Developments in Thai Constitutional Law: The Year 2016 in Review

Editor’s Note: Today we publish the 2016 Report on Thai constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.

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–Khemthong Tonsakulrungruang, Ph.D. Candidate at the University of Bristol

I. Introduction

Since its reinstatement in 2008, Thailand’s Constitutional Court has been operating under immense pressure from political instability. Thailand’s ongoing political conflict has resulted in a deeply divided society, and the Constitutional Court has failed to help stabilize it. It is even considered a contributive part of the conflict. Controversial decisions, as well as personal scandals, drew heavy criticism that eroded public trust. The conflict reached its peak in 2014 when a coup d’etat broke out. The junta, known as the National Council of Peace and Order (NCPO), banned all political activities and thus 2014 to 2016 was the Court’s halcyon period. But this hiatus is only the eye of the storm.

Throughout its 20 years of operation, the Constitutional Court has witnessed the rise and fall of its credibility.[1] In 1997, Thailand carried out a major political reform aiming to consolidate democracy since the country had been stuck in a vicious cycle of elections and military interventions for 70 years.[2] Corruption allegations undermined civilian governments’ credibility, making Thailand’s democracy vulnerable to military intervention. To restore trust, the 1997 Constitution designed a stronger checks-and-balances system by introducing the Constitutional Court and other independent watchdog agencies. Together, these bodies scrutinize, investigate, and prosecute corrupt politicians. Thus, the Constitutional Court was assigned the duty to guard the constitution and enforce the rule of law.[3]

The Constitutional Court could be better understood as two different courts: a pre-2006 court and a post-2006 court, separated by the 2006 coup. The first Court began in 1998. Although its impression was that of a conservative court, it gave a promising start with a few decisions that promoted people’s rights and liberties.[4] But its attempt to curb corruption proved unsuccessful because it often deferred to the government.[5] This problem was more acute during the administration of Thaksin Shinawatra, the tycoon-turn-prime minister who was accused of human rights violations, cronyism, and corruption.[6] Eventually, when the 2006 coup took place, this unpopular Court was suspended and replaced by the ad hoc Constitutional Council.

The 2007 Constitution redesigned the Constitutional Court to be more politically isolated and powerful.[7] Judges’ personal attitudes also seemed to be more skeptical of politicians. The post-2006 Court was thus more aggressive in reviewing the government’s actions. Although this aggressive scrutiny satisfied the anti-Thaksin faction, others voiced concerns that the Court appeared biased.[8] As a result, the Constitutional Court became a highly-polarized institution, enjoying praises and at the same time suffering attacks.

Contrary to the first Court, the anti-Thaksin establishment considered the Court their friend. The NCPO allowed the Court to remain in operation. But only a few cases reached the Court. Its main task was to participate in the juntas political process such as drafting the upcoming constitution and relevant laws.

II. The Constitutions and the Court

By 2016, the Constitutional Court had lived through four constitutions. The 2016 Court was the product of the 2007 Constitution, which shared the goal of eradicating corruption with its 1997 predecessor. Undue political intervention and insufficient authority of the Constitutional Court were identified as the culprits of corruption. Therefore, the 2007 Constitution reduced political oversight and broadened jurisdiction into what had formerly been considered the executive prerogative, such as treaty-making and emergency power.[9] However, despite all efforts to empower the Court, Thai democracy quickly descended into chaos. The NCPO abolished the 2007 Constitution. Although the 2014 Interim Charter brought no change in its structure and jurisdiction, the prohibition to review the NCPO severely incapacitated the Court.

A. Composition of the Constitutional Court

The Constitutional Court has only one panel of nine judges with law and non-law backgrounds. Unlike the closed system of other courts, the recruitment of Constitutional Court judges involved representation of political branches. Candidates are recruited through a complicated process. The Supreme Court nominates three Supreme Court judges while the Supreme Administrative Court nominates two of its members.[10] The nomination commission selects four other candidates with two being legal experts and the other two political science experts.[11] The nomination commission is an ad hoc body, comprised of the President of the Supreme Court, President of the Supreme Administrative Court, Speaker of the House of Representatives, Leader of the Opposition, and one representative of each watchdog agency.[12] While the nomination commission appears to be a combination of the judiciary, legislative, and independent bodies, the overall recruitment is tilted in favor of the judiciary. Political oversight of the nomination is significantly reduced compared with that in the 1997 Constitution, where members of political parties and lay representatives sat on the commission.[13] The Senate must confirm all nine judges before taking office.

The qualification of a nominee is stringent.[14] He or she shall acquire Thai nationality by birth and be the age of 45 or more. He or she must have been a minister, a nomination commissioner for a watchdog agency, a director-general of a department-level agency or its equivalent, a professor, or a practicing lawyer of at least three years prior to a nomination. A nominee must have never been impeached or imprisoned. Most importantly, three years before a nomination, he or she shall not be a member of a political party.

Once appointed, a judge is subject to strict prohibitions and requirements to maintain his or her integrity.[15] But he also enjoys a high level of independence. The term lasts nine years and is non-renewable.[16] Apart from retirement at 70, only a few causes could remove a judge from his office before the term is complete. A judge can be disqualified only if he or she is found to hold a position prohibited by the Constitution, impeached by three-fifth of the Senate’s vote, or sentenced to an imprisonment term.[17]

The upcoming 2017 Constitution, the Court’s fifth constitution, will bring a change in its composition as it replaces one law and one political science expert with two high-ranking civil servants.[18] The introduction of bureaucrats to the bench indicates the NCPO’s desire to have more control in electoral politics.

B. Jurisdiction of the Constitutional Court

Before 1997, the Court of Justice had a general jurisdiction over all disputes. The system was considered inadequate to provide check-and-balance because judges had not been trained to adjudicate public law cases. The 1997 Constitution drafters overhauled the judicial system to create courts that were specialized in constitutional and administrative disputes, the Constitutional Court and Administrative Court respectively. The Constitutional Court heard disputes in four main areas: reviewing law and law-making, settling jurisdictional disputes, eradicating corruption, and protecting democratic values.

First, the Court reviewed the constitutionality of law and law-making. It scrutinized both content and legislative procedure of a statute, an organic law, and an emergency decree.[19] If the law disproportionately encroached upon the rights and liberties of Thais, or if the legislative procedure was not properly observed, the Constitutional Court shall declare that particular section, or the whole act, unconstitutional and void. After 2007, the Court could also decide if an international treaty into which a cabinet was entering had a significant impact on Thailand’s national security, economy, or society, and, thus, required parliamentary consent.[20]

Second, the Constitutional Court was assigned to settle intra-agency jurisdictional disputes. The 1997 Constitution created several new watchdog agencies that were not under the Legislative or Executive branches. The dispute involving two or more parties from the National Assembly, the Cabinet, and these independent agencies, but not courts, may be sent for the Court’s consideration.[21]

Interestingly, fighting corruption was the only area where the Constitutional Court’s power was reduced. The Court could disqualify politicians who were found to violate the conflict of interest prohibitions.[22] However, the Court no longer had the authority to hear the asset disclosure case after it acquitted Thaksin Shinawatra in 2001.[23] The duty was assigned to the Supreme Court instead.

Finally, the Constitutional Court acted as the guardian of the constitution and democracy. The Court may order a person or a political party to halt an activity that it deems detrimental to the government, constitutional principles, or democratic values.[24] In addition to holding such activity, the Constitutional Court may dissolve a political party if considered to have attempted to overthrow the government or acquire power through undemocratic means.[25] Executives of the dissolved party shall receive a five-year ban from politics.

The Constitutional Court successfully exercised its judicial review of law and jurisdictional disputes, but it failed to restore transparency and uphold democracy. Since 2007, the Constitutional Court has played a greater role in promoting rights and liberties of Thais by striking down statutes that violate basic civil rights.[26] Unfortunately, this achievement was overshadowed by several controversies when it boldly invalidated elections and dissolved key political parties as well as disqualified prime ministers and banned hundreds of politicians.[27] The paradoxical performance brings its professionalism and neutrality into question.

