Judicialization of politics or politicization of the judiciary?
Although a variety of patterns of judicialization can be identified in Southeast Asia, arguably it is in Thailand that the judiciary has been most formidably transformed. Pulled into the political fray most recently during the crisis that has gripped the country since Prime Minister Thaksin Shinawatra was ousted in 2006, Thailand’s judges have intervened in politics in ways unprecedented not only in Thailand but throughout Southeast Asia and beyond. With close coordination among Thailand’s top courts, led by decisions of the Constitutional Court, judges have dissolved major political parties, banned their senior executives from politics, toppled two prime ministers, and directly challenged major government policies. Their decisions have drastically altered the Thai political landscape, with far-reaching consequences for democratic governance.
These cases might be seen as part of a general trend towards the judicialization of politics, which Hirschl (2006: 721) described as ‘the ever-accelerating reliance on courts and judicial means for addressing core moral predicaments, public policy questions, and political controversies’. This trend has been well documented for the United States, Europe, and Latin America (Sieder et al. 2005; Stone Sweet 2000; Tate and Vallinder 1995), but its causes and consequences in Southeast Asia have rarely been explored. In fact, just 15 over years ago a leading scholar proclaimed that ‘a majority of Southeast Asian countries are unlikely candidates for the judicialization of politics’ (Tate 1994: 188) because so many regimes in the region were neither democratic nor constitutional. But after a wave of democratization hit the region in the 1990s, a majority of states there altered their constitutions to give more attention to rule of law, accountability, and rights issues. The effect was to empower the courts.
Thailand is a good illustration of this trend. After gradual democratic opening in the early 1990s, frustrations about how Thai democracy was functioning grew (see Pasuk Phongpaichit and Sungsidh Piriyarangsan 1996: 57–107; Pasuk and Baker 2002: 418–30). Thailand’s urban liberal elites then pushed for far-reaching institutional reforms—a process culminating in the 1997 ‘People’s Constitution’.1 While in essence that document was yet another elite project, many observers saw it as a watershed event in Thailand’s long history of short-lived constitutions because of the breadth and depth of its reforms (see Connors 2002; Harding 2001; Pinai Nanakorn 2002). Reflecting the belief of the urban middle class that it was possible to ‘engineer’ democracy, good governance, and the rule of law, the new constitution not only made it possible for the rural poor to have electoral impact, it also introduced for the first time a Constitutional Court, equipped it with judicial review powers, and supplemented it with a system of administrative courts.
Both tiers of courts were meant to fill a major gap in terms of legal redress against public officials while also reinforcing the system of checks and balances the new constitution set up. Its role at first, though important, was somewhat muted, but over time, and with a few salient changes, the Constitutional Court in particular has become a critical political player—indeed, the most politically visible of all the courts. It was instrumental in guiding the political process not only during the events leading up to the military coup against PM Thaksin Shinawatra but ever since.
These developments raise serious questions, such as: What led to the considerable change in judicial behavior? And what have been its effects on Thai politics, and on the rule of law? The question has gained relevance recently because the 2007 Thai constitution2 explicitly encouraged the courts to take on a political role far beyond anything that was even conceivable previously.
Interestingly current scholarship on Thailand has yet to draw much attention to this phenomenon. For instance, recent studies of the Thai Constitutional and Administrative Courts (Leyland 2009; Harding 2010) have largely been accounts of institutional arrangements and analysis of their jurisprudence from a narrow legal perspective. There have been no attempts to situate the behavior of the courts within the larger sociopolitical context, or to analyze the growing judicial involvement in political matters (for a notable exception, see Ginsburg 2009). Thai specialists, while quick to point out a decline in parliamentary sovereignty caused by deference to the nonaccountable oversight agencies set up by the 1997 constitution (McCargo 2003; Connors 1999), have given scant attention to how this process has actually affected the role of judges and the courts themselves, though some scholars have spoken of an ‘activist’ Constitutional Court (Ockey 2009: 327) or even suggested the possibility of a broader trend towards judicialization (McCargo 2008: 335–6).
The limited outside scholarly attention to what is happening with the courts is particularly fascinating considering the public and academic attention the subject has received within Thailand, following earlier popularization of the term judicialization (thulakarnwipat) by leading academic and public intellectual Thirayuth Boonmee, who suggested in May 2006 that the judiciary could help resolve some of the problems of political reform (Matichon, 1 June 2006). Since then the term has appeared regularly in the media and the topic is also debated in both political circles (see, for instance, Chaturon Chaisang 2009: 79–86) and academic (see Suchit Bunbonkarn 2009; Piyabutr Saengkanokkul 2008; Worachet Pakeerut 2009). Certainly, the issue was not lost on the drafters of the 2007 constitution, which was drawn up under military aegis after the 2006 coup (Borwornsak Uwanno 2009: 42–3; Dressel 2009: 311, 315).
Clearly, not just the fact but the process of judicialization deserves more attention. This chapter therefore tracks the activities of the Thai judiciary with particular attention to the various permutations of the Thai Constitutional Court during the political crisis in 2006–08. While often acting in close concert with Thailand’s two other top courts (the Supreme Court and the Supreme Administrative Court), the Constitutional Court offers particularly interesting insights into the judicialization trend not only because it has taken the leading role lately but even more so because of the political repercussions of its decisions.
