What constitutes 'legal' changes with the powers of the day

The judgements made by the Constitution Tribunal gave us a clear idea of what the rule of law is in contemporary Thai politics; ie the way the country is ruled by the law that was ordered by the coup-makers who put an end to the 1997 constitution.

It is such an irony that the country had to wait nine months for this judgement from the Constitution Tribunal, which followed the Council for National Security's order to punish political parties on charges of being against a parliamentary democratic regime, which was already destroyed by the coup. The verdict was an endorsement of the coup-makers' orders.

What happened on Wednesday was a bold instance demonstrating how Thai society is governed by the "rule by law" rather than the "rule of law" - ie the law that is issued by those in political power regardless of how they got into power. Since the coup, which was done through military means, was successful, the law issued by the orders of those in power is deemed to be legitimate and the verdict of the Constitution Tribunal, which was brought into existence by the coup-makers, is also regarded as lawful.

What can be read from the verdict is very clear: the tribunal accepted the legitimacy of the coup, which went against the 1997 constitution, and it used the orders of the coup-makers to punish political parties.

This does not mean that those political parties did nothing wrong, but the punishment was legally unnecessary from the principle of the law, but politically necessary from the rule by law principle.

The tribunal could have done nothing and allowed those parties to be suspended by the coup-maker's order alone. What constitution precisely was the Constitution Tribunal working from? If the rule of law has something to do with the equal treatment of all members of the polity, why was a certain group able to overthrow the previous constitution?

What is interesting from the information regarding the vote of the tribunal is that the judges who came from the Supreme Court (three out of the nine) disagreed as to the punishment.

The coup-makers' orders introduced the five-year ban for party executives found guilty of electoral fraud and in this case the offences committed by these politicians took place before that order was issued. Thus it was a good sign that in fact some members of the tribunal were aware of that principle and expressed their views, which were not in total agreement with the orders of the coup-makers.

While the media presented the public's sentiment as positive towards the Constitution Tribunal's verdict, it is worth nothing that this positive opinion is in fact an outcome of the "politics of fear", which the country has been ruled by since the coup. Both the coup-makers and its supporters have justified their rule by instilling the fear in the people that an undemocratic means of governance and the deprivation of political freedoms are legitimate as they prevent the country from being torn apart by Thaksin Shinawatra.

It is national unity by any means which became the driving force behind the state - taking precedence over other forms of general will, such as freedom of speech, economic prosperity and alternative policy.

Thus the judgement from the tribunal yesterday did not seem to put an end to the politics of fear in this country.

Fear continues to be an indispensable part of post-coup politics and it proves that national unity cannot put an end to fear but that in fact creating fear is important to unite people together under one nation. Elections have to be suspended until the new undemocratic constitution is in place with people approving it out of fear; if the constitution is not approved, the election will be constantly delayed or the coup-makers will select any previous constitution to be used.

The judgement is legally valid, subject to what the conception of law is. If the law refers to an order of the ruler, the judgement by the Constitution Tribunal is unquestionable but legally unnecessary. If law means a popular consensus, the punishment that was based on the orders of the coup-makers is questionable, but politically necessary and important in ensuring that the politics of fear continue to work as the dominant theme in Thai politics so that those in power now will continue ruling the country.

Pitch Pongsawat is a lecturer at the Government Department in Chulalongkorn University's Political Science Faculty.

Pitch Pongsawat

Special to The Nation