Taking Rights Seriously? Recent Shifts in Procedural and Substantive Matters of the Thai Constitutional Court

Abstract

The Thai Constitutional Court has recently dealt with an increased number of cases concerning constitutional rights such as abortion and same-sex marriage, which have gained public attention in a similar way to the Court’s many cases on political issues. This new development may show that the Court is now performing its role as a constitutional guardian and bulwark of rights. However, the expansion of the caseload on rights may promote judicial activism, and thus indicates a new strategy for the Court to become more powerful. This article looks both at the substantive changes in the jurisprudence of the Court as well as the procedural adjustments in recent court cases, in order to determine the extent to which the Court has transformed itself to fit the ideal image of a great constitutional court in a comparative context. The article analyzes all the constitutional rights cases decided since 2019, in order to gauge the overall performance of the Court. Furthermore, the article provides some examples of cases that seemingly protect constitutional rights, but in fact simultaneously serve to expand the future powers of the Court. The analysis then suggests that while the Court might appear to have improved its protection of rights, this comes at a cost – namely, that of a court which is potentially all the more active and politically involved.