An Alternative Path to Rule of Law? Thailand's Twenty-First Century Administrative Courts

Abstract

An Alternative Path to Rule of Law?Thailand's Twenty-First Century Administrative Courts Frank W. Munger, Peerawich Thoviriyavej, and Vorapitchaya Rabiablok Introduction—New Courts in Asia New courts in Asia's rapidly developing states offer an opportunity to understand how a court system takes root in a society. This article presents a case study of the development of administrative court structure, functions, and practice in Thailand: Southeast Asia's newest system of administrative courts. Thailand's new courts are not an isolated example. Throughout the nineteenth and twentieth centuries in Asia and elsewhere, colonial rulers and traditional elites adapted European or American judicial institutions and practices as a means to centralize and secure their power.1 Late twentieth century pressures experienced by many developing states to expand the flexibility of private markets and empower civil society have demanded further adaptations of state structure and authority.2 In response to these pressures, judicialization—the expansion of judicial authority at the expense of other institutions of governance—has become a nearly universal feature of transitions from traditional to modern states in the [End Page 133] developing world.3 Theories of the establishment of courts in developing countries under pressure to modernize governance argue that courts appeal to traditional elites with declining power as a means to control political change.4 A great deal of evidence supports the argument that the purposes of elites who support new courts are self-serving,5 but wide variation in the history and performance of particular courts suggests the theory's limitations.6 Moreover, while scholars have written primarily about constitutional courts, administrative courts play a different, and potentially far larger, role by overseeing the day-to-day relationships between a government and its citizens in ways other courts lack the power to do.7 Thai administrative courts provide an opportunity to examine the development of new courts in an unstable political environment, which is a characteristic of many developing societies. Thailand's Constitutional Court and administrative court system were created in 1997 by a celebrated liberal constitution that established full democracy and independent institutions to oversee the new constitutional order. After almost ten years of increasing conflict over corruption by overreaching populist Prime Minister Thaksin Shinawatra, the system of democratic checks and balances was in collapse. In 2005, the Constitutional Court invalidated an election called by Thaksin but boycotted by the opposing party. A military coup set the constitution aside and drove Thaksin from office in 2006. After a little more than a year, neither adoption of a revised constitution nor restoration of elected government under a revised constitution in 2007 mitigated deep political divisions, street violence, or political instability. A second military coup, in 2014, has placed elected government on hold once again. After these events, the Constitutional Court has been widely perceived as politically tainted, first by Thaksin's influence and after constitutional revision under military supervision in 2007, by his [End Page 134] opponents who are allied with the military.8 In contrast to the Constitutional Court's controversial role during this political turmoil, the administrative courts have emerged from the political conflict with a relatively unblemished image based on a well-publicized track record of successful confrontations with high ranking officials and powerful agencies.9 In practice, courts, like the rule of law itself, derive their function from the political purposes they serve.10 Legal ideals and practices in Western democracies have great appeal both for power holders seeking to legitimize their authority and the relatively powerless who want to hold the powerful accountable and seek wider opportunities for themselves. Nevertheless, as China scholar Rachel Stern observes, using formal similarities or ideological pronouncements alone as a measure of legal development diverts our attention from "quieter shifts more indicative of how law seeds itself in tough terrain."11 Western legal institutions and practices take hold, political scientist Dan Lev observed after many years of studying legal systems in Southeast Asia, "only when they make sense domestically and are adapted to domestic purposes."12 This study examines why courts made sense to those who established them and how the courts' authority is being utilized. For relatively powerless and resource...