subsidy program, the case goes to the heart of the conflict between protesters and supporters of the governing party.

The governing party defends the subsidy — the government buys rice from farmers at double the market price — as a way to lift rural incomes. But experts and even some prominent government supporters call it wasteful, very expensive and destructive to the country’s rice industry.

The government has accumulated debt totaling 695 billion baht, or roughly $21 billion, to finance the rice policy over the past two and a half years, according to a calculation by Nipon Poapongsakorn, a leading expert on the rice subsidy program. Some, but not nearly all, of the debt could be paid back by selling the government’s estimated stockpile of around 15 million to 17 million tons of rice. But the government appears to be having difficulty selling rice at market prices, given questions over its quality and freshness.

Relative to the size of their economies, the rice subsidies are costing Thailand four times more than the European Union’s farm aid program: Thailand’s rice subsidies cost the government at least 200 billion baht last year, equivalent to 1.7 percent of the country’s total economic output. By comparison, Europe’s Common Agricultural Policy, one of the world’s most generous farm programs, cost the equivalent of less than half a percent of the European Union’s economic output.

Nattakorn Devakula, a television host who has been blistering in his criticism of the subsidy program, said the government “needs to be punished enough so that they realize that they cannot carry out the same rice scheme.”

But he warned of a destructive backlash by government supporters if a so-called judicial coup is carried out.

“It’s not worth ruining democracy over this issue,” he said.