Judicial Politicization as Political Conservatism
From the Series: The Wheel of Crisis in Thailand
In many jurisdictions, the courts are an independent institution that underpins democracy and the rule of law. Thailand’s experience has been different. The Constitutional Court’s May 2014 ousting of Prime Minister Yingluck Shinawatra, who was elected in a landslide in 2011, was the most recent intervention by a judiciary that has become remarkably politicized, powerful, and divisive.
The ruling that disqualified Yingluck energized Thailand’s putsch-prone military, leading to martial law and, on May 22, General Prayuth Chan-ocha’s coup. Yingluck’s demise is an example of the tag teaming of the judiciary and military in support of a status quo ante. While Yingluck was removed just days before the coup, she is effectively the second of the Shinawatra clan to be ousted by a judiciary-military combination punch. Her brother, Thaksin, was thrown out in 2006. Between these two coups, another two pro-Thaksin prime ministers, also leading elected governments, were ousted by the politically interventionist judiciary.
Like so many military leaders before him, General Prayuth tore up the constitution, expanded censorship, detained hundreds of persons deemed to be threats to the coup regime, and announced that elections were “postponed” for at least 15 months. The military declared that it would make the country “safe.” Establishing this “safer” Thailand has meant online censorship, pervasive royalist and military propaganda, and the repression of all anti-coup protests.
The military’s use of martial law would seem to be a rejection of the civil judiciary. However, this is not the case, and civil judges have worked in tandem with the military. This represents a further step in a judicialization process that sees biased judges undermining electoral politics.
Thailand’s courts are conservative, yet during the period of democratization that followed a 1992 uprising against an earlier attempt by the military to control politics, there was hope that the judiciary would provide legal ballast for democratic reform. That hope has been dashed by the thorough politicization of the courts.
The critical moment in this politicization was King Bhumibol Adulyadej’s demand that judges resolve a political impasse following the disputed 2006 election. The judges, long close to the palace, annulled the election and summarily jailed several election commissioners. The coup that ousted Thaksin soon followed. Since then, the judiciary, and especially the Constitutional Court, has consistently acted with political intent against elected governments, spanning the periods 2007–2008 and 2011–2014. Each administration was considered pro-Thaksin and was brought down by judicial action.
The judiciary has dissolved pro-Thaksin political parties, restricted the powers granted to parliament under the 2007 constitution, and banned more than two-hundred politicians, mostly members of pro-Thaksin parties. Sometimes based on flimsy accusations by opposition activists, these decisions have undermined electoral and democratic processes.
Constitutional court judges have sometimes declared their political neutrality, claiming that their interventions are intended to maintain the rule of law, protect electoral minorities, and check the power of elected politicians. However, their record denies this and most observers concur that the judiciary is a steadfast ally of conservative and royalist political groups. Pro-Thaksin politicians and their Red Shirt supporters naturally complain of judicial double standards.
The 2007 Constitution expanded the judiciary’s political influence. Born of both a coup and military supervision, this 309-article charter weakened the executive branch, allocated considerable decision-making power to the bureaucracy and judiciary, transformed the Senate from an elected body into one that was half-appointed, and enhanced the military’s position. It also established a range of “independent agencies” that have since worked in concert with the politicized judiciary, repeatedly ruling against pro-Thaksin administrations.
In numerous cases, these agencies and the courts have demonstrated that they share a royalist view that electoral democracy and the pro-Thaksin parties that repeatedly win elections challenge Thailand’s regime of concentrated wealth underpinned by conservative politics. The judicial position is evident in the policing of the primary symbol of political conservatism: the monarchy. This is achieved through the expanded use of the draconian lèse-majesté law, or Article 112 of the Criminal Code, and the equally fierce Computer Crimes Act.
Article 112 demands that anyone who defames, insults, or threatens king, queen, crown prince, or regent be jailed for up to fifteen years. Conservatives consider the monarchy central for Thai identity and the maintenance of the royalist state. Hence, when the monarchy is criticized or lampooned, Article 112 is deployed. This is to protect the state as much as the monarchy. Between 1992 and 2005, a democratic political congruence meant that the lèse-majesté law was used sparingly. However, since the 2006 coup, the number of cases has exploded, reflecting the end of that congruence as Thaksin garnered electoral dominance and a mass following. The result is that lèse-majesté cases mushroomed when the military and the royalist Democrat Party were in power and have continued to rise.
The judiciary has been enthusiastic in dealing with lèse-majesté cases, with some ferocious sentencing. Virtually all cases that go to court result in a guilty verdict, with few defendants being granted bail and several cases being tried in camera. Human rights observers have expressed concern that the courts deny even constitutionally-mandated rights.
The judicial response to criticism is that protecting the monarchy is a matter of national security that trumps laws, the Constitution, and legal procedure. So important is this vigilance that it blinds judges to the damage this political law and its enforcement does to the judiciary. Lèse-majesté defines the courts as political tools of the conservative elite.
Following the May 22, 2014 coup, it has become apparent that the judiciary is important for the military junta. Indeed, as the military changes the political rules over the next few months, the judiciary will be strengthened. With martial law in place, lèse-majesté cases grow along with the repression of opponents. Those who have been held by the junta affirm that their interrogations evidence a determination to identify republican plots. The military has detained almost every person who has been accused, charged or convicted of lèse-majesté offences. Even those who have suggested reforming Article 112 are considered suspect by the junta.
Judicial independence is critical for the rule of law, democracy, human rights and liberties. There is no judicial independence in Thailand, and there will not be for the foreseeable future, a point also made by Streckfuss in this collection. The judiciary has been made into a reliable instrument for the political conservatism that the military and its royalist allies are (re-)imposing on Thailand.