Under the 2014 Interim Charter, the Constitutional Court can still hear cases concerning judicial review of the law, and jurisdictional dispute settlement.[28] Nonetheless, the absolute status of the NCPO means only a small number of cases has reached the Court.

III. Constitutional Controversies

There was no major controversy over the Constitutional Court in 2016 because all attention went to the NCPO after having seized power from the elected Prime Minister, Yingluck Shinawatra in 2014. However, the Court’s reputation still suffers from years of entanglement with politics. Since its reinstatement in 2008, almost all major decisions of the Constitutional Court became cause celebre. The situation peaked twice, first in 2008 and again in 2012-2014, both periods of which coincided with Thaksin’s proxy winning the office. Thus, the Court could not avoid criticism and accusation that it had sided with the anti-Thaksin faction.

In 2008, the Constitutional Court launched a series of party dissolutions that finally paved the way for the Democrat Party, Thaksin’s political enemy, to become the government.[29] In 2012, the Constitutional Court exercised its judicial review vis-à-vis the popular Yingluck Shinawatra, Thaksin’s youngest sister. Thrice the Court blocked Yingluck from fulfilling her election campaign by amending the 2007 Constitution.[30] Repeatedly reiterated that a mere election did not equate democracy, the Court clearly displayed distrust in the majority’s wisdom. Critics called these decisions “judicial coup.”[31]

In late 2013, Yingluck introduced an amnesty bill that would indiscriminately pardon all parties in the political conflict. The bill proved unpopular to all parties because it cleared Thaksin of corruption charges as well as terminated an investigation of the military’s deadly crackdown on pro-Thaksin protestors in 2010. The anti-amnesty bill protest quickly escalated to the anti-Shinawatra protest under the name of the People’s Democratic Reform Council (PDRC). The PDRC demanded Yingluck to unconditionally resign, suspend an election indefinitely, and establish the non-partisan government to reform the country. Yingluck responded by dissolving the House. The Democrat party, which was leading the PDRC, boycotted the election while the PDRC vowed to obstruct it.[32]

The Election Commission (EC) was reluctant to organize an election so it consulted with the Constitutional Court whether an election could be postponed. The Court agreed that a re-schedule was possible, but only if that resolution was made jointly by the government and the EC.[33] Yingluck resisted, so the EC half-heartedly proceeded. Unsuccessful in blocking the election, the PDRC succeeded in blocking voting on election day. PDRC protesters blocked the venues and assaulted voters so voting could not take place in some constituencies.[34] The Ombudsman, per the PDRC’s request, asked the Court to review the election. Blaming the government for failing to foresee obstructions, the Court invalidated the 2014 election on a technical ground of not being able to complete within one day.[35]

By then, Thailand had no functioning parliament or cabinet. The PDRC occupied several government offices. The EC foot-dragged a discussion on the possibility of another election. The Court shortly delivered another blow by disqualifying Yingluck from being a caretaker PM because of a conflict of interest charge.[36] Thailand reached a constitutional deadlock with no functioning government or an election within sight. Amidst all confusions, a few days later, the army carried out the coup.

Concerns about the Court’s neutrality arose as early as shortly after the 2007 Constitution came into effect. Bjoern Dressel warned that the attempt to assign the judiciary to safeguard politics might have ended up politicizing this supposedly neutral arbiter.[37] More recently, Eugenie Merieau saw the Court as the key mechanism that drove the Deep State, a network of traditional elites that operated outside the control of a democratically elected government.[38] Veerayuth Kanchoochat described this behavior as reign-seeking, a phenomenon where non-elected technocratic and bureaucratic institutions compete with politicians for control of power.[39] Legal scholars also noticed procedural irregularities as well as arbitrary reasoning which seemed to depart from their usual precedents.[40] These studies suggested that the Constitutional Court was utilizing its judicial power to help the powerful minority of technocrats and traditional elites to control the grassroots majority. The 2013-2014 crisis that led up to the coup was not coincidental. Events were well coordinated by protesters, the opposition party, watchdog agencies, and the Constitutional Court.[41] After the month-long protest significantly delegitimized the government, court decisions were deliberately delivered to catalyze the coup.

