Category Archives: Thailand

September 19, 2010 · 05:07

Red Shirts for Juries

Thailand’s Red Shirts seem to have included fair trials in their list of demands for the Abhisit government. Typically, their demands have centered on socioeconomic issues and “justice” for Thaksin. Now, according to The Nation, Red Shirts in Chiang Mai are “calling for… a change in the justice system to more trials by jury.” 
It would be interesting to see where this particular demand comes from. Thailand of course is a civil law country and has no jury system. Recently, other Asian civil law countries, such as Japan and Korea, have experimented with juries in criminal trials. Some research suggests jury trials reduce judicial corruption. 
However, a jury trial might also be a means for Red Shirts, traditionally identified as populists in the political spectrum, to inject popular representation into the judiciary, which, as I’ve argued elsewhere, is still a fairly conservative institution. It could also have some resonance in delegitimizing the judiciary’s past decisions against Thaksin under the logic that such important criminal cases were not subjected to popular scrutiny.
In the current environment, I would be surprised if the Abhisit government did adopt jury trials. It will be interesting to see whether the rule of law NGOs operating in Thailand, such as the American Bar Association, throw their support behind jury trials…

Comments Off on Red Shirts for Juries

Filed under jury, Thailand

August 11, 2010 · 17:49

Constitutional Court and vote counting in Thailand

The sequel to my earlier article about Thailand’s judicial system is now up on the New Mandala blog. This one focuses exclusively on the Thai Constitutional Court. Much of this story is already familiar to anybody who watches Thailand. However, I tried to retell that story by focusing on vote counting within the court. Often, the foreign press, and even some academics, portray the bench as a monolith. Particularly after King Bhumibol’s speech to a group of judges in late April 2006, many observers have portrayed the Constitutional and Supreme Courts as agents of the monarchy. However, I note that, by and large, the vote was close and most judges voted the same way they had in the 2001 prosecution against Thaksin. There’s a lot I don’t know about the politics behind the bench, and a lot of research to be done, but I at least hope these articles force some readers to rethink the relationship between politics and courts in Thailand.

In other news, the Supreme Court turned down an appeal by Thaksin to review the February decision confiscating his assets.

Comments Off on Constitutional Court and vote counting in Thailand

Filed under constitutional tribunal, Thailand

July 29, 2010 · 18:48

Cooking up a constitutional storm

In working on an article about Thailand’s Constitutional Court, I came across an interesting LLM dissertation by a Thai lawyer about the 2008 case removing Samak Sundaravej from the prime ministership because he had concurrently hosted a TV cooking show.* In Three-Course Recipe for the Court’s Cookery: A Critique on Thai Democracy and Judicial Review, Verapat Pariyawong criticizes the court not for the result, but for the lack of legal reasoning.

He instead proposes that the court adopt a different analysis for constitutional interpretation: 1) utilize separation of powers as the policy framework; 2) exercise judicial restraint where a political branch of government could better provide a remedy; and 3) balance the decision against any potential adverse effects on fundamental rights.

Verapat also criticizes the court for not clarifying key constitutional phrases (such as “to prevent the exercise of power for personal gain” in § 267). Again, his proposed solution is a three-part test, this time adopted from the 1999 Anti-Corruption Act: 1) the official shares an interest in the private business as an employee; 2) such business is examined or supervised by a government agency; and 3) the interests of the agency might conflict with the public interest.

There’s very little English-language literature on Thailand, and I’m glad I found this thesis. Sometimes, the thesis veers more toward comparisons between Thai and American constitutional interpretation, which is of limited use considering how different the two countries are (a comparison with Indonesia might have been more appropriate). Nonetheless, overall, this is a useful source for its discussion on Thai jurisprudence.

* The dissertation does include a copy of the Cookery decision, but unfortunately it is only in Thai.

Comments Off on Cooking up a constitutional storm

Filed under Samak, Thailand

July 13, 2010 · 15:54

Thai Judicial Politics

I’d been working on a short piece about Thailand’s judicial system for the New Mandala blog, and it’s just been published. I’m admittedly not an expert on Thai courts, or even Thailand, but I tried to bring a larger perspective on judicial politics to the situation in Thailand. I suggest that conservative judicial politics has become embedded within the judiciary because of judicial reforms during the late 1890s and 1990s, which introduced civil law courts and judicial review, respectively. I’m currently working on a sequel focusing on the Constitutional Court. I’ll let you know when it’s posted.

Comments Off on Thai Judicial Politics

Filed under judicial reform, Thailand

May 25, 2010 · 13:59

Warranting contentious politics

Adding fuel to the fire of the Red Shirt protests in Thailand, a Thai court has confirmed the arrest warrant for former prime minister Thaksin Shinawatra. (for background, I’ve added two links to books about Thaksin and recent political events in Thailand).

This is a good demonstration of how courts can serve to deflect attention on controversial decisions away from political elites. The government can simply point to the court’s “independent” and external validation of an otherwise controversial political act (notably, this BBC article doesn’t even mention Prime Minister Abhisit). Ideally, this will soften popular anger and allow political elites to distance themselves from the decision, if necessary (claiming that they’re only carrying out the law).

However, given the mistrust between Red Shirts and Yellow Shirts (see this interesting New Mandala blog for more on that), this strategy of judicial deflection probably won’t resolve much. Red Shirts view the courts as beholden to the political elite, meaning that they will probably view the decision as not much more than another attack on their patron. Ironically, this type of situation demonstrates some of the benefits of judicial independence – for without independence, courts cannot serve their validating role on behalf of political elites.

Comments Off on Warranting contentious politics

Filed under Thailand, Thaksin