Rule of law versus political revenge

Enforcement of the law has to be done in good faith, and not for political revenge. The National Legislative Assembly (NLA) has an obligation to answer a key basic question of legitimacy before proceeding with the impeachment of politicians of the previous regime. The NLA’s action in this matter will set a precedent for law enforcement in this country. 

The NLA is in a dilemma over its move to impeach former Parliament president Somsak Kiatsuranond and his former vice president, Nikom Wairatpanich, for their roles in supporting a bid to amend the 2007 Constitution. Some members believe they have the authority to impeach the politicians, while others lack confidence in their power to do so.

Those attempting to impeach are mainly opponents, if not enemies, of the previous government and the then-ruling Pheu Thai Party. They have a clear political objective: to get rid of members of the former government and its allies. Specifically, their targets are the politicians in Thaksin Shinawatra’s camp.

If they manage to bring down Somsak and Nikom, they will have more legitimacy to impeach more than 300 politicians who supported the amendment to the previous constitution.

Since the current charter does not authorise this move, the military-dominated NLA weeks ago modified its regulation on meetings procedure to empower members to impeach persons who hold political positions.

In fact, none of the targeted politicians currently holds any such position, but some NLA members want to bar those they impeach from re-entering politics via the next election.

However, it is difficult to establish legal legitimacy for punishing former members of Parliament for their roles in supporting a change to a constitution that no longer exists.

The NLA, together with the anti-graft body – whose members are also no fans of Thaksin – are acting on a Constitutional Court ruling that the amendment of the previous charter was unconstitutional and equivalent to an attempt to abolish the democratic system. If the previous constitution were still in effect, it would make sense to impeach the politicians who commit such an act against it.

But the fact is that the May 22 military coup intervened to abolish both the 2007 Constitution and democracy. The elected government and all members of Parliament were automatically punished with loss of their positions.

If they seriously regarded an attack on the Constitution as a permanent sin, why did none of the NLA members feel there was anything wrong with the coup?

The NLA must get past several legal technicalities before it can exercise its authority to impeach, since the current coup-made Constitution does not provide the legal grounds necessary.

The post-coup constitutions of 1997 and 2007 mark the only two times in Thai history that lawmakers – senators in both cases – had the power to impeach.

There is no senate under the current Constitution, but some NLA members have argued that they are effectively acting as a Senate and can thus use Senate power to impeach politicians. However, this argument lacks validity because the Senate generally has the function of screening and scrutinising a bill from the Lower House before it is passed into a law.

The power to impeach was confined to the 1997 and 2007 constitutions. If such power does not exist in the current charter, it would not matter if the legislative body acted as a senate: it would not have the power to impeach any holder of a political position.

If the junta and the NLA are serious about reforms to support the rule of law, they should stick by the legal principle nullum crimen sine lege – no crime without a pre-existing law.