In April 2006, Thailand was at the height of a political crisis that threatened to cleave the country’s increasingly divided polity in two. Acknowledging the seriousness of the situation, Thailand’s late King Bhumibol (1927-2016) gave a speech in which he urged the country’s judiciary to “do their duty”.

 

 

“[...] the Supreme Court must act by thinking it over together with

other courts on how to resolve the crisis, and must do so very

quickly otherwise the nation will collapse and cannot be salvaged.”

(King Bhumibol Adulyadej, 2006)

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          Those hoping that the King’s highly anticipated speech would directly condemn one side or the other for the political crisis were left disappointed; and the judiciary was now compelled to interpret a decidedly vague commandment from the most revered figurehead in all of Thai society. Facing increased pressure to resolve the political conflict, some consider this the point at which Thailand’s political character became inextricably bound to the inclinations of its courts. This process of political judicialization has seen rising popularity worldwide, but particularly so in states practicing electoral authoritarianism.

 

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Part I - The Quagmire

Thai Court Contextualized

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          Credit for reforming and centralizing the Thai judiciary under King Chulalongkorn (1853-1910) is usually given to his son, Prince Raphi Pattanasak. However, some Thai law scholars suggest Prince Raphi’s alleged role as the sole “founding father of modern Thai law,”  is murky at best. Nonetheless, the prince has been celebrated as such since 1962, when Thammasat University began to celebrate Prince Raphi Day under the royalist military dictatorship of Sarit Thanarat. Ever since, the idolization of Prince Raphi has prevailed. In fact, both top law schools Thammasat and Chulalongkorn trace their lineage back to the law school originally founded by the prince in the hopes of bolstering their royalist credentials. Despite the overthrow of absolute monarchy in 1932, the Thai judiciary was left largely unreformed. Thai judges to this day perceive themselves as an extension of the monarchy, a notion reinforced by the precedence that loyalty to the King has in judges’ official oath of office.

 

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"I offer my oath that I shall be loyal to the King and shall perform my

duty in the name of the King with honesty, removed from all biases,

in order to create justice for the people and peace for the kingdom.

I shall preserve and adhere to the democratic regime with the King as

the head, the Constitution of the Thai Kingdom, and the law."

(Natthapakon, 2011, p. 31)

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          As a result of this intimate relationship between monarchy and judiciary, Thai judges are usually included in the web of relationships McCargo termed “network monarchy.” More simply dubbed as the “Deep State” by others, network monarchy refers to the interlacing connections among the Thai elite centered around the monarchy. These include generals, high ranking bureaucrats, business leaders, and, as previously mentioned, senior judges. Although the relationships within this network are continuously renegotiated as power naturally shifts, it primarily developed around the long reign of King Bhumibol (1927-2016).

 

          It is hard to overstate the popularity, respect, and charisma, or to use the Thai term, barami, commanded by King Bhumibol. Thailand has experienced the rule of this king more than any other through its relatively brief history as a “constitutional monarchy”. During his 89-year long reign, the late king used this barami on multiple occasions to restore peace in times of political upheaval. The inevitable succession of the aging king was without a doubt on the minds of many going into the 90's, a decade of intense political change for Thailand.

 

          The 1992 demonstrations against the latest military dictatorship sparked a lengthy democratization process which culminated with the ratification of the 1997 Constitution. Also referred to as the ‘People’s Charter,’ the 1997 Constitution is still considered Thailand’s most democratic to date, and was the first to be drafted by an elected Constitutional Drafting Assembly (CDA). The CDA included representatives from every province as well as public law, political science, and public administration experts.

 

          The distrust of elected politicians and the prospect of unfavorable succession were among the many issues addressed by the framers of the 1997 Constitution. The question of succession prompted the CDA to design a political system which could cope with moments of turbulence under a new king who commanded much less barami. The CDA’s solution was the Constitutional Court (CC).

 

          The post-1997 order was intended to be one in which constitutionalism was robustly embedded, and which was no longer reliant upon the personal barami (charisma) of the current monarch.

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          The CC would replace the extra-constitutional actors which historically were expected to intervene in times of political crisis; in this case, referring almost exclusively to the Thai monarchy and military.  The court would also settle constitutional disputes and, along with other institutions, keep a watchful eye on elected officials.

