The judicialisation of politics, or judicial activism, refers to circumstances where the judicial branch becomes an active player in politics, interfering in the affairs of the executive or legislative branches. Judicialisation also refers to a situation where courts are used as a mechanism of the ruling power.
This has become a significant factor in Thai politics since a 2006 address by the late King Bhumibol to judges of the Supreme Court and the Administrative Court. The speech concluded firmly that it is the duty of the judicial branch, not the King, to resolve crises and advance democracy whenever a political deadlock occurs.
“The duty of judges and those who are involved in administration is very broad. I’m afraid that you might think the duties of the Administrative Court have a scope which is not broad. Actually, it is very broad,” read the King’s speech to Administrative Court judges.
Thai courts last week showed their commitment to the late King’s words after a series of judgements and prosecutions which could be categorised as judicialisation. The first case reflected the role of the justice system as a silencing mechanism under the junta.
On 28 August, the Criminal Court sentenced an embattled anti-junta politician Watana Muangsook to two months’ imprisonment for contempt of the court
suspended for two years. He was charged after he told the media through the Line Chat application to interview him in front of the court building on 28 August after he submitted a petition on his sedition lawsuit.
The court ruled that Watana had violated the court since he used court buildings without prior permission, adding that he should have known about this regulation as he used to be a lawyer himself. Though Watana argued that he did not himself contact the media, the court dismissed his claim.
The court’s fairness was questioned after Watana posted on his Facebook pages pictures of celebrities
and politicians who had given interviews in front of the court but had not been accused of contempt.
This was the second time this month that Watana had been charged with contempt of court. On 21 August, the Criminal Court sentenced him
to one year in prison and a 500 baht fine for broadcasting about another case through Facebook live from court premises.
Since the 2014 coup, various people have been accused of contempt of court for criticising or campaigning against court verdicts. Recently, anti-corruption activist Srisuwan Janya asked for donations
after being fined 700,000 baht over 14 contempt of court charges.
According to Article 198 of the Criminal Code, people who are guilty of contempt of court can face up to 7 years in jail or fines of up to 14,000 baht, or both. This legal immunity has protected courts from criticism and eventually led to more intense judicialisation.
In addition to suppressing opponents, Thai courts are also criticised for lacking political impartiality. The case last week that earned such criticism was the dismissal
of charges against former Prime Minister Abhisit Vejjajiva and Suthep Thaugsuban, his former deputy, over the bloody crackdown against the red-shirt protesters in 2010.
The two had been accused of murder by the Department of Special Investigation (DSI) for authorising military and police officers to reclaim several venues in the Bangkok city centre from United Front for Democracy Against Dictatorship (UDD) demonstrators, the main red shirt faction, in April and May 2010.
However, on 31 August, the Supreme Court confirmed a previous ruling by the Court of Appeal and dismissed the murder charges against the two. Citing an investigation by the National Anti-Corruption Commission, the court ruled that the 2010 protest was not peaceful and that there were armed militants among the demonstrators. It was therefore reasonable for the defendants to authorise armed personnel to reclaim the protest site.
This is another case about the 2010 crackdown that marked the role of judicialisation in maintaining Thailand’s culture of impunity. Over a hundred people were killed during the crackdown but no government official, or anyone else, has been ruled accountable for the killings.
In some cases, the courts have accepted evidence that the fatal bullets were fired from the authorities’ side but ruled that that since those who fired the bullets were not identified, no one could be punished.
In the case of Suthep and Abhisit, the effect of judicialisation is even worse as the officials who filed the complaint against the two themselves face prosecution. On 9 June 2017, the Supreme Court accepted a lawsuit against Tharit Pengdit
, former Director-General of the Department of Special Investigation (DSI), and three other officials who filed murder charges against Abhisit and Suthep.
This is despite the fact that the Court of First Instance and Court of Appeal dismissed the charges against the four.
The four were accused of corruption and propagating false accusations against Abhisit and Suthep, claiming that the DSI did not have the authority to investigate the crackdown in the first place.