The erosion of democracy and the rise of Thailand’s juristocracy
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The erosion of democracy and the rise of Thailand’s juristocracy

Academic Paul Chambers has some analysis of the situation and on the rise of Thailand’s juristocracy. Below are some brief excerpts (read the whole thing for the full picture):

Perhaps a less visible trend, which has grown over the last decade, has been the rise of Thailand’s judiciary. Indeed, Thailand today possesses a weakly-developed democracy with a strong, monarchically-endowed juristocracy that is undergirded by the armed forces. An embedded democracy possesses elections, political rights, civil liberties, and checks and balances as well as effective control over the military.

In such democracies, courts represent the rule of law and the ability of civilians to legally redress grievances. A juristocracy, on the other hand, comes to exist in a country where the judiciary achieves near or total supremacy over other political actors in a country. In Thailand, contemporary courts exert great power and are generally the tool of senior arch-royalists. This same judiciary is the final interpreter of the law. As such, it has been used to delegitimize recalcitrant political foes.

Ultimately, through persistence by the anti-Thaksin Constitution Court, the NACC and the Election Commission, their integrated relationship gradually whittles away the Yingluck government through a legal war of attrition. Eventually, the judiciary — through careful and slow steps — will inevitably oust the Yingluck regime.

Given the enormous influence exerted by the judiciary over Thailand today, what is it about the courts that keep them so powerful?

To answer this question, one must understand that Thailand’s judiciary is an integral part of an arch-royalist triumvirate that oscillates around the palace power. The triumvirate consists also of the military and the Privy Council, an advisory board that connects the palace to various hubs of state and society.

Eventually, as these courts and agencies persist in handing down legal decisions against the two, the majority of Thai people may refuse to accept what will be perceived as biased judicial jurisdiction. As a result, Thailand will experience escalating tensions, including either an army-led coup or a limited civil war.

At this stage, the judiciary appears ready to spring a new coup, though in several stages: void the February election; impeach Yingluck; impeach other caretaker ministers; and legally assist a “neutral,” appointed government to come to power.

And indeed, little by little, the government is being pulled apart by arch-royalists, as represented by the judiciary. The courts have been at the forefront of the anti-Thaksin campaign and have worn down the Yingluck caretaker government as best they can. While this arrangement may have assisted anti-Thaksin forces, it has deconsolidated Thai democracy, moving Thailand increasingly toward a form of juristocracy.

BP: Chambers also makes a good point in the article (read the whole thing) that Thaksin did exercise some (a lot of ?) control over the judiciary and independent agencies during 2001-2006. When it was going after opponents/enemies, like with the AMLO instance, this was certainly egregious and should be criticised, but Thaksin didn’t need to use these organisations, as much as they are used now, against the Democrats to win elections as he was so popular. BP doesn’t doubt that the AMLO wasn’t the only instance of using such agencies against opponents as Thaksin wasn’t good at taking criticism, but the Democrats as a party or senior Democrats were never banned from politics or jailed (although this was probably as there was no need to do so as they were so ineffectual….)

However, now the independent organizations and the judiciary are used to go after political opponents of the Establishment which has been clear since 2006 – see this post for some details. This has been made possible by the appointments made by coup leaders and the 2007 Constitution. The judiciary has such broad powers and wielded such influence that you have a juristocracy, as stated by Chambers. Then, combined with such broad powers that the the independent agencies have and this is where BP sees major problems. It is also a rule of law issue as a generally understood criteria of the rule of law is equality before the law. However, the outcome of most cases is pre-determined because of political allegiances. You have had two cases against the Democrats where each time they are saved by the Constitutional Court/Tribunal. For the pro-Thaksin parties it is the reverse and in both cases the Constitutional Court/Tribunal dissolved the party and banned all party executives. Now, you could argue that the facts of each case dictated the decisions, which is possible.

However, you also have the fact, as recently admitted by an Appointed Senator, that 60 out of the 73 Appointed Senators vote against the government. The relevance of this is that under Section 113 of the Constitution the Appointed Senators are appointed by the President of the Constitutional Court, the Chairperson of the Election Commission, the President of the Ombudsmen, the Chairperson of the National Anti-Corruption Commission, the Chairperson of the State Audit Commission, and a judge of the Supreme Court. The judiciary and independent organizations dictated the appointment of the Appointed Senators and over 82% of their appointees vote against the government. This is harder to dismiss and it shows the bias clearly.

Just after the 2011 election there were suggestions of a judicial coup with the delay in endorsing Yingluck as an MP, but this was just typical bureaucracy. Even when the Court in 2012 effectively (by politics and not by law) blocked a complete re-write of the Constitution, it wasn’t a judicial coup. They merely stopped the government, but stated that amending individual sections was possible. The government went through the amending section-by-section route instead, but the Court blocked that too. The Court rejected the amendment returning to a fully-elected Senate on procedural grounds, but also on substantive grounds. Nevertheless, the poorly reasoned decision did not reach the level of a judicial coup as it was not a fatal blow. Regardless, as there was no direct punishment of either PM and the government arising from the decision, it seemed the Court was no longer going for the nuclear option and was going to leave the coup to independent organizations.

However, the rice pledging scheme case at the NACC is taking much longer than expected with the NACC still yet to hand down its case. Even once it hands down the case, Yingluck is only suspended and we have to wait for the Senate impeachment to remove Yingluck. The recent Senate election of 77 Senators has made it more difficult to impeach Yingluck – given three-fifths majority is needed – because the government side did quite well although impeachment is certainly not impossible with some arm-twisting by the Establishment of both Elected and Appointed Senators. The government is also playing legal hardball with the PM so far refusing to sign a Royal Decree to open the Senate which has delayed the opening of the Senate from April 18 to an indeterminate date for now. Hence, we appear to be reverting back to the judicial coup option where the Constitutional Court will effectively remove Yingluck as PM over the transfer of NSC Chief Thawil. This is not impeachment so we only need one step and the Court can rule directly on the status of the PM and a decision is now expected by the end of the month.

If Yingluck is removed as PM by the judiciary it will be the 3rd pro-Thaksin PM in a row removed from power by the judiciary (Somchai and Samak were both removed in 2008). No pro-Thaksin PM has ever lost office because of an election (the only other pro-Thakin PM was Thaksin himself who was removed by a military coup). In BP’s view, this bias which has been openly on display by the judiciary and the independent organisations is so blatant that those in the government camp simply don’t trust these organizations anymore.

For previous posts on the increasingly powerful judiciary – BP referred to it as a judiocracy – although juristocracy has a very similar meaning – see here, here, here, here, and here .

h/t The subversive Andrew Marshall…