In late November 2008, amid extended political conflict, the royalist People’s Alliance for Democracy (PAD) occupied Bangkok’s airports. Within hours, the Constitutional Court reactivated and completed a case that dissolved three government coalition parties. After giving the parties just a few hours to provide evidence and witness lists, the Court dismissed both and demanded final statements. It then immediately delivered its verdict. Soon after, PAD withdrew from the airports, and the military brokered a new pro-royalist government, giving currency to claims that the Court had stage-managed a judicial coup.
This decision was just one of many that marked the intense political contests that began in late 2005 and continue to this day. By its interventions, the “justice system became a focus of [political] discontent” (p. 2). Time and again, the courts were accused of double standards, politicization, and of bias against those who opposed the political status quo. In this context, Duncan McCargo’s Fighting for Virtue is welcome for the considerable light it sheds on why and how the judiciary has become so deeply involved in political conflict in Thailand. His lively account is all the more interesting, because his focus is on cases that are definitional of the conflict: lèse majesté, computer crimes, political activism, constitutional interpretation, and corruption, all handled by the courts of justice and the Constitutional Court. Most usefully McCargo also provides an ethnography of judges—there are some 4,700 of them—and their hierarchy of courts. Each of his eight substantive chapters is informed by his observation of the cases, interviews with participants, and study of court documents. The rise of judicial activism has increased academic interest in Thailand’s justice system, and Fighting for Virtue is the most comprehensive study of it so far. The book will surely be widely read and should spark further studies of the Thai justice system.
In his first two chapters, McCargo explains how judges are recruited and socialized as an elite arm of the country’s bureaucracy. He also details how they view themselves as loyal servants of the monarchy, with the book’s title reflecting the judges’ perception that the now-deceased King Bhumibol had loyalist expectations of them: it was a 2006 speech by the king that called on the judges to intervene to sort out a political impasse (p. 7). Chapter 3 explains how, as politics has come to the boil, the once somnolent judiciary has not only been activated but has also come under challenge. Chapters 4–6 detail cases of “Thai treason,” including cases of lèse majesté and computer crimes—both related to perceived insults of the king—and an “occupation” of parliament by political activists. And, because much of the political conflict revolved around Thaksin Shinawatra—overthrown by the 2006 military coup—chapter 7 is a useful discussion of some of the myriad legal cases that Thaksin faced. Chapter 8 considers the work of the Constitutional Court, where most decisions have gone against pro-Thaksin parties and politicians.
At one point, McCargo contends that “most Thai judges are honest, hardworking, and well-intentioned” (p. 53). Yet the picture he presents in this book is far more dismal, with the judges shown to be self-important, lazy, insufficiently trained, inept, and willing to bend and break the law. This characterization does not suggest a few bad apples but that the whole barrel is rotten (p. 45). In political cases, McCargo writes that the judges “struggle to distinguish between their formal role as neutral arbiters, and their own intimate affiliations with the monarchy and deep attachment to the status quo” (p. 55); in other words, their courts are deeply politicized. When the author considers the Constitutional Court and its justices, he argues that they sway with the political breeze, yet the evidence presented is of a Court pursuing politics by other means. For all of this pessimistic evidence, McCargo ends his book on a hopeful note, declaring that “judicialization … has now peaked” (p. 217). He was far too optimistic. Since the book was completed, the Constitutional Court has dissolved yet another “opposition” party while dismissing all cases brought against the ruling military-backed regime.
Like other path-breaking books, Fighting for Virtue has some issues. I find McCargo’s methodology problematic. His approach mainly involves direct observation and the reading of primary materials such as court decisions. This produces some acute insights, but it also lends itself to personalized judgments and dislikes, as well as to advice to lawyers and activists that is not always supported by the evidence. Perhaps it is the intimacy of observation that encourages the author to dismiss some of the strategies adopted by defense lawyers. Keen to show that it is not just the judges who contribute to shambolic courts and cases, McCargo argues that defense lawyers deliberately adopted aggressive courtroom tactics and were, by their own political positions, likely to antagonize conservative judges. Yet his view is that of a layman, and perhaps what he sees as flawed defense strategies are actually political statements about biased judges and courts.
Another issue is that the author gives too little attention to developing a conceptual framework, and readers learn little about where McCargo locates his work within the existing literature on Thailand’s judiciary or in the broader literature on the intersection of politics and law. When other works appear, it is usually to add detail to McCargo’s story. The most striking exception is the dismissive comment on Eugénie Mérieau’s article, “Thailand’s Deep State, Royal Power and the Constitutional Court (1997–2015),” (Journal of Contemporary Asia, 46 [3], 2016). In characterizing her approach as “undertheorized” (p. 186), the author is using a term that also describes Fighting for Virtue. McCargo could have taken on Mérieau’s argument and shown how his approach is different.
Although the author does an excellent job of describing judges, readers do not learn much about how the courts fit into the broader justice system. McCargo convincingly demonstrates that, in the cases he discusses, the evidence presented in court was usually slim, with some concocted, and that investigations were a shemozzle, prosecution witnesses incoherent, and lawyers sometimes underprepared. As useful as this is, it leaves open questions about how the police, prosecutors, courts, and prisons are organized and connected. In addition, in recent years, military courts played a significant role in political cases, but they are barely mentioned.
Despite these criticisms, Fighting for Virtue is a book that deserves to be widely read and discussed. It makes a valuable contribution, expanding considerably our knowledge of Thailand’s political landscape. Beyond an academic audience, journalists and others seeking to understand Thailand’s ongoing political turmoil will find it especially helpful, not least because the political turmoil continues. As this review was being written, students were again challenging the military-backed regime and the monarchy. Several were arrested, and few who read Fighting for Virtue will expect that they will get fair treatment before the courts. One of those arrested is Arnon Nampha, who appears in this book as a defense lawyer. He will be fully aware that judges may seek to exact vengeance for his lack of (royalist) virtue.
