Abstract
This article interrogates Thailand’s struggle between two conflicting constitutional identities, the identities of Thai-ness and liberal democracies, by examining how the Constitutional court implicitly and explicitly formulates and utilises both identities in its decisions from 2014 to 2020. Our analysis of these decisions shows that, instead of negotiating or synthesising the competing identities as the literature on constitutional identity envisages, the Thai court adapts the generic liberal democratic identity to defend and reassert the incumbent dominant identity of Thai-ness. The court drains liberal constitutionalism of its intrinsic substance while tactfully preserving and then lending its global legitimacy to bolster the local identity of Thai-ness. As a result, the liberal democratic identity is manipulated and pulled to gravitate towards the opposite value of Thai-ness. This unequal co-option between the polarised identities, we argue, depicts the current constitutional struggle in Thailand and marks the unique identity of Thai-style constitutionalism.
Introduction
This article aims to propose how, against the backdrop of contemporary constitutional struggles between two competing constitutional identities in Thailand, the identity of ‘Thai-style constitutionalism’ is shaped by the highly political decisions rendered by the Constitutional Court (‘CC’). 1 Since 2006, Thailand’s nascent democracy has been trapped in an intractable political conflict between pro-democracy supporters on one side and holdover royalist-conservative elites, including some top bureaucrats and the military, on the other. Central to the contemporary constitutional struggles are these factions’ diametrically opposed views about whether the nationalist-royalist idea or the notion of liberal constitutionalism should constitute the country’s hegemonic ‘constitutional identity’, understood generally qua ‘constitutional ideas and principles fundamental to a constitutional system’. 2 Such struggles can be reformulated into two questions: who is to speak in the name of We the Thai People and how is the political order to be stabilised? 3
The royalist-conservative elites advocate the hegemonic traditional notion of Thai-ness coined by King Vajiravudh (1910–25) to instil nationalist and royalist sentiments. The notion defines ‘what is Thai’ as a stratified nation embodied in an archaic concept of the righteous Buddhist monarchy (Dhammaraja). 4 Though vehemently suppressed by the People’s Party, with the revolutionary group toppling the absolute monarchy in 1932, between the 1930s and the 1950s, these elites successfully reinstated royal hegemony through two military takeovers in 1957 and 1958. 5 For them, constitutional identity reflects ‘commitments expressive of a nation’s [glorious] past’ and invokes the friend–enemy dichotomy. 6 Hence, all forms of political exclusion, even extra-legal measures such as military takeovers, are indispensable for maintaining homogeneity. This perspective of constitutional identity reflects Michel Rosenfeld’s existential version of constitutional identity. According to Rosenfeld, constitutional identity denotes either ‘sameness’ — ‘a unity within a polity qua itself and nothing else’ — or ‘selfhood’ — ‘a polity’s reflexive ability to define itself as separate from others’. 7 It thereby creates ‘[a sense of] belonging to an imagined community that must carve out a distinct self-image’. 8
In contrast, for the pro-democracy faction, the establishment of institutional mechanisms for ensuring liberal constitutionalism signifies a constitutional identity ‘goal’ to which a written constitution aspires. 9 Given the modern trend towards liberalisation and democratisation, the idea of liberal constitutionalism — the reliance on a written constitution in laying down institutional mechanisms for governing state authority — has been adopted in many written constitutions across the globe, thus becoming what Gary Jacobsohn regards as a ‘generic constitutional identity’. 10 Despite its deeply embedded royalist culture, Thailand has also experienced the global rise of liberal constitutionalism through the revolution of 24 June 1932, which abolished the absolute monarchy, and, at the very least, succeeded in making demands for liberal constitutionalism irresistible. This success has been continuously reinforced by the constitutional reform process which led to the promulgation of the progressive, popularly supported 1997 Constitution of Thailand (2007 Constitution/2017 Constitution). This reform cemented the role of liberal constitutionalism in the Thai constitutional identity.
The above conflict manifests itself both at the level of the text of the written constitution and in the political arena, leading to a series of political crises and two royalist coups in 2006 and 2014. In the context of immense public demand for liberal constitutionalism, the nationalist-royalist version of constitutional identity can neither trump nor absolutely negate its pro-liberal alternative, but is increasingly required to ‘shift from repression to co-optation’ of the latter. 11 Against the backdrop of the present constitutional struggles, the Thai CC has played an influential role in shaping the contours of Thai constitutional identity by guiding the co-optation of sturdier progressive movements inside and outside Parliament by the nationalist-royalist elites. Its judges, as some commentators observe, have been handpicked by the royalist-conservative elites and the junta and have played a crucial role in guarding royal hegemony. 12 Without doubt, many pro-democracy supporters therefore see the CC, which is supposed to function as the guardian of liberal constitutionalism, as itself a threat to this aspiration.
