New Mandala published a pretty damning article claiming that Thailand has become a juristocracy. I disagree on the extent and uniformity of the partisanship (see my 2010 New Mandala piece for my thoughts), but I think Eugenie provides an interesting point on the importance of the judicial oath of office and how it differs from oath for other important political officials.
Category Archives: Thailand
Jake Scobey at Foreign Policy interviewed me on May 7, 2014, to discuss the recent constitutional crisis in Thailand. It’s a useful summary of the Thai Constitutional Court’s role in recent Thai politics. For the record, I’m a bit more sanguine about the Court and even noted in my article that pre-2006 the Court had a reputation for leaning towards Thaksin. However, I believe the article is correct in its concern that the Thai constitutional system has too many checks and not enough balance between the branches of government.
It’s been a while since we’ve heard much from Thailand’s Constitutional Court. Now, with Yingluck Shinawatra almost done with her second year in office, Thaksin Shinawatra’s political allies are attempting to amend the 2007 Constitution in order to allow Thaksin himself to return to the country. However, a member of the Senate has asked the Constitutional Court to stop the move. While the justices have agreed to hear the case, they have not issued an injunction against parliament.
The case raises a fascinating constitutional question: can amendments to the constitution ever be considered unconstitutional? Do courts have the authority to rule on amendments that go through the constitutional amendment process? Few courts have taken such a position. (for more about this issue, check out Gary Jacobsohn’s International Journal of Constitutional Law article).
In Golak Nath v. State of Punjab, the India’s Supreme Court declared that a constitutional amendment could not render the fundamental rights guaranteed in Indian Constitution unenforceable. The 1973 Kesavananda Bharati v. State of Kerala decision reversed this broad declaration, but did assert its authority to strike down laws that contradicted the “basic structure” of the constitution. Later, during Indira Gandhi’s Emergency Rule, it used this power to strike down the 38th and 39th amendments, which would have stripped the court of jurisdiction over elections and rights cases during Emergency Rule.
If Thailand’s Constitutional Court invalidates the amendment, it will be interesting to see if they adopt India’s “basic structure” doctrine. An argument could be made that the 2007 Constitution was implicitly designed to prevent a Thaksin resurrection, so allowing him to return would defeat the entire point of the constitution. However, that would require the justices to extract a very partisan message from the document. More likely is that the court would find that parliament violated the procedures for the amendment process. Either way, the Thai Constitutional Court is back on the radar!
First of all, sorry for the lack of posts, despite the huge amount of law-related news from the Philippines and other parts of SEA. I was in Myanmar last month, and between a slow internet connection and being busy with meetings, I didn’t have much time to post. However, I did obtain a copy of the Constitutional Tribunal’s 2011 decisions and learned a few interesting things about the court.
Until I have time to write about that trip, here is a very in-depth article about the Thai Constitutional Court’s recent decision on a lesse majeste case. Elizabeth Fitzgerald tries to understand the court’s reasoning for dismissing the petitioner’s challenge against the constitutionality of the lesse majeste laws. Unfortunately, the court’s reasoning is still somewhat unclear after having read the article, but I guess that is Ms. Fitzgerald’s point.