Analyzing critical court verdicts from a political point of view, this chapter suggests that growing judicial activism and assertiveness in contested areas of political relevance in Thailand, while partly driven by institutional arrangements and the interests of judges themselves, is best understood as a direct outcome of more general intra-elite struggles and the use of the judiciary by Thailand’s traditional monarchical networks in their battle over political control. In this analysis we cannot avoid looking not only at the judicialization trend but also at where it seems to be leading: to the growing politicization of the institutions that should be guardians of the rule of law, protecting it from the encroachments of politics. The Thai case shines a spotlight into the shadows behind the judicialization trend, making it clear that judicialization is just one point on a spectrum that may ultimately lead to a serious distortion of the rule of law as it has traditionally been understood.
To advance this argument, we first briefly review the permutations of the Thai judiciary over time, with particular attention to the effects of the 1997 and 2007 constitutions in respect to judicial review. Second, we evaluate the political context of critical verdicts between 2006 and 2008, highlighting the role of the Constitutional Court. We then explore in detail what has driven the changes in the role of the judiciary. Finally, we offer some reflections on what these findings mean, not just for politics in Thailand but also more generally for the theoretical debates on the judicialization of politics.
The roots of judicial review in Thailand
The emergence of Thailand’s modern judiciary is closely intertwined with modernizing state-building reforms initiated in the nineteenth century by the Chakri monarchy, whose line continues today. King Mongkut (Rama IV, 1851–68) initiated cautious reforms directed to centralizing and rationalizing the Thai state by reforming the traditional system of justice exercised by elders and patrons in the community. However, these efforts were not formalized consistently until the ascendancy of King Chulalongkorn (Rama V, 1868–1910), and in particular his son Prince Ratchaburi Direkrit (1874–1920), the first royal to study abroad— he studied law. In 1891 King Chulalongkorn established an official Ministry of Justice (MOJ), and under the direction of the prince over the next two decades the courts were gradually brought under the firm control of the ministry (and thus the monarchy), with its administration winning praise from foreign observers as one of ‘the cleanest and straightest Siam has ever seen’ with judges that ‘would compare favorably with the members of the judiciary of many European countries’ (Graham 1924: 372–3).
Meanwhile, fears of foreign encroachment on Thai sovereignty–several European governments established courts to handle cases involving their own citizens—accelerated the momentum and gave direction to judicial reforms through, for example, adoption in 1908 of Western-style court procedures and the decision in the early 1920s to promulgate a civil law code system rather than the British-style common law system that Prince Ratchaburi had preferred. But the separation of the judiciary more clearly from the royal bureaucracy was not a clean break. In 1912 the Court of Justice was given some responsibility over judicial affairs but control over the judiciary (including training) was highly centralized within the MOJ, and judicial independence was a matter of theory only.
The situation was changed little when the 1932 coup staged by Westerneducated civilian and military reformers against King Prajadhipok (Rama VII, 1925–35) transformed Thailand into a constitutional monarchy. While coup leaders with legal training like Pridi Banomyong (1900–83) did adopt a modern code of law, expand legal education, and promote the constitution as an alternative source of legitimacy, the powers and structures of the judiciary were virtually unchanged—a trend that would continue for most of the twentieth century.
Not until the 1997 constitution was drafted was there profound change. The urban elites who wanted to address Thailand’s persistent problems of instability, corruption, and executive abuse, saw judicial reform as an integral part of their political reform project. The constitution for the first time formally separated the courts from the MOJ to make them more independent. It also established a new Constitutional and Administrative Court (complementing the Court of Justice), which not only introduced judicial review for the first time but was envisioned by the drafters as the future guardian of the new liberal constitutional architecture and the hub of a network of new oversight agencies to strengthen rule-based governance (Leyland 2008; Harding 2010).
Remarkably, there had been no precedent for an independent body entrusted with constitutional and judicial review in any of the 18 constitutions that had governed politics in Thailand after it became a constitutional monarchy in 1932 (Chai Anan 2002: 106); the ad hoc Constitutional Tribunal that appeared in some of Thailand’s constitutions after 1945 (i.e., in 1949, 1952, 1968, 1974, 1978, 1991) was quite different because it shared judicial review powers with parliament until 1991 and its term was linked to that of parliament (see: Banjerd Singkaneti 1998: 22–8). Moreover, it was a direct challenge to Thailand’s long-standing ‘bureaucratic polity’ in which elites reserved to themselves the right to interpret the law and alter constitutional rules. It is thus not surprising that the idea of the Constitutional Court was subject to intense debates when the 1997 constitution was being drafted. Only after concessions were made with respect to access, powers, and composition of the bench—senior Supreme Court judges were particularly vocal in opposing the idea of centralized judicial review—was the court eventually enshrined in the constitution (Klein 2003: 37).
Despite some inevitable compromises, the 1997 constitution nevertheless gave the court relatively broad jurisdiction and solid safeguards for its independence. The court was composed of 15 judges appointed by the king on the advice of the Senate for a single, nonrenewable, term of nine years, with retirement mandatory at age 70 (Chapter VIII, Articles 255, 260). Seven of the judges were drawn from the career judiciary (five from the Supreme Court and two from the Administrative Court) through internal elections; of the other eight, five were experts in law and three in political science who were nominated by a special Selection Committee and confirmed by the Senate. The court’s budget autonomy was guaranteed, with an independent administrative unit functioning as its secretariat. Access to the court was provided for parliament, the executive, lower courts, and other watchdog bodies, but not for individual citizens.
Its jurisdiction was broad by international standards: With final authority over all matters of constitutional interpretation, its jurisdiction covered the constitutionality of laws and regulations; rulings on references from lower courts; and disputes about the competence of organs of the state (Chapter VIII, Articles 255–70; also Rules of the Constitutional Court Procedures, B.E. 2546 ). However, reflecting the earlier compromises, executive actions and decisions other than emergency decrees (the prerogative of the Administrative Court) were exempt; nor could the Constitutional Court consider criminal cases of official corruption or overrule final judgments of the Supreme Court. Compensating for these limitations, however, were far-reaching ancillary powers related to impeachment of officeholders and assessment of qualifications to hold office, and to specific disputes about the legality of elections and election results and dissolution or merger of political parties, which were governed by the Political Party Act B.E. 2541 (1998) (especially sections 17, 27, 72–3).
The Constitutional Court quickly gained a reputation for relative independence and efficiency. Accepting 417 cases out of 560 petitions between April 1998 and December 2004, the justices issued rulings in 398 cases. A majority dealt with the constitutionality of laws (54 percent), followed by cases related to party dissolution (16 percent), disputes between state organs (11 percent), and asset and liability declarations of officeholders (7 percent) (Office of the Constitutional Court 2005: 72–3). Most of these decisions, except for a very few involving prominent politicians (e.g., Deputy Prime Minister Sanan Kachornprasat, Decision No. 31/2543: 10 August 2000) were not challenged—although not unnoticed.
Some observers quickly identified a pattern of judicial restraint, particularly with regard to human rights, where the absence of a right of individual petition severely constrained the role of the court, and in review of legislation, where the court seemed to align itself regularly with the government (Klein 2003: 13). Others pointed to differences within the bench, particularly between the narrow legal formalism of the career judges and the often broader interpretations of the political scientists. If some of the latter seemed to vote regularly with the government, that may be because their appointments, compared to those of the career judges, may have been more political. It may also be that the entire bench had a tendency to value the primacy of the state over the rights of citizens (see Klein 2003: 66; Pasuk and Baker 2004: 175). There was general agreement, however, that the court had done much to help consolidate the political transition, particularly since many of its early decisions in support of the Election Commission of Thailand (ECT) proved crucial for stabilizing the electoral process, especially in the run-up to the 2001 parliamentary elections (Klein 2003: 46–53).
However, public perceptions of the court were soon to alter dramatically. In 2001 the National Counter Corruption Commission (NCCC) charged then-Prime Minister Thaksin Shinawatra with concealment of assets during his brief spell as Deputy Prime Minister in 1997–98 (it was claimed that assets were registered in the names of the housekeeper, maid, driver, security guard, and business colleagues). A ruling against him could carry a five-year ban from politics just after his resounding victory (by Thai standards) as prime minister. When he appealed against his indictment, claiming ‘honest negligence’, the court in a tight 8: 7 decision ruled for Thaksin (Decision No. 20/2544: 3 August 2001).
The much-anticipated verdict, pronounced during an unprecedented public mobilization campaign by the defendant and his supporters, was widely interpreted to be the result of political pressures on the justices. It was the first time in 18 NCCC cases that the court had failed to endorse the commission’s findings. Reported comments of the justices about political considerations (Constitution Court judge Chumphol na Songkhla was widely quoted as having said, ‘Who are we to judge that Thaksin is guilty? He was elected by 16 million Thais’), and attempts at political interference and intimidation reinforced the perception that the court had not been impartial, though a close reading of the 1,200-page ruling suggests that the verdict was driven less by the conclusion that Thaksin was innocent—a question the court did not answer—than by unusual internal voting rules that effectively transformed minority opinions into a majority ruling (for a thorough discussion of the procedural complexities of the Thaksin case, see Klein 2003: 73–6).
Procedural details aside, there is little doubt that the decision severely compromised the reputation of the court. In fact, given Thaksin’s increasingly assertive leadership style and heavy-handed interference in the areas of human rights, press freedom, and constitutional practice, it was not unreasonable for members of the public to infer that the court, and the other independent oversight agencies, could not provide effective checks and balances against executive abuse, especially since the government increasingly influenced appointments to these agencies through its gradual control over the Senate, which despite being designed as a nonpolitical body quickly became captured by government (Pasuk and Baker 2004: 175–6). Indeed in 2003 four appointments to replace retiring judges raised concerns about the quality and independence—three were known to have had close ties with the Prime Minister; the other lacked any qualifications in constitutional law—though this did not mean that all decisions went in favour of the government.