In this article, we seek to highlight the contours of the constitutional struggles between the two versions of constitutional identity as steered by the CC, which reflect the success of the holdover elites in ‘[placing] liberal politics under the tutelage of the Thai-ness’. 13 Co-opted by the national-royalist version of constitutional identity, Rawin Leelapatana and Abdurrachman Satrio Pratomo accordingly observe that liberalism is consequently devalued and stigmatised as ‘a political ethos which precipitates … corruption and disunity’. 14 Our analysis of how the CC’s highly political decisions shape the identity of ‘Thai-style constitutionalism’ expands their thesis. Current analyses of the works of the Thai CC are silent as to this particular issue, instead paying more attention to the compliance of its decisions with standing constitutional law and relevant theories/principles, 15 and political factors influencing such a performance. 16 Given the limited space, our focus is mainly on the CC’s decisions between 2014 and 2020, a period in which Prayuth Chan-o-Cha, the leader of a coup in 2014, rose to premiership and stayed in power. Earlier decisions will be mentioned and assessed if comparable. We primarily focus on post-2014 decisions because such a period reflected a deeper lack of consensus between the existential and generic versions of constitutional identity, while the choice of cases did more to demonstrate the types of forces involved in constitutional struggle. The short period might prevent us from seeing the historical development or predict the trajectory of the struggle, but it will allow us to directly interrogate the contemporary legal techniques used by the CC as it responds to the current political clash. Furthermore, we acknowledge that our analysis of these decisions would scratch the surface of Thailand’s deep constitutional crisis which has been entrenched in the unfinished history of regime transition. However, as much as the national identity struggles take place in street protests, the contestation can also manifest itself between the lines of textual judicial decisions. Our aim is, therefore, a less ambitious and limited one: to illustrate how the struggle has transpired in the realm of jurisprudence and legal techniques. Besides, rather than approaching these cases from the narrow lens of Thai jurisprudence, we will put them under the strict scrutiny of transnational constitutional norms and practices, which, we hope, should put Thailand into the global dialogues in the discipline of comparative constitution.
Below, we will compare the key features of the two competing versions of constitutional identity in Thailand before assessing the CC’s decisions and orders in politically contentious cases between 2014 and 2020. Finally, the core identities of ‘Thai-style constitutionalism’ will be drawn out.
Competing Constitutional Identities in Thailand in Comparison
As already discussed, Thailand’s contemporary constitutional topography centres upon the struggle between the competing notions of constitutional identity — the existential version and its more normative counterpart — for dominance in determining ‘what is Thai’. Its answer thereby defines the basis for political stability and the authority to speak in the name of ‘We the Thai people’. To elaborate the extent to which the Thai experience provides useful theoretical lessons for current studies on constitutional identity, contemporary literature on the relationship between constitutional struggles and constitutional identity needs to be comprehensively examined. Again, their relationship is acknowledged by two prominent scholars in the field, Michel Rosenfeld and Gary Jacobsohn.
Constitutional identity, Jacobsohn emphasises, is not an encapsulation of a nation’s history, but it has to account for changes or at least to accommodate changes as a result of what is settled. He therefore dedicates his attention specifically to ‘the presence of constitutional disharmony’ that would be mediated through ‘the dialogical process’, that is, ‘ongoing political and interpretative activities occurring in courts, legislatures and other public and private domains’. 17 His disharmonic constitution describes ‘dissonance within and around the constitution’, that is, ‘contradictions between various constitutional commitments within the constitutional structure’ as well as those between ‘aspirational ideals set out in the text of a constitution and the reality’ respectively. 18 This disharmony constitutes a driving force behind the formation and transformation of constitutional identity qua ‘a mix of political aspirations and commitments’. 19
Unlike Jacobsohn, the formation of constitutional identity, for Rosenfeld, is intertwined with a dialectic reordering of identity within the realm based on a struggle between the opposite forces, selfhood and sameness or subjectivity and objectivity. 20 As the subject of the constitution is on a journey to seek recognition from itself and from others, the construction of its identity therefore involves ‘a complete break with pre-existing tradition’ 21 and ‘the selective incorporation of discarded identities' into the new order. 22 Ultimately, Rosenfeld concludes that ‘[the] ideal constitutional identity is developed through a process that emphasizes simultaneously certain common identities in a society and suppresses or reduces the importance of divergent identities.’ 23
The constitutional struggles in contemporary Thailand affirm the argument shared by both Jacobsohn and Rosenfeld that the construction of constitutional identity is a dynamic process shaped by a myriad of identities, political interests and values, history and sometimes the constitution itself. 24 With Jacobsohn, the Thai experience also reveals the clash between ‘the preservative and transformative elements’ as well as the crucial role of the judiciary — the CC in particular — in shaping constitutional identity. 25 However, both Jacobsohn and Rosenfeld, we contend, base their theses on constitutional experiences in established democracies, notably in Europe. Consequentially, they do not account for ‘the Gramscian crisis of hegemony’ where ‘the old is dying and the new cannot be born’ in fledgling democracies, including Thailand. 26 This scenario reveals the grave tension between ‘declining but still dominant’ commitments to the nationalist-royalist ideology of Thai-ness and ‘more legitimate yet still inferior’ aspirations for globalisation, liberalisation and democratisation. 27 Though still constituting the dominant version of constitutional identity, Thai-ness can no longer totally negate the presence of, and instead has to co-opt, liberal constitutionalism. Each scholar examines the existential version of constitutional identity (Rosenfeld) and its normative counterpart (Jacobsohn) to the exclusion of the other, while focusing primarily on disharmony and negation qua a driving factor for the emergence of and change in constitutional identity. Accordingly, neither scholar assesses the extent to which an incumbent dominant identity should be adapted to defend and reassert its legitimacy against the challenge galvanised by its opposing ideal, and how this adaptation affects the contours of the latter. Rather than proposing how the globalisation of liberal constitutional ideas propels changes in local constitutional identity as does Bui Ngoc Son, our primary concern is the opposite: how local constitutional identity propels changes in the generic constitutional identity. 28 Before assessing the gravitational pull of Thai-ness upon liberal constitutionalism determined by the CC, we first need to understand differences between these competing identities.
