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Judicialisation of politics is a worldwide phenomenon

Judicialisation of politics, characterised by a growing reliance on courts to adjudicate moral dilemmas, public policy questions and political controversies, is a worldwide phenomenon. Thailand is no exception.



In this country, it all started with the 1997 Constitution, which listed a comprehensive catalogue of citizens' rights and imposed tight control on politicians and political parties. That necessitated the establishment of the Constitution Court and the Administrative Court as well as the Criminal Division for Holders of Political Positions and Election Division in the Court of Justice.

These three courts are considered part of the judiciary, which exercise powers, duties and functions under the Constitution with the express purpose of maintaining checks and balances on the executive and the legislative branches of government.

According to Prof Dr Ran Hirschl, a leading constitutional law expert, who wrote the book, "Towards Juristocracy: The Origins and Consequences of the New Constitutionalism", the listing of citizens' rights in the charter not only provides institutional frameworks for courts to become more vigilant in their efforts to protect the fundamental rights and liberties of citizens but also enables them to expand their jurisdiction to address political controversies.

Which was exactly what has been happening in Thailand since 1997. But it was only until the courts made their decisions on a series of high-profile cases in 2006 and 2007 linked to the protracted political crisis that it became clear that judges could and can continue to influence momentous political outcomes.

In May 2006, the Constitution Court nullified the April 2 general election, boycotted by key opposition parties at a time when Thaksin was about to introduce one-party rule in the face of a middle-class revolt.

The watershed ruling was made after His Majesty the King delivered an important speech on April 25, 2006, calling on top judges to exercise their authority under the constitutional frameworks to resolve the crisis.

The Constitution Court's ruling was followed by a July 25, 2006 guilty verdict handed down by the Criminal Court against three members of the Election Commission for malfeasance, leading to the selection of a new Election Commission.

From then on, terms such as judicial review process, judicial activism and judicialisation of politics have entered Thailand's political vocabulary.

Which one of these terms more accurately describes the radical expansion of the courts' domain and redrawing of the boundary of the judiciary's relationship with the executive and legislative branches of government? The answer is all of them, in different contexts or under different circumstances.

Judicial review can be loosely defined as routine adjudication of cases or deliberation on the legality of any government action or consideration of constitutionality of any legislation passed by parliament, which lie within the newly expanded domain of the courts.

Judicial activism, in the Thai context, may apply to particular incidents in which judges step out of the traditional domain of the courts and become actively involved in the drafting of a constitution or the making of laws or through more creative interpretations of law.

Judicialisation of politics is part of a worldwide trend that goes hand in hand with the constitutionalisation of democratic politics, in which the courts are called upon to impose judicial reviews on an increasing number of issues concerning the electoral process and the design of democratic governance institutions.

Thailand has seen more clearly the exercise of all these judicial prerogatives before the ousting of elected government in a military coup in September 2006, during subsequent military rule in the drafting of the Constitution and now in the ongoing attempt to put Thailand's democracy back on track to recovery.

In the coming weeks and months, the Court of Justice, Constitution Court and Administrative Court will again be the focus of public attention in the way they discharge their respective responsibilities in their enhanced roles and new-found powers. Their decisions, which will have a great bearing on democratic politics in this country, are being closely watched.


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