Competing notions of judicialization in Thailand.

• Author: McCargo, Duncan
• Position: Report

Ensuring justice is a central element in the creation of any democracy. But what happens when notions of law and justice are deeply contested, rather than robustly grounded? In the Thai context, the legal system has often operated as an instrument of power exercised on behalf of the monarchy and other traditional institutions, rather than as a source of rights and redress for citizens. A series of short-lived constitutions since 1932 have illustrated the instability and malleability of legal "rules of the game" in the Thai context. Drawing on fieldwork-based research, this article explores competing understandings of rule, law and justice in Thailand, in order to examine how far the current legal system supports processes of democratic change, and how far it offers visible or concealed obstacles to progressive political reforms. At the heart of the issue lies the contested meaning of "judicialization" (tulakanpiwat) a term popularized in the wake of two major royal speeches in 2006. (2) For some, judicialization means rousing the slumbering Thai judiciary into progressive activism and constructive engagement with pressing social and political issues. For others, judicialization means using the judiciary to curtail the power and influence of elected politicians, turning judges into an instrument of the traditional elite.

The growing involvement of the judiciary in politics, broadly defined, has been a global trend in recent decades. Nevertheless, as recently as 1995, Neal Tate and Torbjorn Vallinder wrote that: "A majority of the Southeast Asian countries are unlikely candidates for the judicialization of politics because they are ruled by regimes that, by any standard of judgment, are distinctively, if not ruthlessly, undemocratic and non-constitutional." (3) For these authors, "judicialization" is seen in largely positive terms: the growing willingness of the courts to act in the public interest, challenging power-holders, remedying abuses and supporting citizens. Subsequent developments, including regime change in Indonesia after 1998, mean that such modes of judicialization have been gaining ground in the region. Yet the trend in Thailand has been more ambiguous; despite some progressive rulings at certain junctures, many of these have been readily overturned. Despite the constitutional reforms of 1997, Thailand has not yet seen many positive results from the entrenchment of what Ran Hirschl critically terms "juristocracy". (4) Indeed, in many respects Thailand's judicial empowerment has resembled just the sort of "self-interested hegemonic preservation" described by Hirschl. (5)

The Thai judiciary has long enjoyed close links with the ruling elite, and especially with the monarchy. (6) Judges did not defend any of Thailand's constitutions on the numerous occasions when the army had seized power, always legitimating military coups and failing to insist upon the rule of law. Leading historian Nidhi Eoseewong has argued that despite the 1932 "revolution" which ended the absolute monarchy, judges have never really changed their thinking:

Judges are still allowed to think that they are part of the monarchy in providing service. They don't think they are part of the people's sovereignty, with a duty to protect rights and freedom as enshrined by the constitution. (7) Prior to 1932, judges had simply been administrative officials acting on behalf of the state, with no notion of separation of powers; although in theory this had changed since 1932, in practice their mentality had never changed. (8)

In 1997, Thailand's new Constitution was widely hailed as a breakthrough in the country's democratic development. (9) Most previous constitutions had resulted from military-initiated moves and lacked popular legitimacy. The 1997 Constitution was unusual in that it received backing from a wide range of sources and was hailed the "people's constitution", as a result of the extensive process of public consultation which preceded its promulgation. (10) For all its flaws, the 1997 Constitution was an attempt to establish a new basis of legitimacy for electoral politics in Thailand, incorporating a range of independent agencies designed to create checks and balances, and so prevent the abuse of power. In the eyes of key figures behind the drafting process, the 1997 Constitution represented a systematic attempt to develop an alternative and more workable mode of political legitimacy for a nation that was over-reliant on extra-constitutional power and influence exerted by the monarchy and range of actors that have been termed "network monarchy", (11) notably the judiciary, the bureaucracy and the military. In other words, the authors of the 1997 process were seeking to find pre-emptive ways of firming up Thailand's political order in anticipation of the impending royal succession, which would likely see a highly revered King replaced by one who commanded far less respect and very little affection. (12) 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.

Some scholars argued that the 1997 Constitution formed part of a worldwide movement known as the "new constitutionalism", reflecting wider trends in global legalism. (13) While there is no denying the adeptness with which Thailand readily imports both technologies and other forms of innovation, new Thai constitutions are an old story, with no prompting really needed from Europe or Latin America. The 1997 Constitution was the latest iteration of a long-standing Thai practice with a twist: this time those whom Michael Connors calls the "liberal royalists" were given centre-stage to devise a constitution to their liking, (14) one which would both protect the monarchy and also insulate it from the likely political upheavals that would precede and follow the contentious period of the royal succession. Because they lacked legal experience, the prime movers of this process--former Prime Minister Anand Panyarachun and physician-activist Prawase Wasi--were reliant upon a number of prominent public law experts to help generate technical solutions to the country's complex social and political problems.

Despite the best efforts of the 1997 reformers, in less than a decade King Bhumibol publicly declared that the new old constitutionalism had failed:

Now, Thailand is encountering the worst crisis in the world. Therefore, judges have duties to perform.... Today, it has to be up to the Supreme Court judges. Other courts, whether they are the Administrative Court or Constitutional Court, or whatever courts, are not as entitled to decide as the Supreme Court. Therefore, 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.... Now, the people are looking up to the courts, particularly the Supreme Court.... The people across the country and the people all over the world will praise that the Thai Supreme Court is still competent, knowledgeable, and is determined to rescue the nation when the time comes.... Thank you on behalf of all the people that our Supreme Court judges are still strong. (15) Two royal speeches of 26 April 2006 were widely hailed as a turning point for Thailand, the first explicit emergence of "judicialization" as an alternative way of managing politics. Such ideas were popularized in a May 2006 paper by Thammasat University academic and polemicist Thirayudh Boonmi, who suggested that the judiciary could resolve problems relating to political reform. (16) Most Thais arguably understand tulakanpiwat to signify actions taken by the judiciary to help avert political crisis, or actively to curtail the power of politicians. But in reality the meanings of judicialization are both multiple and contested. (17)

In the remainder of this article, the political context of the rise of judicialization will first be examined: how are Thai courts assuming new roles? After this, some recent court cases with important political dimensions will be briefly reviewed: the annulment of the April 2006 general election; the dissolution of the Thai Rak Thai Party (TRT) in 2007; the removal of Prime Minister Samak Sundaravej from office in 2008; former Prime Minister Thaksin Shinawatra's conviction for abuse of power in 2008; the confiscation of more than 60 per cent of Thaksin's assets in 2010; and the judicial ouster of Prime Minister Yingluck Shinawatra in May 2014. (18) Various alternative meanings of "judicialization" will be then discussed, including: the courts as crisis managers; the courts as a "checking and balancing" power; the conservative political alliance between the judiciary and the establishment; judicial activism; and judicial engagement with society.

The Changing Nature of the Courts

In his April 2006 speeches, the King explicitly disavowed the idea that the monarchy should be called upon to resolve deep-rooted social and political conflicts. The belated royal intervention of May 1992, when the King effectively demanded the resignation of Prime Minister Suchinda Kraprayoon, had set a troubling precedent: an expectation that the palace would rescue Thailand from itself. (19) The political reform movement underpinning the 1997 Constitution formed an attempt to institutionalize checks and balances that would prevent such a crisis from recurring. The 1997 Constitution introduced a number of independent agencies, including a Constitutional Court and a Supreme Administrative Court. These new courts, staffed by a mixture of former career judges (from the Courts of Justice and Administrative Court) and newly-selected judges drawn from academia and public service, were given important roles in curtailing abuses of bureaucratic and political power--in effect, an explicitly political mission. (20) The performance of...