Perhaps the Constitutional Court in 2016 was controversial not because of what it did, but what it did not do. The Court refrained from scrutinizing the NCPO, which oppressed the rights and liberties of Thais as well as weakened the rule of law. Instead, the Court cooperated with the NCPO in sustaining the oppressive regime. A retired judge was invited by the Constitution Drafting Committee (CDC).[42] It delivered a few decisions that facilitated the NCPO’s grip on power. The 2017 Constitution even expanded the role of the Constitutional Court. Where a constitutional dispute occurs, and there is no applicable provision, the Constitutional Court President shall convene a panel of the legislative, executive, judiciary, and independent watchdog agencies to resolve to a “democratic convention” to be applied to that case.[43] This judicial turnaround fueled more criticism and condemnation.

IV. Major Cases

The Constitutional Court heard only six cases in 2016. Two decisions dissolved inactive political parties while one confirmed the presumption of innocence. Three of them concerned the constitution-making process, one of which caught much public attention because of its implication in the development of Thai politics.

In August 2016, Thailand was to vote on the new constitution draft. The referendum became a symbolic battle between the NCPO, who backed the constitution-drafting process, and its dissidents who regarded the charter the “fruit of the poisonous tree.” Moreover, the constitution draft was criticized for its bad design that destabilized the party system as well as entrenched the junta’s control of upcoming governments.[44] The junta-appointed Legislative Assembly passed the Referendum Act to regulate this hotly contested referendum. However, the NCPO opponents argued that the Act did not neutrally assist the referendum process, but rather, helped the junta silence its critics. The Referendum Act criminalizes a person who distributes materials deemed distorted, violent, impolite, threatening, or instigating another person to vote one way or the other. The ambiguous language of the law made campaigning against the draft impossible because any information that differed from the junta’s official statements was conveniently considered distorted. Anti-junta activists challenged the Act at the Constitutional Court for violating their freedom of expression.

In the first half of the verdict, the Constitutional Court recognized Thailand’s obligation under  international law and the democratic custom to protect all kinds of freedom, including freedom of expression. Only when the state needed to protect higher values such as national security or public order could it restrict such freedom. But such restrictions must be in accordance with the constitution. Namely, the restrictions must be in the form of statutes and must be proportional to public interest gained from such measure. The Court then recognized the importance of the referendum as a political process for citizens to determine their fates and ruled that discussions should be allowed.

However, in the second half of its reasoning, where the Court discusses the language of the Act, it ruled that the restriction of freedom of expression in the Act was constitutional.[45] The Court acknowledged the objective of the law as to hold a free and fair referendum. Distorted information must not wrongly influence the public. The Constitutional Court admitted that the language of the law was vague, but ruled that this vagueness was necessary for a flexible and effective enforcement of the law. The concern of this vagueness was outweighed by the negative effect of wrong information on an uninformed audience and disruption to the harmonious and amicable atmosphere of the country. Moreover, because the Act does not have minimum punishment, it allows a judge to reduce the sentence to as low as possible, and a convict would still be eligible to redress through an ordinary appeal. Thus, the possible negative consequence of the Act was mitigated.

The Constitutional Court’s decision endorsed the NCPO’s position in cracking down dissent and contributed to the NCPO’s victory.[46] The majority of Thai voted for the constitution draft, which would come into effect in 2017.

V. Conclusion

By 2016, the Constitutional Court had lost its reputation as a neutral arbiter. Fighting corruption and restoring the rule of law became hollow mantras to justify its hostility toward a democratic government as the Court actively cooperated with the corrupt and opaque regime of NCPO. The Court has proved to the public that it was one of the most powerful and decisive players in Thai politics. Unfortunately, the Court did not wish to guard the Constitution or protect the already fragile democracy.