Overall, the grave tension between Thai-ness and liberal constitutionalism reflects constitutional struggles, not simply at the interest level but also at the ideological one, over ‘core values’ which help in stabilising an order as well as in establishing who holds the authority to represent the Thai people. 29 Interestingly, having succeeded in co-opting sturdier liberal demands, the Thai royalist-conservative elites have crafted the regime of tutelage democracy — the Democratic Regime with the King as the Head of the State (‘DRKH’) — to preserve royal hegemony in post-absolutist Thailand. Three key features lie at the core of the DRKH: the superior morality of the royalist-conservative elites over a commitment to a liberal-democratic constitution, the corrupt nature of parliamentary politics, and the Thai people’s duty to protect and acclaim Nation-Religion-Monarchy. These features conspicuously contradict the ethos underlying liberal constitutionalism conceived of as global or generic constitutional identity in three dimensions — legal (a strict commitment to democratic constitutionality), political (the importance of Parliament-based mechanisms in preserving democratic constitutionality) and social (the essence of political participation in holding public authority to constitutionality). 30 Through the initial understanding of these differing views, we aim to capture the identity of ‘Thai-style constitutionalism’ resulting from the process of ‘co-option’.
Legal Dimension
The legal dimension of liberal constitutionalism (‘the legal dimension’) is fundamentally associated with the nature of public authority. However, given that this authority enables the state to encroach upon individual rights and liberties one-sidedly, it therefore sometimes conflicts with an individual’s subjective will and entails the risk of abuses. 31 To mitigate such tension and risk, the legal dimension therefore requires that state agencies cannot claim their authority without ex ante legal authorisation. 32 Accordingly, without ‘the normative priority of legality’s autonomous value’, the legal dimension would be meaningless. 33 A written constitution must establish the institutional condition, including the presence of constitutional review, which helps prevent law from being turned into ‘random exercises of political power’. 34
The DRKH, in contrast, prioritises ‘the power of political facts and historical ideas over the sober, rational, often seemingly shallow technicality of positivism’. 35 The rule is therefore of the concrete flesh and blood Dhammaraja who embodies and protects the nation and its demos — the status which simultaneously justifies his position as the source of democratic legitimacy. 36 Due to their contrasting views on the nature of political authority, demands to replace royal hegemony with liberal constitutionalism are therefore classified as an extreme emergency provoking serious national security concerns. 37 Such concerns are utilised as an expedient to invoke extraordinary measures to encroach on and even suspend the constitutional rights and liberties of those branded as public enemies. The military takeover in 2014 and the government crackdown of the 2020 and 2021 progressive protests are examples of those drastic measures. By avowing the necessity to repress threats to Nation-Religion-Monarchy, the junta leader — General Prayuth Chan-o-cha — and his associates can legitimately proclaim themselves to be loyalist (Phu Pakdee) and men of virtue (Khon Dee). 38
Political Dimension
Whereas the legal dimension focuses on law, especially a constitution qua technical apparatus for constraining state authority, the political dimension of liberal constitutionalism (‘the political dimension’) concerns the importance of Parliament-based mechanisms in fostering core values of a liberal-democratic constitution. The mechanisms should facilitate peaceful compromise and inclusion among opposing interests by enabling them to negotiate their conflicting views without fear of state repression. 39 Both dimensions are nevertheless mutually supportive as they both seek to hamper an authoritarian turn. According to Kelsen, parliamentary debate is a promising tool for preventing the adoption of legal norms which ‘[satisfy] one interest at the expense of the other’. 40 Other mechanisms such as no-confidence debate or the process of scrutiny through parliamentary committees also help raise public concern about a healthy liberal democracy. 41
The Thai royalist-conservatives, in contrast, emphasise the sacred nature of the monarchy as the distinct identity of the DRKH. Presuming the monarchy to be the highest moral institution, they regard the liberal ethos of openness and inclusiveness not only as an alien product contrary to the notions of strong leadership and national unity, but also as the source of political disunity. 42 These principles galvanise competing antagonisms among self-interested, corrupt, and egotistical politicians who enter politics simply for private interests. They also leave room for public enemies or ‘un-Thais’ — people or political parties accused of purportedly holding anti-establishment sentiments — to capture control of state government through legitimate constitutional means. From this perspective, a general election is effectively seen as the catalyst for disintegrating predispositions rather than as a mechanism for nurturing political compromise. 43
Social Dimension
As Ramraj observes, without support from society, liberal constitutionalism would hardly be meaningful. Its ‘social dimension’ therefore advocates the role of an active citizenry in checking abuses of state authority in real-world political space. 44 The right to freedom of expression and association is central to this dimension. State authority is held to constitutional account ‘through a range of strategies, such as influencing agenda setting, fostering political mobilization, gaining bargaining leverage, raising awareness of issues, and creating new alliances’. 45 Civic activism then helps propel the rhetoric of liberal constitutionalism to challenge any authoritarian exercises of public authority within the real-world political sphere. 46
Stringently emphasising the survival and unity of Nation-Religion-Monarchy, the role of the people under the DRKH is traditionally limited to acclaiming these pillars. They are regarded merely as ‘passive people’ holding a duty not to resist nor question the legitimacy of Thai-ness. Anyone flouting this duty, in effect, positions themselves as un-Thai. 47 This acclamation provides the basis of political legitimacy and authority for the monarchy and is usually invoked to justify the imposition of royalist coups and other suppressions of purported ‘un-Thais’. However, given the current enormous public appetite for liberal constitutionalism which has fuelled unprecedented calls for the reform of the monarchy, the holdover elites have increasingly realised the essence of mobilising royalist sympathies among their supporters. Such tactics resulted in a series of virulent clashes between the two factions between 2020 and 2021, thus deepening uncertainty about Thailand’s future trajectory.
