Constitutional Struggles and Polarised Identities in Thailand: The Constitutional Court and the Gravitational Pull of Thai-Ness upon Liberal Constitutionalism

Date01 June 2022
AuthorRawin Leelapatana,Suprawee Asanasak
Published date01 June 2022
Special Issue (Part 1): Constitutional Struggles in Asia
Federal Law Review
2022, Vol. 50(2) 156173
© The Author(s) 2022
Article reuse guidelines:
DOI: 10.1177/0067205X221087476‌lr
Constitutional Struggles and
Polarised Identities in Thailand: The
Constitutional Court and the
Gravitational Pull of Thai-Ness upon
Liberal Constitutionalism
Rawin Leelapatana*and Suprawee Asanasak**
This article interrogates Thailands 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.
Received 13 July 2021
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 constitu-
tionalismis shaped by the highly political decisions rendered by the Constitutional Court (CC).
*Faculty of law, Chulalongkorn University, Bangkok, Thailand.
**Faculty of law, Thammasat University, Bangkok, Thailand.
1. This article is partially developed from the previous works of the authors,Rawin Leelapatana and Suprawee Asanasak. See
Rawin Leelapatana, The Kelsen-Schmitt Debate and the Use of Emergency Powers in Political Crises in Thailand(PhD
thesis, The University of Bristol, 2018); Rawin Leelapatana and Suprawee Asanasaks article on Iconnectblog, Con-
stitutional Battles in Contemporary Thailand,The International Society of Public Law (Blog Post, 24 February 2021)
Since 2006, Thailands 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 factionsdiametrically opposed views about whether the nationalist-royalist idea
or the notion of liberal constitutionalism should constitute the countrys hegemonic constitutional
identity, understood generally qua constitutional ideas and principles fundamental to a consti-
tutional system.
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?
The royalist-conservative elites advocate the hegemonic traditional notion of Thai-ness coined
by King Vajiravudh(191025) to instil nationalist and royalist sentiments. The notion def‌ines what
is Thaias a stratif‌ied nation embodied in an archaic concept of the righteous Buddhist monarchy
Though vehemently suppressed by the Peoples 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.
them, constitutional identity ref‌lects commitments expressive of a nations [glorious] pastand
invokes the friendenemy dichotomy.
Hence, all forms of political exclusion, even extra-legal
measures such as military takeovers, are indispensable for maintaining homogeneity. This per-
spective of constitutional identity ref‌lects Michel Rosenfelds 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 politysref‌lexive ability to def‌ine
itself as separate from others.
It thereby creates [a sense of] belonging to an imagined community
that must carve out a distinct self-image.
In contrast, for the pro-democracy faction, the establishment of institutional mechanisms for
ensuring liberal constitutionalism signif‌ies a constitutiona l identity goalto which a written con-
stitution aspires.
Given the modern trend towards liberalisation and democratisation, the idea of
liberal constitutionalism the reliance on a writt en constitution i n laying down ins titutional
mechanismsfor governing state authorityhas been adopted in many written constitutionsacross the
globe, thus becomingwhat Gary Jacobsohn regards as a genericconstitutional identity.
Despite its
deeply embedded royalist culture, Thailand has also experienced the global rise of liberal consti-
tutionalism thr ough the revolut ion of 24 June 1932, which abolished the absolute m onarchy, and, at
the very least,succeeded in making demandsfor liberal constitutionalismirresistible. This successhas
been continuouslyreinforced by theconstitutional reform processwhich led to the promulgationof the
progressive, popularly supported 1997 Constitution of Thailand (2007 Constitution/2017 Consti-
tution). This reform cemented the role of liberal constitutionalism in the Thai constitutional identity.
2. Bui Ngoc Son, Globalization of constitutional identity(2017) 26(3) Washington International Law Journal 463, 469.
3. Bruce Ackerman, Constitutional Politics/Constitutional Law(1989) 99(3) The Yale Law Journal 453, 459.
4. Bj¨
orn Dressel,When Notions of Legitimacy Conf‌lict:TheCaseofThailand(201 0) 38(3) Politics & Policy 445, 44955.
5. Thak Chaloemtiarana, Thailand: The Politics of Despotic Paternalism (SEAP 2007), 43, 83, 9299.
6. Gary Jeffrey Jacobsohn, Constitutional Identity(2006) 68(3) The Review of Politics 361, 363; Michel Rosenfeld,
Constitutional Identityin Michel Rosenfeld and Andr´
as Sajó (eds), The Oxford Handbook of Comparative Consti-
tutional Law (Oxford University Press, 2012) 756, 757.
7. T´
ımea Drinóczi, Constitutional Identity in Europe: The Identity of the Constitution. A Regional Approach(2020) 21(2)
German Law Journal 105, 112; Rosenfeld, Constitutional Identity(n 6).
8. Monika Polzin, Constitutional Identity as a Constructed Reality and a Restless Soul(2017) 18(7) German Law Journal
1595, 1600; Rosenfeld, Constitutional Identity(n 6) 759.
9. Bui (n 2) 4689.
10. Ibid; Gary Jeffrey Jacobsohn, Constitutional Identity (Harvard University Press, 2010) 22, 1023, 113.
Leelapatana and Asanasak 157

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