The Ties that Bind: Thailand’s Constitutional Court & the Military Junta

—Khemtong Tonsakulrungruang, Chulalongkorn University and Björn Dressel, ANU

After five years of dormancy, the Thai Constitutional Court (CC) is alive again. As the 2019 election unfolded, it decided a series of high-profile cases, which confirm that the CC does not judge political cases impartially and is closely tied to the military establishment that has overseen Thailand’s democratic transgression.

Since 2006, Thailand is divided between the urban royalist ‘yellow shirts’ who support a military intervention and the pro-democratic ‘red shirts.’ Over the following tumultuous decade, most of the CC’s decisions were criticized for being anti-democratic, toppling red-shirt governments and consolidating military rule. 

How well-founded are these allegations? Legal scholars identify problematic readings of law and bending of legal doctrine towards the yellow shirts. Scholars of Thai politics have concluded that the judiciary is aligned with royalist elites. Yet the empirical evidence for either view is scant.

Drawing on our previous work, we draw attention to how the ideology of judges is embedded in the pro-authoritarian elite network. There have been deliberate attempts to recruit judges from a conservative elite coalition, thus diminishing the CC’s ability to be an impartial arbiter.

CC Cases in 2019

The 2019 election would provide a legitimate basis for the National Council for Peace and Order (NCPO) to continue its grip on power. The NCPO who had ruled Thailand for five years engineered a plan to win the farcical election. It monitored the drafting of the constitution and electoral rules to its advantage. It set up a proxy, Phalang Pracharath Party (PPRP). Recent high-profile CC cases support this assumption:

• The Thai Raksa Chart Case: Shortly before the election, the CC found Thai Raksa Chart (TRC), one of the anti-junta parties, guilty of violating Thai democratic convention. TRC nominated Princess Ubolrattana, King Vajiralongkorn’s elder sister, to be its PM nominee. The controversial move prompted King Vajiralongkorn to publicly reprimanded Ubolrattana, saying that the monarchy could not get involved in politics. The EC asked the CC to dissolve the TRC. The CC swiftly did so. The dissolution put the red shirts at a great disadvantage. It partly explains the smaller margin by which the anti-junta coalition won against the PPRP.

• The Party List (PL) Cases: In two cases, the CC confirmed that the Election Commission (EC) has full authority to calculate 150 PL MPs. The EC insisted that every party should get at least one seat, no matter how few votes they got. Larger parties were upset as they had to give up their seats to smaller parties. The EC’s outrageous formula produced a Lower House of 25 parties – 11 of which got a single MP that later joined the PPRP coalition.

• The Case against Thanathorn: Thanathorn Juangroongruangkit, the leader of the progressive Future Forward Party (FFP) was against the military, making him an enemy of the conservative bloc. As his popularity rose, so did legal cases against him. He was accused of holding shares in a media company, a constitutional offence. The CC temporarily suspended Thanathorn, preventing him from voting for PM, again putting the anti-military coalition at a disadvantage.

• The Senatorial Nominations Case:  The 2017 Constitution allowed the Senate to vote in the PM. It also authorized the junta to pick senators from a list prepared by a recruitment committee. However, the process was confidential. As expected, all 250 senators were the junta’s cronies—friends and families. There was a petition to disclose information about the process but the CC dismissed it. Later, the 250 senators voted unanimously for Prayuth as the PM.

Such intensity contrasted sharply with the performance since 2014. The CC endorsed the NCPO’s rigging of the election rules and acquitted the foreign minister over conflict of interest accusation. One can’t help but wonder if this new judicial assertivenessis pure coincidence, or part of a more deliberate pattern – a question that shaped our empirical investigation.

“The Ties that Bind”: Elite Networks and Court Performance

The predictable behaviour of the CC and the inconsistency of its reasoning exposes the limits of conventional approached in understanding the CC. We propose instead a relational perspective that recognizes that the CC and its judges are deeply embedded within a network of conservative-military actors (e.g., the NCPO, the EC, and PPRP) – all of which are engaged in a concerted effort to counter electoral-majoritarian outcomes and to promote a military-dominated authoritarian constitutional order.

As our systematic analysis of high-profile cases shows. Since the 2006 coup, CC decisions have indeed been consistently biased against red-shirt-affiliated administrations. This bias is probably the direct outcome of two interrelated factors that developed after 2006:

• Diversity on the CC bench declined because the 2007 Constitution altered the composition of the bench and politicized it by nominations of anti-red-shirt judges.
• The CC made a deliberate effort to deepen social links between judicial actors and elites, both political (military, bureaucratic) and economic (business).

Thus has the increasingly politicized CC bench become both ideologically more homogenous and more deeply entrenched in the elite reordering of the 2007 and 2017 constitutions

For instance, many post-2006 CC appointees have overtly expressed clear political, even outright ideological, viewpoints, stimulating more questions about CC impartiality. In the past, the terms of CC judges were comparatively short (average of 3.6 years). Today, some current judges have been in office since 2007, appointed by the 2006 junta-appointed Assembly. The 2014 coup has further extended their terms well past the constitutional limit (average of 8.43 years as of 2019). Moreover, the NCPO has created a labyrinthine structure: It handpicked the Assembly, which then appointed the EC and endorsed two more CC judges. The NCPO then appointed the Senate. As a result, the junta enjoys solid institutional backing as PPRP contested the 2019 election.  

A network analysis of CC short courses on “Rule of Law for Democracy” suggests that CC judges has actively engaged in crafting the pro-military network. The course is offered to senior politicians, bureaucrats, businessmen, and selected civil society groups. Three of the four recent CC appointees had previously participated in these classes where sitting judges lectured to and socialized with participants.

The result has been a highly biased CC voting pattern. The likelihood of voting for the sitting government is 65 percentage points lower when the government represents the red shirts. From this vantage point, recent cases are simply proofing continuing judicial bias.

The Thai CC is one of the most controversial—and perhaps least successful—constitutional courts in Asia. Its judges have been increasingly captured by Thailand’s traditional royal-military elites. Its impartiality has to be seriously questioned.   The Thai case offers insights well beyond Thailand’s borders. It tells a cautionary tale about the ability of liberal guardian institutions to stem authoritarian backsliding and protect its own autonomy where elite interests and dynamics are deeply entrenched. Paradoxically, many of the institutional safeguards aimed at isolating judges from political oversight have become principal tools for exerting informal influence over the CC.  It offers insights into how Asian judges often operate within a dynamic tension between professional adherence to the law and informal relations with traditional power structures—a subject that deserves greater attention in the region and beyond.