The current lack of consensus on which of the two competing constitutional identities should constitute the hegemonic value for guiding the exercise of public authority prompted the protracted political crises which began in 2006. Formally entrusted with a role in arbitrating constitutional issues, the CC has been drawn into this political fray to determine the contours of ‘who and what are deemed as Thai’. Next, we will examine the CC’s judgments between 2014 and 2020 which have significantly contoured Thailand’s constitutional identity. Having been entrusted with the task of determining constitutional conflicts by every post-1997 permanent constitution (the 1997, 2007 and 2017 versions), the CC has become a central actor in shaping Thailand’s constitutional identity. Such a role is further reinforced by ‘the [growing] reliance on courts and judicial means for addressing … political controversies’ since 2006 as well as the fact that all the above constitutions consistently stipulate that every decision made by the CC is binding on all branches of government and state organs. 48
The Constitutional Court and Polarised Identities
To understand the CC’s highly intrusive venture into the political fray from 2014 onwards, we need to briefly explain first pre-2014 events which turn Thailand into a deeply polarised society. As mentioned earlier, the constitutional reform in 1997 marks a watershed in the country’s constitutional history. Not only has this reform reinforced anti-coup sentiments and public consciousness of liberal-democratic ideas among larger segments of Thai society, but it also facilitated the rise to premiership of Thaksin Shinawatra whose pluto-populist campaign attracted a wide range of supports. In response, the royalist-conservative elites and the military thereby launched a coup in 2006. Instead of securing an outright victory for the holdover elites as intended, the coup however stirred outrage among anti-establishment movements known as United Front for Democracy Against Dictatorship (‘UDD’), resulting in two mass protests in 2009 and 2010 which were both met with brutal military crackdowns.
Acknowledging costs and risks incurred by mounting a coup, it nevertheless appears that the holdover elites have chosen to rely more on the legal-rational technique, namely, the CC, in dealing with a series of political crises. This growing reliance, in consequence, entails the royalist-complexion and politicisation of the CC. As a result, their rulings are normally labelled as partisan and bias-ridden. 49 Between 2006 and 2013, the CC dismissed two Prime Ministers (‘PM’) of the Thaksin faction. 50 This article however does not intend to analyse these cases as doing so would distract the purpose of the paper to highlight the forces in constitutional struggles. The CC also endorsed the use of lethal emergency powers to disperse the UDD in 2010. 51 Nevertheless, the judicialisation of politics could not prevent the Thaksin-backed political parties from securing their landslide victories in the two post-coup general elections (2007 and 2011). Regarding the 2006 coup as a waste of opportunity to kill off Thaksin’s influence and then to tame a growing public appetite for liberal constitutionalism, the elites and the military therefore established the new game plan aimed at ensuring their firm grip on power, especially after the passing of the immensely revered King Bhumibol (1946–2016). 52 Its success inextricably requires the intervention of the CC.
The CC’s activist stance in politics between 2014 and 2020 can be divided into three main phases. In 2014, the CC justified violent demonstrations led by a pro-monarchy political pressure group before later voiding a general election set to pacify the crisis, thus resulting in a power vacuum, clearing the way for Prayuth Chan-ocha’s rise to the premiership through a coup in May 2014. Between 2014 and 2018, elections at all levels were suspended. Their restoration in 2019 nevertheless marked a new round of judicial activism in politics. In February 2020, it ordered the current establishment’s insurgent rival — the left-wing, young voter-supported Future Forward Party (‘FF’) — dissolved for breaching a conflict-of-interest provision under the Political Party Organic Act 2018. Later in late 2020, the CC became a political arsenal for defending the current establishment, this time playing a role in stabilising Prayuth’s militarised dictatorship amidst a series of youth-led anti-establishment protests. While this article does not aim to provide a meticulous analysis of the case law, we intend to sketch out an overarching tension manifested in the decisions under the theme of constitutional struggles. The CC’s verdicts since 2014, we contend, reveal how the CC has manipulated the logic underlying the legal, political and social dimensions of liberal constitutionalism to buttress the rationale behind Thai-ness (i.e. the essence of eliminating threats to the throne) without adducing, explicitly and implicitly, such an objective. Put simply, they demonstrate different types of forces involved in constitutional struggle.
The Constitutional Court and Civic Activism: Justifying Impunity Through the Logic and Language of Liberal Constitutionalism
The military crackdown on the UDD in 2010 severely tarnished the image of the then PM, Abhisit Vejjajiva. Despite the military’s support, his Democrat Party (‘DP’) was overwhelmingly defeated by the Thaksin-backed Pheu Thai (‘PT’). Yingluck Shinawatra became Thailand’s new PM in mid-2011. As Thaksin’s younger sister, Yingluck was harshly opposed by the royalist-conservatives. The opportunity to overthrow her government finally came in late 2013 after the PT sought to pass an Amnesty Bill absolving all involved parties in a series of political crises from 2006 onwards of all criminal charges. The royalist-conservative clique and its supporters believed that the Bill would exculpate Thaksin and his cronies of all corruption charges. The former took advantage of immense public dissatisfaction towards the Bill to form another anti-Shinawatra political pressure group known as the People’s Democratic Reform Committee (‘PDRC’). The group presented itself as the guardian of Thai-ness and therefore Phu Pakdee and Khon Dee.
We argue that the PDRC protest signifies the resort to the social dimension of liberal constitutionalism to subvert its political counterpart. Branding the PT as ‘evil politicians’, Suthep Thaugsuban, the PDRC’s de facto leader, then called for a constitutional reform. Here, some aspects underlying the social dimension of liberal constitutionalism could be grasped — the people were playing a role of what Ramraj calls ‘the shadow constitutional court’ by making their moves ‘out of doors’ to promote ‘good governance’ as ‘the core values of the constitution’. 53 Yet, the PDRC also asserted that such an idea must be in consonance with Thai culture. Stigmatising parliamentary politics as corrupt and partisan, Suthep therefore proposed to supersede it with ‘the People’s Council’, comprising appointed members in which 100 of whom would be selected by the PDRC from the so-called Khon Dee royalists and experts; other 300 members would be selected from representatives of various occupations. 54 This goal ostensibly stands in stark contrast with electoral/participatory politics underlying the political dimension.
