In August 2024, the Constitutional Court of Thailand (CC) issued two rulings that significantly impacted the trajectory of Thai politics. On 7 August, the bench dissolved the progressive Move Forward Party (MFP) for treason against the monarchy.[1] A week later, it dismissed Prime Minister Srettha Thavisin from the ruling Pheu Thai Party (PTP)-led coalition, citing a lack of honesty and integrity for appointing an ex-convict, whom the court deemed unqualified, for a cabinet position.[2]
Since its establishment in the 1997 Constitution, Thailand’s CC and the “Constitutional Tribunal” that was established in the interim period under junta control following the 2006 coup d’état[3] have become an increasingly influential force in Thai politics.[4] Over successive coups and constitutional revisions,[5] the court’s powers have expanded, increasingly yielding to the influence of the Senate – an undemocratic body under the current configuration. It has also issued several rulings that critics argue have weakened election integrity, often favouring outcomes that consolidate the power of ruling elites and undermine opposition parties.
The evidence points to a recurring pattern where the CC has been active during or directly following general elections, where MPs are dismissed, parties are dissolved, and in some instances, elections are voided. Using legal justifications to pronounce unchallengeable verdicts, the growing but unchecked judicial decisions on electoral outcomes raise concerns about the Court’s impact on electoral integrity – and therefore the state of democracy – in Thailand.
Independence and Credibility of the Constitutional Court
There are three areas – the broad scope of powers, the justice appointment process, and a lack of oversight – that have been argued to impact the independence and credibility of the CC.[6] Collectively, these elements have kept the Court unaccountable to the public and its controversial ruling in political cases has affected the perception of its legitimacy.[7]
Firstly, its powers. The CC first appeared in the 1997 “People’s Constitution”, a constitution viewed as one of the most democratic in Thailand.[8] Alongside an expanded Executive and Legislative, they created several “independent organs” – including the CC – to be largely insulated from the ruling government of the day for these organs to oversee and ensure accountability for political figures.[9] With broadened scope after successive coup d’état and enactment of military-imposed constitutions,[10] the Court’s jurisdiction covers a wide range of Executive, Legislative and political functions. Under the 2017 Constitution[11] and supplementary laws, this includes for instance, reviewing the constitutionality of laws and elections, evaluating the qualifications and conduct of political figures and parties, and preventing actions that are perceived to be “subverting the regime”.
Secondly, an undemocratic selection process in the 2017 Constitution ensures that the CC (and other independent organs like it) are made up of conservative judges and technocrats aligning themselves with traditional elites.[12] CC judges are nominated amongst the Supreme Court judges, the Supreme Administrative Court judges and a selection committee comprising the President of the Supreme Court, Speaker of the House, Leader of the Opposition, President of the Administrative Court and representatives from other “independent organs”.
Nominated individuals must then be approved by the Senate. However, this process lacks legitimacy as the senators themselves are not democratically elected. As of October 2024, all members of the bench were confirmed by Senators directly appointed by the military junta following the 2014 coup d’état. Future judges will be confirmed by a Senate chosen through a selection process that excludes the general public. This system undermines genuine democratic representation in the Senate and, consequently, the democratic legitimacy of CC.
Thirdly, a lack of effective oversight of the Court further exacerbates the concern. This manifests in two ways. One, the CC’s rulings are final and binding on all state entities. This restricts the ability of other institutions to review or challenge these decisions; thereby making decisions unaccountable to the public. Two, while the Constitution provides a mechanism for the removal of the Court benches, it rests on judges contravening an “ethical standard”. This, however, raises a conflict of interest since the “ethical standard” as referred to in the Constitution is a document that was created with input from the CC itself. This limits public scrutiny of the Court’s conduct.
Given its broad scope of power, undemocratic selection process, and lack of checks and balances, the CC process is frequently exploited by so-called “serial petitioners”[13] who align themselves with various conservative elite factions and file petitions harming political figures – primarily opposition – for political ends. In turn, the Court’s decisions frequently align with undemocratic principles, serve the interests of these petitioners, and instead subvert the will of the people cast at the ballot box during elections.
Court Rulings and their Impact on Election Integrity in Thailand
The CC’s rulings to date have resulted in the suspension of election candidates, dissolution of political parties and annulled elections. These rulings, in particular, subvert the choices of the electorate made during elections thereby eroding electoral integrity in the country.
First, the suspension of elected candidates through the use of legal technicalities.
