Competing Notions of Constituent Power

Before assessing the making of the 2017 Constitution, I must first explain its back­bone - the competing conceptions of constituent power. Theoretically, constituent power denotes the ultimate power of the people to produce a constitution.

The story of constitution-making in Thailand reflects a raw conflict of politi­cal interests and values between advocates of the two conceptions of constituent power, struggling against each other in the real-world political arena.^[1128] While the LDCP was introduced to Thailand by the revolutionary group overthrowing royal absolutism on 24 June 1932 - the People’s Party, the elites and the mili­tary embrace its royal counterpart which closely resembles Schmitt’s idea. Their contestation brings the following question to the forefront: To what extent should the Thai people be empowered to participate in constitution-making? Its answer affects the direction of constitution-making qua a mechanism for arranging the Government’s power and conflict resolutions in Thailand.

A. ‘Sturdier but Still Weaker’ Liberal-Democratic Constituent Power

Traditionally, the basis of political legitimacy in Thailand is rooted in the monar­chy.

Authored by the People’s Party in 1932, Thailand’s first constitution asserted that ‘sovereignty belongs to the people’.^[1131] The provision as such introduced the nascent idea that ‘the people, represented by themselves, [are] sovereign and [the holder of] constituent power’.^[1132] They are therefore ‘a self-determining demos... [who] should be allowed to have any constitution they want, whenever they want it’^[1133] This idea conforms to international human rights norms which see the concrete, flesh-and-blood people as holders of the right to actively and actually partake in constitution-making.^[1134] To enable citizens to express their constituent power in a peaceful and compromising manner, several political participation rights must be guaranteed within a constitutional system. These include the right to initiate a draft constitution and request a public referendum for its approval, the right to elect and be elected as representatives to a constitution-making body, the right to freedom of political assemblies and expression, and the right to be informed, consulted and educated.^[1135]

Between 1947 and present, efforts to revive and maintain royal hegemony under Thai-ness through coups nonetheless kept most of Thailand’s constitution-making episodes restricted exclusively to a small group of royalist-conservative techno­crats.

A public referendum ‘was unnecessary' due to a plethora of support from both the public in general and MPs.^[1137]

Inclusive constitution-making significantly influenced the contents of the 1997 Constitution. This document introduced progressive innovations and enlarged the role of ‘active citizenry' in many areas, most notably the new election system geared towards stable majorities, the replacement of senatorial appointments with the entirely elected upper chamber, and extended human rights guarantees, including the novel right to resist peacefully an attempt to acquire political power by extra-constitutional means.^[1138] Section 63 declared coups as an attempt as such, with the Constitutional Court (CC) authorised to issue a cassation order against such acts. Besides, Section 170 allowed 50,000 eligible voters to propose a Bill before Parliament and lodge a petition requesting the Senate to impeach corrupt state agencies, notably MPs and senators.

Given the innovations it introduced and the unprecedented level of public participation in its making, the 1997 Constitution instils a tremendous sense of its ownership and popular sovereignty/constituent power among large segments of Thai society.^[1139] Unsurprisingly, despite its premature demise as a result of the 2006 coup, calls for its revival are prevalent.

B. ‘Declining but Still Entrenched' Royal Constituent Power

The period between 1932 and the mid-1940s was a difficult time for the Thai monarchy. The assistance from the military in 1947 enabled it to gradually recover from its nadir. Royal hegemony was fully restored via two coups in 1957 and 1958. However, rather than reinstating royal absolutism, royalist protagonists have consistently advocated the tutelage form of democracy known as ‘the Democratic Regime with the King as Head of State' (DRKH). This regime advances the ideol­ogy of Thai-ness which positions the King as the embodiment of the Thai nation.^[1141] Its key traits provide the basis for the RCP.

By instigating a free play of struggles between divergent interests, the RCP assumes democratic constitution-making as the source of political disintegration threatening the collapse of the Thai nation.^[1142] It also presumes most Thais as uned­ucated people who are prone to be misled by anti-royalist ideologies or corrupt politicians.^[1143] For this reason, the demos must express their ‘voice’ through their guardian, the King, who, in turn, decides in their interest on whether a constitu­tion should be remade.^[1144] The RCP is therefore located in the demos but actually exerted by the King.^[1145] The role of the people in constitution-making is then restricted to acclaiming him and his decisions - those questioning Thai-ness are miscreants who must be excluded.^[1146] Post-1947 constitutions endorse this position by unwaveringly declaring the DRKH as the sole accepted type of regime and that no person may lodge any lawsuits against the King who occupies ‘a position of revered worship’. Together, these provisions reinforce the King’s political power and the impunity of his actions.

