[Editor’s Note: In light of recent constitutional (or some may say, unconstitutional) developments, I-CONnect is pleased to feature this timely symposium examining constitutional struggles in Asia. This is part V of a five part series, in addition to the Introduction.]
Constitutional Battles in Contemporary Thailand
Like many Asian countries, the Kelsenian-style Constitutional Court (‘CC’) was established in Thailand in 1997 for the purpose of consolidating liberal constitutionalism through constitutional adjudication. At a fundamental level, liberal constitutionalism advances the idea that public authorities derive legitimate authority by acting according to the law, which should contain some normative content such as the protection of individual liberties, and that their actions are subject to judicial review.
Having experienced authoritarian pasts, the attempt to consolidate liberal constitutionalism, however, inevitably comes into conflict with the traditional notion of authority, i.e, Thai-ness, which emphasises the unity of Thai nation embodied in a righteous Buddhist monarchy, rather than a commitment to legality and individual rights. As an integral part of the Thai nation, the holdover elites, the military, and royalist supporters therefore commonly assert that threats to the monarchy constitute sources of a political crisis. For them, liberal constitutionalism is a foreign – alien – product which seeks to replace the notions of strong leadership, national homogeneity, and social hierarchy underlying Thai-ness with those of legality, human rights, and equality, thus potentially threatening royal hegemony. Coups and martial law backed by the royalist-conservative elites has become a key mechanism to protect Thai-ness. Yet, stronger demands for liberal constitutionalism further propelled by the constitutional reform in 1997, have forced the elites and the military to contend with it and politically acknowledge its legitimacy.
The graver collision between advocates of these two ideas in 21st century Thailand makes each unable to absolutely prevail over the other, culminating in a series of political crises from 2006 to the present. As an arbiter of constitutional issues, the Thailand CC has been embroiled in determining the contours of the crises, including in establishing who and what are classified as ‘Thai’ in the context of such political vagaries. This growing need to embroil the judiciary in the country’s contemporary political fray is also galvanized by a constant decline in sympathy for coups and direct junta rule. In this contribution, we therefore ask: How do the CC’s rulings on what is ‘Thai’ determine the gravitational pull of the royalist-conservative tradition upon the contours of liberal constitutionalism in Thailand?
The Constitutional Court and Identity Polarisation
Amidst the fourteen-year-long instability, the royalist-conservative elites had endeavoured to form an alliance with the CC, especially by appointing as CC judges their associates. No doubt, the Thai CC has been criticised for its pro-conservative rulings. It dissolved major political parties stigmatised as ‘un-Thai’ by excluding testimonies by defence witnesses as well as evidence submitted in support of the defendant’s arguments, disregarding the unlawful filing complaint process initiated by the Election Commission, and even distorting the meaning of relevant legal terms. The CC’s recent decision to disband the Future Forward Party (‘FF’), an insurgent left-wing party which rapidly gained popularity among younger generation voters and was vehemently accused by the holdover elites as a part of an anti-monarchy network, conspicuously exemplifies this. Since its inception in 2018, the royalist-conservative elites had consistently waged lawfare against the FF. The accusation made against its leader, Thanathorn Juangroongruangkit, who allegedly lent 191.2 million bahts (approximately 6.08 million US dollars) to the FF in violation of the Political Party Organic Act 2018, which prohibits a political party from intentionally obtaining money from illegal sources, was the culmination of such lawfare events.
In this case, it can be said that the CC manipulated the logic of liberal constitutionalism to bolster the rationale underlying Thai-ness (i.e., the need to exclude threats to the monarchy) without explicitly or implicitly referring to such objective. Having determined the FF to be ‘a juristic person under public law’, the CC then subjected the Party to the strict principles of liberal constitutionalism as if it were a public authority operating under public law, as opposed to a private person subject to private law. The CC did so by basing the standard of proof at the trial level on the principle that for a public authority ‘what is not allowed by law is strictly prohibited’ and subsequently therefore justifying a highly debateable stance towards the legality of the loan in question. As the 2018 Organic Act does not explicitly allow a political party to take out loans, the Court therefore presumed the FF’s action to be ‘abnormal borrowing’ aimed at transgressing the 10-million-baht limit on donations set out under Section 66. Considering the interest rate (7.5% per annum and 2% per annum in the first and second instalments, respectively) too low for it to be a loan, the CC concluded that the loan in question was, in fact, the FF’s revenue – ‘the money obtained’ under the Act – instead of a debt as it would have been regarded in normal accountancy practice. Also, instead of presuming the parties’ good faith in business transactions until rebutted by evidence to the contrary, the CC applied the doctrine of good faith in reverse, presuming Thanathorn’s bad faith from the speculatively suspicious nature of the loan. This presumption of bad faith allowed the CC ultimately to find Thanathorn’s act in violation of Section 66, which provides for a criminal penalty, thus ruling that his loan to the FF was then ‘money obtained via illegal source’ in violation also of Section 92, which justifies the party’s dissolution. The manipulation of the ethos of liberal constitutionalism in order to disband the FF, we argue, is however questionable on two grounds. First, the CC disregarded the fact that a political party is a by-product of the exercise of individuals’ right to freedom of association. A political party, in our opinion, is not a means of exercising administrative power over the public. Besides, the CC also failed to consider that unlike public authorities, the FF did not enjoy the monopoly of legitimate use of coercive force.
