Blog of the International Journal of Constitutional Law

Perverse Ruling from Thai Constitutional Court Extends Political Crisis

Thailand’s Constitutional Court has ruled that the Feb. 2 election was unconstitutional. This decision returns the country to its near-constant state of political crisis, which has become acute for the last several months, as Bangkok has been convulsing with demonstrations and counter-demonstrations. The anti-government forces had boycotted the February election, which would likely have resulted in a renewed mandate for Prime Minister Yingluck Shinawatra. (The so-called “red” forces associated with her brother Thaksin Shinawatra have won every major election since 2000; meanwhile, some elements of the opposition argue that they should be allowed to appoint a government without an electoral mandate.)

The lawsuit, brought by the Ombudsman, had asked the Court to void the election on the ground that it had not been held on the same day everywhere in the country. Elections in some 20% of the country’s 375 constituencies had experienced some form of disruption caused by demonstrations, and in 28 of these, opposition protesters prevented candidates from even registering. The Constitution says that the election should be held on the same day nationwide, but when this proved impossible due to the protests, the Election Commission had arranged for substitute by-elections in some constituencies, to be held in March. Preparation for these elections was ongoing at the time of the Court ruling, but they will no longer be necessary. Instead a new vote will be held. The Court ruling has already attracted criticism.

The perversity of the ruling is obvious, in that it creates all the wrong incentives. Anyone who knows they will lose an election simply has to interfere with the process, and then go to the court to void the election on the basis of that interference. Poor Thailand; its political crisis continues, and the Court has virtually ensured that elections can never resolve it. Unless the Democrats suddenly decide to support democracy, and compete at the ballot box, another cycle of protest seems assured.

Suggested Citation: Tom Ginsburg, Perverse Ruling from Thai Constitutional Court Extends Political Crisis, I-Connect blog, March 21, 2014, available at


4 responses to “Perverse Ruling from Thai Constitutional Court Extends Political Crisis”

  1. Pakawat Avatar

    Prof. Ginsburg, I absolutely agree with your article here. However, you one fact wrong. It was the Ombudsmen who brought the suit to the Constitutional Court, not the Democrat Party.

    The Democrat Party, indeed, brought the suit to void the election, but it was dismissed by the Court on February 12th.

    This time, it was the Ombudsmen who submitted the case to the Court under section 245 (1) of the Thai Constitution. The section provides that the Ombudsmen may submit a case to the Constitutional Court if the provisions of any law begs the question of the constitutionality. Since the election was disrupted so the Court ruled that the provisions in the law prescribing the date of general election is unconstitutional (!!?)

    So, apart from the part that it creates the wrong incentives, it is logically ridiculous, and requires a lot of “creativity” to make this kind of perverse ruling.

  2. Tom Ginsburg Avatar
    Tom Ginsburg

    Khun Pakawat: I stand utterly corrected. the news report i was drawing from was inaccurate. I think I will edit the post slightly so my mistake is not so obvious.


  3. Ran Hirschl Avatar
    Ran Hirschl

    Thanks, Tom. Fascinating, as always. Would it be fair to say that, by and large the Court has been a supporter of the old elites, the bureaucracy, the military, the royalty and of the social and political circles that oppose the new voices of Thaksin Shinawatra, his sister, and their supporters? And if so, has this had any effect on the public perception of the Court as an independent tribunal, or at least on the attitude toward the Court by the new elites and millions of anti-establishment voters?

    1. Tom Ginsburg Avatar
      Tom Ginsburg

      The Court is certainly embedded in the political and social classes which are most critical of Thaksin. The situation is rather complicated in that the simple distinction between Bangkok and the North doesnt fully capture the cleavages. but I think this decision confirms the intuition behind your question. I havent seen any opinion polls, but the Court’s ruling has certainly led to a bimodal reaction. It deserves it.

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