Thai Constitutional Court Decision on Move Forward is Judicial Overreach

Thailand’s nascent semi-democracy suffered a tremendous blow last week (31 January), when the Constitutional Court ruled that the Move Forward Party’s (MFP) campaign to reform Article 112 of the 2017 Constitution was tantamount to treason. The Court has ruled several times, delivering punishing blows to opposition parties, such as the dissolution of the Future Forward Party, But the recent Court decision is among the most consequential and far reaching and pushes the upper limits of judicial overreach.

First, a high court exists to serve within the boundaries of the law and produce legal decisions that are in keeping with established jurisprudence and established principles of law. While the Constitutional Court was established in 1997 via a Constitution deemed a work of “the people”, this is not the same institution it was intended to be. Since the 2006 coup, it has been seen as a guardian of the political status quo, ostensibly working in concert with military-aligned governments to preserve the Thai monarchy. In 2019, the Court declined to hear a case involving former Prime Minister Prayut Chan-o-cha’s oath of office, ending any further challenges related to it. In contrast, it declined to rule on a complaint over Parliament’s rejection of the May 2023 election winner, specifically Pita Limjaroenrat, the MFP’s selection for prime minister. In essence, such decisions further erode the legitimacy of the Court, where rulings can be viewed as political in nature, rather than on the basis of substantive legal opinion.

More troubling in the aftermath of the Constitutional Court’s ruling is a further blurring of lines in what is supposed to be a distinct separation of powers, with the Court interfering in what is supposed to be the purview of the legislative and executive branches of government. In a normal system with a working set of checks and balances, there would be no sense of impropriety. The swift passage of the 2017 Constitution gave junta-appointed Senators the power to block the majority party, thereby interfering with legislative action that would typically mostly align with issues that won the party favour with the Thai electorate. The Constitutional Court, by declaring Article 112 reform treasonous, has not only made normative checks and balances even more opaque, but it has declared itself above other courts, including the Supreme Court.  In keeping with tradition, the Court has kept the monarchy out of reach, or akin to what Duncan McCargo once described the network monarchy, a “para-political” institution, above politics, and markedly illiberal.

… the most devastating consequence of the Constitutional Court ruling is its potential impact on opposition political parties, the most important vehicle in having checks and balances in Parliament.

Eugénie Mérieau once argued that the Court was unsuccessful in becoming a “surrogate king” because it could not ward off the challenges of democratisation, political empowerment and electoral representation. Yet the recent decision strikes at the heart of all three. A generation of progressives created both a sense of awareness and group identity in advocating for monarchical reform and have been effectively told to stop all activity at the risk of prosecution. In addition, consistency in electoral representation has been compromised by the spectre of prosecution under a now-untouchable lèse-majesté law.

Pita, in response to the decision, rejected the notion that MFP aimed to “cause any deterioration of the monarchy”. He also lamented the fact that the country lost the chance to use Parliament as a forum to discuss the issue of reform with “maturity” with other members. In a move that further pushes the envelope of judicial overreach, former senator Ruangkrai Leekitwattana has immediately sought MFP’s dissolution through the Election Commission (EC), an unchecked body that allows almost unlimited challenges to political representation and legislative cohesion. The EC can refer complaints directly to the Constitutional Court, who now, when cases against politicians are brought before it that just faintly hint at weakening the monarchy, will most certainly spell the end of their careers.

With multiple challenges to MFP’s survival forthcoming, the Court decision sends ripple effects through any future legislative agenda, a clear sign of rampant judicial overreach. Little thought has been given to the implications of Section 49 of the 2017 Constitution which prohibits the “overthrow the democratic regime of government with the King as Head of State”. What are the boundaries of the term “overthrow”? In the past, MFP had been the first to bring legislative debate on the merits of the monarchy’s budget, before it was eventually passed in August 2021. In what capacity can the monarchy be diminished without it being interpreted as a desire to overthrow the monarch as head of state?

Even the composition of the Court itself, a chief argument made by critics who suggest it has succumbed to politicisation, is now possibly off limits. It consists of the President and eight justices which are approved by the Senate (still a junta-appointed body) and are appointed by the King. Challenging a body that has been intricately connected to conservative social and political elites would also raise red flags among conservative activists or “serial petitioners” such as former Senator Ruangkrai Leekitwattana.

However, the most devastating consequence of the Constitutional Court ruling is its potential impact on opposition political parties, the most important vehicle in having checks and balances in Parliament. Compared to unchallenged military-aligned parties, progressive parties — including MFP — are destined to remain in their infancy, barely gaining enough momentum to secure popular trust and support without being dissolved or recomposed into a different form. Following the dissolution of the Future Forward Party, the emergence of MFP signalled an evolution of the progressive movement. With the current turn of events, this too might have been an anomaly.

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