Lessons Thailand can learn from Germany

[webfact]

Lessons Thailand can learn from Germany

By JINTANA PANYAARVUDH 
THE NATION

 

 

UNLIKE its Thai counterpart, Germany’s Constitutional Court has rarely come under criticism and enjoys the implicit trust of the people, thanks to the faith of the citizens that their rights and liberties will be fully protected by the court, according to a German law expert.

 

In Germany, the Federal Constitutional Court is a respected institution and enjoys an equal status with the three branches of a democracy, said Rupert Scholz, who served as defence minister in the Helmut Kohl government. 

 

Scholz cited a German poll result that said the court was “the most recognised institution”.

 

“No chancellor can earn as much faith as the court,” said Scholz, a recognised expert on constitutional and European economic and labour laws as well as economic administration. He was speaking at a dinner talk on “Tasks and Missions in accordance with the German Constitution: Judgement, Administration and Budgeting”, co-organised by the Office of the Constitutional Court and Konrad Adenauer Stiftung in Bangkok recently. 

 

He said the court also serves as a balance between law and politics when reviewing cases.

 

In Germany, the judges do not consider the suitability of a law but only review whether the law is constitutional, he explained. “The role of the court is as the ‘guardian’ of the constitution and as the authority that reviews the constitutionality of the laws,” the professor said. 

 

The court respects the spirit of the legislators and, therefore, does not immediately invalidate unconstitutional laws. However, on several occasions it has annulled some articles of a law instead of the entire law. “The court gives a year to two years’ time to legislators to amend the parts considered unlawful,” he added.

 

Thailand has adopted the concept of the court from Germany where its main roles are judicial review and to rule on the constitutionality of legislation. However, there are some areas of divergence in the responsibilities of the two courts. One of the German court’s key tasks is to rule on complaints related to the constitution, which is an extraordinary remedy for the protection of constitutional rights. 

 

In Germany, any citizen or person of any nationality living in the country can approach the court if they believe their constitutional rights have been violated by a public power. The complaints, however, can be filed only after a ruling from the Federal Court of Justice, the country’s supreme court.

 

In other words, the role of the constitutional court is very clear: to consider petitions from the public against a state authority, including the actions of the judicial branch. In Thailand, however, that clarity is missing in defining the court’s role, Banjerd Singkaneti, a law scholar at the National Institute of Development Administration, pointed out.

 

Banjerd said Thai laws were not explicit about rights and liberty violations over which the public can petition the Constitutional Court.

 

Moreover, the German Constitutional Court is the highest court, which can review a case as the final court of authority, but in Thailand, the courts of justice, the Administrative Court and the Constitutional Court have a parity in status.

 

Banjerd noted that only 2 per cent of more than 200,000 complaints filed with the German court are actually successful [a win for the public]. Though the number was small, it could have the effect of making the lower courts of justice exercise their powers with discretion due to the realisation that they can be scrutinised by the Constitutional Court, he said.

 

However, giving such power to the high [Constitutional] court could be a double-edged sword if the court were not independent, he added.

 

Banjerd believes there should be some room for the Thai Constitutional Court to review the final ruling by the courts of justice, especially in cases where the verdict fundamentally overlooks facts, the law, and the rule of law.

 

The Thai Constitutional Court has previously been criticised for making controversial rulings that altered the shape of governments and has been accused of having double standards.

 

In several cases, the Thai judges’ ruling appeared to stress the principles of political science rather than the legal aspects. The decision to dissolve the Thai Rak Thai of Thaksin Shinawatra and its successor People Power Party, while sparing the Democrat Party over a similar ordeal stand out as examples. 

 

Early this year, the legislators passed an organic law that protects the Constitutional Court from criticism. The law stipulates that those who use rude, sarcastic or threatening words will be punishable by up to one month in jail and a fine of Bt50,000. Scholz said in his view the court can be criticised but without using force.

 

“The court has to accept criticism. It should not bar freedom of expression, especially relating to academic matters,” he said.

 

When asked about the constitutionality of a political party’s proposal to amend the charter after winning an election and whether the Constitutional Court should intervene to stop such an action, the professor said the court cannot stop the amendment.

 

Some anti-junta political parties such as Pheu Thai and Future Forward Party have vowed to scrap the current Constitution, which they called undemocratic, and write a new charter if they win the election. 

 

“Any party that wins a majority has the right to amend a charter if it so chooses, as long as they don’t use force [to achieve that],” the German professor said.

 

A party’s intention to write a new charter does not contradict the principle of liberal democracy, he said.

 

To amend a charter, the parties need to adhere to and not be against the intention of the charter under a democratic regime, he added.

