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Judges Struggle to Find the Right Balance in Elections

Daniel Rosen
Professor, Chuo Law School, Chuo University
Areas of Specialization: American law, media law, and entertainment law

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Traffic in Bangkok is challenging under even the best of circumstances. So, when the political demonstrations of recent months caused cars to come to a standstill, the inconvenience was just more of the type that people have come to expect. The action of judges in bringing the government to a standstill is another matter.

In March, the Constitutional Court ruled that the elections held in February were invalid. Prime Minister Yingluck Shinawatra had called them to resolve the impasse between the "red shirt" supporters of her majority party and the "yellow shirt" opponents. However, the Court acted in a way that rewarded the opponents for forcibly blocking access to polling places. It held that the scheduling of make-up days, on which those who were prevented from casting ballots would be allowed to vote, meant the entire process was unconstitutional.

As a result of the decision, the country was left with a "caretaker" government until another election can be held. But the "yellow shirts" insist on no elections until reforms are implemented. And the "red shirts" complain that the delay is blocking the majority from taking its position at the head of a fully empowered government. The Election Commission eventually put forth a date of July 20th for new elections, but even that timing is now in doubt.

The Court’s intervention in politics did not stop there. It also was considering whether to relieve the Prime Minister of her duties and oust her cabinet from office over allegations concerning a personnel decision. Yingluck had removed Thawil Pliensri as Secretary-General of the National Security Council.

The country’s Supreme Administrative Council ruled the action was unlawful and ordered his reinstatement. A group of senators then petitioned the Constitutional Court to rule that Yingluck herself must be removed for violating the Constitution. Section 266 of the Constitution prohibits a Prime Minister from intervening in a firing if it is for his or her personal benefit.

The senators allege that this was such a case, but the connection involved connecting several links. Thawil’s dismissal allowed the Prime Minister to transfer the Chief of Police into the Secretary-General’s job. And then, her brother-in-law—a deputy police chief—was promoted to the Chief’s position.

So, the petition asked the Court to believe 1) that the Prime Minister’s firing of Thawil was done for the purpose of allowing her brother-in-law to move into a different position (not Thawil’s), 2) that the transfer of the brother-in-law to that different position was done for her personal benefit, 3) and that all this was sufficient cause for the Court to relieve her of her duties.

Yingluck’s defenders say shuffling personnel is an ordinary part of the authority of any Prime Minister, part of the powers and duties of the office. They complain that the opponents of the current administration are simply trying to use the judicial process to do what they have been unable to do through the electoral process: win control of the government.

Situations like these are the reason why the United States Supreme Court created what is called the “political question” doctrine. It keeps judges from intervening in matters that are better resolved through the democratic process. Of course, the Court will involve itself in matters that threaten the democratic process itself, such as racial discrimination and districting that favors certain voters at the expense of others. But the Thai case is not about that. Rather, it involves an attempt to dislodge the elected government because of allegations that it has governed poorly.

Of course, American constitutional law has no direct bearing on what happens in Thailand. However, the political question doctrine could have been a useful concept for the Thai Constitutional Court to make use of. Nevertheless, it unanimously decided that it would accept the petition and consider the claims made against the Prime Minister. And then, it ordered the Prime Minister to defend herself within 15 days. The fact that the Court took upon itself the power to decide whether Yingluck stays or goes is unlikely to be helpful to Thai democracy in the long run. Furthermore, its decision to remove her from office can only undermine its own credibility as an institution devoted to law rather than politics.

The United States Supreme Court, despite its political question doctrine, is not beyond reproach in such matters. In the infamous case of Bush v. Gore, the Court in effect decided the presidential election by abandoning the requirements of federalism. The election was a close one, and the results in the state of Florida would determine whether George W. Bush or Al Gore would become President of the United States. The initial vote counting showed that Bush had won by a very small margin. However, a number of votes had been disallowed because of problems with the computer cards used for balloting. Gore requested a recount by hand, as was his right under the state election law. The Florida Supreme Court so ruled.

Under American law, state courts are the final arbiters of state law, unless the law somehow violates the federal constitution. This one did not. However, the U.S. Supreme Court said it would hear the case based on a specious argument that the rights of the voters whose votes already had been counted would be unconstitutionally diminished by allowing all the votes to be counted! Justice John Paul Stevens, in dissent, wrote “Although we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”

Japan suffers from the opposite problem: a Supreme Court that refuses to enforce constitutional standards on the election process. In 2013, it ruled that the Diet's failure to fix the disparity in voting strength among districts meant the 2012 election was held in a "state of unconstitutionality." It said the same thing in 2011 about the 2009 elections. Despite this, the Court declined to invalidate the results in either situation. So, Japan has been left with an elected government that was born in unconstitutionality and continues to live in that condition.

The difference in voting strength in 2012, between the least and most populous districts, was 2.43, and the Court acknowledged that such a disparity undermined the principle of equality, often called “one person/one vote.” Nevertheless, it could not bring itself to come to the aid of the democratic process. Unlike the Thai controversy, this was not a matter of questioning policies the government had made. Rather, it involved the fundamental issue of whether the people had been deprived of their constitutional right to elect the government. Thus, the Court had no reason to refuse to get involved. Indeed, to the contrary, the failure to order a remedy to go with the right suggests a shirking of its duty under Article 81 of the Constitution, “to determine the constitutionality of any law.”

Since then, several High Courts have made rulings regarding the 2013 election of the House of Councillors, in which the voting disparity was even worse: 4.77. Most used the same “state of unconstitutionality” language to avoid doing anything more than scolding the Diet for its failure to reapportion.

Looking at Thailand and Japan side by side, Thailand appears to be suffering from a hyperactive judiciary while Japan is afflicted by a court that is unduly passive about turning constitutional words into action.

The victim in both cases is the system of allowing the people, voting equally, to choose their leaders. In other words: democracy.

Daniel Rosen
Professor, Chuo Law School, Chuo University
Areas of Specialization: American law, media law, and entertainment law
The author has been a professor at Chuo University Law School since its establishment in 2004. From 1997 to 2004, he taught on the Faculty of Law at Doshisha University and before that at the College of Law of Loyola University in New Orleans. Rosen served as a Law Clerk to Chief Judge James R. Browning of the United States Court of Appeals for the Ninth Circuit. He was admitted to practice in Washington, D.C. and Texas. Prior to entering the field of law, he worked as a journalist in radio and television stations in Dallas, Houston, and San Antonio.