The 2007 Constitution was written upon distrust of elected politicians, so it created an almost  invincible Constitutional Court. When the Court became arbitrary, the public had no mechanism to hold it accountable. The 2017 Constitution would do little to address this problem, so Thailand’s democracy is in greater trouble than ever with corrupt politicians on one side and the arbitrary Court on the other. Once democracy resumes and the first general election is held, the Constitutional Court will again find itself in a political whirlwind.

VI. Bibliography

Dressel B, ‘Judicialisation of Politics or Politicisation of the Judiciary? Considerations from Recent Events in Thailand’ 23 The Pacific Review 671-691.

Merieau E, ‘Thailand’s Deep State, Royal Power and the Constitutional Court (1997-2015)’ (2016 46 Journal of Contemporary Asia 445-466.

Tonsakulrungruang K, ‘Thailand: an abuse of judicial review’ in Po Jen Yap (ed) Judicial Review of Elections in Asia (Routledge 2016) 173-192.

——— ‘Entrenching the Minority: The Constitutional Court in Thailand’s Political Conflict’ (2017) 26 Washington International Law Journal, forthcoming.

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[1] Thawinwadee Burikul et al., รายงานผลการสำรวจความคิดเห็นของประชาชนต่อการบริการสาธารณะ และการทำงานของหน่วยงานต่างๆ พ.ศ.​๒๕๕๗ และสรุปผลการสำรวจ พ.ศ. ๒๕๔๖-๒๕๕๗ [King Prajadhipok’s Institute Poll on Public Opinion on Public Services 2003-2014] (King Prajadhipok’s Institute 2015) 153.

[2] Duncan McCargo, ‘Introduction: Understanding Political Reform in Thailand’ in Duncan McCargo (ed) Reforming Thai Politics (NIAS 2002) 1-3.

[3] Reforming Thai Politics 9-10.

[4] Andrew Harding & Peter Leyland, The Constitutional System of Thailand: A Contextual Analysis (Hart 2011) 176-180.

[5] The Constitutional System of Thailand 180-182.

[6] See Pasuk Pongpaichit & Chris Baker, A History of Thailand (CUP 2edn 2014) 262-267; Tom Ginsburg, ‘Constitutional Afterlife: the Continuing Impact of Thailand’s Postpolitical Constitution’ (2009) 7 ICON 83, 96-97.

[7] Constitutional Afterlife, 93 & 100-101.

[8] Duncan McCargo, ‘Peopling Thailand’s 2015 Draft Constitution’ (2015) 37 Contemporary Southeast Asia 329, 335-336; Eugenie Merieau, ‘Thailand’s Deep State, Royal Power and the Constitutional Court (1997-2015)’ (2016 46 Journal of Contemporary Asia 445, 459-461.

[9] Bjoern Dressel, ‘Judicialisation of Politics or Politicisation of the Judiciary? Considerations from Recent Events in Thailand’ 23 The Pacific Review 671, 677-678; Constitutional Afterlife, 100-101.

[10] Constitution B.E. 2550 (200) s. 204 (2007 Constitution).

[11] 2007 Constitution, s. 204.

[12] 2007 Constitution, s. 206.

[13] The Constitutional System of Thailand 168.

[14] 2007 Constitution, s. 205.

[15] 2007 Constitution, s. 207.

[16] 2007 Constitution, s. 208.

[17] 2007 Constitution, s. 209.

[18] Constitution B.E. 2560 (2017) s. 200 (2017 Constitution).

[19] 2007 Constitution, s. 211 & 184.

[20] 2007 Constitution, s. 190.

[21] 2007 Constitution, s. 214.

[22] 2007 Constitution, s. 265-269.

[23] See The Constitutional System of Thailand, 181.

[24] 2007 Constitution, s. 68.