 

          Apart from the already existing Supreme Court and aforementioned CC, the CDA set up another additional independent high court, the Administrative Court, as well as the Criminal Division for the Political Office Holders within the Supreme Court. The framers also created multiple watchdog agencies independent of the three traditional branches of government (executive, legislative, and judicial), including the National Counter-Corruption Commission and the Election Commission.

 

          The CC sat atop the hierarchy of independent institutions established by the CDA. To execute the myriad of tasks given to it, as well as replace the monarchy’s all-important political role, the framers endowed the court with a wide range of powers, including:

 

·   striking down legislation (both ex ante and ex post) and emergency decrees, ruling on references from the courts as to constitutionality

·   impeaching public office holders, considering qualifications to hold public office

·   ruling on legality of elections and elections results, and controlling constitutionality of political party actions with possibility to order their dissolution

·   hearing disputes as to the competence of State organs

 

          The notion of a Constitutional Court was not left unchallenged. Senior judges were vocally opposed to the new court, arguing that the power of constitutional and judicial review should be retained by the already existing Supreme Court. To appease the judiciary, the CDA made three important concessions. First, it would not grant the court the power to overrule the Supreme Court's final rulings. Second, the CDA reduced political oversight of the court by, for example, making it harder for elected bodies to impeach sitting justices. Third, and most importantly, it gave the judiciary much greater control over the appointment of judges.

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Part II - The Compromise

Consequences of Judicial Appeasement

 

          As a result of these concessions, the CC has seen a gradual decline in the number of justices appointed to the bench and  the diversity of their respective backgrounds which has led to an increase in the ideological homogeneity of the appointed justices.  Although the initial court was comprised of 15 justices total, ensuing constitutions have seen that number reduced to 9. A consolidation of the  appointee’s origins has also taken place. From  1997-2006, 47% of the CC bench was constituted by either career bureaucrats or Supreme/Administrative Court justices; 78% of the 2017 bench being composed of individuals from those same institutions.

 

          A study done by Dressel and Khemthong also produced data indicative of a complementary change in the leanings of decisions handed down by the courts. After controlling for the “political sympathies” of the government of the period (i.e. military vs. civilian backed administrations), of the 31 megapolitical   cases cited between 2001- 2016 , 63% were decided in favor of administrations backed by the Thai military; this trend is exacerbated when one excludes court decisions preceding the 2006 coup—during which time (2007-2016), an impressive 87.5% of all megapolitical cases were decided against civilian governments. Put another way, 100% of cases put forth during military backed regimes in that 9-year period had rulings favorable to the military government.

 

          McCargo makes a point to credit this to a predominating view that the 1998-2006 CC had been “captured by pro-Thaksin interests”, a fact illustrated by the king's deference to the Supreme Court over the Constitutional Court in his 2006 speech. In an apparent rebuke of the sentiment echoed by Bhumibol, the CC demonstrated a renewed commitment to its role as a check on executive power when it annulled a snap election in May of 2006, dissolved Thaksin Shinawatra’s Thai Rak Thai (TRT) dominated House, and removed three popularly backed prime ministers between the years 2008 and 2014 (Samak Sundaravej, Somchai Wongsawat: 2008; Yingluck Shinawatra: 2014).

 

Part III - The Concern

Pitfalls of Political Judicialization under Constitutionalism

          Simply stated, Western judicial culture professes to (in theory) uphold the Rule of Law, ensuring justice for all and equal protection under the law. Alternatively, there is a general consensus that rather than performing a protective role for the citizenry, the Constitutional Court of Thailand is the entrenched elite’s attempt at stabilizing a government frequently marked by political unrest. To that end, it is important to recognize that even though the branches of government are similar in title, their relative purposes are substantially different from one another.

          The historical relationship between politics and judicial culture in Thailand can make it difficult to say whether or not there was ever a time in which Thai politics weren’t at least quasi-judicialized.  However, the degree to which the courts have been utilized to resolve societal qualms in the past decade nestles its political behavior comfortably into a global trend toward what is known as “political judicialization”. This is not to be confused with a politicized judiciary (i.e. judicial activism), denoting judicial rulings that are suspected of being based on personal or political considerations rather than on existing law. Rather, political judicialization is defined as follows: the reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies.

