Thailand appears to be a country of 70 million, ultimately ruled by an unelected few. This sobering reality was on display when two connected groups of top generals seized power from democratically elected governments in September 2006 and May 2014. Unlike these blatant military coups over the past two decades, at issue now is the power and role of the judiciary. While Thailand has another democratically elected civilian government under Prime Minister Srettha Thavisin, the question that needs to be asked is whether the country is effectively under judicial rule.
The Constitutional Court's acceptance of a petition from 40 caretaker senators to review the ministerial statuses of Mr Srettha and Pichit Chuenban, a minister attached to the Prime Minister's Office, has rocked government stability overnight. Thailand's prime minister could be suspended from and plausibly expelled from office in subsequent weeks. According to the senators, Mr Srettha's appointment of Mr Pichit to the cabinet violates moral and ethical grounds codified under Article 160 of the military-inspired 2017 constitution.
In the event, the nine-member bench has gone halfway by accepting the petition but not ordering Mr Srettha to stop work while their adjudication takes place. The prime minister now has 15 days to mount a defence of his position. It did not matter that Mr Pichit resigned in the interim in an effort to avert a political crisis involving the premiership. To be sure, Mr Pichit is a controversial figure. In 2008, as a lawyer for Pheu Thai Party founder Thaksin Shinawatra, Mr Pichit and two colleagues tried unsuccessfully to bribe Supreme Court officials for a favourable judgement related to a land deal. Mr Pichit was promptly convicted and served a six-month jail sentence. His lawyer's licence was also revoked.
His cabinet appointment is widely seen as payback for loyalty to Thaksin, who has returned to Thailand after 15 years of self-imposed exile. Since he has had his eight-year sentence for corruption reduced to one year, hospitalised for the initial part of it and paroled for the rest, Thaksin has been out and about in Thai politics to the consternation and ire of his adversaries. Going after Mr Pichit was a way of getting at Thaksin. Mr Srettha just happens to be a casualty in the same old conflict between Thaksin and his enemies.
But for Thailand, there is an immeasurable price to pay for ousting elected prime ministers at will, time and again, by way of judicial navigation. Thailand cannot be an attractive investment destination to outsiders if its democratically elected leader and government can fall by the wayside overnight on what appear to be weak charges. Lest we forget, Mr Srettha and the Pheu Thai Party-led coalition government were the second-best outcome after the election in May 2023, when the Move Forward Party came out on top. Move Forward, too, is under the Constitutional Court's gavel, with a likely party dissolution in the weeks ahead.
In fact, past records show a pattern whereby the Constitutional Court and its associates might play a role in navigating political direction.
Since 2001, every prime minister from each major election has been brought down either by the military or by the Constitutional Court, which has worked hand in glove with the Election Commission and National Anti-Corruption Commission. All it takes in this country is for one Thai adult with a valid national ID card to file a petition with any of these three agencies and it ends up with an ejection of the sitting prime minister under a certain mix of circumstances.
While Thaksin and his sister Yingluck Shinawatra were overthrown by the military, the late former prime minister Samak Sundaravej was infamously eliminated in 2008 for hosting a cooking show. Somchai Wongsawat, Thaksin's brother-in-law, also had his family-designated premiership cut short because the Palang Prachachon Party was disbanded in December 2008. The only two prime ministers who completed full parliamentary terms were Abhisit Vejjajiva of the Democrat Party, which took office with military backing after Mr Somchai's political demise, and Gen Prayut Chan-o-cha, who ran a military government between 2014-19 and for another four years after the March 2019 election.
Despite winning spectacularly at the poll last year, the Move Forward Party never really had a chance to form a government because of its deep reform agenda. Its leader, Pita Limjaroenrat, would normally be the prime minister today if Thai politics worked like it does in most other countries. Even Mr Srettha, now awaiting the Constitutional Court's pending decision, is at risk of being dislodged like other elected civilian leaders before him.
Accordingly, the pattern and evidence of judicial decisions that affect political directions have been clear for two decades. The Constitutional Court does not perform the duties and tasks of government on a day-to-day basis. Rather, the impact of the bench seems to raise questions in society. This was the case with both the administrations of Mr Abhisit and Gen Prayut. The record will show that those two administrations also came under charges but none stuck, including Gen Prayut's incomplete oath of office and violation of the eight-year premiership limit. Apart from the Constitutional Court, the Supreme Court's Division for Political Office Holders sometimes played its part in ejecting and keeping elected representatives at bay.
This judicial assertiveness has been dubbed "judicialisation" in academic circles. It means the judiciary ultimately calls the shots. Many societies fear a too-strong executive branch or a too-divided legislature. In Thailand, people have raised valid questions about whether the judiciary is too strong and is doing the bidding of the conservative establishment.