The Elite’s Insurance Policy

I’ve been thinking and reading a lot about the current Constitutional Court controversy. Others have covered the brouhaha surrounding the court’s examination of the proposed constitutional changes more thoroughly than I have, but I want to weigh in here with some thoughts.

I took the title of this post from an article on New Mandala by Dominic Bardi, where the Court (and constitutional courts in general) is described as such:

These courts are not necessarily created with the altruistic goal of protecting fundamental rights. Rather, constitutional court justices serve to enforce the policy preferences of the political elites who appointed them — a sort of “insurance policy” against populism or electoral defeat.

It’s a rather cynical reading, but all too true when looking at the Constitutional Court’s track record. I’m hard press to think of a case where the Court upheld, let alone expanded, any constitutional rights. Recently, to no one’s surprise, it denied a hearing on Somyos’s complaint about the constitutionality of article 112.

So what can we expect as, once again, another claim is being made against the insurance policy? Precedent tells us legal considerations are secondary to the political aspects of this case, which is convenient for me as I’m no constitutional law expert.

I roughly agree with Somsak Jiam’s analysis (here and here). For all the talk of PT in retreat, I think it’s the Establishment that are on the defensive. In my view, a move such as a coup (military or judicial with a PT resolution) can’t be executed without significant backlash and opposition. The grassroots red shirts are infinitely better informed and organized today than in 2008; the 111 politicians are back in play. There’s no ‘smoking gun’ that triggers significant opposition to the Yingluck government (e.g. the Shin Corp sale) nor has there been months of continuous street protests leading up to the verdict.

What we’re witnessing is rear guard action on the Elite’s part to defend the constitutional order set up by the 2006 coup. If a constitutional drafting assembly is set up largely with out their influence (as opposed to the drafting of the 1997 charter where the the ‘Royal Liberals’ were pretty much the guiding force), you can be sure that the slow process of dismantling the Establishment’s influence will start.

What we could expect to see on July 13 would be that the petition would either be dismissed or upheld without a PT resolution or penalty to MPs. A precedent could be established that will force all constitutional changes to go through parliament and forbid wholesale changes with a CDA.

PT will be forced to take a step back and rethink their political strategy, having for this episode been really taken by surprise by the well-organized opposition. Pansak’s appointment is a sure sign that they are not taking this lightly.

As for the Court, aside from being even more widely criticized (my favorite is Veerapat’s swipe that the Court must have a time machine to know what changes the future CDA will come up with to deem it potentially unconstitutional), they maybe signing their own death warrant. They have essentially become a soft target for the next round of constitutional reform.


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