Reverse abusive constitutionalism and illiberal judicial activism

In the end, despite the Constitutional Court's rigorous defence, Thai democ­racy succumbed, not to unscrupulous and opportunistic politicians as the Constitutional Court had feared, but to a military coup d'etat just as before.

This juxtaposition - the fact that the Constitutional Court was so concerned about abusive constitutionalism but failed to resist an outright coup - suggests that unamendability may actually be invoked to safeguard regimes that are dis­tinct from the liberal democratic model. Indeed, the Court's decisions reflected fear of the majority's wisdom, which is the root of Thai-style democracy. This section tries to unravel the judiciary's link to Thai-style democracy and its role in the politics of unamendability.

It was not fear or intimidation that co-opted the judiciary. Thai judges have never been cowed into rubberstamping the coup; rather, they were persuaded to willingly entrench the illiberal regime.^[630] The court has long been a faithful accomplice of Thai-style democracy. The judiciary and the army are two mod­ern institutions founded by King Chulalongkorn over a century ago during the modernization of the Siamese Kingdom.

Thailand's unamendability 183 with high-ranking men in cloaks and uniforms.^[631] Army commanders may stage a coup and appoint themselves prime ministers but former supreme court judges too were appointed prime ministers in times of political crisis.^[632] Several presi­dents of the supreme court and army generals became privy council members, personal advisors to the king, after retirement.^[633] The two institutions therefore are the bastions of conservative royalists. They were part of a vast network of the king's allies.^[634] Citing the success of a coup as evidence of the junta as the right­ful de facto sovereign, no judges ever challenged the legality of a coup regime.^[635] Quietly, then, the judiciary is a supporting pillar of the coup regime.

The 1997 Constitution assigned the judiciary as the guardian of the constitu­tional order. However, before the 2006 crisis, when Thaksin won a landslide vic­tory and dominated Thai politics, King Bhumibol granted an audience to newly appointed judges where he gave a speech encouraging the judiciary to rescue the nation from political deadlock.^[636] That speech arguably galvanized the judici­ary and mobilized it to be more politically active.^[637] The Constitutional Court, and later the Supreme Administrative Court, responded by invalidating the 2006 election, paving the way for the coup.^[638] The decision marked the beginning of judicial activism which has lasted until today. The 2007 Constitution equipped the judiciary with more tools to control politicians, such as the power to dis­solve political parties. Courts were granted more independence. Judges would be appointed to watchdog agencies. The judiciary and independent watchdog agencies had their jurisdiction expanded.

When the Constitutional Court is to deliver a decision that is of huge public attention, it is read aloud before the parties and televised countrywide. The per­formance served two purposes. First, it publicly reprimanded the government of

Yingluck for its stubbornness. Second, and more important, it set the narrative for what democracy officially is.

In the 2013 and 2014 decisions, the Constitutional Court repeatedly warned about a possible abuse of democracy to undermine the democratic regime. The Constitutional Court did not regard an election as a sufficient criterion for a genuine democratic regime, which, according to the Court, must be for the ben­efit of all people. An elected government, meanwhile, only enjoyed temporary endorsement of some but not the whole polity, and acted only for the benefit of those voters. Thus, what is democracy? In addition to the majority rule, the Constitutional Court posited that the rule of law must be maintained. The rule of law meant, at least, the separation of powers and respect for rights and liber­ties. A truly democratic regime had to shield the minority’s interest from abuse by the majority.

While the Constitutional Court was right that the concept of democracy extends beyond mere elections, it adopted a very negative view of politicians who may, in the Court’s own words, be ignorant and drunk on power. Power might be used to lead to corruption and conflicts of interest. The Court criticized politi­cians for abuse, ignorance, greed, conflicts of interest, and unduly enriching one’s family, while it promoted values such as selflessness, the benefit of the whole nation, honesty, righteousness, and independence. In summary, these sermon­like decisions showed the Constitutional Court’s fear that the shrewd politicians would claim the majority’s mandate to dismantle democracy, to grab power, and to enrich themselves.

But when it came to unamendability, the Constitutional Court remained vague about the fundamental structure of the democratic regime with the king as the head of state. There were no tiers of importance or well-demarcated provi­sions where politicians could not venture. The Constitution appeared very fragile as every topic, every change the 2007 Constitution had introduced, was not to be amended. This vagueness confirms that unamendability served as a pretext for this regressive judicial activism.

The effect of the Constitutional Court’s judicial review of amendment was illiberal. The Constitutional Court may have condemned politicians and criti­cized the majority. It may have claimed that it was safeguarding constitutional democracy from abuses. However, these claims are inaccurate. What Thailand was experiencing under the 2007 Constitution was not abusive constitutionalism, where politicians employed constitutional means to dismantle democracy. The roles are reversed in the Thai case. The 2007 Constitution could hardly claim to be democratic. With benefit of hindsight, the 2007 Constitution operated in a transitional phase between the vibrant liberal democracy of 1997 and the 2017 hybrid Thai-style democracy. The 2007 Constitution did not succeed from its popular predecessor, the 1997 Constitution. That succession was interrupted by the coup. It did not represent the will of the people. The 2006 coup was controversial and Thailand was divided. It was drafted against the will of many, if not the majority. Drafters were picked from the junta’s friends. There was

Thailand's unamendability 185 little participation as the country was then under the military-backed nonpartisan government. The Constitutional Court's emphasis on a referendum as the source of democratic justification, while ignoring the nature of the whole process, was therefore misleading.

Even the referendum was questionable. Proponents of the 2007 Constitution enticed voters by acknowledging all the flaws but promising that they could amend the constitution later. They encouraged people to be strategic. By accept­ing the 2007 Constitution, they explained, the junta would cease to function and a general election would be called. The referendum was passed by a very thin margin. The Constitutional Court ignored such irregularities.

As a result, Thailand's amendment cases present a more complicated situation. An amendment could not be said to be an undemocratic sabotage of a properly democratic constitution. To the contrary, Yingluck's amendments could be seen as practical attempts to correct the wrongs of the 2007 Constitution. She was fully aware that a new constitution was unrealistic as the network of conservatives who had just staged the 2006 coup would never allow her to abolish its legacy, so amendment was the only solution. Yet, these amendment proposals contradicted the primary constituent power, which derived from the coup makers and was arguably less democratic than the amendments themselves.

In this circumstance, the principle of unamendability was invoked to hinder, not to protect, constitutional democracy. The senatorial appointment power, and the treaty-making power, as well as the party dissolution power, all of which were described by the Constitutional Court as part of the identity of the 2007 Constitution, were introduced into law without approval of the majority in order to constrain their representatives. They deviated from the people's will in 1997 and the amendments aimed to reset such provisions. In theory, the people were left only with the choice of abolishing the 2007 Constitution and draft­ing another charter. But constitutional replacement, of course, could not take place. The army then staged another coup against the very constitution it had sponsored once it realized that the 2007 Constitution had failed to stop Thaksin.

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