The professor shared a similar case in his country dating back to the period after the reunification of Germany in 1990. 

 

Scholz was a member of the joint parliament committee, which considered the question of whether the country should have a new charter. The concerned parties, however, agreed that the existing charter was still usable and decided to just add more provisions to bring it up to date. 

 

Source: http://www.nationmultimedia.com/detail/politics/30358335

 

-- © Copyright The Nation 2018-11-12

[jerojero]

But in Germany, the Constitution doesn't get thrown out and rewritten every time there's a change in government. And even the Nazis in Germany were elected to power!

 

 

[Samui Bodoh]

Interesting article and there are several areas which are quite fascinating. Yes, it would be good if Thailand adopted some of the norms from Germany, but it is difficult to have a serious constitutional court when the constitution gets torn up and re-written every few years.

 

"...The decision to dissolve the Thai Rak Thai of Thaksin Shinawatra and its successor People Power Party, while sparing the Democrat Party over a similar ordeal stand out as examples..." 

 

The quote above demonstrates (to me) why the Thai court hasn't and never will attain the same degree of respect. Simply put, if there isn't consistency in the decisions and uniform application of principles, then the highest court is merely another branch of politics rather than a respected arbiter. And, as long as it is merely another branch of politics rather than an arbiter, then it will have the same respect as a political party; not much.

 

A respected Constitutional Court would be a great thing in Thailand, but for that you'd need a stable constitution, respect for the rule of law, competent drafting of laws, and to clean up all the... unusual decisions that courts and 'independent' agencies make on behalf of one side of the political debate..

 

I ain't holding my breath...

 

 

[zzaa09]

The systems [sort to speak] need a full and complete overhaul - from top to bottom.

Most importantly, a thorough cleansing of the wealth and cycles of scallawaggery and familiar circles that have existed here for several decades...

Nothing more, nothing less.

 

Otherwise, any such critical discussions and analysis is purely academic and surely moot.

[Briggsy]

Same old error over and over.

 

Northern European countries have, for the most part, transparent, democratic systems of government, underpinned by the rule of law, which in turn is underpinned by morality, justice and fairness.

 

South East Asian countries have, for the most part, opaque, elitist systems of government, underpinned by a complex patronage system, which in turn is underpinned by loyalty to and fear of one's seniors in the patronage hierarchy.

 

Trying to pretend they are comparable and thinking you can take the best bits of Northern European government and insert them into Thailand or any other South East Asian is a concept doomed to failure from the start.

[dinsdale]

Thai judicial system...

[zzaa09]

44 minutes ago, Briggsy said:

Same old error over and over.

 

Northern European countries have, for the most part, transparent, democratic systems of government, underpinned by the rule of law, which in turn is underpinned by morality, justice and fairness.

 

South East Asian countries have, for the most part, opaque, elitist systems of government, underpinned by a complex patronage system, which in turn is underpinned by loyalty to and fear of one's seniors in the patronage hierarchy.

 

Trying to pretend they are comparable and thinking you can take the best bits of Northern European government and insert them into Thailand or any other South East Asian is a concept doomed to failure from the start.

The Max Weber School....

[ChrisY1]

Germany is a 1st world nation that has an educated population....Thailand is......?

[boonrawdcnx]

Absolutely ridiculous to compare the courts of these two countries. We all know what a kangaroo court is and how easy it is for certain people to “persuade” Thai courts to rule in a certain way. If there would be ANY independent court in this country ANY laws passed by an unelected government that came to power by a coup and the threat of violence would be declared unconstitutional!
The respect for the German constitutional court has been earned - In Thailand “influential” people and corruption - shady, greedy judges on the take have destroyed any respect for any courts in this country - cowards in robes who do not dare to rule independently according to the law!
If this country would have a functioning judiciary we would not be in the situation we are in now.
The best example in recent history was Thaksin’s assets declaration trial and the outcome - I remember watching it thinking I was in a bad movie. The person who told the judges how to rule has made the entire Thai judiciary the laughing stock of the world.
Google “I had to swallow my blood” and you can see Thai judiciary at its best - and there are hundreds if not thousands of cases like this where judges have either been payed off or “influenced” - no wonder courts command zero respect here.
Although there is the one or the other case where I was impressed by the ruling - so there is still hope.

But sadly important cases are always influenced by these people behind the scenes who think they are above the law!
If there would be a constitutional court like the one in Germany in Thailand - then anybody could petition the court now to declare any law passed by an illegal junta declared unconstitutional - and we all know how a proper court - and a Thai court - would rule!





Sent from my iPhone using Thaivisa Connect

[JAG]

2 hours ago, Briggsy said:

Same old error over and over.

