This post is part of New Mandala’s Thai institutions series. The first post in this series (Archives) is available here, the second (Unions) is here, the third (Police) is here, the fourth (Judiciary) is here, and the fifth (Parliament) was published last month.

When Thailand’s 1997 Constitution established a Constitutional Court*, few predicted that it would become so divisive. During Thaksin Shinawatra’s first term, critics accused the justices of being unduly deferential to the administration. Much later, Thammasat University Professor Worajet Phakhirat called the 2007 decision disbanding Thai Rak Thai “a coup d’état in the disguise of a court ruling.” To paraphrase Clausewitz, judicial activism (thulakarnphiwat) has become politics by any other means. What happened?

Before discussing the Thai Constitutional Court in depth, it is worth debunking a few popular myths about constitutional courts generally. These courts are not necessarily created with the altruistic goal of protecting fundamental rights. Rather, constitutional court justices serve to enforce the policy preferences of the political elites who appointed them — a sort of “insurance policy” against populism or electoral defeat.** As we shall see, this has proven extremely useful for militaries that return to the barracks after handing over power to a civilian administration.

The drafters of the 1997 Constitution, disgusted by political corruption and concerned about Parliament’s ability to manage a globalized economy, saw constitutional review as a check on elected politicians. The new Constitutional Court contained a mix of career judges and legal and political science academics. While the judges were elected from their respective courts, the academics were nominated by a committee comprised of the president of the Supreme Court of Justice, law and political science deans, and four politicians from the House of Representatives. According to some analysts, the judges tend to take a narrow, legalistic approach to constitutional interpretation, while the political scientists often consider the broader political context.

During its first few years, the court’s record was mixed. The Constitutional Court issued relatively few decisions protecting human rights, in part because the 1997 Constitution did not allow citizens to petition it directly. Even in the cases the court did hear, it frequently disappointed human rights activists. Notably, it refused to rule that discrimination against disabled judicial candidates was unconstitutional. On political parties and corruption, approximately 25% of the court’s caseload during its first five years, the justices were far more aggressive. Before Thaksin, the court had already removed over a half-dozen politicians from office for problems with their financial disclosure forms under section 295 of the Constitution. Most of these decisions were unanimous.

Thus, it came as a shock when, on August 2001, the Constitutional Court voted not to convict Thaksin under section 295. While serving as deputy prime minister in 1997, Thaksin allegedly concealed assets with his domestic servants (two of whom were suspiciously amongst the top-ten shareolders on the Thai stock exchange). While eleven justices decided that Thaksin was required to submit a financial disclosure statement, that majority was divided between seven who found sufficient criminal intent to convict and four who believed the prosecution failed to satisfy its burden of proof. This meant that while eleven justices agreed Thaksin broke the law, eight total voted to acquit — a vote that confused and outraged many Thais (while the optics look bad, split decisions over the grounds for acquittal are not uncommon even in America).

Far more unsettling were allegations that political considerations played an outsized role in the adjudication (ironically, Duncan McCargo suggests that privy council Prem Tinsulanonda might have been a key broker on behalf of Thaksin). These rumors and the split vote drove the notion that Thaksin had co-opted the Constitutional Court. However, these accusations are not entirely fair. In some ways, the key vote was that of Preecha Chalermvanich, who believed that section 295 imposes a relatively high burden of proof (earning points for consistency, he was alone in voting that same day to acquit Prayuth Mahakijsiri under the same law). Furthermore, the court’s 2004 decision allowing Jaruvan Maintaka to serve as Auditor-General represented a significant defeat for Thaksin.

Analysts frequently imply that the king’s April 25, 2006, speech to an audience of judges turned the court against Thaksin and led it to invalidate the April elections. Indeed, the king did ask, “Should the election be nullified? You have the right to say what’s appropriate or not… as far as I’m concerned, a single-party election is not normal.” However, a closer look at the 8-6 vote suggests that surprisingly little changed since 2001. Most of the justices who voted to annul the elections had also voted to convict Thaksin under section 295. Likewise, of the six justices in the minority, two had also voted in Thaksin’s favor in 2001, while three others were, as described by Pasuk Phongpaichit and Chris Baker, Thaksin cronies appointed in 2003. Preecha Chalermvanich, whose 2001 vote was probably less an indication of political sympathies than of his legal interpretation of section 295, now voted to annul the elections. A more puzzling switch is that of Phan Chantarapan, who had previously been considered a reliable vote for Thaksin. At the time, Justice Phan was serving as acting president of the Constitutional Court and attended a meeting with other judges after the king’s speech regarding the elections. It is quite possible he had a better sense of the political winds than some of his other colleagues.