At present, the Thai elites still possess sufficient means and motivation to employ the RCP to preserve their own political hegemony. Its invocation exists in two main forms: militarised and accommodation.^[1148] The former evinces the militarisa­tion of constitution-making. Since 1957, military coups and constitution-building have become crucial means for the royalist-conservative elites to veto political liberalisation.^[1149] Also, the tradition has been firmly established that coup leaders must consult the King for his blessing after every successful takeover. His endorse­ment of a post-coup interim constitution that suspends parliamentary democracy and all political participation rights constitutes the hallmark of pure RCP.^[1150] As the embodiment of the demos and constituent power, not only does the King’s blessing bolster a coup leader’s authority, but it also bestows ‘democratic mandate’ upon a junta-made constitution.^[1151]

Nevertheless, to ensure their hegemonic position against rising liberal demands especially from 1968 onwards, the royalist-conservative elites have shifted from prolonging direct military dictatorship to accommodating liberal- democratic norms and institutions.^[1152] This strategy comes in three subordinate forms. First, the holdover elites may accommodate a greater space for popu­lar sovereignty by reinstating the system of weak parliamentary coalitions and human rights guarantees, while simultaneously subjecting it to the royalist tute­lage. Apart from the guarantee of the King's sacred and inviolable status, the RCP has been maintained since 1947 through the building of a network of royalist aris­tocrats, including top military personnel and high-level bureaucrats, within the constitutional institutions, notably the Privy Council and the Senate.^[1153] In reality, many of these elites have asserted tacit political influence over the military, the bureaucracy and the judiciary, and played an influential role in reminding them of their loyalty to the King.^[1154] Typically, the RCP was reasserted through military coups followed by new constitution-making episodes when the elites as such perceived the rise of liberal forces to a level that convulses royalist dominance, with corruption by elected politicians, pluralistic disintegration caused by weak parliamentary coalitions, and threats to Thai-ness cited to discredit democratic openness.^[1155]

Second, demands for popular sovereignty to the intense level just as in 1973 and 1992 potentially impel the elites to liberalise norms and institutions of the RCP.

C. Binary-Star Scenario in Thailand

Given their unwavering struggles, both the LDCP and the RCP have become undeniable contending sources of legitimisation in contemporary Thailand. Each cannot totally negate the presence of its opposing model and supporters. At one pole, democratic constitution-making in Thailand can hardly be detached from the RCP. Had King Bhumibol not intervened in 1992 and sponsored political liber­alisation, the making of the 1997 Constitution would have been unlikely. However, more influential demands for popular sovereignty have increasingly challenged the legitimacy of royally-blessed coups and subsequent constitution-making. The above struggles ultimately render the status quo of the Thai people ambivalent. They also call us to revisit the role of constitution-making in conflict resolution. Instead of serving as a platform for forging political compromise as some progres­sives prefer, Thailand’s political polarisation turns constitution-making events into an arena whereby advocates of both notions struggle to ‘[lay] out the [preferred] contours of the mechanisms for exercising public power’ as well as to supplant some facets of the opposing version of constituent power.^[1157] For the royalist­conservative elites, constitution-making is a cornerstone for defending and reasserting the legitimacy and hegemony of the RCP over sturdier liberal forces. It also helps stabilise the DRKH and facilitate coordination among royalist sympa­thisers by designating the RCP as their ultimate shared value.^[1158] Meanwhile, this process enables advocates of the LDCP to mobilise their agenda into the real-world political arena and to ‘test limits of the permissible and challenge the [dominant] regime’.^[1159] The struggle increases costs and risks of ‘the politics of exclusion, that is, the use of constitution-making to exclude deviants as the royalist-conservative elites intend.

Overall, the attempts by each conflicting party to enhance the gravitational strength of its preferred model of constituent power reflect ‘the binary-star scenario’. It portrays norms and institutions associated with the two compet­ing conceptions of constituent power as two stars orbiting around the mutual barycentre and exerting their pull of gravity upon each other.^[1160] In no way would advocates of each model fully endorse its opposite as the primary guiding line for a constitution-making process. In fact, advocates of the royalist-conservative star do not hesitate to strike back austerely when its liberal-democratic counterpart starts to shine too brightly.^[1161] I argue that the making of the 2017 Constitution should be assessed within this conceptual framework.

III.