Prof Nakharin Mektrairat, president of the Constitutional Court, backs revising the selection process of his court’s judges, signalling the need for structural improvements to strengthen judicial independence and transparency.
Drawing on his background as a former vice rector, political science professor at Thammasat University, and member of two constitution-drafting committees, Prof Nakharin says that while reforms must come through constitutional amendment, the system warrants review. Although he refrains from detailing specific changes while still in office, his position underscores a growing recognition within the judiciary of the need for a new look.
What would you say to those who describe the court as political?
It would be inaccurate to call us a political court. The court exists to rule exclusively on matters relating to the constitution. That is its sole mandate and function.
What qualifies as a constitutional case?
Cases involve disputes or legal conflicts that arise from actions or laws believed to contravene the provisions of the constitution. These may be arguments, disagreements, or challenges to constitutionality.
How do cases come before the court?
Over half of the cases come from other courts, often unnoticed by the media. We adjudicate cases nearly every week, including those from the Administrative Court, Criminal Court, and others. For example, we recently ruled on whether a provision in the Thai Territorial Waters Navigation Act was unconstitutional, but there was little media attention.
Cases can also come directly from the public (under Section 213 of the 2017 constitution), independent bodies like the National Anti-Corruption Commission, the Election Commission, or Ombudsman, and from members of parliament concerning political officeholder qualifications. Though some label these “political cases,” they are, in fact, constitutional in nature.
How do you respond to claims the court is used as a political tool?
Such perceptions are common when parties are in conflict. Cases typically involve opposing sides. If consensus existed, the case wouldn’t reach the court. Our duty is to adjudicate based on law, not sentiment.
What communication challenges does the court face?
We are adapting. The duty of spokesman falls to the secretary-general and deputy secretary-general, though they may lack media experience. Judges, including myself, generally avoid press briefings. We have improved the detail of our press releases. They now identify majority and minority opinions of each judge. While some judges prefer brief statements in a press release, others, especially from academia, advocate for transparency to support legal scholarship.
Does identifying judges by name in rulings pose risks?
Yes, it can be a double-edged sword. But since the 1997 constitution, each judge must issue a personal opinion. This contrasts with systems like France’s, which only issue a collective ruling. Publicly disclosing individual opinions helps promote transparency and academic scrutiny, but it also requires judges to remain vigilant due to the potential for intense criticism.
Some accuse the court of engaging in “lawfare”. What is your view?
That term is often used in the media. From our perspective, we are simply carrying out our duties. We follow formal procedures, listen to both sides, and apply the law as written, whether in the constitution or organic legislation, without political motivations.
Should the court be reformed?
Reform cannot come from within the court. Any structural change must originate from amendments to the constitution.
Should the selection process for judges be revised?
Yes, it should be reviewed. After my term ends, I will speak more openly. I have served as a constitutional drafter in 2007 and 2015 and am familiar with areas in need of improvement.
How do you view the proposal for MPs and senators to jointly select judges, replacing the current senator-only system?
I prefer not to comment. The origin and qualifications of judges require comparative analysis. Around 130 countries have constitutional courts, while others do not. Systems vary: in countries like Malaysia, India, and the Philippines, constitutional matters are handled by divisions within the Supreme Court. Around 60-70 countries have dedicated constitutional courts. This complexity warrants a deeper academic discussion. For now, constitutional amendments are a matter for those with the appropriate authority.