 

Northern European countries have, for the most part, transparent, democratic systems of government, underpinned by the rule of law, which in turn is underpinned by morality, justice and fairness.

 

South East Asian countries have, for the most part, opaque, elitist systems of government, underpinned by a complex patronage system, which in turn is underpinned by loyalty to and fear of one's seniors in the patronage hierarchy.

 

Trying to pretend they are comparable and thinking you can take the best bits of Northern European government and insert them into Thailand or any other South East Asian is a concept doomed to failure from the start.

The now predominantly democratic Northern European countries had, not so long ago opaque, elitist systems of government, underpinned by a complex patronage system.

 

As the population became more prosperous and better informed, and the everyday struggle for mere survival became less pressing, so these societies evolved into the democratic form they take today. It is an inevitable, and irresistible process.

 

It is happening here (and I dare say elsewhere in South East Asia). The pace of such change is many many times faster, modern medias and information technologies having been so enthusiastically embraced. That doesn't mean it will happen in months or next year, but I suspect in a generation or so things will look different.

 

Of course their may be catalysts which lead to much more rapid (and possibly violent) change. I hope not, I would like the change to be an evolution not a revolution. That is probably in the hands of the opaque, elitist systems of government, and patronage higherarchy - which on reflection doesn't bode well...

 

Of one thing we can be sure: the Constitutional Court, as currently structured and functioning will not play a constructive role in this.

Edited November 12, 2018 by JAG

[klauskunkel]

6 hours ago, webfact said:

In Thailand, however, that clarity is missing in defining the court’s role

It is even more fundamental than that, clarity is missing in the laws themselves which can be interpreted by authorities any way they want, clarity is missing in authorities' rules and regulations which can be modified and amended from district to district.

[lvr181]

Could be a fair comment BUT since when has Thailand learned from anyone else? ????

 

In 600 years they have not "achieved" what, one of their near S.E.A. neighbours, Singapore has done in 50!

 

Followers of Frank Sinatra - "I did it my way"?

 

 

(Yes, I know there maybe exentuating circumstances.)

[Rimmer]

An off topic inflammatory video has been removed.

[mok199]

Saddly the problem is the average thai is either fearful or does not care, they have been brainwashed and beaten down since birth to love ,trust and never question this nation, they feel change is impossible.....keep the soap operas flowing and build another new mall...and alls peachy in LOS

Edited November 12, 2018 by mok199

[Enoon]

6 hours ago, jerojero said:

But in Germany, the Constitution doesn't get thrown out and rewritten every time there's a change in government. And even the Nazis in Germany were elected to power!

 

 

 

Actually they weren't.

 

They only got 230 out of the 608 seats in the Reichstag and did not come to power until the DNVP (Conservative Party) decided to support them in a coalition.

 

 

Edited November 12, 2018 by Enoon

[Enoon]

2 hours ago, JAG said:

 

 I hope not, I would like the change to be an evolution not a revolution. That is probably in the hands of the opaque, elitist systems of government, and patronage higherarchy - which on reflection doesn't bode well...

 

 

 

"which on reflection doesn't bode well..."

 

No, it doesn't.

 

The similarities to those "orders" in the West (and also closer to "home") which did not evolve and go quietly ("with the flow") are rather......ominous.

 

 

Edited November 12, 2018 by Enoon

[Baerboxer]

2 hours ago, JAG said:

The now predominantly democratic Northern European countries had, not so long ago opaque, elitist systems of government, underpinned by a complex patronage system.

 

As the population became more prosperous and better informed, and the everyday struggle for mere survival became less pressing, so these societies evolved into the democratic form they take today. It is an inevitable, and irresistible process.

 

It is happening here (and I dare say elsewhere in South East Asia). The pace of such change is many many times faster, modern medias and information technologies having been so enthusiastically embraced. That doesn't mean it will happen in months or next year, but I suspect in a generation or so things will look different.

 

Of course their may be catalysts which lead to much more rapid (and possibly violent) change. I hope not, I would like the change to be an evolution not a revolution. That is probably in the hands of the opaque, elitist systems of government, and patronage higherarchy - which on reflection doesn't bode well...

 

Of one thing we can be sure: the Constitutional Court, as currently structured and functioning will not play a constructive role in this.

 

Indeed. Many who fought in WW1 did not enjoy the right to vote. Nor did ladies at that time. Nor were the masses, in general, well educated.

 

It took the calamity of two world wars to stimulate the massive social and cultural changes that brought about the changes to Northern European countries. 

 

Hopefully Asia will be spared such suffering and the change will be more evolutionary.

[Baerboxer]

45 minutes ago, Enoon said:

 

Actually they weren't.