Legal technicalities, like the moral conduct of politicians, are frequently cited by the CC to suspend and dismiss MPs and the Executive. In a case in August 2024, PM Srettha was dismissed by the Court – citing dishonesty – for appointing an individual the Court deemed as unqualified to a cabinet role. In his place, Paetongtarn Shinawatra filled in the PM seat soon after.
Another technicality is suspending elected Members of Parliament for owning shares in media outlets. This is done by using a broad definition of what a media outlet is – that covers entities that have a stated function of mass communications, despite not being currently operational. It also disregards considerations around the actual control an individual has over the entity.[14]
In November 2019, Thanathorn Juangroongruangkit, leader and MP of the Future Forward Party (FFP) (predecessor to the MFP) was suspended for holding shares in an inactive media company that had previously published lifestyle magazines.[15] Similarly, during the 2023 election season, a petition was filed to suspend Pita Limjaroenrat, leader and MP of MFP, for owning shares in a semi-defunct company that had once held TV broadcasting rights.[16] In the latter case, Pita was ultimately acquitted after documents were uncovered showing that the company was not registered as being involved in media activities.[17]
These cases highlight concerns about the use of legal technicalities without considering the broader impact on election integrity. They also suggest potential political motivations. A serial petitioner “exposed” Mr Thanathorn’s case just after his party won a significant number of seats[18], while Mr Pita’s case was brought to light by a conservative-affiliated petitioner a week before the election.[19]
Secondly, the Court’s rulings penalise parties who have proposed or campaigned on policies to reform the monarchy.
On 31 January 2024, the court ruled that the party’s platform advocating for amendments to the lèse-majesté law (Section 112 of the Criminal Code), which prescribes penalties for defaming or threatening the monarchy – along with their activities like bailing out those arrested under this law – amounted to the “exercise of rights or liberties to overthrow the regime of government”. The CC declared Section 112 as essential to the monarchy’s stability and effectively immune to amendments. For politicising the issue, including campaigning on this issue, Move Forward’s Party action was seen by the bench as tantamount to high treason. Consequently, the party was dissolved on 7 August 2024 and banned its executive committee members from political activity for ten years.[20]
In contrast, the Court rejected a petition seeking to dissolve the ruling Pheu Thai Party (PTP), which – before it decided to join a coalition with conservative and military-aligned parties – had also campaigned on amending Section 112. While the bench decided to dissolve MFP, it deemed the petition against PTP to be without merit, stating that it did not believe PTP intended to overthrow the political regime by campaigning on the amendment.[21]
Ultimately, by declaring views seeking to reform the political system as attempts to overthrow the regime, the Court suppresses political plurality during elections, which erodes the foundation of multiparty democracy in Thailand.
Thirdly, the Court’s past decisions to annul elections have not only rejected the will of the people but also raised concerns about the stability of future elections.
During the 2006 election, the CC cited several electoral irregularities that together formed its decision to annul the election.[22] Firstly, the Court argued that the decision to hold the election 37 days after the declaration – albeit technically constitutional – was unfair to other parties. This timing led to a boycott by other parties, leaving many districts with only candidates from the ruling Thai Rak Thai Party. As a result, the Court cast doubt on the authenticity of the electorate’s will. This decision raises concerns about the politicisation of the judiciary and the extent to which the Court can deem “technically constitutional” actions as contrary to democratic principles. Additionally, the Court cited concerns about ballot box placement risking voter privacy, despite no evidence of widespread manipulation presented.
Then, following the 2014 election, the Court ruled the election unconstitutional because the Electoral Commission failed to conduct voting in all districts due to a lack of candidates in 28 districts[23] since contesters were blocked by protest groups from registering to contest.[24] The ruling raises several concerns. The Court’s rationale justified the unproportionate invalidation of an election based on procedural irregularities in 28 districts. The ruling also disallowed by-elections from being held in these districts. At the same time, the Court’s ruling neglected to protect the constitutional rights of voters and failed to address violations of constitutional principles by protesting groups who physically blocked contestants from registering.
While the Court had only decided to annul the above two elections, since these rulings, petitions to invalidate subsequent elections have become common. Following the 2019 general election, another serial petitioner – who had also again become prominent since the 2023 election – submitted a complaint to the Thai Ombudsman Office to petition the CC to invalidate the election. The individual referred to the Election Commission’s electoral reporting that contained inconsistencies and its party-list calculation that they viewed as unconstitutional. The Ombudsman however decided not to pursue the request. Discussions about potentially nullifying the 2023 general election also emerged, despite no strong evidence of irregularities being presented.[25]
From suspending elected candidates, dissolving political parties, and annulling elections, these rulings have eroded electoral integrity in Thailand. The normalisation of the Court’s role in such decisions threatens the viability of elections as a means for peaceful transitions of power. Furthermore, historically, the political turmoil and vacuum following annulled elections have led to military coups in 2006 and 2014. Even when elections are not annulled, the suspension of elected candidates and dissolution of political parties point to the disruptive impact of these judicial decisions leading to an erosion of electoral integrity in Thailand.
Conclusion
The CC’s role in subverting the electorate’s decision at the ballot box has led to the erosion of election integrity in Thailand. The Court’s decisions have primarily involved: the suspension of election candidates over legal technicalities, dissolving political parties for proposing monarchy reforms and annulling elections. These issues are exacerbated by the Court’s broad powers, undemocratic selection process and lack of public accountability that affects its independence and credibility. Both its direct impact on elections and its indirect influence cast doubt on the integrity of future elections in Thailand.
Hence, it is not surprising that there are growing calls to address the Court’s roles, such as to amend laws to remove its jurisdiction over the conduct of politicians.[26] Discussions have also started around reviewing the need for a CC altogether.[27] Together, these initiatives seek to reduce the Court’s influence, especially in electoral matters. However, such calls have largely been limited to opposition parties; and without broad political willingness for CC reform, it’s likely the Court will continue to influence electoral outcomes.
Ekmongkhon Puridej, Asia Centre
NOTES
[1] Bangkok Post (2024) ‘Court dissolves Move Forward Party’, Bangkok Post, at:
https://www.bangkokpost.com/thailand/politics/2843182/court-dissolves-move-forward-party.
[2] Bangkok Post (2024) ‘Srettha dismissed as PM after court ruling’, Bangkok Post, at:
https://www.bangkokpost.com/thailand/politics/2847093/srettha-dismissed-as-pm-after-court-ruling.
[3] “Constitution of the Kingdom of Thailand (Interim), 2006”, ConstitutionNet, at: https://constitutionnet.org/sites/default/files/2006_Interim_Constitution_constitution.pdf.
[4] ThaiPublica (2024) ‘นิติศาสตร์ 4 สถาบันชี้ “ศาลรัฐธรรมนูญอำนาจเหนือรัฐธรรมนูญ” กระทบสิทธิประชาชน [Four law faculties points out “Constitutional Court’s power over the Constitution”, affecting citizen’s rights]’, ThaiPublica, at: https://thaipublica.org/2024/08/academics-say-excessive-power-of-constitutional-court-affecting-peoples-rights; Thairath (2024) ‘แฮชแท็ก #ศาลรัฐธรรมนูญ พุ่งติดอันดับ 1 หลังอ่านคำวินิจฉัยคดี “พิธา-ก้าวไกล” [Hashtag #ConstitutionalCourt soars to number 1 after the court reads “Pita – Move Forward” verdict]’, Thairath, at:
https://www.thairath.co.th/news/society/2759589.
[5] Wachana Wanlayangkul (2021) ‘ศาลรัฐธรรมนูญแบบไหนที่สังคมไทยต้องการ? [What kind of Constitutional Court does Thai society need?]’, The101, at: https://www.the101.world/constitution-dialogue-constitutional-court.
[6] Wachana (2021) ‘What kind of Constitutional Court does Thai society need?’.
[7] Eugénie Mérieau (2022) ‘Democratic Breakdown through Lawfare by Constitutional Courts: The Case of Post- “Democratic Transition” Thailand’, Pacific Affairs 95(3): 475–496, at:
https://eugeniemerieau.com/wp-content/uploads/2023/02/pa-lawfare-in-thailand-2022.pdf.
[8] James R. Klein (1998) ‘The Constitution of the Kingdom of Thailand, 1997: A Blueprint for Participatory Democracy’, Working Paper No. 8, The Asia Foundation Working Paper Series, at: https://constitutionnet.org/sites/default/files/Paper_on_the_1997_constitution_2.pdf.
[9] Khemthong Tonsakulrungruang (2022) ‘Thai Constitutions as a Battle Ground for Political Authority: Barami versus Vox Populi’, in Tom Ginsburg and Benjamin Schonthal (eds.) Buddhism and Comparative Constitutional Law, Cambridge: Cambridge University Press (Comparative Constitutional Law and Policy), 161–180.
[10] Wachana (2021) ‘What kind of Constitutional Court does Thai society need?’.
[11] “Constitution of the Kingdom of Thailand, 2017” Constitute Project, at: https://www.constituteproject.org/constitution/Thailand_2017.
[12] Khemthong (2022) ‘Thai Constitutions as a Battle Ground for Political Authority’.
