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The recent rulings by the US Supreme Court have shown that letting nine judges decide the most important issues of the country can have a devastating impact. But how bad can it get? Thailand provides an ominous example: its right-wing judicial activism has paved the way for military coups and decades of political crisis. 

In June, the Supreme Court of the US (SCOTUS) ruled to overturn Roe v Wade, which had guaranteed the right to abortion for women in the US for decades. The decision by nine judges has affected millions of women, especially the poor and ethnic minorities. 

In a sense, this makes the US even less progressive than Thailand, which recently guaranteed the right to abortion for the first 12-20 weeks of pregnancy nationwide, a model similar to Germany’s. While liberal states in the US still offer abortion services, Congress has not yet passed a law guaranteeing the right of women to travel to other states to access abortion. 

Some have raised concerns that this court decision will also lead to the abolition of other rights, including personal data protection and LGBTQ+ rights to marriage. Recently, Thailand has put a personal data protection law into effect and different versions of LGBTQ+ rights to marriage have been discussed in parliament. 

With a balance of 6-3, the conservative-leaning SCOTUS has ruled on other issues widely criticized as detrimental to the country. It has limited the Environmental Protection Agency's authority to set standards on greenhouse gas emissions from power plants, a move that contributes to the climate crisis. It also declared a stricter version of New York's gun control law unconstitutional despite hundreds of mass-shootings in 2022. 

It is far more difficult to access guns in Thailand. Thanks to the pragmatic nature of its politics, Thailand is, in a sense, socially more progressive than the US despite its worse economy and political instability. After all, Thai citizens can access universal healthcare (though not without chronic delays) and the current authoritarian government has just legalized marijuana for medical purposes (which has led to wider recreational use in practice because of regulatory loopholes). 

However, Thailand is far worse when it comes to the transfer of power and political freedom. By one count, it has had 13 coups since 1933, making it one of the most coup-prone countries in the world. It has also had 20 constitutions and counting. Thai political activists have been monitored, harassed, threatened, arrested, prosecuted and even forcibly disappeared by the authorities for decades. In the US, citizens can criticize their government more freely and have lived under the same constitution for 235 years. 

It might well be an overstatement, but this does not mean that the US cannot resemble Thailand when it comes to political turmoil. The 6 January 2021 incident in which Donald Trump's supporters stormed into the Capitol building in an attempted coup, currently under investigation by Congress, has shown that any democracy is fragile.

In Thailand, most of the Thai right-wing activists whose protests led to a military coup in 2014 still walk free. And without proper military reform, another coup can never be ruled out. It could even be imminent. Thailand's Constitutional Court, consisting of nine judges just like SCOTUS, has played a tremendous role in contributing to recent military coups and political crises. This may also become the case for the US. 

Since 2006, the Thai Constitutional Court has nullified two elections, removed two prime ministers, halted a high-speed railway and other transportation infrastructure projects and dissolved more than 110 political parties. The most recent case disbanded the Future Forward Party in 2020, whose 6 million voters took to the streets to call for constitutional amendments among other political demands. The largely peaceful protests were met with police violence, provoking some groups resort to rioting.

The court ruled that Gen Prayut Chan-o-cha can remain as Prime Minister despite an alleged conflict of interest when it was revealed that he was staying in an army house rent-free (and with utilities paid by the army) after retiring from the military. A protest leader who criticized this ruling on Facebook faced a charge (later dismissed) of alleged contempt of court. 

When the protests were trimmed by attrition tactics, the court ruled that calls from activists for monarchy reform in the direction of greater democracy were an attempt to overthrow the political system. A hacker who hacked into the court website and change its name to Kangaroo Court was arrested. And they have yet to decide whether a new problematic election system is constitutional and when to count the beginning of the 8-year term limit of Gen Prayut. 

Thailand provides an example of how bad SCOTUS could become. And this should not be treated as far-fetched. SCOTUS has agreed to take up Moore v Harper which concerns the "independent legislature" theory. This holds that states can design their own procedures for federal elections and can thus circumvent the prohibition on gerrymandering. This is a worrying tendency after the efforts to overturn the presidential election results by former President Trump.  