Meanwhile, the public standing of the Supreme Administrative Court was rising. It was widely perceived as being more professional and more insulated from executive interference than the Constitutional Court, particularly after it ruled against the government in the contested privatization of the Electricity Generating Authority of Thailand (EGAT) in 2005.3
This background helps explain many of the modifications the 2007 constitution made to the court’s institutional arrangements. This constitution was drafted in only six months under the auspices of the military junta’s Council for National Security (CNS); the tightly controlled drafting exercise lacked the inclusiveness of its predecessor, and it was approved in a referendum that was highly controversial. The new constitution (Article 206) reduced the number of justices from 15 to just nine, five of whom are now appointed from sitting judges (three from the Supreme Court, two from the Supreme Administrative Court). Of the other four, two must be qualified in law and two in political science, public administration, or another social science, and all must be experienced in state affairs. The process for Senate selection of these judges was depoliticized and the qualifications raised; lawyers must now have at least 30 years of continuous experience (Article 205 (3)). Petitions by individuals to the court were allowed for the first time, which filled a major gap in previous arrangements (Article 212).4
Combined, these changes may have reflected an intention of the drafters— many of them lawyers—to tighten the membership of the court, strengthen its powers, and make it less amenable to political interference. Unfortunately, however, the 2007 constitution also explicitly enhanced the political role of the court, and the judiciary in general. For instance, the presidents of the highest courts are now involved in selecting senators and candidates for the independent agencies (see Articles 113, 243, 246, 252, 256). The courts may also propose bills and laws directly to the House of Representatives (Articles 139 (3) and 142 (3)). Most controversial, the Constitutional Court was given the power to dissolve a political party if one of its executive members is found guilty of election fraud (Article 237). Together all these changes considerably altered the balance of power between the judiciary and other branches of government and laid the foundation for the growing judicialization of politics in Thailand.
Judicial policy making, 2006–085
A series of bold judicial interventions between 2006 and 2008 illustrates how the Constitutional Court has emerged as an increasingly important element in Thailand’s political landscape and has led the way for other Thai courts to intervene in core political matters. These interventions have not only expanded the previous scope of judicial engagement but also seriously politicized jurisprudence. Thus they raise concerns about the role of the courts, legitimate or not, in the Thai political system.
Annulment of the 2006 General Election
The first manifestation of the new judicial assertiveness was the Constitutional Court’s decision in May 2006 to annul the April general elections. The Thaksin government had decided, controversially, to counter growing allegations of disloyalty to the monarchy, corruption, and conflicts of interest (particularly after the taxfree sale of Thaksin’s Shin Corp business to a foreign investor) with a call for a snap election in April 2006—even though it had won an overwhelming election victory only a year earlier, and parliament still had three more years to serve. Major opposition parties, after failing to convince the government to postpone the elections until a binding platform of political reform was agreed, decided to boycott the elections, claiming that first the prime minister should step down in light of possible parliamentary and judicial scrutiny of his actions. However, their recognition of a likely failure to win the upcoming elections and political calculations about the benefits of the boycott might have been its real cause (Nelson 2006: 9).
Whatever the reasons, as public protests widened and the extra-parliamentary opposition mobilized royal ideology in its support (see Connors 2008), the boycotts clearly threw the country into constitutional crisis, because an election in which only one major party ran, Thaksin’s Thai Rak Thai (TRT), clearly raised questions about its legitimacy. (The few minor parties that did participate were all aligned with the TRT.) And when the election came, so many parliamentarians failed to get the 20 percent of the vote required for them to be seated that parliament could not convene (see for a detailed chronology of events, Nelson 2006).
Although some solution to the electoral deadlock was urgently needed, the Constitutional Court’s 8: 6 decision6 to void the election was remarkable for a number of reasons. For instance, the legal reasoning was unusually broad: For one thing, the justices argued that the 37-day period between dissolution of the House and election day, though technically not violating the constitution, had led to political problems severe enough for the election to be disqualified. Another rationale was that the positioning of ballot boxes violated the secrecy of the vote. Ultimately the court found that ‘The election yielded results which are unfair and undemocratic, and are therefore unconstitutional, being inconsistent with Articles 2, 3, 104 (3) and 114 from the beginning of the election process, i.e., from the scheduling of the elections, the application of candidates, the ballots, and the announcement of the election results’.7 This view was promptly validated by the Administrative Court.8
Both these interpretations directly contradicted opinions of the Election Commission of Thailand. Moreover, there seemed to be an unusual degree of coordination between various courts: the Administrative Court had decided in April to cancel the rerun election in selected constituencies, the Constitutional Court annulled the general election in May, and the Criminal Court brought action against the Election Commissioners (see below), in July.
Many observers were convinced that these decisions had their basis in speeches by the revered King Bhumipol Adulyadej (Rama IX) to judges of the Administrative and the Supreme Court (Montesano 2007: 315). In the first, to members of the Administrative Court, the king said:
Now I will talk about the election. The court itself has the right to discuss the election, especially the candidates who received less than 20 per cent of the vote.
