Fighting for Virtue

Justice and Politics in Thailand

Duncan McCargo

• Publisher: Cornell University Press
• Year: 2020
• Print ISBN: 9780801449994
• eBook ISBN: 9781501712227
• Topic: Politics & International Relations
• Subtopic: Ethics & Professional Responsibility in Law
• Index: Politics & International Relations

Fighting for Virtue investigates how Thailand's judges were tasked by the late King Bhumibol Adulyadej (Rama IX) in 2006 with helping to solve the country's intractable political problems—and what happened next. Across the last decade of Rama IX's rule, Duncan McCargo examines the world of Thai judges: how they were recruited, trained, and promoted, and how they were socialized into a conservative world view that emphasized the proximity between the judiciary and the monarchy.

McCargo delves into three pivotal freedom of expression cases that illuminate Thai legal and cultural understandings of sedition and treason, before examining the ways in which accusations of disloyalty made against controversial former prime minister Thaksin Shinawatra came to occupy a central place in the political life of a deeply polarized nation. The author navigates the highly contentious role of the Constitutional Court as a key player in overseeing and regulating Thailand's political order before concluding with reflections on the significance of the Bhumibol era of "judicialization" in Thailand. In the end, posits McCargo, under a new king, who appears far less reluctant to assert his own power and authority, the Thai courts may now assume somewhat less significance as a tool of the monarchical network.

1

PRIVILEGED CASTE?

The purpose of this chapter is to examine what it means to be a Thai judge, and why judges think and behave in the ways they do. To do this, I ask how are Thai judges recruited, trained, and socialized? How are they given assignments and promotions? Much of the recent discussion of Thai judges has focused on their roles in hearing political cases, both “ordinary” criminal trials such as those brought under the lèse-majesté law, and Supreme Court and Constitutional Court cases brought against prominent politicians and political parties. The chapter argues that Thai judges are not irrational actors, nor are they mere instruments of the network monarchy, the military, and conservative forces in the country’s state and society. For all their shortcomings, they are trying to perform extremely difficult roles to the best of their abilities and understandings, which are often unduly limited and narrow.

Suppose you are a young Thai judge, whose parents own a small noodle shop in the provinces. During your teenage years, you always lent a hand at the stall during evenings and on weekends. You return home for a visit. Your father has to run an errand, and your mother is short-handed in the shop. Can you help her out by clearing a few tables?

The answer is no. As a judge, a royal servant responsible for the administration of justice, waiting on tables is beneath your dignity, and would undermine the sanctity of your office. Similar notions of status may apply to various professions in Thailand—such as doctors—but no other occupation can rival the closeness to royalty claimed by judges.

“Some people have the wrong idea. They think that the King’s representative in this province is the provincial governor. They are not correct. As chief judge of the court here, I am the King’s representative.” My fascination with Thai judges began when I heard this comment, which suddenly placed my understanding of the country’s legal system in a new light. On one level, Thai judges form part of an extremely legalistic culture, based on decades of dusty precedents codified in the published annual volumes of past Supreme Court decisions.¹ But on another level, they are acting, at least in their own imaginations, as guardians of morality and virtue whose legitimacy derives not from penal codes but from their proximity to the monarchical institution. Of all categories of government servants—including the military, the police, Interior Ministry officials, teachers, and doctors—judges pride themselves on serving as the greatest reflectors of the shining light of royal virtue. This status marks them out, giving them a degree of special responsibility for preserving the moral integrity of the Thai nation.

But who are Thai judges? Where do they come from? How are they recruited, trained, and socialized? How are they promoted? Who oversees their work? This chapter sets out to answer these questions, drawing on approaches used in earlier studies of careers that have foregrounded interviews with members of a profession.² This chapter is concerned with career judges of the Courts of Justice (the Courts of First Instance, the Appeal Courts and the Supreme Court). The Administrative Courts and the Constitutional Court established following the adoption of the 1997 Constitution have their own distinct jurisdictions, bureaucracies, and recruitment processes. The Administrative Courts deal with cases brought against the government, while the Constitutional Court adjudicates on the constitutionality of laws and important rulings. Confusingly, many of the most prominent Constitutional Court judges are former judges of the Courts of Justice.