While the appointment process of US Supreme Court justices is different from Thailand (technically voters have an indirect role in the selection procedure by electing presidents who nominate justices and senators who confirm them), their extensive powers of judicial review are inherently and increasingly problematic. Apart from abortion rights, gun control, and environmental protection, the court has also ruled to revoke people's ability to sue police who violate their right to an attorney and has weakened the separation between church and state.   

The constitution of a country is far too important to let nine judges arbitrarily interpret it alone. Nor does it have to be that way. As SCOTUS itself said, its power of "judicial review, or the ability of the Court to declare a Legislative or Executive act in violation of the Constitution, is not found within the text of the Constitution itself. The Court established this doctrine in the case of Marbury v. Madison (1803)." 

In Thailand, undemocratic judicial review is also a recent invention. After the 1932 democratic revolution by the People's Party, the constitution designed by Pridi Banomyong gave the power of interpreting it solely to Parliament. The Constitutional Court was first established under the 1946 constitution. But it was still under the influence of Pridi and the principle of parliamentary supremacy. The judges were all appointed by Parliament and their term expired at the end of that parliament. After the death of King Rama 8, Thailand had gone through twists and turns and there were mentions of the court in the constitutions of 1949, 1952, 1968, 1974, 1978 and 1991. 

By the time of the 1997 Constitution, Thailand began departing from parliamentary supremacy as the 15 judges of the court were appointed by elected senators to serve 9-year terms. But most of the time they were only for formalities and their use of power was largely constrained. They only abolished political parties that are no longer active and ruled most of budget legislation as constitutional. It was not until the coup in September 2006 that undemocratic judicial review assumed its current form as for the first time they nullified an election three months after the coup. By the time of the 2007 Constitution, the judges started getting appointed by the half-elected Senate, and then under the 2017 Constitution by a fully unelected Senate. Since 2006, it has already been 16 years that Thailand has stuck in a political turmoil. 

Both in Thailand and US, calls are growing to limit or abolish the power of judicial review. For the US, the possibility of impeaching a Supreme Court justice is being discussed and, since the number of Supreme Court justices can be changed by law, President Biden can attempt to pack the court like FDR when he tried to push through the New Deal against the opposition from the Court. Speaking of which, comparing the New Deal with Thailand's 62 billion USD transportation infrastructure plan is pretty much on point. 

In Thailand, abolishing judicial review is part of a wider campaign which calls for reforming or getting rid of undemocratic independent bodies such as the Parliamentary Ombudsman, the National Anti-Corruption Committee, the Election Commission and the National Human Rights Commission, whose functions have been moulded and whose members are selected in order to prolong the Prayut regime. Resolution, a campaign group, provided a possible course of action by attempting to amend the constitution last year and failed, but it does not mean that the attempt cannot be renewed.

Many developed countries do not have judicial review, such as New Zealand, the Netherlands, Finland, Luxembourg, Norway, Sweden, and Switzerland. Some countries have a far more restrained type of judicial review than the US and Thailand, such as the UK and Denmark, which remain committed to the principle of parliamentary supremacy. In terms of human freedom, a study shows that these countries ranked among the highest. They provide a lesson for the US and Thailand to follow. 

The US and Thailand have their own unpopular judges. Brett Kavanaugh faced a threat of impeachment after sexual misconduct claims were reported after his confirmation hearings. Twekiat Menakanist faced calls to be barred from giving lectures at a university and for his name to be removed from a meeting room named after him after his personal comments were leaked saying that "same-sex marriage is a destruction of the natural law." The court had just ruled that a marriage law which excluded LGBTQ+ couples was constitutional. 

In entrusting judges with too much power, letting them reshape political system, halting infrastructure projects, and violating people's rights as they like, the US is too similar to Thailand. While the US has historically had more peaceful transfers of power, providing opportunities for gradual change, the same cannot be said about Thailand. While calls are emerging to end judicial review, it remains to be seen who will make a difference first. A constitution is for everyone to interpret, not just a handful of the judicial elite.

Notice: The inarticulate claim that the Constitutional Court was founded in 1997 has been deleted. Two paragraphs has been added to elaborate about the evolution of the constitutional courts in Thailand. The revisions did not affect the primary claim that an undemocratic judicial review is a recent invention in the country. As an exerpt of the elaboration clarifies: "after the 1932 democratic revolution by the People's party, the constitution designed by Pridi Banomyong gave the power of interpreting it solely to the parliament."

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