[25] 2007 Constitution, s. 237.

[26] Kla Samudavanija. ขอบเขตอำนาจหน้าที่ศาลรัฐธรรมนูญเพื่อส่งเสริมการปกครองในระบอบประชาธิปไตยและคุ้มครองสิทธิเสรีภาพของประชาชน [Scope of Power and Duty of the Constitutional Court for Promotion of Democratic Rule and Protection of Civil Rights and Liberties] (King Prajadhipok’s Institute 2015) 239-265; see 12/2552 [2009], 15/2555 [2012], 12/2555 [2012], 17/2555 [2012] Const. Ct. Decision.

[27] See Khemthong Tonsakulrungruang, ‘Thailand: an abuse of judicial review’ in Po Jen Yap (ed) Judicial Review of Elections in Asia (Routledge 2016); Khemthong Tonsakulrungruang, ‘Entrenching the Minority: The Constitutional Court in Thailand’s Political Conflict’ (2017) 26 Washington International Law Journal, fourthcoming.

[28] Interim Charter B.E. 2557 (2014), s. 45.

[29] See ‘Thailand: an abuse of judicial review’; Marc Askew, ‘Confrontation and Crisis in Thailand’ in Marc Askew (ed) Legitimacy Crisis in Thailand (King Prajadhipok’s Yearbook Project, Silkworm Books, 2010) 31-43.

[30] Entrenching the Minority.

[31] Thailand’s Deep State, 449.

[32] Duncan McCargo, ‘Thailand in 2014: The Trouble with Magic Swords’ (2015) Southeast Asian Affairs 335, 338-341.

[33] 2/2557 [2014] Const. Ct. Decision.

[34] Thailand in 2014: The Trouble with Magic Swords, 341-343.

[35] 5/2557 [2014] Const. Ct. Decision.

[36] 9/2557 [2014] Const. Ct. Decision.

[37] See Judicialisation of Politics or Politicisation of the Judiciary?

[38] See Thailand’s Deep State.

[39] See Veerayooth Kanchoochat, ‘Reign-seeking and the Rise of the Unelected in Thailand’ (2016) 46 Journal of Contemporary Asia 486.

[40] See ขอบเขตอำนาจหน้าที่ศาลรัฐธรรมนูญเพื่อส่งเสริมการปกครองในระบอบประชาธิปไตยและคุ้มครองสิทธิเสรีภาพของประชาชน; ‘Thailand: an abuse of judicial review’.

[41] See the revelation of Suthep, the PDRC leader, that he and the army commander, Prayuth Chan-ocha, had been planning the coup for some time before the actual event in Thailand in 2014: The Trouble with Magic Swords, 345.

[42] Judge Supoj Kaimook.

[43] 2017 Constitution, s. 5. However, King Vajiralongkorn, shortly after ascending the throne in December, refused to approve the new charter. He requested some amendments including Section 5. The final version has not been revealed to the public. See Eugenie Merieau, ‘Thailand’s New King is Making a Power Grab’ (The Diplomat 4 February 2017) <http://thediplomat.com/2017/02/thailands-new-king-is-making-a-power-grab/?utm_content=buffer97131&utm_medium=social&utm_source=facebook.com&utm_campaign=buffer> accessed 6 March 2017.

[44] Leena Rikkilä Tamang, ‘Political Implications of the Draft Constitution of Thailand: A Conversation with Prof. Tom Ginsburg and Mr. Khemthong Tonsakulrungruang’ (IDEA 28 July 2016) < http://www.idea.int/news-media/news/political-implications-draft-constitution-thailand-conversation-prof-tom-ginsburg> accessed 2 March 2017.

[45] 4/2559 [2016] Const. Ct. Decision.

[46] ‘Thailand jails activists for campaigning to reject constitution in referendum’ (The Guardian 25 June 2016) <https://www.theguardian.com/world/2016/jun/25/thailand-jails-activists-for-campaigning-to-reject-constitution-in-referendum> accessed 2 March 2017.