There's no cause for surprise or dismay. Over the last generation the economy has quintupled in size, borders have come down, the social profile has been transformed, aspirations have multiplied and new conflicts have emerged. The political culture is stumbling to catch up.

This week the judiciary was summoned to play a greater role in the political life of the nation. His Majesty the King said: "Supreme Court judges have the right to talk to other courts, the Constitution and administrative courts. There is nothing to forbid this. The Supreme Court has the right to speak out, to make rulings. Thus I request you consider matters and consult with other judges, with the Administrative Court, about what should be done."

Up to now the courts have played a very limited role in Thai politics compared with other democracies. There are no precedent-setting judgements punctuating Thailand's political history. Prior to the last few days most people would not have known the name or face of a single senior judge.

The 1997 Constitution was supposed to be framed around the principle of the separation of the three major powers, executive, legislative and judiciary, but the charter concentrated heavily on the first two of these. For providing checks and balances on the executive, the charter did not look to the existing judiciary but rather set up a raft of new "independent bodies", including a Constitution Court outside the mainstream judiciary. The charter seemed to confirm the judiciary's exclusion from a political role.

In the main academic study of the 1997 Constitution ("Reforming Thai Politics", edited by Duncan McCargo), the judiciary does not merit an entry in the index. The new administrative courts are mentioned only once in the study, without comment or analysis. They were not rated as a significant part of the reform.

The new importance of the judiciary is a result of what has happened since.

The executive became far too powerful. Thai Rak Thai's election victory and acquisition of minor parties reduced the legislature to a purely decorative role. Thaksin argued that an executive legitimised by election was supreme and the independent bodies had no right to impose checks and balances: "It's strange that a leader who was voted in by 19 million people has to bow to organisations composed only of appointed commissioners and judges, whom people do not have a chance to choose."

The key weakness of the Constitution proved to be the fantasy that an apolitical Senate would appoint members of "independent bodies" who were truly independent enough to act as checks on the executive. It took around a year to organise a government majority in the Senate through money and patronage. This majority has been maintained and probably strengthened in the new Senate by investing up front in the local networks that manage elections. The checks were cancelled and the balances overturned.

We have seen the consequences in the Election Commission's conduct of the recent poll. It destroyed the principle of the secret ballot, connived in wholesale fraud over candidacies, handed down rulings that effectively legitimised vote-buying and repeatedly broke its own rules and regulations. In the service of the executive, this body has undermined all the principles for which an independent commission was created.

People have not automatically turned to the judiciary as a counterweight to the overly powerful executive, simply because there is no such tradition from the past. Rather the exact opposite happened. The overly powerful executive tried to recruit the judiciary to crush attempts to monitor and criticise the executive's actions. This resulted in the epidemic of defamation suits that broke out last year and the rash of lese-majeste suits in recent weeks.

But the political role of the judiciary had begun to change even before the royal summons. Most attempts to use the courts to harass and intimidate critics have failed. Judges have quietly rejected many of the defamation actions. In the high-profile case of Shin Corp against Supinya Klangnarong, the judges not only threw out the case but also wrote an eloquent and precedent-setting ruling upholding the principles of free speech and the public right to criticism.

Most important has been the role of the administrative courts. These were created under the 1997 Constitution but with a major difference from the "independent bodies". They are part of the mainstream judiciary, with only some minor special features. The commission overseeing the appointments of administrative judges has three members appointed by the legislature, but the other 10 are judges elected by their peers.

This makes the administrative courts free from the political-patronage networks that have ensnared the 1997 Constitution's "independent bodies". The administrative courts have used this independence to hand down several bold rulings. They have taken decisions on grounds of "public interest", most strikingly in the case involving Egat privatisation.

Previously the courts shied away from such rulings, hiding behind the idea they could decide only in favour of directly injured parties. This was a major reason the courts did not have the same impact in Thai politics as in other democratic systems. That is now changing.

The coming amendment of the Constitution should take the judiciary more seriously as a way to balance the executive, but if the political role of the judiciary is set to expand, there is a need for internal changes. The judiciary was not subject to the reforming impulse of the 1990s. The courts are overloaded. Procedures are primitive. Legal education is narrow.

Thai democracy will be strengthened if the courts play a bigger role as upholders of the rule of law in the political jungle. This could be a major outcome of the current crisis, but the judiciary will have to reform itself to perform this role well.

Chang Noi

The Nation