Thai Constitutional Courts and the Political Order

Abstract

The article deals with the constitutional courts (CCs) of the Kingdom of

Thailand and the impact they they have and had on the political order and vice

versa. Especially the present CC, introduced by the 2007 Const. after a military

coup d´ état in 2006 against then Prime Minister (PM) Thaksin, attracted attention

when it terminated in 2009 two subsequent governments of his political camp

which came to power again after the first post-coup elections. It is the ongoing

conflict between these two camps, the red camp of ousted PM Thaksin,

perceived to be a threat for the established role of the monarchy and those who

defend this role, the yellow camp, which forms the background against which

the CCs performance often was explained. In fact, the conflict is not only about

a disputed political leader and the preparations of his coming back, but about the

basic conflict how the country shall be governed. Latest since demonstrations of

the red camp have been cracked down violently by the then yellow

government in 2010 the opposition against the established constitutional system

became a fundamental one. The yellow government came to power following

the above mentioned CCs impeachment of a red PM and the dissolution of his

political party. After the red camp gained an overwhelming majority in

parliament with the second post-coup elections again, the new government

introduced the plan for a major constitutional reform. The reform threatened to

redefine the role of the CC and was provisionally stopped recently by an

injunction order of the CC. Main reason was that it could not be excluded that the

reform would not change the basic structure of the constitution which is formed by the sublime and differentiated role the monarchy plays in it. Interesting is, how

important not only the overall performance of the present CC seems to be defined by its function to protect this basic structure but the whole idea of constitutional review in Thailand including the previous CC under the const. of 1997 which has been abolished by the coup of 2006. The very concept of constitutionalism in Thailand and its challenge by a particular leader on the one hand and a competing concept of constitutionalism on the other seems to be a key to a substantial understanding of constitutionalism and the function and performance of constitutional review in Thailand at heart. The first one of these competing concepts of constitutionalism is the very Thai concept which integrates elective mechanisms in a system which is very much defined by the role of the

monarchy. It is facing an emancipating concept of elective democracy which

firstly gave the populism of then PM Thaksin ground while it received a more

universalistic stance in the interpretation of parts of the red-shirts, a street based protest movement, allied with Thaksin but not identical with his political party. Elective democracy, according to all Thai constitutions, has to be framed by the autochthon Thai concept to which it is subordinated. The thesis for this study is that it was one of the key functions of both CCs to discipline this concept.

Insofar mission and design of constitutional review in Thailand responded to

widespread misuses, namely in form of vote buying, as well as a political

narrative reinforcing its destructive potential in contrast to the essence of the

positive counter － narrative of Thai-style democracy. The latter is forming not

only forming the basic structure all Thai constitutions in recent decades and in

the same time also a political narrative with historical, cultural, religious and class

－ orientated implications which could be described as the － historically contingent and conceptually fluid － very Thai version of the so called Asian values. While the first CC functioned very well in disciplining elective democracy by using its far reaching powers to dissolve political parties and disqualify politicians, it failed to do so, when mega politics have been affected in person of then PM Thaksin. After his populist based regime was aborted by the coup, the present CC became the decisive force to fulfill the same mandate proactively especially in cases pertaining to mega-politics.