Khemthong Tonsakulrungruang, ‘Thailand: An Abuse of Judicial Review’ in Judicial Review of Elections in Asia (Yap Po Jen ed., Routledge 2016). 1 Thailand: An Abuse of Judicial Review Khemthong Tonsakulrungruang Since 2006, the Constitution Court has invalidated two elections, dissolved six political parties and banned multiple party members from political life in its bid to uphold fair and honest elections. But judicial review in Thailand appears to be attempts by the Court to eliminate allies of the former Prime Minister Thaksin Shinawatra and to tilt the political balance in favour of the elite minority in Thailand. These decisions have led to political deadlocks and two coup d’états. Thus, instead of promoting democracy and the rule of law, the Judiciary has deepened the conflict and has obstructed the democratic process. This article reviews the expansion of judicial review power as well as its contribution to the ongoing constitutional crisis. 1. Thailand’s Backsliding Democracy Vibrant democracy needs more than the holding of periodic elections. Around the world, newly-democratised regimes are being toppled because the public are disappointed by election results. 1 Instead of recruiting a government responsive to the people’s will, an election oftentimes acts as a gateway for corrupt politicians to form a government and enrich themselves. Thus, while elections may mark the beginning of the country’s democratisation, an unfair and dishonest election could also mark its end. 2 Judicial review of an electoral process is necessary to ensure the fairness of the poll. Review by an independent and professional judiciary would improve the legitimacy of the government, and ultimately ensures the survival of the regime. The 1997 political reform aimed to consolidate Thailand’s democracy. 3 Although it has been 80 years since official democratisation took place, Thailand still oscillates between authoritarianism and weak democracy. One key factor that contributes to an incomplete democratic consolidation is the low public confidence in the electoral process, one that has historically produced corrupt governments. As a result, a significant number of Thais do not regard democracy as the only game in town. The 1997 Constitution as applicable then established the Constitutional Court and assigned to it the duty of reviewing the constitutionality of the government’s actions. 4 1 Marc Saxer, Building the Good Society in Thailand: Resolving Transformation Conflict through Inclusive Compromise (Friedrich-Ebert Stiftung 2014) 2-3. 2 ibid. 3 The 1997 political reform was the consequence of the 1992 Black May incident when the emerging middle class protested against the military’s attempt to dominate Thailand’s politics. These middle class protesters were a result of decades of economic success under authoritarian regimes in the 60-70’s. The clash left many dead and several people missing. The military was defeated. The deadly clash spurred the call for a reform to create a more democratic constitution that would introduce transparency and stability into Thailand, and permanently securing democratisation. See Chris Baker and Pasuk Pongpaichit, A History of Thailand (2nd edn, Cambridge University Press 2009) 246-257 and Tom Ginsburg, 'Constitutional Afterlife: The Continuing Impact of Thailand's Postpolitical Constitution' (2008) 7 International Journal of Constitutional Law 83, 89-91. 4 Shinya Imaizumi, 'The Political Reform and the Constitutional Court of Thailand' (Japanese External Trade Organisation 2003) 8 and Tom Ginsburg, 'Constitutional Afterlife: The Continuing Impact of Thailand's Postpolitical Constitution' (2008) 7 International Journal of Constitutional Law 83, 94.