Academic journal article Contemporary Southeast Asia

Competing Notions of Judicialization in Thailand

Academic journal article Contemporary Southeast Asia

Competing Notions of Judicialization in Thailand

Article excerpt

Ensuring justice is a central element in the creation of any democracy. But what happens when notions of law and justice are deeply contested, rather than robustly grounded? In the Thai context, the legal system has often operated as an instrument of power exercised on behalf of the monarchy and other traditional institutions, rather than as a source of rights and redress for citizens. A series of short-lived constitutions since 1932 have illustrated the instability and malleability of legal "rules of the game" in the Thai context. Drawing on fieldwork-based research, this article explores competing understandings of rule, law and justice in Thailand, in order to examine how far the current legal system supports processes of democratic change, and how far it offers visible or concealed obstacles to progressive political reforms. At the heart of the issue lies the contested meaning of "judicialization" (tulakanpiwat) a term popularized in the wake of two major royal speeches in 2006. (2) For some, judicialization means rousing the slumbering Thai judiciary into progressive activism and constructive engagement with pressing social and political issues. For others, judicialization means using the judiciary to curtail the power and influence of elected politicians, turning judges into an instrument of the traditional elite.

The growing involvement of the judiciary in politics, broadly defined, has been a global trend in recent decades. Nevertheless, as recently as 1995, Neal Tate and Torbjorn Vallinder wrote that: "A majority of the Southeast Asian countries are unlikely candidates for the judicialization of politics because they are ruled by regimes that, by any standard of judgment, are distinctively, if not ruthlessly, undemocratic and non-constitutional." (3) For these authors, "judicialization" is seen in largely positive terms: the growing willingness of the courts to act in the public interest, challenging power-holders, remedying abuses and supporting citizens. Subsequent developments, including regime change in Indonesia after 1998, mean that such modes of judicialization have been gaining ground in the region. Yet the trend in Thailand has been more ambiguous; despite some progressive rulings at certain junctures, many of these have been readily overturned. Despite the constitutional reforms of 1997, Thailand has not yet seen many positive results from the entrenchment of what Ran Hirschl critically terms "juristocracy". (4) Indeed, in many respects Thailand's judicial empowerment has resembled just the sort of "self-interested hegemonic preservation" described by Hirschl. (5)

The Thai judiciary has long enjoyed close links with the ruling elite, and especially with the monarchy. (6) Judges did not defend any of Thailand's constitutions on the numerous occasions when the army had seized power, always legitimating military coups and failing to insist upon the rule of law. Leading historian Nidhi Eoseewong has argued that despite the 1932 "revolution" which ended the absolute monarchy, judges have never really changed their thinking:

   Judges are still allowed to think that they are part of the
   monarchy in providing service. They don't think they are part of
   the people's sovereignty, with a duty to protect rights and freedom
   as enshrined by the constitution. (7)

Prior to 1932, judges had simply been administrative officials acting on behalf of the state, with no notion of separation of powers; although in theory this had changed since 1932, in practice their mentality had never changed. (8)

In 1997, Thailand's new Constitution was widely hailed as a breakthrough in the country's democratic development. (9) Most previous constitutions had resulted from military-initiated moves and lacked popular legitimacy. The 1997 Constitution was unusual in that it received backing from a wide range of sources and was hailed the "people's constitution", as a result of the extensive process of public consultation which preceded its promulgation. …

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