 

They only got 230 out of the 608 seats in the Reichstag and did not come to power until the DNVP (Conservative Party) decided to support them in a coalition.

 

 

 

So they were elected on a minority vote then,

[Enoon]

45 minutes ago, Enoon said:

 

Actually they weren't.

 

They only got 230 out of the 608 seats in the Reichstag and did not come to power until the DNVP (Conservative Party) decided to support them in a coalition.

 

 

 

Got that wrong.

 

NDSAP came to power in coalition with DNVP in 1933.

 

Complicated period but........not voted into power.

 

 

[Lupatria]

7 hours ago, webfact said:

Lessons Thailand can learn from Germany

Too bad there are two major obstacles to adopt even some aspects of Germany’s Constitutional Court and learn a lesson:

1. Thais don't take lessons or even advice from foreigners (see flood prevention)
2. This is Thailand and all western systems don't work here, as long as they leave little room for corruption and nepotism.

 

[Enoon]

4 minutes ago, Baerboxer said:

 

So they were elected on a minority vote then,

 

See my correcting post.

 

In the later election their vote was severely reduced and they agreed to "support" the DNVP (as the DUP supports the UK Conservative party today) and then contrived to push them aside and take full power.

 

 

 

 

[Baerboxer]

2 minutes ago, Enoon said:

 

See my correcting post.

 

In the later election their vote was severely reduced and they agreed to "support" the DNVP (as the DUP supports the UK Conservative party today) and then contrived to push them aside and take full power.

 

 

 

 

 

They were still voted in i.e. the did not come to power through a coup or revolution but by shrewd manipulation of the electoral system.

 

Which demonstrates why systems need good checks and balances; and a strong independent constitutional court which prevents minority extremists or clans changing laws to suit themselves or ignoring current ones without proper process.

[yuiop]

Germany teaching something to Thailand? No thanks.

[Brunolem]

When I read the title of the thread, I thought "damn, they want the Germans to give cooking lessons to the Thais! we can't let that happen!".

 

But it was just a storm in a teapot...the constitution, who cares...in the US they use the constitution in the White House visitors' toilets!

 

And the Germans certainly have a nice and well protected constitution, but look what it has brought upon them: frau Merkel, of whom they can't get rid even though she only has 2 supporters left, her husband and the obersturmfuhrer Schauble...

 

This terrible situation, made even worse by Merkel's masterplan of building at least one mosque per district, is leading hords of Germans to flee their country and try to reach Thailand on refugee ships.

 

A much more appropriate model of constitution for Thailand would be the one of Bhutan...

 

Edited November 12, 2018 by Brunolem

[micmichd]

7 hours ago, jerojero said:

But in Germany, the Constitution doesn't get thrown out and rewritten every time there's a change in government. And even the Nazis in Germany were elected to power!

 

 

That's why everyone has a right to resist any Nazis that organize to seek power in Germany. BTW, Article 1 GG ("dignity of human mankind") must not be touched by anyone, any institution, or any party. 

[Eric Loh]

8 hours ago, webfact said:

Lessons Thailand can learn from Germany

What Thailand can learn is how invisible the army is in Germany and people actually frown on anyone putting on an army uniform. 

[smedly]

8 hours ago, webfact said:

UNLIKE its Thai counterpart, Germany’s Constitutional Court has rarely come under criticism and enjoys the implicit trust of the people

and just as important - the constitution cannot be changed just because a newly elected government doesn't like the bits that prevent them from thieving from the people 

[micmichd]

4 hours ago, ChrisY1 said:

Germany is a 1st world nation that has an educated population....Thailand is......?

Half of the German people don't understand their own constitution. In fact, even their governments don't understand the constitution sometimes. 

So, would you call that an "educated population"?

[manchega]

Germans tend to use logic, not sure it is feasible in Thailand, in principle yes, but how would they all make money

[manchega]

1 hour ago, Baerboxer said:

 

Indeed. Many who fought in WW1 did not enjoy the right to vote. Nor did ladies at that time. Nor were the masses, in general, well educated.

 

It took the calamity of two world wars to stimulate the massive social and cultural changes that brought about the changes to Northern European countries. 

 

Hopefully Asia will be spared such suffering and the change will be more evolutionary.

it seems Asia learns a different lesson take Cambodia for example, they do the suffering, just the change is stupid.

Thailand well the people actually celebrated the coup!!!!!

what a bunch of <deleted>, intelligent people beleiving the military is the answer, and worse the military liking the smell of their own shit are egged on by this

 

what is this if not suffering

 

suffering stupidity, perhaps the worse death of all, the incompetance of it all