In Thailand, judges are selected on the basis of a highly competitive entrance examination, which many applicants take for the first time at age twenty-five, the minimum permissible age. Those who pass may now look forward to a forty-five-year career—the retirement age was recently raised to seventy—during which they are supposed to remain largely sequestered from the wider world. Traditionally, judges do not hand out business cards (which are widely used in Thai society), do not socialize with nonjudges, are not allowed to take on any outside work (other than part-time lecturing),³ and spend much of their time living quietly with their families. They are not supposed to go drinking or to consort with prostitutes;⁴ and they need to be very careful about attending parties or public gatherings where known shady characters will be in attendance. In other words, men in particular forsake much of the normal social life of their peers.⁵ While a sober and discreet public persona is desirable in most judiciaries, Thai judges are especially concerned with maintaining appearances of propriety.⁶

Theoretically, judges’ professional and personal lives are governed by a slim blue volume of ethical strictures. The Judicial Code of Ethics, originally compiled in 1985 by a couple of senior judges who had previously studied in Britain, has been reissued in successive editions with minor revisions.⁷ Applying to trainees, associate judges, full judges, and datho yuthitham (Islamic family court judges) alike, the volume contains six sections, covering principles, ethics for practicing as a judge, ethics for administrative work, ethics for other duties, ethics for personal and family behavior, and special rules for other categories. In the provinces, judges typically socialize mainly among themselves, often getting together for a shared meal on Friday nights. One senior judge argued that traditionally, judges lived like monks.⁸ Though desirable, this was no longer practical; judges now needed to be more engaged with society and more open to what was happening. Another senior judge told me frankly that the ethics manual was out of date, and some of its stipulations could no longer be taken literally.⁹ But even younger judges were very cautious, for example, about attending social gatherings at which unknown friends of friends might be present. One judge politely declined an invitation to an official dinner that would be attended by a member of the Nitirat group of critical legal academics.¹⁰ Judges’ attitudes to drinking vary; one book by a judge cited the supposed “father of Thai law” Prince Raphi as saying that it was fine for judges to drink “where appropriate,” so long as it did not compromise their integrity.¹¹ Another judge claimed that alcohol-related socializing was useful to get promoted; there was less recognition for those who concentrated on doing their jobs well.¹²

Partly to compensate for their quasi-monastic lifestyle, partly to reduce the temptation to accept bribes, and partly to recognize their exalted status, judges are among the best-paid public servants in Thailand. Judges also enjoy excellent fringe benefits such as free housing in many provinces and generous car allowances. They have almost complete job security and extremely predictable career paths. While some applicants are undoubtedly drawn to the judiciary by the attractive benefits, many also see their work as a moral and social calling, a form of sacrifice to the higher cause of serving the nation.

Recruitment

Thai judges are recruited through a highly competitive process. Whereas in many common law systems, judges are appointed after substantial careers as barristers, attorneys, or prosecutors, Thailand resembles many civil law systems in continental Europe, which also have a career judiciary recruited through examinations. While in the past Thai judges came from a wide range of socioeconomic backgrounds, including children of ordinary villagers¹³—one judge told me proudly that he had originally come to Bangkok as a temple boy¹⁴—most today are from well-to-do families and have never earned their own living by any other means.¹⁵ After graduating from university law faculties (largely from Thammasat and Chulalongkorn, along with a growing contingent from Ramkhamhaeng, plus a small number from Chiang Mai and elsewhere), would-be judges qualify as barristers and then engage in a couple of years of intensive cramming, during which they gain token experience of working on a number of court cases.¹⁶

While there are very few senior female judges in Thailand, the gender balance has improved considerably: women have made up at least 50 percent of recent intakes. In 2015, 1,252 of the country’s 4,404 judges were female, but only one of the six deputy Supreme Court presidents. No woman has yet served in the top judicial post, as president of the Supreme Court.

