Selective Application of Legal Principles in Political Cases: An Analysis of Abusive Judicial Review Through Decisions of the Thai Constitutional Court

Abstract

This article examines the phenomenon of abusive judicial review in Thai constitutional law by applying the theoretical framework developed by Rosalind Dixon and David Landau to analyze the conduct of the Thai Constitutional Court in major political cases between 2007 and 2020.

The central research question investigates whether Thailand’s system of judicial review is susceptible to abusive deployment under the Landau–Dixon framework, and to what extent the Thai legal system provides adequate institutional safeguards to mitigate such risks. The study adopts a qualitative legal research methodology, combining doctrinal analysis with case-based analysis. Six Constitutional Court decisions are selected: five target cases—the dissolution of Thai Rak Thai Party (2007), People Power Party (2008), the constitutional amendment ruling (2012), Thai Raksa Chart Party (2019), and Future Forward Party (2020)—and one control case, the Democrat Party ruling (2010).

The analytical framework operates on two levels. At the macro level, four abusive indicators derived from Landau and Dixon are applied: court capture, procedural irregularities, distorted reasoning, and selective application of legal principles. At the micro level, four comparative doctrinal criteria are employed: interpretative methodology, standard of proof, scope of judicial discretion, and impact on the democratic minimum core.

The findings reveal a consistent structural pattern across the study period. The Thai Constitutional Court demonstrates a tendency to apply more permissive evidentiary standards and expansive interpretative approaches in target cases involving majority-aligned political parties, while imposing stricter standards and heightened burdens of proof in the control case. This doctrinal asymmetry indicates a form of ideological capture rather than overt institutional court-packing.

The article advances the “Thai Model of Abusive Judicial Review,” consisting of three structural components: ideological capture and systematic selective application of legal principles. The article concludes with policy recommendations aimed at restructuring the judicial selection process and establishing a robust framework for reason-based accountability, thereby strengthening institutional checks on judicial power in alignment with democratic and rule-of-law principles.