Thailand: Judicialization of Politics or Politicization of the Judiciary

Clearly, not just the fact but the process of judicialization deserves more attention. This chapter therefore tracks the activities of the Thai judiciary with particular attention to the various permutations of the Thai Constitutional Court during the political crisis in 2006-08. While often acting in close concert with Thailand’s two other top courts (the Supreme Court and the Supreme Administrative Court), the Constitutional Court offers particularly interesting insights into the judicialization trend not only because it has taken the leading role lately but even more so because of the political repercussions of its decisions. Analyzing critical court verdicts from a political point of view, this chapter suggests that growing judicial activism and assertiveness in contested areas of political relevance in Thailand, while partly driven by institutional arrangements and the interests of judges themselves, is best understood as a direct outcome of more general intra-elite struggles and the use of the judiciary by Thailand’s traditional monarchical networks in their battle over political control. In this analysis we cannot avoid looking not only at the judicialization trend but also at where it seems to be leading: to the growing politicization of the institutions that should be guardians of the rule of law, protecting it from the encroachments of politics. The Thai case shines a spotlight into the shadows behind the judicialization trend, making it clear that judicialization is just one point on a spectrum that may ultimately lead to a serious distortion of the rule of law as it has traditionally been understood. To advance this argument, we first briefly review the permutations of the Thai judiciary over time, with particular attention to the effects of the 1997 and 2007 constitutions in respect to judicial review. Second, we evaluate the political context of critical verdicts between 2006 and 2008, highlighting the role of the Constitutional Court. We then explore in detail what has driven the changes in the role of the judiciary. Finally, we offer some reflections on what these findings mean, not just for politics in Thailand but also more generally for the theoretical debates on the judicialization of politics.