There are three ways to become a judge: entering via the large field (sanam yai), the small field (sanam lek), or the special field (literally the “tiny” field, sanam jiew). The sanam yai is for those with only an undergraduate degree, while the sanam lek is for those who have a master’s degree. The sanam jiew is open to those who those who have undertaken master’s degree study abroad for two years.¹⁷ Overseas qualifications have to be approved by the Office of the Secretariat of the Courts: in practice, only selected degrees from a short list of developed countries including Australia, France, Japan, Singapore, the United Kingdom, and United States are likely to pass muster. Currently, around eight thousand applicants annually sit for the sanam yai, three thousand for the sanam lek, and around one hundred for the sanam jiew. The pass rate is less than 1 percent for the sanam yai, 3 to 5 percent for the sanam lek, and currently around 20 percent for the sanam jiew (which previously had a 70 to 80 percent pass rate).¹⁸

The rise of the sanam jiew has been a source of controversy within the judiciary.¹⁹ This new category of entrance examination, first opened in 2005, may have been intended to facilitate an application to enter the judiciary from Princess Bajrakitiyabha, a holder of two law degrees from Cornell University. In the end, the Princess became a public prosecutor rather than a judge, but the special channel was opened anyway. Initially virtually all sanam jiew applicants passed; even when the pass rate declined, this was a far easier way to become a judge. The sanam jiew was much favored by the children of judges and by wealthy elite families, who had the inside knowledge and financial resources to exploit this route.²⁰

The content of the entrance examination is highly predictable, and is based entirely on former decisions of the Supreme Court, which are summarized in the twelve annual issues of the court’s law review.²¹ Faculties of law in Thailand have an extremely conservative curriculum, which is overwhelming technical and professional in orientation. While constitutional law and administrative law are taught at top law faculties such as Chulalongkorn University—and even feature in the examinations of the Thai Bar Association—students openly neglect to study these fields seriously, because they are not part of judicial entrance examinations.²² Subjects such as critical legal studies, sociology of law, and jurisprudence are barely taught in Thailand, while legal philosophy tends to be presented in a very unreflexive fashion, framed by ideas such as legal positivism and natural law, which are applied very crudely to the Thai context. Nevertheless, judicial exams are not simply memory tests: most candidates fail on the section that tests their understanding of the law, and their ability to apply it. Those who pass the judges’ examination are given an interview; while very few applicants are rejected at this final stage, interview performance helps determine the candidates’ final ranking numbers, which are crucial for their later career progression. Applicants have to submit a list of referees, but these are not usually contacted.

Competition between university law faculties to maximize their success rates in the entrance examinations for the judiciary has a significant distorting effect on the curricula, since the relative prestige of faculties is often closely tied to these success rates. Progressive and critically minded law lecturers have difficulty in promoting their agendas when faced with pressures from prospective students to prepare them effectively for these examinations, even though realistically only very small numbers of applicants are likely to pass them. Even Thammasat University has revamped its curriculum to correspond more closely to the demands of the professional entrance examinations for judges and prosecutors. For many decades the Thammasat faction remained the dominant group among the judiciary, but recently Chulalongkorn University graduates have been on the rise, while the open-entrance Ramkhamhaeng University’s insurgent clique has been growing in stature.²³ In a book targeted at prospective judges, serving judge Natthaphakon urges candidates to shun drugs and stay out of trouble with the police,²⁴ to read at least one hundred pages a day, and to pay special attention to memorizing precedents from previous Supreme Court decisions.²⁵ His main argument is that becoming a judge does not require any outstanding academic ability: perseverance and a passion for the law are more important.²⁶ The extremely low pass rate for the sanam yai rather contradicts Natthaphakon’s claims.

While in theory the three routes to enter the judiciary are equal, in practice the sanam yai is by far the most difficult, and the most prestigious: virtually all of Thailand’s top judges—the presidents and vice presidents of the Supreme Court—entered this way, which is effectively the front door of the judiciary. Those who have master’s degrees—entering through the side door, as it were—are ranked lower and are taken less seriously than those who hold only undergraduate degrees. Every judge in Thailand has a ranking number, based on their examination place and year of entry (run); these numbers are known by everybody. The first ranked in the sanam yai entrance examination will carry the number “1” throughout a long career. The same goes for the second and third ranked, right the way down to the last. The sanam lek are ranked after the sanam yai, so if you gain fifth place in the sanam lek in a year when 62 people pass through the sanam y...

Table of contents

• Preface
• Introduction: Legalism and Revival of Treason
• 1. Privileged Caste?
• 2. Bench and Throne
• 3. Challenges to the Judiciary
• 4. Against the Crown?
• 5. Computer Compassings
• 6. Against the State
• 7. Crimes of Thaksin
• 8. Courting Constitutionalism
• Conclusion: The Trouble Is Politics
• Notes
• Index