Originally published on the IACL-IADC blog on 3 May 2019.
In the field of Comparative Constitutional Law, Thailand´s Constitutional Court gained an ambivalent notoriety for its repeated dissolution of opposition political parties and cancellation of general elections in the name of protecting democracy – but de facto paving the way for military coups, in 2006 and 2014.
Since the military seized power on 22 May 2014, before declaring martial law and abolishing the constitution, the Constitutional Court has remained in place without much change to its composition. Most of the justices, whose terms were supposed to expire in 2017, saw their tenure extended by order of the junta. Meanwhile, the Court has continued delivering rulings, albeit with limited activity, issuing, yearly, between one decision (in 2015, when the country was under Martial Law until April) and seven decisions (in 2018). One may see the existence of a constitutional court in a military dictatorship as a puzzle. Why did the Thai military keep the Constitutional Court in place while abolishing the constitution? The answer is straightforward: to judicialize the crackdown on any opposition to continued military rule.
In March 2019, a few weeks before the much-awaited general election was to take place, the Thai Constitutional Court dissolved the Thai Raksa Chart Party, one of the main parties opposing the army, for having proposed the King´s sister, Princess-turned-commoner Ubolratana Mahidol, as its prime ministerial candidate.
The election took place on 24 March, and even though the party of the military (the Phalang Pracharat Party) reportedly gained the most votes, the two parties ranked 2nd and 3rd, the Phua Thai and Future Forward parties, are now increasingly at risk of facing dissolution. The election is also at risk of being cancelled altogether by the Constitutional Court.
The Court’s function: legitimation, cooptation and repression
The creation of a constitutional court is most often seen as a symbol of departure from military dictatorship. But while Thailand’s Constitutional Court was celebrated at first as a sign of a successful story of democratisation, it eventually morphed into an institutional anomaly partly responsible for Thailand’s return to military rule. During the two decades of its existence, it paved the way for two military coups and staged one “judicial coup” that effectively put the opposition in power. Thailand has been described as a juristocracy thriving on abuses of judicial review.
Since 2014, and the establishment of one of the very few fully-fledged military dictatorships left in the world, the role of the Constitutional Court has been to answer the key needs of any authoritarian regime seeking stabilisation—building legitimation, ensuring cooptation and organising repression—through constitutional means.
Much of the Thai Constitutional Court´s activity has been dedicated to validating the constitutional framework laid out by the junta. This includes validating the referendum that approved the 2017 constitution, validating the changes made to the constitution after it was adopted by referendum, and validating organic acts (rules of near-constitutional value, placed above legislation in the hierarchy of norms). Most of the rulings delivered in 2018 belonged to the latter category—the Constitutional Court ruled, for instance, on the Organic law on Political Parties, on the Election of Members of Parliament, on the National Anti-Corruption Commission, on the Ombudsmen, and on the Selection of Senators.
This links to the second function of the Constitutional Court: organising cooptation through the Constitution—as organic acts establish constitutional means of elite cooptation—in the Senate, and in the various independent constitutional organs and committees.
The third function of the Constitutional Court is to neutralise opposition political parties. Even though political parties were illegal by decree of the junta until mid-2018, the Constitutional Court continued to rule on the dissolution of Thai political parties throughout 2015–18. As the Court cannot initiate cases on its own initiative, it relies on other constitutional organs to file cases, most notably the Ombudsman and the Election Commission.
The Court’s strategic use of liberal-democratic modes of judicial reasoning
The Thai Raksa Chart case was forwarded to the Constitutional Court by the Election Commission, whose members were approved by the junta-appointed legislative assembly following the sacking of the Commission’s former president by junta decree in 2018. But the Court’s ruling on Thai Raksa Chart showed a concern not to appear as a pawn of the regime. The Court’s legal arguments and modes of interpretation are indeed framed in widely accepted liberal-democratic traditions of judicial modes of reasoning.
The 25-page ruling examines the following questions: whether the political party must be dissolved for violating Article 92 of the 2017 Political Party Act; and whether, as a result of this, its executive board members must be banned from politics and, if so, for how long. Article 92 of the 2017 Political Party Act states:
When the Election Commission has evidence that one political party has committed one of the following acts, it shall refer the case to the Constitutional Court for dissolution of the political party:
(1) Overthrowing Democracy with the King as Head of State or to gain power by unconstitutional means;
(2) Acts deemed hostile to Democracy with the King as Head of State;
In its 15 pages of discussion on the merits of the case, the Court uses several techniques of constitutional interpretation such as originalism, precedent, consequentialism, and systematic interpretation, among others. Hence, it mobilises with much creativity a wide array of modes of constitutional interpretation, with the notable exception of proportionality balancing (usually the standard when it comes to restriction of civil and political rights).
To build its constitutional interpretation, the ruling also appropriates several constitutional law concepts. First, the ruling refers to the concept of militant democracy, calling it “self-defending democracy”. It argues that allowing a Princess, even stripped of her royal titles, to run for political office, would undermine democracy by turning Thailand into a “ruling monarchy”. Second, the Court relies on the concept of constitutional identity, defining “Thailand’s Democracy with the King as Head of State” as “Thailand’s constitutional identity”. The ruling confirms that “Democracy with the King as Head of State” forms the core ideology as well as the guiding principle of constitutional interpretation in Thailand—it is the main pillar of Thailand’s Constitutional culture.
To the royalist school, ‘Democracy with the King as Head of State’ means that the Thai King enjoys a special role and status in the Thai polity. That special status allows him to act in times of crisis, for instance, provided he follows the “Ten Royal Virtues of the Righteous King” that inform what can be called a specific form of “Buddhist Constitutionalism”.
Third, the Court mobilises the concept of “Constitutional Customs”. The argumentation relies on Article 5, paragraph 2 of the Thai Constitution on “constitutional customs of Democracy with the King as Head of State”—of which the Court, for the first time, gives a definition. Such customs must be practices as have been upheld for a long time and deemed “good”. This attempt at defining constitutional custom with cumulative criteria can bear some resemblance to the definition of custom as used in international law—the existence of a rule observed in a continuous and durable manner with opinio juris; the belief that this rule must be obeyed (because it is good).
The Court defined several customs of “Democracy with the King as Head of State”—including, the principle of royalty being “above politics”, and his rule being guided by “the Ten Royal Virtues of a Righteous Ruler” as another.
A functional ally of the army, the Thai Constitutional Court is a strategic player that seeks to maximize its survival, prestige and power. But strategic interaction for self-interested hegemonic preservation does not explain the whole picture of judicial-military cooperation in Thailand. Ideational factors play a high role in unifying the preferences of courts and militaries—this is one of the functions of the concept of “Democracy with the King as Head of State”, the upholding of which is at the root of claims to legitimacy by both the military and courts—but “Democracy with the King as Head of State” clashes with notions of the Rule of Law.
Dr Eugénie Mérieau is a postdoctoral fellow at the Chair of Comparative Constitutionalism, University of Göttingen, Germany