Attempting to make peace with the PDRC, Yingluck later dissolved Parliament in December 2013, calling for a general election on 2 February 2014. However, condemning the election as a crude technique to cleanse the PM’s tarnished image, Suthep led an anti-election rally. A convoy of protesters disrupted the candidate registration process, seized several government premises, clashed with the police and assaulted dissenting voices. 55 Yingluck subsequently declared a state of emergency under the 2005 Emergency Decree on Public Administration in State of Emergency (‘the 2005 Decree’) between 22 January and 22 March 2014 with several PT MPs and pro-democracy activists lodging abundant petitions asking the CC to pronounce the PDRC protest unconstitutional.
The CC nonetheless declared all of these petitions inadmissible. It ruled that the proposed establishment of the People’s Council was ‘a mere expression of will to the government in a bid to call for its resignation in order to start reforming the country’. 56 In another order, the CC held that the protest manifested public discontent and non-confidence against the Yingluck administration. 57 Even in the aftermath of the Bangkok Shutdown rallies in January 2014 which led to chaos and acts of vandalism, the CC still declared the PDRC protest a constitutional exercise of the right to freedom of peaceful political assembly certified by the 2007 Constitution. 58 Relying on the CC’s orders, the Civil Court also issued an injunction prohibiting the use of the 2005 Decree to disperse assemblies. 59 Although the above CC orders included statements that might be interpreted as indicating that criminal processes should be followed through on with respect to illegal actions committed by the protestors, it is still highly doubtful in our opinion that the PDRC protest was genuinely peaceful and therefore constitutional. These orders were brief and contained omissions of key facts. The CC made no mention the PDRC’s violent blocking of the general election process and hateful rhetoric between November 2013 and April 2014. In essence, they reveal the exploitation of the logic underlying liberal constitutionalism, notably its legal dimension — the prohibition against unlawful restriction of individual rights imposed on behalf of the state — to provide a shield for the resort to the social dimension to subvert its political counterpart.
Due to the PDRC’s disruptions, polls could not be held on the same day nationwide. Anti-government supporters took this opportunity to accuse such a process of ‘not being free and fair’. The CC later voided the election on the ground that voting was not held throughout the Kingdom on the same day, castigating the Yingluck government for persisting in arranging the general election ‘during the period in which [the country has been convulsed by] serious political conflicts and internal polarisation among the people’. 60 This decision implicitly confirmed the lawful exercise of the right to political assembly of the PDRC protesters notwithstanding their blatant attempts to subvert the ethos of liberal constitutionalism. It was the election, not the election blockade that galvanised an exigency. The CC’s orders and decision in 2014 cumulatively precipitated a power vacuum, paving the way for the coup on 22 May 2014.
Interestingly, the above CC’s orders stand in stark contrast with its previous decision on the UDD crackdown in 2010. After the crackdown operation, two of UDD leaders lodged a petition asking the CC to pronounce the state of emergency declared by Abhisit and subsequent uses of emergency regulations issued under the 2005 Decree unconstitutional as the protest was the lawful exercise of the right to freedom of expression. Nevertheless, the CC abruptly dismissed the case, reasoning that determining the constitutionality of by-laws constituted a task falling outside its purview. 61 Worse, it further declared that the emergency provisions applied during the crackdown operation, namely, the prohibition of any public gatherings and the power to arrest and detain preventively persons for no more than 7 days without judicial oversight, were constitutional. The Court reasoned that these powers were crucial means ‘for preventing serious public disorder as well as for resolving an exigency at hand’. 62 This ruling completely contradicts the human rights concerns raised by scholars. 63
In our view, both instances reflect the state of impunity within Thailand’s constitutional landscape from different angles, thus seriously undermining the ethos of liberal constitutionalism. The CC’s orders in 2014 exploited the notion of rights and liberties to provide a cloak of impunity for protesters seeking to employ Thai-ness to subvert liberal constitutionalism itself. Meanwhile, its decision against those stigmatised as ‘un-Thai’ in 2010 prioritised the rationale behind Thai-ness — the security of the nation — over the protection of individual rights and liberties. In the 2010 decision, the CC bestowed impunity upon the government, paying no attention to human rights claims and even ignored their violation.
The Constitutional Court and an Anti-Establishment Political Party: The Logic of Liberal Constitutionalism Manipulated
After 5 years under the interim government, the long-awaited general election was held on 24 March 2019. As the political arena was finally opening up, new and old politicians keenly participated in the election. Among the many emerging political parties, the left-wing FF led by billionaire activist Thanathorn Juangroongruangkit took the public by storm and quickly became the symbol of hope for young voters.
Clinching the third-largest share of seats in the Lower House (81 out of 500 seats), the FF joined the PT-led opposition. Though Prayuth was re-elected as PM, the FF party had established itself as a major threat to his government and, more broadly, the royalist-conservative establishment. It had played an active role in ‘[promoting liberal] constitutionalism as an integrative ideology across the length and breadth of the country’, in particular, by proposing the abolition of some privileges granted to top generals as well as the establishment of Parliament’s coup-prevention committee. 64 No doubt, the FF and its leader, Thanathorn, had found themselves pilloried by the royalist-conservatives and the military as threats to the throne and therefore the enemy of Thai-ness or ‘un-Thai’. The CC became an arena where the conflicts between the two parties were fought out. The ‘loan case’ was the climax of the entire story. More importantly, it reflects the manipulation of the logic underlying the legal dimension for excluding an entity deemed to be a public enemy.
