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As a student of the law of impeachment under the Constitution of the United States, I feel that the lack of a proper impeachment process is the greatest danger to democracy in Thailand today. Impeachment is the lawful way to remove high persons from office when they abuse their power.
Impeachment is a process with ancient roots in English constitutionalism, designed to prevent abuse of power in the executive. The goal of impeachment is the removal from office - not criminal punishment - of an officer duly elected who has become corrupt, has violated the law, or who seeks to impose personal dictatorial rule.
The fact of due election by a majority of voters is no obstacle to an impeachment. Once sworn into office, every high official - including presidents and prime ministers - is expected to act rightfully and with fiduciary responsibility. A breach of those duties leads to disqualification from continued possession of the authority of the office. This was the theory of impeachment used with Richard Nixon for his cover-up of the Watergate crimes, and with Bill Clinton for his lying under oath to a federal court about his relationship with Monica Lewinsky. Both men broke the law. Each was impeached. Nixon resigned rather than face trial in the Senate, and the Senate refused to remove Clinton from office.
The constitutional purpose of an impeachment and possible removal from office is to insure that no holder of office is above the law - not even a President of the United States. Popularity with voters is no justification for corruption in office or illegal use of office for personal or party purposes. The law determines who should remain in office, not personal power, wealth, or emotional popularity with the people.
It seems that the entire constitutional tradition of Thailand, going back to the first constitution after the demands of the revolutionary group in 1932, has not established an effective impeachment process for senior leaders. The Thai constitutional tradition going back to Pridi Banomyong apparently has been more influenced by French jurisprudence than by English parliamentary practice. In my judgement, that was a mistake.
Continental parliamentary practice around a prime minister elected by a house of representatives generally uses only a vote of no confidence as its impeachment process. When a majority of members of the House no longer want to support a government, they vote against one of its proposals, and then the government must resign and call new elections. Thus, as long as a government can maintain the support of a majority of representatives or deputies by whatever means - legal or extra-legal - it can remain in power until the next scheduled election. If it can maintain such support even when it has become corrupt or has abused its legal powers, it can govern unjustly and provoke anger and protest, street violence, revolts and coups. Thus it can become a cancer falsely advertising itself as a democracy.
This potential weakness in votes of no confidence gives too much power to the executive. It can rather easily, through abuse of power, defeat no confidence votes and so avoid the checks and balances necessary for good democracy to survive.
Where power is abused or is corrupted, democracy dies. When power can be abused or can be corrupted, democracy is in trouble. When Thailand was ruled by strongmen, they dominated the national assemblies and were impervious to votes of no confidence. Thus, extra-parliamentary means were resorted to from time to time as a device for checks and balances, or de-facto impeachment. The shift from Pridi to Field Marshall Pibul and generals Phin and Pao was such an impeachment. The shift from Pibul and Pao to Sarit was another. The protests that ended the governments of field marshals Thanom and Prapas were a populist form of impeachment. The later coups by General Kriangsak and others were other impeachment processes in a sense against governments widely seen as going in the wrong direction for Thailand.
The struggles for democracy in the early 1990s, which saw mass protests in the streets, were again ways of removing leaders when the formal systems of authoritarian government did not provide such an alternative. The shift of parliament alignments after the 1997 financial crisis removed one government and brought the Democrats to parliamentary authority. The leadership responsible for the crisis was thus impeached within parliamentary practices.
Since Thaksin Shinawatra has sought national office, the difficulty of finding effective ways to provide for impeachments of one leader or another has led to street protests, airport shutdowns, a coup, and tragic violence to life and property. Along with this has come an increasingly confrontational and uncivil political culture, as different sides seek to throw others out of office. The red-shirt protests of 2010 were an attempt at street-power impeachment.
A document ought to set forth the standards of abuse of power which will lead to removal of state officers from elected and appointed office but not to criminal punishment. Simply put, these standards are malfeasance or mal-administration. These terms embrace corruption, violation of laws, crass stupidity in office, and abuse of power. Differences over policies are not grounds for removal but only for political maneouvring within the bounds of electoral and parliamentary competition for public approval.
In the US Constitution, a term of art from English parliamentary practice is used as the standard for abuse of office: "High crimes and misdemeanours". These wrongful acts were not really crimes at all before the British Parliament but - as in the once very famous case of Warren Hastings' corruption when head of the British East India Company - were abuses of power for selfish profit or unjustified personal prerogative.
In Thailand, the impeachment tribunal should not be part of the Parliament. It should be independent, perhaps in the Constitutional Court. Some special body should be charged with investigation and origination of a writ of impeachment to begin proceedings for removal from office. Impeachments, when necessary, should be brought against great officers of state only. If crimes have been committed which result in an impeachment and removal from office, a separate criminal proceeding would then become necessary to establish guilt beyond reasonable doubt under the criminal law.
Since an impeachment is not a criminal proceeding, the accused office-holder - as in the case of proceedings for abuse of fiduciary trust - has the burden of proving his or her innocence. The accusation of abuse of power only sets in motion a proceeding in which the office-holder must demonstrate that power was not abused.
It follows from this that the accused must bring forth all the evidence about the transactions under suspicion and show by a preponderance of the evidence that there was no abuse of power. Hiding evidence or shutting up witnesses - as was the case with Richard Nixon - is in itself grounds for removal from office. The one who holds the public trust must prove that he or she is squeaky clean.
Whether or not senior government officials deserve removal from office ought to be settled under the law through an impeachment process and not by violent partisan protest or military coup.
Stephen B Young is a former assistant dean of Harvard Law School and a former dean and professor of law at Hamline University School of Law.
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