Opinion: Revisiting the court decision to keep Thammanat in office

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Last year, Australian Media The Sydney Morning Herald ran the headline “From sinister to minister”, revealing the details of an ex-convict in prison for four years for conspiracy to transport heroin. 

The person in question was one Mr. Thammanat Prompao, who – as the clever headline alluded to – is now Deputy Agriculture Minister of Thailand. If we remember, the Thai Constitutional Court unanimously ruled in May that he could still hold office despite his sting in jail.

TheIr reasoning? Verdicts of foreign courts have no effect in Thailand. 

Be that as it may, the fact remains that Thammanat is able to hold office after a conviction that he repeatedly tried to deny. Not only is this a national embarrassment, but it also has widespread implications on the future of this country. 

At this point, Thammanat’s retention of his office exhibits double failures. The first is a legal one: the Constitutional Court’s decision to allow him to keep his office is based on a legal basis that is contentious at best, and has consequences beyond the law that should have been envisaged. The second is political: it is unfortunate that political mechanisms have also not just failed to remove him, but willingly allowed him to stay in power. 

The legal blunder

In Thailand, as with other countries, the laws that apply are generally limited to its jurisdiction unless the drafters’ explicitly intended otherwise. There is nothing wrong with this in itself – after all, Thailand is a sovereign nation. However, the rationale should be understood and not indiscriminately applied to every law. 

In Thai law, an individual who is convicted of an indictable offense cannot hold office. The Constitutional Court’s recent decision narrowed this down to mean convictions under Thai Law. This use of procedure obstructs a valid reason not to hold office. It allows a minister who refuses to acknowledge his past actions to remain in a position of power. It means he is not being held accountable to the people he is supposed to serve. It also sets a worrying precedent that will apply for future MPs with such a tainted record.

The law should never be discrete from society. The Constitutional Court seems to either forget or deliberately overlook this, using the excuse of procedure to reach its decision. 

It did not need to reach this conclusion. While foreign court decisions should rightly have no direct bearing in Thailand, it should nonetheless be carefully considered in this regard. After all, the conviction by judgement of foreign courts for non-petty offences is considered as grounds for barring entry into Thailand by virtue of section 12(6) of the Thai Immigration Act B.E. 2522. In Thammanat’s regard, foreign courts can provide evidence of his merits (or lack thereof) and a source of reasoning when dealing with complex legal questions. It would be disappointing to completely disregard the New South Wales court decision of Thammanat’s case.

Furthermore, there is a wealth of Thai law and regulations that are relevant to Thammanat’s case. For example, the Section 5 of the Act on Measures for the Suppression of Offenders in an Offence Relating to Narcotics B.E. 2534 states that “any person who commits an offence relating to narcotics, despite the fact the offence is committed outside the Kingdom, shall be punished in the Kingdom.” [emphasis added] Granted, a caveat from section 10 of the Penal Code prohibits him from being punished twice, but the offence must nevertheless still be reported and registered in Thailand.

The Council of State opinion 276/2565, regarding the appointment of a member of parliament, observed that a person who committed an offence for which he was imprisoned for, whether in or outside of the country, will be considered to have conducted himself inappropriately. To limit offences to that committed inside the country, it reasoned, would lead to inequality and injustice. This is directly applicable to Thammanat’s case, as the artificial distinction based on geography allowed him to escape being declared unfit for office. 

Lastly, it is with a hint of irony that I bring up Thailand’s current 2017 Constitution, drafted by the current administration. Meechai Ruchuphan, legal expert and chairman of the Constitution Drafting Committee, had stated back in 2016 – in its drafting process – that the Constitution is designed to prevent and combat corruption, so that politics be free of people who have committed criminal offences. This clearly has not aged well. With nepotism now at the heart of a government protecting the very type of criminal it purported to be against, the mere fact that Thammanat remains in office is contrary to the spirit of the “sacred” highest law of the land.

A political fiasco 

When the wheels of justice do not turn, one would hope that political ones – ones that should directly be held accountable to the people – would. And one would be disappointed. Should this happen in another country – say, the United Kingdom – he would have to resign by convention. 

As opposition political parties have pointed out, Prayut should also be held accountable to the people for appointing Thammanat and continuing to defend him given Thammanat’s role as a party ‘fixer’, knowing full well his background. I am disappointed, but not surprised; unlike what he says, he rarely if ever puts country over party. This is contrary to the Palang Pracharat’s 2018 regulations or code of conduct, which includes a standard of ethics that directly stipulates otherwise. 

I am all for second chances, but I am not for erasing the past. I do not want to be represented by a man who has no remorse for what he did, denies culpability, calls cocaine “flour”, and threatens to launch defamation lawsuits to those in pursuit of the truth. At this point, it will take more than resignation to win back the confidence of the people, but it will be a start.

The Constitutional Court’s decision, and its political backing, sets a problematic precedence of what little the rule of law means in our country. Welcome to Thailand, where an ex-convict can serve in government but an opposition political party is disbanded, both on technicalities and in the face of neglected laws and regulations. It is a country where legal decisions are seldom an accurate barometer of morality. It shows how freely principle is sacrificed on the altar of political gain. No wonder the young Thai generation wants to leave this country. 

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