Making watchdog bodies work: The Thai experience
A number of diverse groupings, ranging from monk intellectuals to the Democrat Party in Parliament, recognised that Thailand needed to strengthen its internal institutions if it was going to survive and prosper. It was agreed that a new way forward was necessary. The new constitution contained measures designed to guarantee democracy and human rights, exclude military influence in the political process, eliminate corruption in public life. As one commentator puts it: "The 1997 constitution represents a revolution in Thai politics. It was a bold attempt at conferring greater power to the Thai people than had ever been granted before.
Thai watchdog organisations
A new set of watchdog organisations were set up under the constitution. The Election Commission, the National Counter-corruption Commission, the Anti-Money Laundering Office and the State Audit Commission are each designed to tackle particular aspects of malfeasance and corruption associated with the political process. The Human Rights Commission is intended to deal with abuses of group rights and individual human rights. In the domain of law and administration, a system of administrative courts and a ombudsman are introduced for the first time, to further protect citizen rights by extending the range of remedies available. Finally, the boundary of the entire constitutional scheme is patrolled by a new constitutional court.
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A great deal of effort was put into securing the independence of the constitutional watchdogs and mechanisms were adopted to secure independence and related issues concerning eligibility for appointment and administrative structure and funding. First, in every case a formal procedure has been set out to secure the appointment of these watchdog bodies. In order to build a system that allows clean elections to take place, an independent Election Commission was formed.
In order to appoint the Election Commission a selection committee of ten members has been set up. The committee must include: the President of the Constitutional Court as Chairman and the President of the Supreme Administrative Court, four Rectors of state higher education institutions, four representatives of political parties from the House of Representatives. At this stage, there are five qualified and suitable names put forward to the President of the senate. The nomination must then be approved by the least three quarters of members of the Selective Committee. Also, at this preliminary stage, the President of the Senate holds a secret ballot in the Senate to choose from among the ten nominated candidates. The five persons who receive the highest votes are elected as Election Commissioners. Their election is then confirmed by the King.
The selection process for members of the National Counter Corruption Commission involves a similar two stage process but the committee which is of fifteen members includes the president of the Supreme Court of Justice as well as the President of the Constitutional Court and the President of the Supreme Administrative Court and the committee are required to submit a list of eighteen names for a vote to be taken in the senate.
The Human Rights Commission is pre-selected by an even large Senate appointed committee of twenty-seven members which must include President of the Supreme Court and the Supreme Administrative Court, the attorney general, chairman of the law society, 10 representatives of human right NGOs, 5 from political parties, five from academic institutions and three from the media. The committee selects 22 candidates from which the 11 human rights commissioners are elected to serve a single term of six years.
In order to perform its role effectively the Constitutional Court and Administrative Courts depend on a cohort of judges that are insulated from direct influence. They must also be of sufficient calibre to perform their role effectively. Furthermore, commissioners appointed to these bodies can only be removed if a specified procedure is followed which involves the matter being placed before parliament.
Characteristics of organisations
The Electoral Commission for Thailand: The Electoral Commission for Thailand (ECT) is 'well-equipped with unprecedented and exclusive authority, the commission exercises not only administrative and quasi-judicial powers, but judicial power as well. First the ECT has been given responsibility for running all forms of public elections and referenda. Apart from dealing with the routine administration the ECT has the power to determine the amount of expenditure per candidate and for each party at elections. If these limits are violated the Election Commission has the power to seize cash and/or property belonging to the perpetrator. Second, the ECT has investigatory power. It is required to initiate an investigation and inquiry for finding facts in case there is a objection lodged or convincing evidence of an impropriety or any violation of election laws. If the ECT finds evidence of contravention to the electoral law, it can revoke the candidate's right to stand for a year. Also the candidate will be subject to prosecution under the criminal code. Third, the ECT is empowered to issue a 'red card banning a candidate from engaging in politics for five years.
When evidence of abuse is discovered after the result of an election has been announced, the ECT is empowered to nullify the outcome of the election in that constituency (or throughout the region of nation) and order a rerun. The ECT can order a person to refrain from any conduct tending to undermine the integrity of an election. It will be evident that the ECT has ample powers.
Human Rights Commission: Under Chapter III of the Constitution, entitled 'Fundamental Rights and Liberties of the Thai People,' Thai citizens are afforded a wide range of individual rights. Moreover individuals are empowered to take out actions in the courts to defend their constitutional rights.
The enforcement of such rights has been a matter of great importance when it has come to operationalising the constitution. To facilitate enforcement, the Constitution established an independent National Human Rights Commission as an oversight body responsible for looking into violations of human rights. Where there are alleged human right violations, petitions may be lodged with the commission.
Equally, the commission can initiate investigation on its own initiative. In dealing with suspected human rights abuses the commission has an investigatory role for which it is specially equipped. It can require individuals or organisations to respond to charges, issue summons to government officials and private individuals to give testimony, and it can obtain warrants to enter premises. The commission can report that a violation of rights has occurred. However, it only has the authority to recommend remedial action or changes to the law, it is not empowered to act directly.
