The Parajudiciary: Courts, Power Politics, and Regime Change, Part 1

In recent years it has become apparent that the coup d’état is passé. If a group of elites or members of the military are seeking the overthrow of a democratically elected government, the prospect of putting tanks on the streets and unleashing horrific violence bears much too high a cost: the seizure of power such a manner is usually followed by international sanctions, a bankruptcy of legitimacy, a reputation of political risk, and many other disadvantages that come with being an international pariah.

Of course this does not mean that everyone has decided to follow the rules and respect the will of the people. If anything, there are many countries that face an even greater risk of disruptive “soft coups,” whereby unelected administrations are put in place and civilian leaders are neutralized and removed from power through refined and imitative “legal” processes. Whereas the presence of “paramilitary” forces was a force of considerable instability in the 1980s throughout Latin America, Africa, and Asia, the new threat of our current decade is something I’ve titled “The Parajudiciary” – the instrumentalization of a pliable legal system or constitutional court that is directly employed by minority groups to carry out a seizure of power, otherwise known as a “judicial coup.”

Over the next few weeks we are going to be publishing a series of articles examining how the Parajudiciary works, from Egypt to Paraguay and all stops in between, taking a look at recent examples and discussing the implications of this new phenomenon. In our first installment, we take a look at the latest events in Thailand.

In the eighty years since Thailand first adopted a constitutional regime, the country has rarely been a model for anything related to politics. Having never been much of a “democracy,” countries interested in building a democratic government could at best look to Thailand for lessons about what not to do. As an authoritarian regime, whether “pure” or “hybrid,” Thailand may have successfully avoided the kind of disaster suffered by most of its neighbors, but countries like Malaysia and Singapore have always provided much better models for how to run a dictatorship that delivers economic growth, keeps corruption to relatively low levels, and perhaps most importantly does not have to resort to mass murdering its citizens every few years. Necessity being the mother of invention, however, Thailand has turned into something of a trend-setter from the depths of its political crisis, having spawned an innovation that sham democracies around the world have rushed to reverse engineer: the “judicial coup.”

Thailand’s courts have long been in the business of legalizing coups d’état, but had never actually staged one before 2008. Domestically, the 2008 “judicial coup” was the culmination of two related processes: a gradual increase in the courts’ powers of judicial review, partly inspired by the genuine ambition to make the country more “democratic,” and the Thai establishment’s increasing reliance on the judiciary to subvert the electoral process. The first major milestone in the development of the “judicial coup” was Constitutional Court’s dubious annulment of the April 2006 election, which set the stage for the military coup of September 19, 2006. Under military rule, the courts played a crucial role for the junta, which designated a handpicked “Constitutional Tribunal” to do the dirty work of eliminating its rivals, resulting in the dissolution of Thaksin Shinawatra’s Thai Rak Thai party and the disqualification of its 111 executives from elected office. The “judicial coup” entered the final phase of experimentation thanks to the new rules written into the 2007 Constitution. After precipitating the resignation of a Foreign Minister in July, and removing the sitting Prime Minister in September, the Constitutional Court was ready in late 2008 to launch what had been previewed as “[not] a coup in the traditional sense of the word.” Relieving the military of an increasingly onerous traditional responsibility, the Court dissolved three more governing parties, disqualifying enough of the ruling coalition’s parliamentarians to permit the formation of a new government, led by the Democrat Party’s Mark Abhisit Vejjajiva.

The priceless nature of this discovery was immediately apparent in the wake of the Constitutional Court’s verdict. Evidently confused, a pair of Nigerian opposition groups and a well known member of the Malaysian opposition, whose party has sometimes been at the receiving end of abuses of power, hailed the verdict, mistaking what had been a coup staged by entrenched elites against the will of the people for a way to check the power of entrenched elites. While military coups have a way of shining a bright light on everything that is rotten in a domestic political system, the “judicial coup” was quickly shown to have the power to turn reality on its head, making the dismantlement of a democratic government appear, even to those who should know better, as a victory for democracy. Strategists grappling with ways to make dictatorship look like democracy, and democracy look like dictatorship, could not but see in the “judicial coup,” done right, a most powerful weapon.

