Fundamental state characteristics and undemocratic amendment: Thailand’s unamendable monarchy

Reading constitutions as products ofpolitical bargaining is not new.^[941] Constitution­making processes are not only enmeshed with political deal-making, they some­times become the site of contestation and gamesmanship.

It is then not surprising to see these political bargaining dynamics and com­promises reflected in the constitutional text, including in its provisions on con­stitutional courts and amendment. Political insurance theories developed around constitutional review have sought to understand why political actors involved in constitution-making processes would voluntarily accept limitations on their scope for action by independent courts.^[943] Their explanation is that such court intervention acts as assurance to all sides in the event of loss of political office or political influence, as well as to prevent political persecution.^[944] More recently, such theories have been applied beyond the constitution-making context to con­stitutional amendment.^[945] Such analyses have tended to see constitutional review as a potential bulwark against constitutional amendments that seek to undo the original constitutional bargain. In other words, judicial intervention has been seen as a potential positive force in the face of attempts to remove the original

form of political insurance in the constitution, such as amendments to remove bicameralism or presidential term limits.

However, what has remained insufficiently appreciated is the extent to which the same bargaining dynamics in constitution-making may result in constitutional incoherence as well as exclusion in constitutional amendment rules generally, and eternity clauses specifically.^[946] Post-conflict constitutions are especially prone to this type of incoherence, as hard-fought patchwork documents that often must facilitate state- and peace-building in contexts of weak institutional capacity.^[947] The same is true for other constitutional contexts characterised by deep societal divi­sion and institutional weakness.

As I have argued more extensively elsewhere, it can and does happen that inconsistent provisions are entrenched within the same constitution, including unamendable ones.^[949] In fact, with eternity clauses often drafted as a key site of value pronouncements, we find them sometimes enshrining a commitment to democracy alongside authoritarian features, or a commitment to minority rights alongside the entrenchment of state characteristics that may serve to restrict these rights, such as an official religion or language. This seriously complicates readings of constitutional unamendability as a repository of constitutional identity.^[950] What emerges is a picture not just of disharmony among and iterative contestation of constitutional values, but of textual entrenchment of exclusion that from the start blocks the possibility of correction through amendment.

This does not deny the positive role eternity clauses may play, both at the time of constitutional drafting - when they can themselves perform a political insurance role facilitating agreement on a final draft - and as textual hooks for an unconstitutional constitutional amendment doctrine developed later on - such as to prevent democratic backsliding and abusive constitutionalism. However, mine is a reminder that more often than appreciated, eternity clauses will not (just) be repositories of the lofty goods of constitutionalism such as democratic

Eternity clauses as tools 261 values, separation of powers guarantees, and rule of law principles. As negoti­ated and deeply political instruments, they are sometimes also sites of exclusion.

A good example to illustrate these points is that of Thailand, also discussed extensively in a chapter in this volume.^[951] Thai constitutional politics reveal the problematic nature of otherwise seemingly innocuous eternity clauses. Successive Thai constitutions have proclaimed themselves democratic but have at the same time rendered the monarchical form of the state and the role of the King as the Head of the State unamendable, all in a volatile context characterised by frequent coups.^[952] Section 255 of Thailand’s 2017 Constitution thus prohibits “an amendment to the Constitution which amounts to changing the democratic regime of government with the King as Head of State or changing the form of the State.” Its origins rest in the 1997 Thai Constitution, which otherwise intro­duced many elements of liberal democracy including a long bill of rights and constitutional review. A product of political bargaining, the eternity clause must be understood as seeking to protect so-called “Thai-style democracy,” which not only entrenches the monarchy but also positions the military as “guardian of the crown” and the judiciary as the “faithful accomplice” of Thai-style democracy.^[953]

The Thai eternity clause has been relied on as a formal ground to block repeated attempts to reform the system and actually correct the undemocratic constitutional foundations of the constitution. The Constitutional Court has repeatedly stated that it sees itself as the guardian of the constitution and the rule of law with pow­ers to review amendments, even without a mandate to do so in the constitutional text.^[954] The Court struck down a series of amendments to the 2007 Constitution on both procedural and substantive grounds, including an attempt to reintro­duce the directly elected senate.^[955] Invoking counter-majoritarian and rule of law considerations, the Court thus brought in an unelected senate among the list of unamendable elements of the Thai Constitution.

constitutional change that would have rendered the constitution more rather than less democratic.

Thailand’s example therefore raises questions about what happens to justifica­tions of unamendability when we are dealing with unamendable constitutional norms that may not be democratic. Should courts embrace doctrines of uncon­stitutional constitutional amendment when the amendments themselves are more democratic than the original constitution they try to change? The preservative logic of unamendability does not lead to easy answers in such contexts. As the chapter on Thailand in this volume also shows with respect to recent amendment attempts, the usual narrative of amendments potentially weakening democratic commitments does not hold for Thailand. Instead, as the author argues:

In this case, the roles are reversed. The amendments represent the people’s will to challenge the authoritarian legacy in the 2007 Constitution but the Constitutional Court’s invocation of unamendability thwarted that will and entrenched authoritarianism, an abuse to liberal democratic constitutional­ism indeed.^[956]

One could retort that Thailand’s case is less edifying because its constitution could be classified as undemocratic overall, so that unamendability in this context should not be taken as instructive.^[957] However, as I argue in the next section, these types of constitutions are precisely where unamendability is most needed and most often found. It is in contexts where democracy is new, fragile, and contested that the “lock on the door” function of unamendability^[958] - whether enshrined in an eternity clause or a basic structure doctrine - becomes most sali­ent. It is precisely in hybrid or contested democratic contexts that unamendability is paradoxically most needed and most prone to abuse. Indeed, one of the most often cited examples of unamendability in action, Turkey, similarly originated in a post-coup constitution whose democratic pedigree has always been dubious.^[959]

Eternity clauses as tools 263

Others that could be added to this list, such as Bangladesh, are discussed else­where in this very volume.^[960]

Moreover, it is again precisely in such contexts that another oft-repeated claim - that unamendability is merely a brake and cannot stop a renewed consti­tution-making process where this is deemed necessary - is similarly problematic. The Thai example shows that an imperfect constitution may be hugely difficult to amend, with risks of instability that make amendment rather than replacement the only avenue realistically open. In such instances, the constitutional politics of unamendability reveal the true viability of the road to constitutional revolution.

14.3