Thailand's constitutional democracy will not be perfected until its courts have established an effective check on the majoritarian powers of parliament. This opportunity is now before Thailand's Constitution Court.
A policeman checks the entrance door of the Constitution Court headquarters as part of safety measures amid frequent protests against the charter court by pro-government groups. THITI WANNAMONTHA
The great American chief justice John Marshall (1755 - 1835) gave birth to effective democracy in the United States with his Supreme Court opinions in the early decades of the 19th century when Kings Rama I, Rama II and Rama III ruled in Siam. In this cause of building a good democracy was his opinion in the case of Marbury v Madison.
As Aristotle, Cicero, John Locke and the drafters of the American constitution all realised, democracy can turn cruel and unjust. The votes of a majority can be bought or otherwise manipulated by factions or unscrupulous individuals. Majoritarian rule does not always bring justice or fairness.
What sustains popular government is responsibility and accountability. Power unchecked becomes power abused. To encourage the proper use of power, decision-makers must be made accountable to other sources of judgement. If they dominate the people, they are not accountable to them. Thus, they must be made accountable to a higher standard of right and wrong _ the law under constitutional governments.
The courts then have the duty to hold governments accountable. Thailand's Constitution Court has been given this role. Should it rule that parliament was wrong in wanting to change the constitution in order to favour a temporary factional majority, the court would properly serve the Thai people by promoting responsible government.
During his tenure as chief justice, Marshall was bitterly attacked by Thomas Jefferson and his Democrat Party for being more loyal to the law than to the will of the people. Marshall's answer was that even the people are subject to the law.
The Marbury case gave Marshall the opportunity to uphold this role for the law as part of the American constitution.
Marshall belonged to the Federalist Party when fellow Federalist John Adams was president. Adams appointed Marshall to be chief justice. On his last day in office, Adams made other appointments. One was a certain Marbury.
The new administration of Thomas Jefferson refused to issue the certificate of office to Marbury. Marbury then sued in court to get an order forcing Jefferson's secretary of state, James Madison, to issue the proper certificate.
The case came before the Supreme Court. John Marshall ruled for the Jeffersonians against Marbury. Marshall ruled against his own political party in the case.
But famously Marshall used constitutional principle to reach his conclusion. He sacrificed a pawn, Marbury's job, to get a checkmate result for democracy _ constitutional checks and balances.
Marshall ruled that the statute passed by the Congress giving the Supreme Court jurisdiction to hear Marbury's complaint violated the constitution and so the court had no authority to accept his case.
Marshall thus put the Supreme Court over the majority will of the legislature if ever the legislature violated the constitution.
"It is a proposition too plain to be contested that the constitution controls any legislative act repugnant to it, or that the legislature may alter the constitution by an ordinary act. Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it."
If the former part of the alternative be true, then a legislative act contrary to the "constitution is not law; if the latter part be true, then written constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable".
Jefferson and his party accepted Marshall's opinion in order to get the short-term result they wanted _ no commission for Marbury. But when they accepted the decision, they had to accept Marshall's reasoning that the courts could put limits on the legislature.
Thus John Marshall secured acceptance in practice of the rule and practice which has made the United States a "good" democracy for 200 years. To distinguish American democracy from abusive democracies, it has been called from the beginning a "representative democracy" under a government of limited powers.
Chief justice Marshall famously put the matter this way: "The Government of the United States has been emphatically termed a government of laws, and not of men. It is emphatically the province and duty of the judicial department to say what the law is."
Just last year, the US Supreme Court ruled that part of President Obama's health care law was beyond the constitutional authority of the Congress and therefore was void.
As Marshall held, US courts still play an important role in promoting fully democratic, not merely majoritarian, justice.
Thailand's need for social justice must be met by first subjecting its government to constitutional law as John Marshall achieved for the United States.
Stephen B Young is former Dean, Hamline University School of Law.
About the author
Writer: Stephen B Young