THE PROBLEM OF LAWFARE IN THE THAI CONSTITUTIONAL COURT FROM THE PERSPECTIVE OF LEGAL PHILOSOPHY

Abstract

This article aims to analyze the phenomenon of “Lawfare” occurring in the Thai Constitutional Court from the perspective of legal philosophy. It highlights how the law has been used as a tool for conducting political lawfare within the Constitutional Court, thereby impacting the sanctity of the “Rule of Law” (known variously as Rechtsstaat or Právní stát). This process also transforms the Constitutional Court, shifting it from its ideal role as the Guardian of the Constitution to a main actor in the political arena, becoming a decisive arbiter of political victory or defeat, and encroaching upon the domains of legislative and executive power. In other words, the judicial removal of politicians from their political office may serve a hidden agenda: a “Silent Coup”. This article applies concepts from major philosophical schools, such as Natural Law (Iusnaturalism) and Legal Positivism, to analyze and explain how the emergence of lawfare has destroyed the fundamental principles of law, leading to a decline in the Constitutional Court. The article concludes by suggesting how the Constitutional Court should adjust its interpretation through a legal philosophical lens to prevent the state of lawfare and truly return to its position of neutrality as the ultimate guardian of the constitution. Furthermore, the article proposes that in the future, the constitution should be amended to clearly define and limit the jurisdiction of the Constitutional Court. This would help prevent the Court from excessively intervening in the legislative and executive branches—an intervention that risks becoming a silent coup and has ultimately evolved into a state of juristocracy.