Before the 2019 election, Thanathorn lent to the FF 191.2 million baht (approximately $6,035,000) at an interest rate of 7.5 per cent per annum in the first instalment and 2 per cent per annum in the second. In December 2019, the Election Commission (‘EC’) was of the opinion that the interest rate of the loan was abnormal as it was unusually low, thus reflecting Thanathorn’s attempt to evade section 66 of the 2018 Organic Act. 65 The first paragraph of this provision prohibits any persons from donating money or assets to a political party in excess of 10 million baht (approximately $320,000) per annum. Meanwhile, its second paragraph forbids a political party from accepting any such donation. The EC ultimately found that the FF had breached section 72 of the 2018 Organic Act which prohibited a political party from obtaining benefits, money, or assets from an illegal source, and asked the CC to order its dissolution by virtue of section 92 of the same law. The case was heard before the CC on 21 February 2020. 66
The CC discerned that section 62 of the 2018 Organic Act neither explicitly prohibits nor permits a political party to accept loans from third persons. Yet, having deemed the FF to be ‘a juristic person under public law’, it subsequently subjected the party to the strict principle underlying the legal dimension — state officials act qua the state solely on the basis of law — as though it were an authority subject to public law. 67 The standard of proof for determining the allegation at hand is therefore based on the principle that for an authority subject to public law, ‘everything that is not allowed is forbidden’. 68 In doing so, the CC placed the FF in an onerous position to counterclaim its allegation, treating the loan in question with high suspicion.
Rather than presuming Thanathorn’s good faith until rebutted by evidence to the contrary, the Court, in reverse, presupposed the alleged loan to be ‘unusual borrowing’ with the intent of evading the 10-million-baht limit on donations set out in section 66. By adopting the aforesaid presumption, it abruptly held that in comparison with normal business practice, the interest rate of the alleged loan was ‘excessively and unsually low’. 69 Neither did the CC clearly indicate ‘how low is too low’ for the interest rate nor did it take into consideration the evidence of repayment put forward by the FF. 70 This subsequently led to the finding that Thanathorn intrinsically aimed to make a large donation to his party in excess of the limit prescribed by law. By accepting such a donation, the FF accordingly acted in violation of section 66 of the 2018 Organic Act. Having established that the manner of the loan in question contravened a constitutional provision, the CC ultimately held that the money in question was ‘money obtained via illegal source’ and equivalent to money obtained from drug trafficking in contravention also of section 72, thus ordering the party dissolved by virtue of section 92 and banning 16 members of its executive committee, including Thanathorn himself, from politics for 10 years. 71
In our opinion, the application of the ethos underlying liberal constitutionalism to the alleged act is questionable. A political party simply a mediating institution between the formation of the state’s will and individuals’ opposing interests, not a device for expressing and exerting administrative power. 72 In fact, the FF did not even possess the authority to employ coercive force.
The Constitutional Court and the Royalist-Conservative Establishment: Liberal Constitutionalism Exempted
The dissolution decision severely sapped the strength of the PT-led opposition coalition. However, the fight against Prayuth’s authoritarian regime continued. In March 2020, several PT MPs alleged that Prayuth had enjoyed the perk of staying at an army house — a benefit granted to high-ranking military commanders by virtue of several army regulations — without paying utility bills long after his retirement in 2014. They lodged a petition before the CC accusing Prayuth of violating sections 184 and 186 of the 2017 Constitution which seek to prevent a conflict of interest by prohibiting the PM from ‘[receiving] any special money or benefit from … a state agency … apart from that given … in the ordinary course of business’. 73 Had Prayuth been found guilty, he would have been relieved of his premiership. The case was decided amidst political turmoil in December 2020 galvanised by Prayuth’s ineffective administration and response to the economic fallout rendered by Covid-19.
The CC had to decide which source of law has priority — the 2017 Constitution or the army regulations. 74 Giving more weight to the former would confirm the core principle of liberal constitutionalism that the country's written constitution is the supreme law. Deferring to the latter, by contrast, would uphold the ‘privilege’ of the former army chief, unswervingly proclaiming himself as the guardian of Thai-ness. Unlike the FF’s loan controversy, the CC applied a lenient standard of proof to Prayuth by relying on the army regulations which permit former army commanders to stay at army housing if they continue to act for the benefit of the nation in deciding the case. It accepted that the alleged fact might present a conflict of interest but quickly rebutted the presumption by asserting that Prayuth had contributed to the country as an army chief before later becoming its PM. 75 As the PM, Prayuth also possesses duties under the 2017 Constitution to serve the public interest. According to the CC, it is therefore for the state to ensure his safety and security, especially by arranging appropriate accommodation, in order to accommodate him to carry out those duties effectively, especially when the statehouse, usually reserved for the PM, was unavailable due to ongoing maintenance. 76 Having established that Prayuth has long served the country both as the army chief and the PM, the CC ultimately concluded that he is then entitled to welfare benefits under the army regulations. 77 It even acknowledged that a civilian PM, by contrast, does not hold the benefit as such by asserting that ‘[h]ad the Respondent [Prayuth] been a civilian Prime Minister and not a high-ranking Army Commander, he would have no eligibility to reside in the army residence as such.’ 78
In our view, since only former army commander-turn PMs are entitled to army housing benefits, it is therefore doubtful whether the housing in question intrinsically constitutes ‘a benefit received in the ordinary course of business’ under the 2017 Constitution. The ongoing maintenance of the statehouse for the PM should not be an excuse for Prayuth to gain a privilege — a special advantage — of receiving the army housing benefits, when these perks would not be available ‘in the ordinary course of business’ for other civilian PMs. More importantly, rather than upholding the core principle of liberal constitutionalism that the constitution is the supreme law of the land, the CC instead gave significant weight to army regulations, even permitting them to be invoked to exempt such a principle. Another important point is that, given that most of Thailand’s former army commanders attained their premiership via royalist coups, this ruling accordingly preserves welfare benefits for the junta chiefs rather than subject them to legal constraints as envisaged by liberal constitutionalism. Put differently, the logic and language of liberal constitutionalism might be exempted for the sake of the royalist-conservative establishment. This ruling confirms the CC’s previous precedent which advocates the superiority of a royalist coup and its leaders’ privileges over parliamentary politics. 79 Next, we will apply the above verdicts to deduce the identity of ‘Thai-style constitutionalism’.