Previously, the CC had also issued a series of orders affirming that royalist-conservative groups have the right to assemble against the government led by Yingluck Shinawatra in 2014, despite their obvious violent and undemocratic conduct, thus barring the use of emergency powers to disperse the protesters. As Thaksin Shinawatra’s younger sister, Yingluck, who won a general election in 2011, had been labelled by the royalist-conservatives as a mere puppet of a person who had been accused of disloyalty to the throne from the start, culminating in another mass protest between 2013 and 2014. Here, the key idea associated with liberal constitutionalism – the freedom of expression – is turned into a mechanism to guarantee freedom of the conservative protesters who clung onto Thai-ness to engineer the demise of liberal democracy. These orders ostensibly stand in stark contrast with the CC’s decision in 2010 which upheld the constitutionality of emergency measures invoked to disperse pro-democracy protesters—the Red Shirts stigmatised by the military and the royalist-conservative elites as un-Thai. According to the CC, the universal freedom of expression is recognised in Thailand but its application depends on the logic of impunity, dictated by the authority of Thai-ness advocated by the royalist-conservative supporters.
In addition to the above affirmation, the CC later voided the general election organised by the Yingluck government in order to resolve the crisis. Rather than praising the government’s conduct as a key mechanism for fostering the politics of reconciliation, it branded the election as a source of further fragmentation. Again, the CC, despite recognising the essence of a general election in the political life of a democratic nation-state, subjugated the protection of individual rights (the right to vote in this case) to the rationale behind Thai-ness—the security of national unity. This decision is widely regarded as a part of the game plan to generate political paralysis and a power vacuum by the holdover elites. With no permanent government, martial law was subsequently imposed in May 2014 in the name of restoring public order, paving a way for another coup led by General Prayuth Chan-o-cha aimed at reinvigorating increasingly challenged Thai-ness hegemony.
Liberal constitutionalism and Thai-ness in the similar core of gravitation
Overall, the Thai experience has revealed how the mechanism anticipated as the guardian of liberal constitutionalism, the CC, might be manipulated and abused by conservative and nationalist actors whose values and ideology are rooted in their self-proclaimed national pride and moral superiority. The CC has embedded authoritative Thai-ness into the heart of Thailand’s liberal constitution. Nevertheless, as the CC’s judgments imply, even Thai-ness itself has to be constructed under the logic and language of liberal constitutionalism. Thai-ness and liberal constitutionalism co-exist within the same core of gravitation, and, given the global order of liberalism, it is dubious whether Thai-ness can exist without its liberal facade. Therefore, to answer ‘what is Thai?’, it is not to repeat the rhetorical slogans of nationalism and conservativism but to embrace authenticity-in-the-making, where Thai represents a bricolage assembled from various values and with different techniques. This bricolage, however, does not reflect the liberal ethos of pluralistic negotiation between different interests but unfolds how Schmittian’s forceful friend-enemy dichotomy has been reconfigured in the new struggle between local and global democracy.
[Note: An earlier version of this post was presented at a Webinar on Constitutional Struggles in Asia (1 – 3 December 2020). The event was part of a larger research project in collaboration with the Centre for Asian Legal Studies, National University of Singapore, the College of Law, Australian National University, and the Federal Law Review.]
 Victor Ramraj, ‘Constitutional Tipping Points: Sustainable Constitutionalism in Theory and Practice’, 1(2) Transnational Legal Theory 191 (2010).
 Thongchai Winichakul, ‘Toppling democracy’, 38(1) Journal of Contemporary Asia 11 (2008).
 Björn Dressel, ‘When Notions of Legitimacy Conflict: The Case of Thailand’ 38(3) Politics & Policy 445 (2010).
 Eugénie Mérieau, ‘Thailand’s Deep State, Royal Power and the Constitutional Court (1997-2015)’, 46(3) Journal Contemporary Asia 445 (2016).
 Pavin Chachavalponpun, ‘The Necessity of Enemies in Thailand’s Troubled Politics’, 51(6) Asian Survey 1019 (2011).
 Federico Ferrara, The Political Development of Modern Thailand (CUP 2015), pp 245, 285.
 Rawin Leelapatana, ‘The Thai-style Democracy in Post-1932 Thailand and its Challenges: A Quest for Nirvana of Constitutional Saṃsāra in Thai Legal History before 1997’ in Andrew Harding and Munin Pongsapan (eds), Essays in Thai Legal History: From Traditional to Modern Law (CUP 2021) 231-232 [forthcoming].
 Eugénie Mérieau, Constitutional Bricolage: Thailand’s Sacred Monarchy vs. The Rule of Law (Hart 2021) [forthcoming].
Suggested citation: Rawin Leelapatana and Suprawee Asanasak, Determining What is ‘Thai’: Thailand’s Constitutional Court and Identity Polarisation, Int’l J. Const. L. Blog, Feb. 24, 2021, at: http://www.iconnectblog.com/2021/02/symposium-constitutional-struggles-in-asia–part-v–determining-what-is-thai-thailands-constitutional-court-and-identity-polarisation/