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.
Category Archives: Thaksin
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!
As readers might have heard, Thaksin’s sister, Yingluck Shinawatra, and the Puea Thai party won an overwhelming victory in Thailand’s July 3 elections. While military leaders ruled out a coup, the defeated Democrat Party is asking the Election Commission to file charges against Puea Thai. In particular, the Democrats want the Constitutional Court to dissolve Puea Thai because of Thaksin’s involvement in the campaign and allegations of “corruption.” According to the news I’ve seen thus far, this “corruption” largely amounts to Puea Thai candidates handing free noodles during campaign events. So far, the EC hasn’t actually filed a case against Puea Thai yet, but it’s only a matter of time.
Thus far, history looks set to repeat itself. Of course, back in 2008, the Constitutional Court was instrumental in the PPP’s downfall. Last year, the Court refused to dissolve the Democrat Party on similar charges. There’s no reason to think the justices have changed their basic political outlook since the 2008 cases; I haven’t heard of any major changes in court personnel, nor have Puea Thai allies been in a position to appoint new justices. However, if the Court dissolves Puea Thai now, it risks cementing a reputation for partisanship. I’ll definitely follow this case to see how it develops and if it actually goes to trial.
One of my fellow SAIS alums, Seth Kane, has written a fantastic piece in Asia Times on the current state of judicial politics in Thailand. It covers some of the same ground my (now obsolete) New Mandala articles on the judiciary and constitutional court, but with an insider’s perspective on the Thai political scene. Seth also provides a useful contrast to much of the commentary by pointing out instances in which the courts have not sided with the Yellow Shirts. I encourage readers to check it out here. Congrats Seth!
The Bangkok Criminal Court has just sentenced several members of the Yellow Shirt movement to 12-30 months for overrunning the National Broadcasting Services in 2008. Given the Constitutional Courts refusal to rule on the merits of the charges against the Democrat Party last month, this conviction is the first against the Yellow Shirt/anti-Thaksin forces. It’s not clear yet if this will be enough to satiate Red Shirts who complained about the partial judiciary. In all likelihood, it won’t. After all, the Yellow Shirts convicted were relatively minor figures, not the leadership. Still, perhaps it foreshadows further prosecutions and convictions against Yellow Shirts, such as the ringleaders of the airport sit-in in late 2008.
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.
Haseenah Koyakutty: On the recent Supreme Court verdict that seized $1.4 billion worth of Thaksin’s assets on abuse of power charges:
Anand Panyarachun: Why did the Attorney General take so long to file the charge and why did the court take so long to pass the judgment? Because they were very thorough. 700 pages and why did they decide to go into this 700 pages and read for seven-and-a-half hours? Because they wanted to make their reasoning very clear.
If you study the judgment carefully, on the points of facts, they were all there. On the points of law, they were also correct. I think they did take the trouble and I have admiration for their patience because they were very much criticized about the slowness of the court decision.