ประชาธิปไตยแบบชิมไปบ่นไป - Thai Democracy and Judicial Review


Three-Course Recipe for the Court’s Cookery:

A Critique on Thai Democracy and Judicial Review


Verapat Pariyawong



Thailand's late Prime Minister Samak Sundaravej appearing before the Constitutional Court which later disqualified him from office in 2008.           
Photo credit: Chaiwat Subprasom (REUTERS)

 Harvard Library Recor: http://discovery.lib.harvard.edu/?q=verapat



For Family, Country, Democracy and Those Seldom Acknowledged



Abstract Thailand’s Constitutional Court in September 2008 found that the then incumbent Prime Minister Samak Sundaravej violated the Thai constitutional ban on outside employment by hosting a television cookery program for which he was paid, and thus ruled that he was disqualified from prime ministership. Two months following the decision, the same Court ruled to disband three political parties including the party formerly led by Mr. Samak. By focusing on the separation of powers amid the active state of judicial affairs in Thailand, this paper borrows insights from other legal systems mainly that of the United States to highlight the significance of the Cookery decision and critique the Court’s approach by presenting an alternative three-course constitutional analysis involving the deepening of rationale on separation of powers, the judicial restraint in favor of democratic process and the active empowerment of the people’s rights. Taken together with brief observations on the Court’s institutional character, the author attempts to illustrate some of the possible legal methodologies that may allow the clean and powerful branch of government to achieve its fullest potential in advancing the fragile Thai democracy.


Author Master of Laws (Fulbright Scholar) with Master Paper Honors, Harvard Law School. Bachelor of Laws (1st Class Honors) Chulalongkorn University. Email: verapat@post.harvard.edu. I am grateful for guidance from Professor Michael J. Klarman and his terrific constitutional law class, and thankful for the inspiring civic participation illustrated by participants at the Thai Political and Public Policy Forum held in February and April 2010. I am also indebted to the generosity of the two great nations, through the Thailand - United States Educational Foundation, for funding my studies at Harvard Law School whose institutional legacy in Thailand from the time of Edward Henry Strobel, Jens Westengard, Francis B. Sayre et al. continues to drive positive change until today. Much is lacked in this paper and the author welcomes all comments and suggestions. Views and any errors made here are of the author alone.



Contents

Introduction

I.     Separation of Powers and Judicial Review: A Question of Recipe?

        A.     Judicial Variety

        B.     Cookery: Recipe of First Impression?

II.    Cookery’s Missing Ingredients: Three-Course Recipe

        A.     Rationale

1.      Separation of Powers in the Drafting Process

2.      Legislative Intent

3.      Constitutional Jurisprudence

  (a)      The 10 Ministers Case

  (b)      The 3 Legislations Case

         B.     Restraint

1.      The People’s Values

2.      The Democratic Process

         C.     Rights

1.      Rights and Restraint

2.      Rights and Process

III.   Institutional character

          A.     Observations

          B.     Reactions

Conclusion

Appendices

A.     Constitution of the Kingdom of Thailand Buddhist Era 2550

B.     Thai Constitutional Court decision nos. 12-13/2551

C.     Sovereignty in International Law Making: Certain Treaties Requiring Parliamentary Approval 




   

  



 
       



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