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BP: As blogged about here, parliamentary privilege in Thailand is relatively limited. What happens if an MP has evidence of corruption within the judiciary? What is to stop the court from bringing contempt charges then? *yes, have corrected the headline. It was Friday!
Related StoriesThat Red Card Case Against the Democrat Executive (story by Bangkok Pundit) Comments
In most western democracies charges of contempt of court are generally used only to protect judicial process and not to prevent post jure criticism of the judgement or of the court itself. Indeed it is not uncommon for people to be allowed to demonstrate against a judgment immediately afterwards outside the court. This is known as free speech. Since members of parliament are the people who are actually charged with making and revising laws, it seems extraordinarily perverse that they should not be free to criticise existing laws and indeed recent judgements. How else can they fulfil their duty?
There is much more than a privilege concern here. Privileges normally protect people from civil liability: for example, the parliamentary privilege would protect an MP from being sued for defamation by someone whom he/she spoke about during a legislative session. But this situation involves separation of powers between the three branches of government, which are supposed to be equal. It is inconceivable (well, it used to be) that an official in one branch of government could be criminally prosecuted for criticizing another branch of government. BP asks a good question: what if an official in the executive or legislative branches, in the course of his official duties, finds evidence of wrongdoing in the judiciary? The judiciary is untouchable if not even the other two branches of government can question it.
BP: This issue is not between legislature v. executive. The constitutional court is not part of the executive branch. If it is, we are in even deeper trouble. In this case the MP's privilege is absolute. She should have immunity. I expect no prosecution.
What happens if "anyone" has evidence of corruption within the judiciary? What is to stop the court from bringing contempt charges then? Nothing and threrin lies the problem. The courts by their own power can stop all comment withthreats of prosecution. "Justice is not a cloistered virtue, She must be allowed to suffer the scrutiny and respectful, even if outspoken, comments of ordinary men." Justice Atkin
S & Bkk lawyer - Couldn't agree more CC - It was an error on BP's behalf, it was the judiciary that BP was referring too. The court made a complaint, we have acknowledgment of the charges. Now it is up to the prosecutor. BP is not so confident there will be no prosecution. RR - It is a separation of powers issue, BP agrees.
Are they immune to the ridicule??? (courts & prosecutors)
Incidentally UK has managed to run a reasonable democracy without using the American and French holy writ about the separation of the powers. All members of the government sit in the British Parliament; if they are not elected to the House of Commons, they are given peerages and sit in the House of Lords. This is considered important as it enables them to answer for their actions directly in the legislature. Hence institutions such as the weekly Prime Ministers Questions. Until recently the Lord Chancellor was head of the judiciary, a senior cabinet minister and a voting member of the legislature.
Actually Hobby, I think that is a very good question. I think judges have to be immune to ridicule. Certainly they get a lot of it and generally - well, hardly ever - respond. Their dignity lies in their silence, letting their rulings speak for them and leaving everyone else to make of the rulings what they will.
BKK Lawyer: Parliamentary system is not based on separation of power. Rather, it is based on fusion of power. That's why you have cabinet coming from MPs. Also, this is not a system of co-equal branches of government. Here, the national parliament is supreme.
Here, the national parliament is supreme. ROFLMAO
Veharachan: Under the 2007 constitution, only the PM must come from the House of Representatives (§ 171). Other Ministers need not be MPs, and a senator cannot be a Minister (§§ 116, 174). Thus the Thai system is not like the "fusion of power" system in the UK. Other indicia of separated powers: There are various provisions holding Ministers accountable to the National Assembly (§§ 156, 159, 161, 178). Judges cannot hold political positions (§ 197). Also, the debate privilege that's the subject of this post applies specifically to immunize statements made by an MP about a Minister (§ 130). Don't know where you get the idea that "the national parliament is supreme." I don't see it in the constitution. The judiciary also seems to disagree. In a 2005 law journal article, Chulalongkorn law professor Chachapon Jayaphorn says the government "must follow the separation of powers doctrine" (online at http://www.thailawforum.com/articles/reformation1.html; see part 3).
BKK Lawyer: You cannot have a parliamentary system without legislative supremacy. Whether you hold the national legislature in high esteem or not, they are elected by the people and they can pass the law or amend the constitution (or grant amnesty to a former PM). We have chosen to adopt British model with modifications through the years. Under the 2007 constitution some cabinet members are non-MPs, but all key ministries are filled with MPs.To deny legislative supremacy is to deny parliamentary system altogether. Many academics tend to get confused between separation of powers and check & balance system. Now what we have around the world is "separate institutions sharing powers" as a form of check & balance in both presidential & parliamentary systems. In a parliamentary system the ultimate check & balance is the vote of no confidence to remove the cabinet.
Veharachan - So what you are really saying is that the Ultimate Legislative Supremacy rests with the military as they apparently have always had the ultimate "vote of no confidence" in the "electorate" and seemingly, without fear of reprisal, can remove the government at will regardless of what the people have said.
The whole point of having judiciary is that everyone accepts court rulings. Otherwise warring sides could just slug it out in parliament or in the media or even on the streets. It's normal for the losing side to grumble a bit but there must be limits, too. Respect for judicial decisions plays important role in respect for the rule of law as well. No society can afford a full blown rebellion every time someone disagrees with a court judgment. |
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