The Identity of ‘Thai-Style Constitutionalism’
As elaborated earlier, constitutional struggles between the existential and normative versions of constitutional identity are reflected in the CC’s highly political decisions since 2014. These verdicts signal a triumph of Thai-ness and reflect how the CC — the mechanism intended to function as the defender of liberal constitutionalism — may be manipulated to preserve the interests of the holdover royalist-conservative elites. However, this scenario simultaneously reveals the undeniable acknowledgement of liberal constitutionalism as part of Thai-ness’s constitutional identity. In fact, as the trends of democratisation, liberalisation, and modernisation have increasingly been felt, Thai-ness’s self-preservation in modern-day Thailand ‘has to be constructed under the logic and language of liberal constitutionalism’. 80 This construction therefore relativises and eventually reshapes the contours of a global identity of liberal constitutionalism. Put another way, the emergence of ‘Thai-style constitutionalism’ here, though resulting from a dynamic process in which values are contested and constituted, does not resemble Jacobsohn’s dialogical process — an engagement in constitutional dialogue among various political interests to determine the substance of constitutional identity — nor Rosenfeld’s dialectic sublation — a negation of the nation’s prevailing past identity to formulate a new identity. 81 Rather, it typifies a complex co-option in which the CC, on the one hand, has upheld the essence of the traditional establishment by draining liberal constitutionalism of its intrinsic substance, while simultaneously having reserved some space for ‘its basic organisational structure’, notably the principle of legality and individual rights and freedoms, to invigorate declining Thai-ness hegemony. 82 Now we assess how the aforesaid co-option shapes the identity of ‘Thai-style constitutionalism’, specifically its legal, political and social dimensions.
Democratic Constitutionality Under the Logic of Impunity: Authoritarian Subjugation
The legal dimension, we reiterate, aims to establish stringent commitments to democratic constitutionality. The CC is expected to take a robust stance in rejecting legally unbounded decisions made in the name of the state. 83 The disharmony between Thai-ness and growing demands for liberal constitutionalism conspicuously induces the former to deliberate over increasingly regarding legality as the referent of legitimisation. This, in turn, reshapes the core identity of liberal constitutionalism itself, especially its emphasis on ‘the normative priority of legality’s autonomous value’. 84 Regarding the orders and decisions on the mass protests, the FF dissolution and Prayuth’s premiership, it appears that the Thai CC oscillates between two formulations, that is, between excessively adopting the legal dimension at the expense of the overall spirit of liberal constitutionalism itself and blatantly jettisoning this dimension.
The PDRC-related cases and the FF dissolution verdict represent the first stance. Here, the CC recognised the prohibition against the unlawful restriction of individual rights and the importance of ‘rule-bound authority’ as inherent elements of generic constitutional identity. Yet, their application was dictated by the logic of impunity associated with Thai-ness. The PDRC-related verdicts rest on the logic that emergency powers invoked by the Yingluck government to restrict rights and liberties of Khon Dee were a cause of further fragmentation and political crisis. Conversely, the CC did not take into consideration the PDRC’s blatant violent actions of disrupting the general election process. By declaring the PDRC mobilisation a lawful exercise of the right to freedom of assembly as guaranteed by the then 2007 Constitution, the Court turned the global identity of constitutionalism — the rhetoric of human rights qua limits of state power — into a means for depriving the civilian government of its ability to prevent attempts to sow chaos and political paralysis, paving the way for a coup to overthrow liberal constitutionalism itself. Meanwhile, in the FF case, it is questionable whether the strict principle of liberal constitutionalism should have been applied given that the FF was not a public authority. By extending the scope of liberal constitutionalism beyond its ambit, the Court not only relied on the notions of ‘political propriety’ and ‘constitutional compliance’ but also undermined a basic human right that a political party is formulated through the exercise of the right to freedom of association to partake in the conduct of the nation’s political life as guaranteed by sections 22 and 25 of the International Covenant on Civil and Political Rights.
In contrast, the liberal dimension was deliberately jettisoned by the CC in the army housing verdict just as in its previous decision on the UDD crackdown. In the 2010 decision, the Court, unlike the PRDC-related cases, did not attempt to scrupulously examine whether emergency powers were applied against the UDD to the extent strictly required by a given emergency. Meanwhile, by justifying the army housing privilege, the CC not only subverted legality’s autonomous value by bolstering the legitimacy of an act precipitating its suspension — a royalist coup, but even firmly set a precedent that public interest justifications under army regulations may be invoked to exempt a commitment to democratic constitutionality.
Given the above oscillation, it appears that the core identity of Thai-style constitutionalism — its legal dimension — does not centre around legality’s autonomous value but is subject to Thai-ness qua meta-legal authority. The Thai experience suggests that whether democratic constitutionality is strictly adopted or jettisoned depends on whether it is imposed by or against ‘the un-Thai’. The more an issue is concerned with the hegemony of Thai-ness, the greater the likelihood the CC might interpret the law in a way that distorts the intrinsic idea of democratic constitutionality for the sake of such hegemony. The discourses of constitutionality and human rights might even be manipulated as weapons for subverting liberal constitutionalism itself — the same result as where they are jettisoned. Put simply, the rationale of Thai-ness hegemony imprints the logic of ‘the state of exception’ — the space of ‘no-man’s land between juridical order and juridical void’ — upon the concepts of legal authority and accountability. 85 We call this characteristic of Thai-style constitutionalism — authoritarian subjugation.
Parliamentary Deficiency as the Cause of the Formal Operation and Suspension of Democratic Constitutionality
Moving onto the identity of Thai-style constitutionalism from its political dimension, we should recall that the idea of Thai-ness as embodied in the monarchy functioned traditionally to maintain pre-1932 royal absolutism. Replacing this identity of monopolised power with electoral politics accordingly constituted a menace to Thai-ness. However, present-day immense demands for political liberalisation apparently induce the adjustment to such an identity. Though Thai-ness still advocates the construction of ‘an anti-liberal [regime] based upon homogeneity directed by a dictatorial power’, it can no longer absolutely deny providing a space for parliamentary politics. 86 Yet, due to the still prevalent hegemony of Thai-ness which entails its royalist-complexion, the CC is transformed into a mechanism for exercising this tutelage. 87
Here, the CC’s two stances mentioned earlier must be recaptured. It can be discerned from the decisions on the PDRC’s rallies and the FF dissolution that liberal constitutionalism becomes an effective tool for controlling state authority ‘when democracy begins to work as intended; that is, when elected governments begin to promote greater popular participation and expand their authority over [the military/military-backed government]’. 88 Meanwhile, the Court’s ruling on the housing controversy advocates the superiority of a royalist coup and its leaders’ privileges over parliamentary politics. These oscillating stances redefine and accordingly Thai-ify the generic identity of the political dimension. While the generic identity is founded on the mutual support between the legal and political dimensions and sees parliamentary politics as an essential channel for ensuring the government’s legal accountability, the Thai CC’s rulings rely on the guise of ‘legality’ to mould an image of such politics as a mechanism that fails to thwart public enemies from fraudulently occupying the state’s administrative mechanism. This, in effect, justifies the superiority of Thai-ness and thereby the essence of a royalist coup which entails the suspension of the generic constitutional identity. Meanwhile, the image is also exploited by the CC as a justification for a ‘hyper-supervision’ over political parties, in particular, through the logic and language of the legal dimension. Ultimately, parliamentary deficiency is turned into ‘a cause’ which propels, as illustrated by the FF case, a strict but excessive commitment to democratic constitutionality, yet, at the same time paradoxically justifies, as in the army housing verdict, its suspension whenever needs arise in Thailand.
Royalist Vigilante and the Limited Space of Political Rights
Since its life can only be strengthened through social actions, liberal constitutionalism translates and enshrines its spirit in the concept of individual rights and freedom, especially those that foster public participation from citizens. Political rights, especially the right to freedom of expression and association, encourage individuals to hold the state to account and ensure that the states act according to the people’s will. While every individual should enjoy their political rights, and the exercise of such rights has to be protected by the law, the CC’s verdicts, namely, the PDRC protest and the UDD crackdown, implicitly pronounce that the constitutional protection of those individual rights is not universal, nor based on the right to human dignity. 89 Rather, they directly entail the politics of inclusion and exclusion based on groups and individuals’ identity. The UDD and the Shinawatra are identified by the CC as un-Thai because of their different ideologies and interests, and thus excluded from the Thai body politic at large, whose rights and freedom are legally protected. This ‘un-Thai’ group is also excluded not because of their un-Thai ideologies alone but also because, as the CC suggested, of their violent and dangerous acts against the peaceful public order hold by the group of virtuous Thai.
The identity of the social dimension, notably its premise of the exercise of universal political rights, is ultimately redefined and relativised by the CC’s utilisation of social identity to create scattered protection of rights and freedom. Political rights associated with the role of a shadow CC are turned into means for bolstering royalist vigilantism, 90 whilst only those professing their allegiance to the three pillars of Nation-Religion-Monarchy can legitimately claim to speak on behalf of the nation. 91 They can even exercise these rights to sow chaos and paralyse the administration of the ‘un-Thai’ government with impunity and at the expense of liberal democracy and constitutionalism. 92
Conclusion
We have investigated the direction of constitutional struggles between the two competing versions of constitutional identity as steered by the CC. The Thai lesson reveals that constitutional struggles propel ‘local actors [to] engage in [reconsidering] constitutional meanings and constitutional identity’. 93 Having suggested the dynamic process of co-option confluence between liberal constitutionalism and Thai-ness, the Thai experience therefore challenges arguments envisaged by Jacobsohn and Rosenfeld by alternatively showing that the aforesaid engagement does not necessarily rely on any attempt to negotiate nor synthesise different values in the contemporary civil society. It suggests how the CC has utilised liberal constitutionalism as a transnational authority to legitimise the nationalist hegemony of Thai-ness, and to accommodate the political expedient of the current holdover elites. Since the CC only welcomes the transnational legitimacy of liberal constitutionalism without fully committing to any of its values, it managed to mould Thai-ness out of the constitutional liberal framework and displace the liberal constitutional values with Thai-ness. Through these judicial techniques and ambitions, the identity of Thai-style constitutionalism emerges as ‘a bricolage' in which both Thai-ness and liberal constitutionalism coalesce without fusion and in such a way that turns the basic organisational structure of the latter into the precinct of the ‘no-man’s land between juridical order and juridical void’. 94