 

          For those even passively acquainted with the process of judicial review in the United States, the concepts behind political judicialization can understandably be taken for granted. From the adjudication of Dred Scott v. Sanford in 1857, to effectively determining the outcome of the 2000 presidential election—American constitutional democracy has arguably appreciated the broad scope and reach of our own system of judicial review for some time. However, Hirschl writes, “The judicialization of politics now includes the wholesale transfer to the courts of some of the most pertinent and polemical political controversies a democratic polity can contemplate”. Instances of this can be observed in a large range of cases worldwide: from the role that the Turkish Constitutional Court has had in preserving the secularity of the state, outlawing parties deemed “anti-secularist” to a proactive Canadian decision on the legality of the hypothetical secession of Quebec immediately following a 1995 referendum on the issue.

 

          In addition to unilateral rulings on the legality of legislative action, many courts have also had the final say on the legitimacy of claims to power. The reasons for this shift toward judicial review over legislative discourse are far from monolithic, however academia generally tends to address this as “an obvious byproduct of the global convergence toward constitutional supremacy and the prevalence of rights discourse”. In other words, the shift is indicative of the increasingly important role that constitutionalism has in global governance; theoretically representing a commitment to the rule of law en lieu of rule by law, or majority rule.
 

          However, the priorities of a state’s constitutional interpreters can vary wildly from those of their Western counterparts. In his work studying the fundamental philosophies motivating judicial behavior in Thailand, Duncan McCargo writes, “for many people, the de facto role of the Court was to dissolve political parties and oust problematic officials — powers that could easily be exploited by conservative forces in Thai society to curtail electoral democracy”. In fact, this perspective on judicial duty is frequently used as a means of lending validity to authoritarian prerogatives.

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Conclusion
Broader Implications in Global Context

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          Authority to interpret the constitutionality of any and all political actions clearly has the potential to be grossly abused. As previously mentioned, due to the ideological leanings of Thai magistrates turned judges— judicial priorities are far from aligned with Western ideals of equity. In fact, since 2006 the Thai judiciary has almost exclusively been used as a mechanism for further entrenching Thailand’s Deep State; their aggressively institutionalized elite.

          In the aforementioned arrangement, ultimate power to affect institutional change then lies in the person(s) or body appointing individuals to the judiciary as those appointed individuals inevitably shape the culture, ideology, and subsequent behavior of the institution. “The apparently colour-related voting patterns [red shirt v. yellow shirt] of judges in high-profile political cases raise concerns about the CC’s neutrality”.

 

          In turn, these appointments also drastically influence the priorities of judiciaries, which have historically demonstrated a willingness to endow themselves with the authority to rule on what Hirschl described as, “the [...] formative collective identity, nation-building processes and struggles over the very definition—or raison d’etre—of the polity as such”.

             Former Director of the Asia Foundation: Bangkok, James Klein, has referred to the initial inception of the 1997 Constitutional Court as quote, “a key benchmark in a reform process that began in earnest after Thailand’s last military coup in 1991”. However, the contemporary functions of the Court force one to reconcile with the bastardization of many of its most progressive philosophies; as well as to appreciate the truly relative nature of what continues to be hailed as the most “democratic” constitution in Thailand’s history.

 

          The monarchy’s attempted transference of moral authority to the CC jettisoned the court into a position that it is still fighting to reconcile with today, as evidenced by the degree of controversy surrounding it; possibly qualifying as its largest failure. Though unique in its complexity, this transference fits into a global shift toward judicialized politics and a troubling ceding of political authority from elected representatives to what is oftentimes a wholly appointed judiciary. With few indications of reversing course absent substantial institutional reform, this trend demonstrates the need for continuous advocacy if the health of a democracy is to be maintained. The long-term impact of the re-consolidation of political power in the Kingdom of Thailand remains to be seen. For now, it would seem that Thai politics represent another example of a democracy in decline—adding concerning, albeit dubious legitimacy to fears of a global revival of authoritarianism.

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