Tyrell Haberkorn’s previous work documents Thailand’s history of state impunity, by which she means “the persistent and repeated failure to secure accountability for state violence” (2018:4). Earlier studies demonstrated her skills in mining archives and personal accounts to record state violence whose details are often unknown or misreported by the media, details about victims, perpetrators, and the official proceedings which punished victims and exonerated state officers. Her new book employs archival material, interviews and observation of judicial proceedings to construct alternative judgments for recent cases in which Thailand’s high courts upheld the impunity of Thailand’s most recent coup government.

Haberkorn’s alternative judicial opinions add to the growing number of Feminist Judgment Projects undertaken to reveal the underpinnings of judicial decisions that omit crucial facts and rely on interpretations of law skewed against women and other subordinated groups. Using “feminist methodology” which attends to full examination of context and previously ignored interests of women and minorities, feminist scholars have constructed new opinions using only facts in the original record and existing law. Using similar methods, Haberkorn examines five cases arising from the actions of Thailand’s latest military government during the period between the coup on May 22, 2014, and ratification of a military drafted constitution by means of a military controlled referendum in 2017. Although Thailand is no stranger to military coups and authoritarian governments, the latest coup-government was the longest in recent history and did deep and lasting damage to the possibilities for a democracy free from military oversight and the monarchy’s extra-constitutional powers.

Prior Feminist Judgment Projects have been undertaken by jurists in liberal democracies where common law jurisprudence legitimates flexible interpretations of law and argumentative opinions that expose judicial reasoning to analysis and criticism. Haberkorn’s Project is conducted on more challenging terrain. Thailand has been a constitutional monarchy in form since 1932 but, notwithstanding constitutional proclamations that it will be a “democracy with the King as head of state,” democracy has frequently given way to military government. Further, the Thai monarchy and those who speak in its name have asserted a range of extraconstitutional powers for the purpose of maintaining “peace and order” – typically maintaining existing elites in privileged positions of power by overriding nominal rights guaranteed to the people. Since 1997, Thailand has embraced many of the elements of liberal constitutionalism – independent courts, watchdog agencies with power to remove corrupt politicians, and a bill of rights. Haberkorn’s underlying thesis is that notwithstanding this shift toward liberal constitutionalism in form, long-dominant elites have made the new “independent” courts and other agencies instruments for the preservation of authoritarian government.

Haberkorn is not a lawyer but worked with legal scholars to construct alternative judgments written by hypothetical courts “for the people,” her vehicles for overriding the actual decisions of Thai courts in cases which illustrate the coup government’s reliance on the judiciary to uphold the legitimacy of the coup and tactics employed to suppress dissent. Her lead case involves the fate of a challenge brought by members of Resistant Citizen to the legitimacy of the coup government’s seizure of power. Thai courts dismissed the suit for three reasons – the absence of an “injured party” recognizable by the court, the coup government’s self-declared amnesty for coup perpetrators, and the court’s claim that the legitimacy of the coup must be decided elsewhere, without specifying where that might be. The Thai court relied on decisions dating from mid-twentieth century upholding “coupocracy,” a court-invented term for what has become a customary form of interregnum used to restructure political control since 1932. In her alternative opinion, Haberkorn relies on the text of the constitution abrogated by the coup and on statutory law which condemn insurrection against constitutional government and make it punishable by death. She also relies on international conceptions of “democracy” and “rule of law,” terms which frequently appear in Thai constitutions and jurisprudence but which have roots in a very different legal culture and history of political conflict.

Four additional cases underscore the practices of an undemocratic, often violent, military government determined to bend any future elected government to its will – suppressing assembly and speech, requiring leading dissenters to report for detention and reeducation, suppression of criticism of its proposed constitution, and subjecting accused to abuse and torture in a special prison. Her alternative judgments expose the extent to which the actual opinions of the high courts, staffed with judges appointed by elites friendly to the monarchy, ignore or misreport facts and bend the statutory and constitutional law. Haberkorn’s alternative judgments are a powerful indictment not only of the coup government, which lasted for an unprecedented length of time, but of Thailand’s high court’s lack of respect for constitutionalism and citizens’ desire for change.

We may be inclined to agree with Haberkorn about Thailand’s failure to live up to international standards of respect for human rights and freedom expected by citizens of a liberal democracy, but the complexities of Thailand’s political history and legal culture raise important questions about the persuasiveness of her alternative jurisprudence. Thailand’s Buddhist monarchy has both religious and political importance for many Thai. The last monarch, whose reign lasted from 1946 to 2016, was not only popular but revered (although reverence for his son, the current King, is increasingly in doubt).

On full display are Haberkorn’s anger as a scholar and desire to create a rallying cry for change, and in the latter respect she represents a sentiment embraced by many Thai, especially among younger generations of voters. Her reliance on the normative force of liberal legal norms for “democracy” and “rule of law” rather than confronting the historical context for interpreting “Democracy with the King as Head of State” as it appears in numerous Thai constitutions leads her to write alternative judgments. These alternative judgments do not fulfill her promise to write “opinions which sound like opinions,” rather than opinions which sound like Haberkorn herself. We may praise her exposure of the transparent politics underlying judgments of Thai courts, but she postpones the difficult task awaiting future courts, namely creating a legitimate transitional justice which anticipates a truly democratic political structure and new meanings for justice and rule of law while remaining authentically Thai.