Judicial Revolution or Judicial Coup?
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Judicial Revolution or Judicial Coup?

Marwaan Macan-Markar in IPS:
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Several rulings handed down by Thai courts recently suggest that the country’s political landscape is being altered by the judiciary. Some are calling it a ‘’judicial revolution’’.
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/>Yet neither the opposition, the press nor the PAD has shaken the government in the way the judiciary has with its recent verdicts.
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/>Little wonder why a new expression has been coined and is being advanced within academic and media circles here to describe the judiciary. ‘’We are witnessing a new trend involving the judiciary. This month’s cases are the latest. It is being called a ‘judicial revolution’,’’ says Thanet Aphornsuvan, a historian and dean of the liberal arts faculty at Bangkok’s Thammasat University. ‘’The courts are playing a more decisive role in politics than before.’’
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/>The immediate beneficiary will be the country’s nascent, struggling democracy, Thanet explained in an interview. ‘’The judiciary is helping to strengthen the checks of executive power for the good of our democracy. The public is welcoming the presence of the judiciary in our political struggle.’’
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/>The excitement about a judiciary with a backbone is understandable in light of how the courts have been viewed in this South-east Asian country over the last decades. ‘’There has been a long-standing belief that courts are so corrupt, so biased, that people had no faith in going to them,’’ says David Streckfuss, an U.S. academic specialising in Thai political culture.
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/>On the political front, too, the superior courts in the past did not stand up to power, when Thailand was under the grip of its many military dictators. ‘’In the 1950s, the courts were happy to justify coups and legitimised the laws introduced by the military dictators that undermined the very laws the judges were supposed to defend,’’ Streckfuss told IPS. ‘’The courts were not taking cases to determine standards and the rule of law, making the government accountable.’’
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/>Then came the April 2006 speech by the country’s revered monarch, King Bhumibol Adulyadej. He told the judges of the administrative and supreme courts to do their job to help resolve a political deadlock and growing tension on the streets. Within weeks, the constitutional court annulled the results of a controversial parliamentary election where the party Thaksin led won sufficient seats to create a one-party state.
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/>‘’Until April 2006 there hadn’t been much awareness that the courts should and could play such a decisive role in the country’s politics,’’ says Streckfuss. ‘’The king’s speech directed the courts to be more active. And since then, the courts have been causing the government a lot of grief.’’
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/>‘’The courts are emerging as a possible key entity to redefine the relationship between the people and the government,’’ says Thanet, the historian. ‘’What we have is a new power equation. Governments will have to face up to it.

/>BP: There is certainly a new power equation, but I am doubtful it is a good idea. Yes, the judiciary can and should be a check on executive power.* But power has been shifted too far towards the judiciary. The judiciary do not exercise just judicial power, they are involved in selecting Senators (who then in turn confirm judges) and members of independent organsiations. They choose amongst themselves who will fill the top positions and are of course unelected.
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/>If you criticise members of the judiciary or their decisions, they will charge you with contempt (also see these posts about contempt of court here and here) where those who you criticise will act in judgment on what you said. This hasn’t stopped the judiciary from making public comments criticising politicians and the political system. Who will guard our judicial guardians? Quite simply, it is a judicial coup and one we cannot criticise.
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/>*The executive must act within the law as famously put by Lord Hamden in Entick v. Carrington in 1765:
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If he admits the fact, he is bound to show by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books; and if such a justification can be maintained by the text of the statute law, or by the principles of common law. If no excuse can be found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment