Constitutional Court Tears Apart Its Own Constitution: Problem or Solution?

Thailand's political instability has roots deeper than coups and protests. Since the country's first constitution, the Thai Royal Institution has remained trapped in constitutional limbo, unable to stabilise its relationship with democratic governance. This precarious balance has produced not clarity but chaos—over two decades of dissolved parties, military interventions, and constitutions rewritten under duress. The Constitutional Court, established in 1997 as democracy's guardian, now operates as its gatekeeper, and scholars struggle to penetrate the opaque internal legal mechanisms that shield the institution from scrutiny. How many more decades of instability before Thailand admits its Constitutional Court is the problem, not the solution? Thailand cannot afford even one more decade of this paralysis.

When Judges Become Politicians: Schmitt's Prophecy

Hans Kelsen envisioned constitutional courts as judicial bodies bound strictly by law, measuring government actions against constitutional standards without becoming political actors. Carl Schmitt warned this was naive. Constitutional adjudication is inherently political because constitutions embody contested values. A court interpreting these values chooses between competing political visions, transforming itself from neutral arbiter into political player.

Professor Worachet Pakeerut delivers Schmitt's vindication: "If Schmitt were resurrected and looked at the role over these 20+ years of Thailand's Court, I think Schmitt would use Thailand's Court as an extremely important example saying that actually, courts are political players more than judicial organisations." Thailand's Court doesn't merely interpret law—it shapes political outcomes according to preferences obscured from public examination.

When parliament proposed allowing citizens to directly elect constitution drafters, the Court forbade it through bald assertion. The ruling stated flatly: "Parliament cannot allow people to directly elect drafters." No explanation. No reasoning. Just prohibition.

The Prayut Chan-o-cha oath-taking case reveals the Court's protective instincts. A student challenged the military prime minister's constitutionally incorrect oath. The petitioner lacked standing—the oath didn't affect their rights. The Court could have dismissed the case immediately. Instead, it ruled substantively, declaring the oath a "governmental act" beyond all examination. Dr. Worachet exposes the trap: "When the oath-taking was incorrect, they have no authority; when they have no authority, they cannot issue orders binding on others." By declaring this matter untouchable, the Court immunised an entire government from constitutional scrutiny. This is political protection masquerading as judicial restraint.

Judgments Without Reasons, Justice Without Logic

Legal reasoning distinguishes judicial power from arbitrary power. When courts explain their decisions, they submit to scrutiny and accountability. Without reasoning, judgments become indistinguishable from decrees.

Thailand's Constitutional Court increasingly abandons this obligation. Its ruling blocking direct election of constitution drafters provides zero reasoning for restricting popular sovereignty. Professor Worachet's frustration is palpable: "If anyone knows why, please tell me—it would be greatly beneficial, a gift of knowledge to me. I haven't learned why." When distinguished legal scholars cannot discern reasoning in major constitutional rulings, the system has failed. Thailand's Constitutional Court Procedure Act explicitly requires rulings to contain "reasoning in adjudicating each issue and constitutional and legal provisions cited as reference." The Court violated its own law.

Dr. Worachet explains the stakes: "Providing reasoning is extremely important and is the only thing we can examine the Court's use of power—whether the Court used power arbitrarily or not." Without reasoning, accountability disappears. Without accountability, only power remains.

The Ran Paya Nak case demonstrates the Court's result-oriented procedures. Facing accusations of attempting to overthrow the government, the respondent arrived with witnesses, requesting oral arguments. The Court refused, claiming years of documentary evidence and "inquisitorial principles" sufficed. Dr. Worachet cuts through this rationalisation: "The real problem wasn't about the inquisitorial principle, whether the Court inquired completely, but whether the Court protected the right to be heard of the parties or litigants in the case sufficiently." When facing charges as severe as overthrowing the government, the Court denied even one opportunity for oral defense before judgment. The Court decides outcomes first, then constructs procedures to reach them.

