Constitutional Court Decision No. 19/2564: A Threat to Democracy? Forfeiture of Fundamental Rights and the Judicialization of Politics by the Thai Constitutional Court in 2021

Abstract

This article aims to closely examine how the Thai Constitutional Court in Decision No. 19/2564 interpreted Section 49 of the 2017 Constitution as “Thai-style militant democracy,” suppressing the fundamental rights of the citizen, which reflects the characteristics “judicialization of politics” and “politicization of the judiciary” applied by the Court. This article explores the factors behind this interpretation and evaluates the impact of the decision. In Decision No. 19/2564, the Court ruled to suppress the activists’ freedom of expression on the ground that they exercised their rights with the intention to “overthrow” the rule by democracy with the King as the head of state. This ruling not only brings controversies, but also demonstrates the way the Court interpreted the concept of a “democratic regime of government with the King as head of state,” which is a core concept of Thai-style democracy and Thai constitutionalism, and how the Court applied its reasoning to the mechanism of “militant democracy” to defend the regime’s structure. These controversies can be understood by examining the relationship between the political players within Thailand; the workings of informal power; the hidden political structure within the constitution; and Thai judicial culture and identity.