Is this an issue relevant to you? In fact, it should be. The issue of the sole-candidacy elections is important because they will never fulfil the quorum. If the House is not filled by elected candidates, democracy cannot function. If this is the case, the oaths you have just sworn would be invalid. You have sworn to work for democracy. If you cannot do it, then you may have to resign. You must find ways to solve the problem. […]
Should the election be nullified? You have the right to say what’s appropriate or not. If it’s not appropriate, it is not to say the government is not good. But as far as I am concerned, a one-party election is not normal. The one-party situation is undemocratic.9
Similarly, the speech to the Supreme Court stressed the need for the judges to intervene. Rejecting demands for direct royal intervention (as had happened in the past), the king argued that the public ‘pins their hope on the courts’ and demanded that the courts ‘have to consider how to work this out’.
That the royal message got through was shown just days later when the Chief Justice of the Supreme Court called a meeting of the heads of the Administrative, Supreme, and Constitutional Courts. The meeting was not only followed by the Constitutional Court’s decision to annul the 2 April elections but also by the heads of the three courts calling for the Election Commissioners to resign, possibly exerting undue pressure.10 When they failed to do so, in an unprecedented coordination of action among the courts in July 2006, they were first disqualified and then hurried off to jail for four years for malfeasance (for a detailed account of the rather extraordinary series of events, see Nelson 2006).
Dissolution of Thai Rak Thai
In May 2007 the Constitutional Tribunal ruled that Thaksin’s TRT party must be dissolved, and barred 111 of its executives from holding public office for five years.11 This was the first case heard by the nine-member tribunal that had been set up by the leaders of the September 2006 coup after they dissolved the Constitutional Court. Many of the tribunal’s members were known to be critical of the Thaksin government; for instance, Thanit Kesawapitak had suggested that the tribunal consider dissolving the party, and Nurak Marpraneet had been part of the military-appointed Constitutional Drafting Assembly. Charges had been filed against TRT, the Democrat Party (DP), and several minor parties for alleged irregularities during the abortive April 2006 general election, and the case was seen as a major test of the judges’ impartiality—especially since the interim constitution gave them discretion to dissolve a political party if a single one of its executives was found guilty of election fraud (see: CDR Announcement No. 27, Article 3).
The 6: 3 decision was once again extraordinary: The tribunal found TRT and its allies Pattana Chart and Chart Thai guilty of conspiring to gain administrative power by illegal means. It concluded that TRT executives had provided funds to smaller parties during the election and executives of the smaller parties had tinkered with party membership records. The verdict came only days after another royal speech to members of the Administrative Court in which the king urged the judiciary to continue working toward a solution to the political crisis (he said, for instance, ‘I have the answer in my heart, but have no right to say it’). Politically, it effectively decapitated Thailand’s largest and most popular political party, which had won resounding victories by Thai standards in 2001 and 2005. In fact, not only was the highly popular Thaksin Shinawatra now ineligible to run for office, so was virtually anyone else who had held a leadership position in his party or cabinet.
The unanimous dismissal in the same ruling of all charges against the military-favoured DP (despite at least some evidence of DP members engaging in similar illicit activities, not to mention suggestions that they had engaged in deliberate efforts to frame the TRT party), followed by a decision of the militaryappointed Assets Examination Committee to seize almost US$1.7 billion worth of Thaksin family assets, certainly reinforced the concern that as the December 2007 elections approached the judges were supporting the junta’s political agenda.
The terms of the actual decision do little to dispel this impression. The unusually laborious verdict took more than 11 hours to read out. The justices seem to have been at great pains to justify their ruling and downplay defence arguments that the case was moot because the election had already been annulled. Thaksin’s team had raised serious procedural concerns, given that the legal basis for dissolving the party effectively made an act punishable that was not an offense when committed. The tribunal responded that
The principle prohibiting retroactive enforcement of law that will cause adverse effect on individuals emanates from the ‘no punishment without law’ principle; however, such principle applies only to criminal acts […;] the revocation of electoral rights is not a criminal sanction but it is a legal measure which resulted from the laws empowering such parties’ dissolution.12
For many in the legal profession this was hardly convincing reasoning—especially since the verdict accused the former Prime Minister of posing a danger to democracy through corruption and cronyism. That certainly suggested that the tribunal had bent the legal rules to achieve a politically desired outcome.
The Samak case and the dissolution of the PPP
Finally, two cases decided in late 2008 by a reconstituted Constitutional Court suggest that the previous judicial interventions into electoral politics were not aberrations but part of a continuous pattern of judicialization. The first found Prime Minister Samak Sundaravej guilty of a conflict of interest for hosting a popular cooking show on TV; the second dissolved the People’s Power Party (PPP), the political successor of the TRT. Both again had profound political consequences.
The junta had organized general elections in December 2007. Once again, to the profound shock of the junta and others, the TRT, reconstituted as the PPP, won by a landslide (the PPP won 233 seats out of 480, leaving the DP at 164 seats a distant second). This prompted Thailand’s dismayed urban elite to public protests under the umbrella of the People’s Alliance for Democracy (PAD). As PAD supporters and the PPP-led government were locked in a fierce stand-off, the Constitutional Court, with a new bench and new powers granted to it by the 2007 constitution, again jumped into the fray.