Variants of the “judicial coup” have since become popular in countries where powerful interests prefer to cloak their unconstitutional, unaccountable rule in the robes of democracy, but must occasionally step in to prevent democracy from actually working to their detriment, preferably without exposing themselves to the public opprobrium that comes with a military coup. Just in the past month, the highly politicized Supreme Court of Pakistan, which also has a history of legalizing coups of the military kind, carried out its own “judicial coup,” removing Prime Minister Yousaf Raza Gilani from office after a string of rulings targeting the country’s largest political party. Around the same time, Egypt’s ruling military junta, unsatisfied with the prospect of that its sworn enemies in the Muslim Brotherhood might control a plurality of seats in parliament as well as the presidency, engineered a “judicial coup” by which the newly elected parliament was dissolved by the Supreme Court, and all legislative authority (including the power to write a new constitution) was transferred back to the junta. A few days later, the Kuwaiti Supreme Court declared the last election illegal and reinstated the previous parliament, whose composition was more congenial to the country’s Emir. Creatively, in carrying the Emir’s water, the Court declared the Emir’s earlier order to dissolve the parliament and hold new elections unconstitutional.

Thailand did not come up with the “judicial coup” in isolation. Its innovation could rather be described as part of two global trends. On the one hand, there seems to be growing reticence around the world to stage old-style military coups—as a recent Foreign Policy article has put it, “coups ain’t what they used to be.” On the other hand, non-democratic regimes in general have been increasingly preoccupied with grounding in law their myriad violations of their citizens’ rights. Among other things, these two trends have given rise to what could be called “parajudiciaries:” courts entirely beholden to authoritarian forces, whether such forces are in the government or seek to control it from behind the scenes, which are used to either destroy oppositions or remove lawful governments without recurring to conspicuous and distasteful military coups. The “judicial coup” is therefore but a variant of this broader approach, one tailor-made for countries where autocrats (generally, but not exclusively, militaries) want to exercise power without appearing to be doing so, whether to avoid bad press, open rebellion, or actual government responsibility.

The benefits of parajudiciaries have been described very convincingly in a recent book on Singapore, titled Authoritarian Rule of Law In the book, legal scholar Jothie Rajah explains the way in which the courts assist a regime in legitimizing the dismantling of the rule of law, conferring upon the ideology in which its abuses are grounded a “neutral” and “self-evident” quality. By interpreting legislation intentionally written in a vague and imprecise manner in ways that systematically legalize the state’s authority to do as it pleases, the judiciary essentially serves to normalize “regimes of exception,” routinizing unlawful or rights-violating measures of the kind that autocrats have generally justified on the pretext of confronting an emergency or an existential threat to the country.

The effectiveness of parajudiciaries varies greatly across the many different countries that have embraced this fashionable new trend. In some places, judicial proceedings are widely perceived as a sham, and therefore not given much greater credence than the show trials of yore. In many other places, however, parajudiciaries are a great deal more sophisticated and enjoy far greater levels of respect, thanks to a reputation of honesty, competence, and professionalism. Effective parajudiciaries are most often those tied to the operation of a “Dual State,” one where the courts rigorously enforce formal laws that preserve entrepreneurial liberty, the integrity of contracts, private property rights, and competition, making it possible for the economic system to work in a smooth and predictable fashion, while at the same time defending the unchecked, unaccountable powers exercised by the state, or components thereof, in excess of their formal constitutional authority. Singapore and Malaysia, as well as Russia and Thailand, have been described as exhibiting features of a Dual State.

Perhaps the most insidious aspect of parajudiciaries is that, in moving to crush those who challenge powerful interests, they typically do so on the basis of legislation not explicitly framed in the need to criminalize oppositions, but rather in the lofty goals of combating corruption, promoting good government, and upholding public morality. Still the targets are invariably political figures who enjoy widespread popular support, and/or have in some way threatened or challenged the authority of an entrenched ruling class. Targets of this kind of unlawful legal persecution include Malaysia’s Anwar Ibrahim, Russia’s Mikhail Khodorkovsky, Singapore’s Chee Soon Juan, Thailand’s Thaksin Shinawatra, Ukraine’s Yulia Tymoshenko, and Zambia’s Henry Banda. In each case it has mattered little that the standards and scrutiny reserved for the targets of the proceedings have never been applied to those who would seek to destroy them. Each of these figures was treated to a version of Hugo Chavez’s “Bolivarian justice,” something his critics have described as driven by the principle: “For my friends, everything, for my enemies, the law.”