[13] BBC Thai (2017) ‘ศรีสุวรรณ จรรยา กับ 5 เรื่องน่ารู้ของ “นักร้อง” [Srisuwan Chanya and 5 interesting facts about “serial petititoners”]’, BBC Thai, at: https://www.bbc.com/thai/thailand-39626226.
[14] Natchapakorn Nammuang (2023) ‘แนวคำวินิจฉัยศาลรัฐธรรมนูญคดีหุ้นสื่อ ถือหุ้นจริง + ทำสื่อจริง = มีความผิด [Constitutional Court’s rulings in media share cases: Holding real shares + really doing media business = guilty], Thairath, at: https://plus.thairath.co.th/topic/politics&society/103290.
[15] Bangkok Post (2019b) ‘Court suspends Thanathorn from MP’, Bangkok Post, at: https://www.bangkokpost.com/thailand/politics/1682696/court-suspends-thanathorn-from-mp.
[16] Bangkok Post (2024a) ‘Pita survives media shareholding case’, Bangkok Post, at:
https://www.bangkokpost.com/thailand/politics/2729909/pita-survives-media-shareholding-case.
[17] Ibid.
[18] Thai PBS (2023) ‘ย้อนรอย “ถือหุ้นสื่อ” จาก “ธนาธร” ถึง “พิธา” [Backtracking “holding media shares” from Thanathorn to Pita]’, Thai PBS, at: https://www.thaipbs.or.th/news/content/327630.
[19] PPTV (2023) ‘เลือกตั้ง 2566 : เบื้องลึก! แฉ”พิธา”ถือหุ้นITV บังเอิญหรือเกมตัดตอน? [Insider! Reveals that “Pita” owns iTV shares – coincidence or intentional?]’, PPTV, at: https://www.pptvhd36.com/news/การเมือง/197169.
[20] Bangkok Post (2024b) ‘Court dissolves Move Forward Party’.
[21] Thairath (2024b) ‘ศาลรัฐธรรมนูญตีตก ร้องสอย พท.แก้ 112 สั่ง กกต.ชงใหม่ เอกสารยุบก้าวไกล [Constitutional Court dismissed petition to take down PTP for amending 112 – Orders Election Commission to reconsider documents for MFP dissolution case]’, Thairath, at: https://www.thairath.co.th/news/politic/2772173.
[22] Constitutional Court (2006) ‘สรุปคําวินิจฉัยศาลรัฐธรรมนูญที่ 9/2549 วันที่ 8 พฤษภาคม พ.ศ. 2549 [Summary of the Decision of the Constitutional Court No. 9/2006 Date: 8 May 2006]’, Constitutional Court, at:
https://www.constitutionalcourt.or.th/occ_web/download/article/file_import/t9_49.pdf.
[23] Reuters (2014) ‘Thai court declares February general election void’, CNBC, at:
https://www.cnbc.com/2014/03/21/thai-court-declares-feb-general-election-void.html; BBC News (2014) ‘Thai court rules general election invalid’, BBC News, at: https://www.bbc.com/news/world-asia-26677772.
[24] Ibid.
[25] BBC Thai (2023) ‘เลือกตั้ง 2566 : ประธาน กกต. ตอบสื่อต่างชาติเลือกตั้งจะโมฆะหรือไม่ [Election 2023: Election Commission chairman responds to foreign media: will the election be invalid or not?]’, BBC Thai, at: https://www.bbc.com/thai/articles/cxwppjvd484o; TODAY (2023) ‘ความไม่ชัดเจนเรื่องการแบ่งเขตเลือกตั้ง อาจนำไปสู่เลือกตั้งโมฆะ ซ้ำรอยปี 49 [Ambiguity regarding the division of electoral districts may lead to an invalid election, repeating the situation of 2006]’, TODAY, at: https://workpointtoday.com/news-260.
[26] The Standard (2024) ‘สว. นันทนา มองการตรวจสอบจริยธรรมไม่ควรเป็นตัวชี้วัดเดียว เสนอลดอำนาจศาลรัฐธรรมนูญที่ล้นเกิน [Senator Nanthana views ethics should not be the only indicator, proposes to reduce the excessive powers of the Constitutional Court]’, The Standard, at: https://thestandard.co/nantana-senate-ethics-probe.
[27] Thepjorn (2024) ‘ฝ่ายค้าน ฝ่ายแค้น ชักธงรบ วางเกมยาว ล้ม “ศาลรัฐธรรมนูญ” [The opposition raise the battle flag and planned the long game to overthrow the Constitutional Court]’, Bangkok Biz News, at: https://www.bangkokbiznews.com/politics/1141760.