There was not much hope for, or likelihood of, judicial restraint. In what was widely perceived as a warning shot at the government, in May 2008 the Constitutional Court had already declared unconstitutional the government’s signing of a joint communiqué in support of Cambodia’s application of the Prehar Vihear temple complex, of which Thailand had previously claimed ownership, for recognition as a World Heritage site.13 That opened the door to possible impeachment of Foreign Minister Noppadon Pattama and other members of the already beleaguered Samak government. In the case we are discussing, however, the Senate and the ECT had come to the Constitutional Court charging that the Prime Minister had violated constitutional conflict of interest provisions by hosting his semipolitical cooking show. The unanimous 9:0 verdict14 against Samak was remarkable not just for its bold political implications—forcing the Prime Minister to resign for what many considered a minor abuse of power—but once again for the legal reasoning (see Kittisak Prokati 2011). The court held that Samak’s activity on the show was the work of an ‘employee’, a finding the constitution required for a verdict of guilty, as Art. 267 prevents any public officeholder from holding ‘any position in […] an organization carrying out business […] nor be an employee of any person’. It was only able to do this by deviating from the actual definitions set out in Thailand’s civil code and labor laws, instead relying by its own admission on a simple dictionary. With what one judge later described as ‘judicial creativity’, the court thus forced the resignation of the first Prime Minister elected under the 2007 constitution.
With the Samak case having already set a new benchmark for judicial interventionism, there was little public surprise when the Constitutional Court ruled 9:0 in December 200815 to dissolve the PPP and two of its political allies after the Supreme Court convicted PPP leader Yongyut Tiyapairat of buying votes in the December 2007 general elections. Issued at the height of a tense stand-off between the government of Prime Minister Somchai Wongsawat and PAD supporters, who were occupying the international airport, the verdict effectively ended the PPP-led government’s efforts to alter the constitution in a way that would have robbed the Constitutional Court of some of its new powers. It also dealt the final blow to a weakened government, forcing Samak’s successor, Prime Minister Somchai, to resign and clearing the path for a DP-led coalition government.
The way the court handled the case once again did little to counter the impression that the verdict was politically motivated. Legal observers were stunned, for instance, when the justices abruptly ended testimony by defence witnesses—and then returned hours later with a verdict less than three pages long that ignored profound questions about how vote-buying fit into the anti-democratic behavior required by the Political Party Act (Articles 91 and 98) or how to balance dissolving a party with the constitutionally guaranteed freedom to form a party.
This series of high-profile Constitutional Court decisions illustrates the emergence of a high-speed trend toward judicialization of Thai politics. The court’s bold interference in electoral politics profoundly altered Thailand’s governance landscape: it effectively decapitated what had been Thailand’s largest and most successful political party for 10 years and barred its leaders from politics for years. Forcing the resignation of two prime ministers—and keeping pressure on the still popular former Thaksin Shinawatra to remain in self-imposed exile—the Constitutional Court, with help from other courts, has in effect reversed elections to tilt the political balance toward the DP-led government. As a result, Thailand’s political system has become less competitive and less representative, to the benefit of the country’s traditional urban elites.
While it may be true that the period described here was unusual in terms of the severity of the political crisis, without which the judiciary probably would not have been prompted into action, it is probably also true that the court’s decisions exacerbated the crisis. For the first time judges—not the king or the military—have been seen to intervene decisively in Thailand’s political affairs.
The trend has continued well beyond the cases analyzed, and other courts are now following the lead of the Constitutional Court. For instance, in September 2009 the Supreme Administrative Court stunned the DP-led government of Prime Minister Abhisit when, amid the unfolding global financial crisis, it issued a temporary injunction against 76 major investment projects worth Bt400 billion (US$12 billion) at and around the Map Ta Phut industrial estate.16 The court effectively jeopardized a fiscal stimulus of about 4.5 percent of GDP and left the government exposed to mounting investor concerns (Phatra Securities 2009). And in early 2010 the Supreme Court’s Division for Holders of Political Positions delivered its much-anticipated verdict on the freeze of Bt76 billion (US$2.3 billion) of Thaksin’s assets.17 The thrust of the decision—seizing about half the assets as correlating to his time as prime minister—may seem in some ways less remarkable than the unprecedented assertiveness of this court in more directly political matters, but the effects were equally political (Pavin Chachavalpongpun 2010).
The reputation of the Constitutional Court was further undermined when in late 2010, shortly before its controversial decision on mere procedural grounds to reject the dissolution of the DP for election violations (thus allowing the DP to stand in the 2011 elections),18 video footage emerged showing the Secretary to the Court President discussing details of the case with a DP parliamentarian; later footage also implicated several judges on the court in leaking exam papers to preferred candidates during efforts to recruit court officials in 2008. As judicialization seems to be spreading ever more widely through the court system, the signs of growing politicization have increasingly compromised the professionalism of institutions like the Constitutional Court.