Domestically, parajudiciaries are often assisted by a captured media that is equally beholden to the will and interests of the state, or those of a “state within the state.” There, the barrage of distorted media coverage easily overshadows the politicization of the courts, the denial of due process, and the absence of concrete evidence that taints court proceedings. Whether because of excessive reliance on the local press, scarce appreciation for the complexity of the reality on the ground, or undue deference to the domestic justice system, the international media, too, is often unwittingly complicit in the work that parajudiciaries do to undermine democracy. It took years for the international media and the international community to start treating Mikhail Khodorkovsky for what he is, a prisoner of conscience, instead of dismissing his plight as the crocodile tears of a ruthless oligarch. Most of those in his situation never get a chance to set the record straight, or at any rate get to do so too late to make a real difference.

For all its potential effectiveness, the credibility of parajudiciaries is only as strong as their capacity to maintain their reputations for professionalism, their ability to justify the most political of decisions in the letter of the law, and their capacity to deter most threats to the interests they serve before they actually materialize, under the radar screen, without having to constantly knock down constituted challenges in high-profile judgments. Thailand exemplifies the perils of over-reliance on parajudiciaries. In the space of a few years, the courts have gone from being one of the most trusted institutions to being recognized quite clearly as a tool by which the establishment undermines the electoral process. For the moment, “judicial coups” remain preferable to “military coups,” simply because of the extreme dangers that putting tanks on the street presents for would-be coup-makers. Thailand, however, is fast approaching a point in which the public perceives no difference between one and the other.

The tipping point might come on Friday, July 13, when the Constitutional Court is scheduled to hand down a verdict anticipated to result in another “judicial coup.” This decision presents grave dangers for the Thai establishment, not only because the courts have been abused so much that their credibility is in tatters, but because, presumably out of desperation, the Court has intervened into the process in flagrant violation of the law, choosing to hear a case that has no legal merits even under the most literal of readings or biased of interpretations. The Constitutional Court has agreed to examine whether a proposed amendment to Article 291 of the Constitution, which has already passed two of the required three readings by the National Assembly, constitutes an attempt “to overthrow the democratic regime of government with the King as Head of State.” Under Article 68 of the Constitution, such finding would empower the Constitutional Court to order the dissolution of the governing Pheu Thai Party, and then strip away the political rights of each member of its executive committee, as the Court has previously done with four other parties.

This case, however, is different from previous party dissolution cases, in terms of both process and substance. If previous dissolution cases, however fixed, had at least followed the required procedures, this time the Court was compelled to ignore the constitutional requirement that alleged violations of Article 68 must first be investigated by the Attorney General before the Court takes any action. The constitutional amendment considered by parliament, moreover, focuses on Article 291 of the Constitution, which the governing coalition seeks to modify in such a way as to permit the election of a Constitution Drafting Assembly. The argument that this amendment aims “to overthrow the democratic regime of government with the King as Head of State,” is based on the notion that its proponents are moved by a “hidden agenda” to overthrow the monarchy, despite the fact that the language of the amendment specifically strengthens existing provisions against limiting the King’s powers, or making Thailand anything other than a “democratic regime of government with the King as Head of State.” Should the Constitutional Court, at the conclusion of a “trial of intentions” prefigured in works of dystopian fiction of the “Minority Report” variety, choose to uphold this baseless conspiracy theory and find a way to bring about the collapse of a popular elected government, its “judicial coup” promises to be no different, in terms of public perception, from a military coup. Its potential consequences are certainly no less grave.

With the Constitutional Court’s verdict still pending, the hope is that Thailand’s all but discredited parajudiciary would step back from the brink, and stop short of trying to countermand the electorate’s decisions once more. A hopeful precedent in this case is that of Turkey, whose Constitutional Court ultimately declined to dissolve the ruling Justice and Development Party (AKP) in the wake of the party’s victory in the 2007 elections. The decision, issued in 2009, was rooted in the expectation that a “judicial coup” would be seen as no different from a military coup, just as it would be in Thailand today. Having ultimately failed in their quest to make authoritarianism more tolerable or respectable, we will find out soon enough just how desperate the interests controlling Thailand’s parajudiciary really are, judging from their willingness to go through with a potentially ruinous judicial coup. This time, their cherished creation might well turn against them, and become another example of what Shakespeare once called “bloody instructions, which, being taught, return to plague the inventor.”