For much of the 20th century, Thailand’s judicial system stood out as being relatively professional and apolitical. In his 1913 book Siam, Walter Graham claimed, “The Ministry [of Justice] has built up a service probably the cleanest and straightest Siam has ever seen, and containing in its ranks officers who could compare favourably with the members of the judiciary of many European countries.” According to a recent Asia Foundation survey, around two-thirds of Thais believe the judiciary conforms to a high level of integrity and is generally unbiased – the best rating of all institutions surveyed.
Yet, over the past decade, the judiciary’s standing has suffered considerably. Red Shirts allege that judges have applied a “double standard” and engaged in judicial activism (thulakarnwipat) against former Prime Minister Thaksin Shinawatra. While it is always difficult to assess accusations of judicial bias – after all, one party always loses in every case – Thai courts have undeniably become more involved in political life. In late 2008, there were even rumors of a plot towards a “judicial coup”. Contrary to popular belief, this politicization did not simply begin in April 2006, when King Bhumibol appealed to judges to resolve the political crisis. Rather, it has roots – or at least its seeds – in judicial reforms at the end of both the 19th and 20th centuries.
Historically, provincial governments exercised informal judicial powers, along with tax collection and public works. Often, the “judges” were elders or patrons within the community, making justice highly personalized. Sessions resembled mediation more than the formal proceduralism of a modern court. More serious cases could be appealed to the king himself. However, by the mid-19th century, two developments forced Thailand to launch judicial reforms: state-building and foreign encroachment.
King Mongkut’s drive to centralize and rationalize the Thai state requried changes to the judiciary. Interestingly, he briefly introduced judicial elections – but reversed himself soon after. King Chulalongkorn sent his son Prince Rabi to study law at Oxford. Upon his return, he headed the Ministry of Justice (MOJ) and spearheaded judicial reforms. In 1891, the MOJ centralized the courts within the ministry, in no small part to undercut local aristocrats and augment the king’s influence over judicial affairs. By 1908, the entire judicial apparatus was under the MOJ – and the monarchy. (Interestingly, Prince Rabi is now known as the “father of modern Thai law and judicial system” and his death on August 7 is still honored in Thai legal circles)
If the monarchy’s desire to centralize power determined the timing of judicial reform, European encroachment shaped its direction. Citing the inequities of Thailand’s pre-modern judicial practices, European governments established foreign and international courts to handle cases involving their own citizens. Thailand’s subsequent judicial reforms were in large part an effort to counter this violation of Thai sovereignty. Thai lawyers worked with French and Belgian jurists to draft a legal code. Notably, Prince Rabi had favored a British-style common law system, which would have separated the judiciary from the MOJ entirely and allowed judges to make law. However, the government believed that a civil law code, such as those found in continental Europe, would make Thailand appear more “civilized” to French observers. The plan seems to have worked, and foreign courts were gradually phased out.
While the rest of Thailand changed drastically during the 20th century, the structure of the judicial system remained largely intact – at least until the 1997 Constitution.* The “people’s constitution” separated courts from the MOJ, which provided judges with de jure independence. The Court of Justice hears general legal disputes and has special benches for civil and criminal cases, as well as tax, labor, intellectual property, and juvenile benches. Perhaps more importantly, the constitution gives judges an explicitly political role. The Supreme (Dika) Court hears election-related disputes, as well as cases of political corruption or malfeasance in its new Criminal Division for Persons Holding Political Positions. In October 2008, this division sentenced Thaksin to prison for two years (in absentia) for facilitating a “heavily discounted” land sale from Bank of Thailand to his wife. This past February, the Court held that Thaksin had abused his authority for personal enrichment and ordered the seizure of 46 billion baht, around half of his frozen assets.
The 1997 Constitution also created a new Administrative Court to review administrative rules and acts for compliance with procedural fairness. The introduction of judicial review to Thailand (the Courts of Justice lacked this power) made judicial activism almost inevitable. The Supreme Administrative Court twice rejected Thaksin’s appointments to telecommunications regulatory commissions for raising conflicts of interest. In November 2005, it rejected the privatization of Egat because the government had not conducted a proper public consultation. The following year, it decided that at least 70% of iTV’s programming must consist of news, and that past violations incurred fines of 94 billion baht – a considerable blow to Thaksin, whose Shin Corp. was a majority stakeholder in the company. It is no coincidence that the recent junta kept the structure of the judiciary largely intact in the 2007 Constitution.
However, de jure judicial independence does not necessarily mean de facto impartiality. Under both the 1997 and 2007 Constitutions, judges swear an oath to the king and exercise power in his name. Moreover, the recruitment process leads to a corporate insularity amongst judges. Unlike common law judiciaries in America, where judges generally possess a variety of legal backgrounds, in civil law countries like Thailand younger law graduates can take an exam to join the judicial service. New judges must undergo yearlong training, resulting in early socialization with the judicial bureaucracy. A Judicial Commission consisting mostly of fellow judges screens and nominates judicial candidates. This ensures that judges whose views align with the conservative judicial elite are more likely to receive appointments and promotions. Ironically, the decision in the 1890s to adopt a civil law system created a socialization process that might not have arisen had Prince Rabi prevailed (much less with Mongkut’s judicial elections scheme).
To be clear, Thailand’s judiciary is not unique for its anti-populist attitudes, and similar trends can be found throughout the civil law world. Nor is this phenomenon particularly recent. During the 1970s, Supreme Court Justice Thanin Kraivixien hosted a television program in which he attacked the “inseparable trio of communism, student activism and progressive politics.” He became prime minister after the coup in 1976, leading perhaps the most rightwing administration in Thai history. Thai courts have also consistently rejected claims from the families of victims of the bloody crackdown in May 1992. Thus, there are sound reasons to suspect that the judiciary’s current stance stems from deeper structural and historical forces than simply the recent political crisis.
*Of course, the 1997 Constitution also created the Constitutional Court. Because of its importance in recent Thai politics I will dedicate a separate New Mandala post to it later this month…
Dominic J. Nardi, Jr. received his J.D. from Georgetown and has a Masters in Southeast Asian Studies from Johns Hopkins SAIS. He is the author of several articles about rule of law issues in Southeast Asia, particularly constitutional and environmental law. He will begin his Ph.D. in Political Science at the University of Michigan this fall.