Explaining judicial behavior
From the analysis of the behavior of the Constitutional Court in 2006–08 there emerge several factors that can be seen to have supported the judicial activism and assertiveness of Thailand’s courts in core political controversies.
For one thing, the institutional powers granted to a court clearly do matter. Before courts can test and perhaps expand their constitutional boundaries, they rely first on the powers they have been given. Traditionally Thai courts exercised judicial restraint in political matters. The new judicial activism in these areas grows out of the new powers—many of them ancillary—granted to judges under first the interim and then the 2007 constitution (see, for a discussion of the growing global trend of equipping constitutional courts with ancillary powers, Ginsburg and Elkins 2009). Similarly, in giving the judiciary a role in such policy-making areas as appointment of senators and ability to introduce legislation, the 2007 constitution in effect reduced the separation of powers and invited them to become politically active—to a point that seems to be making many judges themselves increasingly concerned about political interference.
How Constitutional Court judges are appointed is also a factor. For instance, the mix of career and noncareer judges on the bench has certainly provided room for some of the nonlawyers to take a more activist approach. The fact that Constitutional Court judges are appointed for a single nonrenewable term and are further term-limited by age has had a somewhat paradoxical effect. While in principle the rule is meant to discourage political calculations among the judges related to renewal of their terms, it may instead have undermined institutional continuity and thus allowed greater executive influence over the court. In fact, since the court was founded, not a single judge has completed a full nine-year term. The coup that dissolved the court was of course a factor, but the obligatory retirement age and voluntary resignations had already decimated the original bench, leaving only four of the original bench still serving. Thus the court has lacked both a consistent cohort of justices and strong internal leadership by a long-serving court president.
And what about the personal motivations of the judges themselves? By tradition and training Thai judges are inclined to formal legalism and judicial restraint, which previously made them reluctant to engage with questions of political significance (see for a good overview of the Thai judicial system and curriculum, Institute of Developing Economies 2001). But particularly in the highest courts, it has become obvious that some judges have personal views about such matters as the activist role of the judiciary or the tenure of former Prime Minister Thaksin—a problem amplified by the new process for appointing judges. For instance, as the composition of the bench for the militaryappointed Constitutional Tribunal made clear, several judges appointed were selected not only for their professional qualifications but for their known positions in opposition to the former prime minister and his government. Again, with respect to the Constitutional Court appointed in 2008, some of the new justices, like Jarun Pukditanakul, are well-known Thaksin critics and outspoken advocates of a more assertive judiciary. This suggests that the process of judicialization is at least in part driven by judges themselves. In reaction, perhaps, many career judges are reluctant to take a seat on the Constitutional Court because they consider it too political.19
Finally, let us look at the broader structural context. There is little doubt that the intervention of the monarchy triggered much of the judicial assertiveness in political cases. This should not be surprising. Not only is it very rare for the king’s authority to be challenged but the relationship between the monarchy and the Thai judiciary has, as already demonstrated, traditionally been close. The king himself has taken a close interest in the judiciary, having earlier studied law; his granddaughter, Princess Bajrakitiyabha, has ventured into legal studies; she earned a doctoral degree from Cornell University and joined the Office of the Attorney General as an attorney in 2006. With admiration for the law fairly pervasive in the royal family, it is thus perhaps not surprising that over the last decade several top judges have filled positions on the Privy Council—the nerve centre of an otherwise informal monarchical network structure. This has further entrenched the relationship between court and judiciary (what McCargo  has called the ‘network monarchy’). Within Thai political culture, judges can hardly avoid being receptive to the subtle signals sent by Thailand’s informal but de facto power center.
But the intervention of the monarchy during the political crisis is just one aspect of today’s intra-elite struggles that pitch the traditional military and royal networks, supported by the urban middle class, against Thaksin and his inner circle, whose modern bourgeois interests, backed by decisive popular electoral support, directly challenged the old power arrangements (Pasuk and Baker 2005). In fact today—because of a looming royal succession crisis, the mobilization of Thailand’s marginalized, and the failure of the military to garner much public support for their coup—in order to safeguard the old order Thailand’s traditional elites have turned to constitutional reform that empowers judicial and quasi-judicial actors (Hewison 2007; Dressel 2009). The activism of the Thai judiciary can thus be seen as a proxy for the larger battle for political hegemony. Judges have become essential to the elite project of consolidating the post-coup political order. Unfortunately, in the process the courts have become directly politicized. In turn this has undermined the rule of law, replacing it with what is in effect a rule by judges. Ultimately, the effect has been to exacerbate a more general crisis of legitimacy, not only for the courts but for the governance of Thailand as a whole (see Dressel 2010a).
This chapter has used a series of cases heard by various permutations of the Constitutional Court to examine the trend towards the judicialization of politics in Thailand—a trend that deserves more scholarly attention than it has yet received, and certainly has yet to run its course. We provide evidence for the growing involvement of the courts in such core political matters as electoral disputes, executive actions, and broader public policy choices. This chapter shows that the new trend is to a large extent driven by a combination of new powers granted to the court, the interests of some judges themselves, and (underlying both) the growing intra-elite tensions that have prompted Thailand’s traditional royal networks, with the support of many liberal urban elites, to use the judiciary as a proxy in the struggle for political power in Thailand.