Why Thailand Can No Longer Afford This Court?

The Court's referendum requirements expose its anti-democratic design. Dr. Worachet poses the devastating question: "Don't ask whether to amend or not amend—just ask whether to abolish the 2017 Constitution. That would be better. But no one would dare ask that. I guarantee that if anyone proposed asking that, they'd be accused of overthrowing the government."

The Court ruled that before parliament can draft amendments, a referendum must ask citizens whether they want amendments—without knowing what those amendments contain. Dr. Worachet's sarcasm cuts deep: "The Court claims that when it was done, it passed through referendum, right? And the Court knows that if amendments are to be made, you must ask first, but they don't yet know how it will be amended. So you proceed—you proceed when you see what the amendments will look like. If at that time the people say 'don't amend,' it ends there. Why would you waste money from the start?"

The logic is deliberately circular. Ask people if they want change before revealing what changes. If they reject a blank check, reform dies. If they approve, the Court still prohibits specific reforms—like direct election of drafters—at the next stage. The referendum transforms from an expression of popular will into a multi-stage gauntlet designed to exhaust reform efforts. Questioning whether people should have a new constitution—the most fundamental expression of popular sovereignty—becomes sedition. The Court has made itself and the existing constitutional order untouchable.

The Court blocks direct election of constitution drafters because direct election threatens existing power structures. An elected constitutional assembly might limit the Court's power, remove its ability to dissolve political parties, or constrain its jurisdiction. The prohibition isn't constitutional interpretation—it's self-preservation disguised as law.

Defenders cannot explain the Court's reasoning because no reasoning exists. Some speculate the Court fears dominant parties controlling an elected assembly. Dr. Worachet demolishes this logic: "If the Court says this, it's clear there isn't sufficient legal reasoning supporting it, like we're afraid one political party will win elections, therefore we postpone elections—better wait. Why postpone? Oh, because this party will win." Fear of electoral outcomes isn't a legal principle—it's admission that democracy itself threatens what the Court protects.

Dr. Worachet provides the criteria for legitimate courts: they cannot initiate proceedings themselves, must be bound by constitutional rules, must provide reasoning, and crucially, "must have no goal in deciding cases to enforce its own political desires." Thailand's Court fails every test. It rules beyond petitions, refuses reasoning, denies procedural rights, and consistently preserves the status quo against democratic reform.

Conclusion

Over twenty years, the Constitutional Court has accumulated power without accountability, made pronouncements without reasoning, and blocked reform without justification. It has transformed constitutional review from a check on government power into a veto on popular sovereignty. Carl Schmitt's prophecy materialised: the constitutional court is not a judicial body but a political sovereign wrapped in legal formality.

When the Court protects a military prime minister's questionable oath while declaring the matter beyond scrutiny, it chooses political loyalty over constitutional duty. When it forbids direct election of constitution drafters without explanation, it fears democracy. When it creates impossible referendum requirements to prevent constitutional change, it reveals its purpose: preserve existing order at any cost.

Dr. Worachet's challenge demands an answer: how many more decades will Thailand tolerate this? A court that violates its own procedural laws, denies reasoning, and immunises power while criminalising reform has lost legitimacy. It isn't a solution to Thailand's instability—it is the primary cause.

Thailand must reclaim democratic authority from judicial usurpation. Whether through abolishing the Court, restructuring its powers, or stripping jurisdiction over constitutional amendments, the current arrangement cannot stand. The people must have the right to write their own constitution, elect their own drafters, and determine their political future—without seeking permission from unelected judges hostile to democratic change.

The Constitutional Court has torn apart the constitution it claims to protect. The question isn't whether Thailand can afford to confront this reality—it's whether Thailand can afford not to. The cage must be broken. The choice belongs to the people, if they dare to make it.

Prem Singh Gill

Prem Singh Gill is a fellow at the Royal Asiatic Society of Great Britain and a scholar at Thailand's public universities