The speeches by the King of Thailand to the Supreme Court and Administrative Court judges on 25 April 2006 have with good reason been reported all around the world. Among his remarks, he told the judges that
“When an election is not democratic, you should look carefully into the administrative issues. I ask you to do the best you can. It you cannot do it then it should be you who resign, not the government, for failing to do your duty. Carefully review the vows you have made… I ask you to carefully study whether you can make a point on this issue. If not, you had better resign. You have been tasked with this duty. You are knowledgeable. You must make the country function correctly… Conduct your discussions with people based on knowledge, honesty and faith in your duty to resolve this situation. The country should function according to the law.”
These comments come at a crucial time. If a judiciary is to mature, it must go beyond merely implementing laws passed to it by the legislature. It must play a lead role in developing the constitutional law needed to handle political affairs. And that is where Thailand’s judiciary finds itself today. It is a watershed not only for the courts, but the entire democracy of this vitally important Southeast Asian country.
Some misunderstand expanding constitutional law as the starting point for unwarranted judicial meddling in politics. However, there is a world of difference between unjustified intrusions and much-needed legal interpretations on constitutional matters. The superior courts are the bulwark preventing a country from falling victim to the schemes of bad politicians or powerful persons who are willing to sacrifice the greater good for their own gain. The test of a mature and wiser judiciary is that it understands this distinction and carefully but unhesitatingly exercises its authority when the national interest is at stake.
There are many good examples for Thailand to follow in developing its constitutional law.
In the United Kingdom, United States, South Africa and other countries, citizens are entitled to seek judicial review of key decisions that affect individual rights and the public good. This provides an opportunity for the people and the state to come before a court and engage in direct debate, after which the judges make a decision based upon sound legal principles.
In Germany and France there exist constitutional bodies for the same purpose. The Constitutional Court of Germany emerged after the Second World War when there was widespread dissatisfaction about the Weimar constitution, which had proved incapable of preventing a dictatorship. The court can curtail political power to prevent its abuse. It stands above all other courts and institutions in Germany. The judges are among the most eminent persons in the country, who have won national confidence for their knowledge, integrity and wisdom. The Constitutional Council of France, introduced under the Constitution of the Fifth Republic in 1958, was established to overcome the political instability caused by earlier judicial interventions. This council is comprised of all the former national presidents together with other esteemed persons of relevant backgrounds. It seeks to obtain consensus out of conflict, with due regard to the fundaments of democracy and human rights. Observers have credited the council with improving the governance of France in recent years.
The kinds of issues taken up by these bodies are now those that the judges of Thailand are being asked to consider. Was an election fair? Were enough votes cast? Was there a genuine contest? These are fundamental questions for a democracy. Where one party obtains inordinate power over the political process, it also damages the rule of law. Where the rule of law is damaged, the judiciary is obliged to intervene. And intervention into such areas requires a deep discussion of their constitutional bases.
These are also new and dramatic challenges for Thailand, where the idea of the courts having a role in constitutional growth is still in its infancy. The authority of the courts there has been very limited. There are as yet no avenues for persons coming to the courts to enforce their constitutional rights directly. They must depend upon enabling laws. Where there are no laws, they have no access to their rights, even where guaranteed by the constitution. Nor has Thailand’s Constitutional Court yet been able to understand or develop its role. So the country now finds itself in strange but promising territory.
The Asian Human Rights Commission views the King’s comments as the beginning of the most important legal and political debate that Thailand has seen since the passing of military dictatorship; perhaps the most important of its modern history. They point the way for the country to move forward and build a sophisticated and enlightened constitutional jurisprudence that may be compared with the best in the world. There are of course many obstacles ahead. There will be serious attempts to limit judicial authority, not only from politicians, but also from the army, police and other entrenched vested interests that had up until recently enjoyed unchecked powers. However, if the people of Thailand respond properly to the King’s remarks then they may transform a long history of authoritarian rule into a democratic future. And for this they can count on the support and goodwill of countless others around the world.