The situation in Thailand provides insights for the general theoretical debate on the judicialization of politics (see good overview: Hirschl 2008a). Traditionally, many scholars have anchored the trend towards judicialization within macro-processes like democratization, modernization, or the spread of rights consciousness, but recently attention has shifted to agency-based models and political determinants (see for a selection of this burgeoning literature: Ginsburg 2003; Whittington 2007; Clayton and Gillman 1999; Lovell 2003; Graber 1993).
For instance, facets of the Thai case seem to be well captured by Ran Hirschl’s work (Hirschl 2004, 2006, 2008b), which has challenged recent scholarly enthusiasm for the expansion of global rights. Focusing on the interests and strategies of key political actors, he argues that constitutional reform and the related empowerment of the judiciary are not so much progressive per se as a reflection of elite efforts to maintain the status quo. His ‘hegemonic preservation thesis’ seems particularly apt for explaining the efforts of Thailand’s political elites to mitigate the uncertainties of the electoral process through constitutional arrangements in 1997, and their even more determined efforts in 2007. The outcome is that they have reduced the influence of representative institutions and constrained the operations of democratic politics (Connors 2002; Ginsburg 2009; Hewison 2007).
Perhaps, though, Thailand deserves a more nuanced view than currently dominant models like Hirschl’s might suggest. Often overlooked is the flip side of judicialization that is particularly clear in Thailand: the politicizing of the judiciary. Many significant political verdicts in Thailand have been hard to reconcile with accepted standards of procedural justice. It is in fact tempting to argue that the Constitutional Court has moved beyond judicialization into areas that suggest abuse of justice or ‘un-rule’ of law.
Empirically, the Thai case underlines the point that judicialization and the rule of law do not necessarily go hand in hand. Other factors, often extraconstitutional (like the role of the monarchy in Thailand), may have far-reaching effects on the process. What is happening in Thailand is a reminder that legal and judicial transplants from elsewhere in the world, such as constitutional and administrative courts, need to be analyzed carefully and perhaps adapted rather than adopted. In a new context, these institutions are likely to function very differently from the way they do in their home settings.
And given contextual factors unique to Thailand, most obviously the influence of the monarchical networks, the case also urges closer theoretical attention to some of the historical, ideational, and relatively informal (e.g., clientelistic) aspects of the political context that may determine judicial behavior, such as elite settlements and structures, informal power centers like the Thai monarchy, and the ideological attitudes of elites towards democratic governance. Areas like this have yet to be fully accounted for in scholarly debates (see, for similar reasoning, Hilbink 2009). This is particularly important if one is interested in moving the debate from the sources of court empowerment to how courts actually perform.
1 Constitution of the Kingdom of Thailand (B.E. 2540), as published in the Government Gazette, Vol. 114, Part 55a, dated 11 October B.E. 2540 (1997).
2 Constitution of the Kingdom of Thailand (B.E. 2550), published in the Government Gazette, Vol. 124, Part. 27, dated 24 August 2007 (B.E. 2550).
3 Case No. 5/2549, 2006; for discussion of this and the equally politically charged iTV and Shin Corp cases in 2004 and 2006, see McCargo and Pathmanand (2005: 47–53).
4 See 2007 Constitution, Article 212. However, though this is directly molded on German constitutional law, it seems to be an awkward mix of what is known in German constitutional law as Normenkontrolle (i.e., testing of individual norms of constitutional conformity) and indviduelle Verfassungsbeschwerde (i.e., the claim by a plaintiff of the violation of constitutional rights).
5 Part of this section draws on Dressel (2010b).
6 Decision No. 9/2549 (2006).
7 Decision No. 9/2549 (2006), unofficial translation.
8 Decision No. 607–608/2549 (2006).
9 Unofficial translation of the king’s speech to the Administrative Court, quoted from The Nation , 27 April 2007.
10 For an unofficial transcript of the conversation between Supreme Court Judge Pairote Navanuch, Supreme Court Secretaray Virat Chinvinijkul and a senior government official on the eve of the 2006 Election Commission dismissal, see Asian Legal Resource Centre (2007).
11 Decision No. 3–5/2550 (2007).
12 Quoted from the English translation in: Borwonsak (2009: 36).
13 Decision No. 3–5, 2550 (2007).
14 Decision No. 12–13/2551 (2008).
15 Decision No. 20/2551(2008).
16 Court Order 592/2552 (2009).
17 Case No. 1/2553 (2010).
18 Decision No. 15/2553 (2009); in: European–Asian Journal of Law and Governance (EJALG) , vol. 1, no. 1 (Summer 2011), pp. 133–64.
19 Constitutional Court judge Boonsong Kulbupha’s request for a transfer was widely interpreted as motivated by the growing politicization of the court, see ‘Constitution Court judge “wants out” ’, Bangkok Post , 24 July 2008.