National Counter Corruption Commission (NCCC): The National Counter Corruption Commission (NCCC) and the Anti-Money Laundering Office (AMLO) mainly perform the role of criminal investigatory bodies with powers to award penalties subject to confirmation and a jurisdiction that ranges over the political and administrative domain. In discharging its duty to eliminate corrupt practices, the NCCC is able to formulate codes of conduct/rules of practice requiring the disclosure of assets which apply to the Prime Minister, Ministers, politicians and public officials at all levels of government. In common with the ECT, the Commission is granted wide ranging powers not only to investigate, but where it finds that a person has failed to disclose assets and liabilities, or has attempted to supply false information it can order that person from office with immediate effect for five years.
Thai Administrative Court
The new constitution at a formal legal level established a Thai Administrative Court and Supreme Administrative Court. It also introduced a Thai ombudsman. The Administrative Courts are in possession of formidable powers. And many of the remedies they are able to award are tailored to suit an administrative law context. The court can issue a decree revoking a by-law or an order and it can revoke an act in whole or part where it is alleged that an administrative agency or state official has done an unlawful act. Furthermore, the court can direct whether any such decree is going to have retrospective or non-retrospective effect.
The Thai Constitutional Court is designated the final arbiter of constitutional question and, as a result, it has a clearly defined function at the apex of the entire constitutional system. First, in line with many other constitutional courts it is required to decide whether any law, rule and regulation is contrary to or inconsistent with the constitution. This power also extends to the validity of any emergency decree. Second, the court must resolve dispute among constitutional organisations as to their powers and duties and the limits of such powers and duties.
The findings of other watchdogs may require the Constitutional Court's confirmation before they have binding effect. For example, there is requirement that the Prime Minister, Ministers and members of parliament submit details of their assets and liabilities to the NCCC. There is a five-year prohibition from office where the NCCC finds that a person has neglected to satisfy this requirement, but the ban must first be approved by the Constitutional Court. The decisions of the Constitutional Court are made explicitly binding on all State institutions and individuals.
Performance of watchdog bodies
The Performance of the Election Commission has fallen a long way short of the high expectations. In response to claims of malpractice there was very little evidence of positive intervention in the form of full investigations followed by firm action to eliminate continuing abuse. Controversy has continued to surround the ECT. The decision of the ECT to allow the election held on April 2, 2006 has been challenged in the courts and during the election itself there were once again many allegations that votes were being bought on widespread basis. The ECT failed to uphold objections to the results and the Constitutional Court initially conformed individual results which has been called into questions, but in an unprecedented move the King intervened by addressing the judges of the constitutional and administrative courts directly. He suggested that they should assert their authority under the constitution to invalidate the election which had been boycotted by opposition parties.
The limits of the NCCC's effectiveness became increasingly evident after the Constitutional Court failed to uphold the commission's findings in 2001. The case was of great national importance as it involved an investigation of claims that Thaksin Shinawatra before becoming Prime Minister has concealed most of his fortune as part of a dishonest scheme to conceal conflicts of interest which were outlawed under the constitution. The NCCC duly conducted its investigation and passed an 8-1 judgment against him. If the decision of the NCCC had been allowed to stand unchallenged the result would have been a 'red card', namely, an automatic suspension from politics for five years operating with immediate effect, thus depriving Thaksin of the premiership.
The NCCC's decision was challenged before the Constitutional Court where it was argued that the failure to declare these assets was no more than an honest mistake. Although the argument was not accepted, the Constitutional Court voted narrowly in Thaksin's favour. The failure to act decisively and punish the PM for this manifest breach of the rules severely undermined the credibility of the combined strength of the constitutional watchdogs, and therefore, also of the constitution itself, in the face of political interference and challenge at the highest level.
The Human Rights Commission (NHRC) has been openly critical in its reaction to violations of human rights by the Thai authorities, but this criticism has led to a hostile response from the government which has called into question the efficacy of the commission itself. In 2002 it objected to the treatment of protestors against the Thai Malaysian Gas Pipeline Project in Hat Yai in December 2002. The level of hostility form government was much more pronounced after the NHRC expressed concern over the killing of more than 1,000 suspected drug dealers as part of the three-month 'war on drugs'.
The administrative courts have proved to be the most resistant to external political influence and have gained a reputation for independence. The Thai government was proposing to privatise the Electricity Generating Authority of Thailand (EGAT) Plc. The proposal was contested in the administrative court. It was alleged that there had been an abuse of power, because the government was proceeding with the privatisation without any form of public consultation, although mandatory hearings were required for such a proposal. The court found it in favour of the objectors and issued an injunction which first prevented the privatisation from going ahead before hearing had taken place and following the hearing the Supreme Administrative Court ruled against the government.
The court's decisions were a serious blow to the central plank of government policy. The fact that fundamental principle of legality were upheld by the court, especially given the extremely sensitive issues at stake in the case, provides a clear demonstration that, in this area at least, the new constitution has managed to establish a powerfully independent watchdog body capable of checking abuses of power.
Lessons learnt
The watchdog bodies in Thailand have not eliminated ubiquitous corruption, and the abuse of power by the Prime Minister, Ministers, politicians and officials continue, and basic human rights have been regularly breached. The fundamental problem has been that the key players have not accepted the rules of constitutionalism. In particular, the credibility of the entire structure has been called into question because the most influential figures who operate the levers of power have blatantly breached the rules. The accountability mechanisms were engaged but the authority of the constitution was dissipated when the PM was allowed by the Constitutional Court to escape with impunity.