After the September 2006 coup, the military and bureaucracy became even stronger supporters of constitutional review than even the drafters of the 1997 Constitution. They didn’t just appoint new judges onto the Constitutional Court, but rather changed the game completely. The junta installed an interim Constitutional Tribunal composed of nine handpicked judges. In May 2007, this court voted 6-3 to dissolve Thai Rak Thai (but notably not the Democrat Party). However, this exclusively judicial Constitutional Tribunal was short-lived. The 2007 Constitution created a new Constitutional Court, but gave judicial members a majority of five seats, with the other four going to legal and social science academics. In an effort to minimize political interference in the nomination of these latter four justices, the selection committee excludes academics and includes both the House Speaker and leader of the opposition. Just as important, the Constitution lifted restrictions on citizens’ right to petition the Constitutional Court, providing more direct access to judicial review.

Almost immediately after the coup leaders had returned to the barracks, the Constitutional Court found itself enforcing their goals. In September 2008, it removed People Power Party (PPP) Prime Minister Samak Sundaravej for concurrently hosting a TV cooking show.*** It also ruled that the administration violated section 90 by not submitting a communiqué regarding the Preah Vihear dispute to the Parliament. However, the Court’s most powerful new weapon was section 237, which allowed it to dissolve any political party whose executives commit fraud (interestingly, although section 237 is inherently anti-democratic, according to a recent Asia Foundation survey 62% of Thais support it). In December 2008, the Constitutional Court dissolved the PPP entirely over allegations of bribery and vote buying. The PPP’s lawyers claimed that the court rushed the hearings and read its verdict within an hour of final statements. To Red Shirts, it seemed litigation was merely a continuation of the coup.

The Constitutional Court’s activism was surely inspired at least in part by the king’s 2006 speech and the junta’s appointment of sympathetic justices. However, there were also important structural changes that freed the court from political influence. The 2007 Constitution makes it more difficult to impeach a justice. Like the 1997 Constitution, the Senate (but notably not the House) can by a 3/5 vote remove a justice for corruption and malfeasance. However, unlike its predecessor, judges now play a role in selecting 74 members of the Senate. Each senator serves only six years, whereas the justices serve nine, so these senators would be unlikely to support an impeachment motion if they wish to be reappointed. Furthermore, if the court feels its budget is insufficient, it can file a motion with the House for additional funds.

In an ironic twist of fate, the Constitutional Court’s next landmark case will address whether to dissolve the ruling Democrat Party for allegedly misusing 29 million baht in public funds and receiving 258 million baht in illicit donations from TPI Polene in 2004. The outcome is by no means predictable. On the one hand, the Democrats argue that the incidents occurred before the 2007 Constitution came into effect, so dissolving the Democrats would constitute retroactive application of section 237. However, in dissolving the Thai Rak Thai party, the Constitutional Tribunal dismissed a similar argument, reasoning that retroactivity “applies only to criminal acts” and that “the revocation of electoral rights is not a criminal sanction but it is a legal measure which resulted from the laws empowering such parties dissolution.” For many observers, the outcome will determine whether Thai judicial activism has deeper, institutional roots or simply represents the partisan leanings of the current justices…

* Thailand has had constitutional tribunals of various forms since 1946, but they only heard a handful of cases each year and were subject to over interference.

** Tom Ginsburg and Ran Hirschl have both written extensively about this “elite insurance policy.”

*** For more criticism of the legal reasoning in this case, see Three-Course Recipe for the Court’s Cookery: A Critique on Thai Democracy and Judicial Review by Verapat Pariyawong.

Dominic J. Nardi, Jr. received his J.D. from Georgetown and has a Masters in Southeast Asian Studies from Johns Hopkins SAIS. He is the author of several articles about rule of law issues in Southeast Asia, particularly constitutional and environmental law. He will begin his Ph.D. in Political Science at the University of Michigan this fall.