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In its ruling on 31 January, the Constitutional Court rendered a unanmous decision forbidding Pita Limjaroenrat and Move Forward Party (MFP) from campaigning in any form to repeal or amend Section 112 of the Criminal Code (more commonly known as the lese majeste or royal defamation law), because it is considered an attempt to overthrow the Thai system of democracy with the monarch as the head of State.
Its rationale is that repealing or amending Section 112 reduces protection of the institution of the monarchy. Campaigning to amend the laws as part of their election campaign sowed conflict between the institution of the monarchy and the people. It further warned that, while everyone has the right to free speech, criticism in bad faith is a punishible offence.
Here are some key takeaways from the decision.
First, the court’s decision raises concerns of judicial overreach among many academics and commentators. Its decision to prohibit campaigning on legal reform, while citing national security, risks removing the necessary policy space for legislators to debate and build consensus on proposals for fear that it may fall into the scope of illegal discussion. In this sense, the lack of clarity on the scope of what is permissible for legislators to do, in the legitimate exercise of lawmaking, may have a chilling effect. Although the Court has added the caveat that laws can be amended by legitimate legislative process, judicial interference in the very early stages (i.e. even before a proposal was officially tabled) sets a concerning precedent for separation of powers.
This is especially important, as laws are not drafted overnight but through an arduous process of building public support through campaigns, negotiating with MPs, and consulting with experts. As Pita himself said in a press conference following the Court’s decision, this “hinders the health of democracy” not just in Thailand but everywhere. In this sense, Thai politics would benefit from further clarity of the boundaries between judicial and legislative functions.
Second, MFP has to be strategic as to what its next move is. On one hand, MFP is already faced with dissolution should a petition made to the Election Commission or the National Anti-Corruption Comission be approved and its leaders may be banned from politics. On the other hand, if it (or its future incarnation) gives up on one of its key electoral promises, it risks losing its voter base. As a relative newbie in the political scene, it will have to play its cards very carefully.
Third, the ruling exhibits the two clashing ideologies that have perpetuated Thai politics through the decades. On one hand, the court espouses the long-held Thai traditional belief that, in our society where even constitutions are routinely shredded and replaced, the monarchy as an institution embodies the ideal of continuity through and above political crises – thus remaining sacrosanct. On the other side lies the modern belief in sovereignty of the people and their right to make decisions regarding the politics that govern them.
This leads to my last point: despite the Constitutional Court’s staunch defense of the old guard, it cannot keep modern Thailand from changing. Its decision does not just affect Pita and MFP; it is a repudiation of their ideologies and policies that many people voted for. Indeed, the Court’s decision is received very poorly by MFP’s large voter base. Last year’s elections, of which MFP scored a stunning victory, were clear a testament of the public’s demands for change that even the Court cannot inevitably ignore.
In the larger picture, the Constitutional Court’s decision will not take away this sentiment of dissatisfaction among MFP’s many young supporters, who have frequently felt disillusioned and slighted – first by the MFP’s failure to form a government despite gaining the most votes, then by Pita’s 6-month suspension from parliament due to a technicality regarding shareholding in a defunct media company (although he was later recently cleared of this charge), and now by this ruling. This leaves the MFP supporters, mostly the younger Thai population, feeling as if their voices do not matter in Thai democracy.
There is a old Thai saying, “ตายสิบเกิดแสน” (tai sib kerd saen), which translates to “ten dies, a hundred thousand rises.” Whatever support for MFP or its incarnation will muster in future elections, the Court’s decision has bolstered it a hundred thousand fold. Change may be incremental, and the wheels of democracy may turn slowly, but surely it will turn.