Introduction
Constitutional law scholars often eye constitutional changes with the suspicion that they could pave the way for authoritarian usurpation. This hesitation is fair, as there are growing concerns that the modern-day autocratic leaders are rising not through military coups but through constitutional, yet illiberal, means.[559] They win elections through controversial populist campaigns and, once in office, entrench their repressive regimes.
Abusive constitutionalism, as Landau calls it, results in constitutional amendment, or replacement, that silences the government’s critics, extends their terms, or dismantles the check-and-balance mechanisms.[560] Abusive constitutionalism slowly erodes a healthy and vibrant democracy into an illiberal authoritarian regime. The principle of unamendability is meant to safeguard a constitution from such an act of sabotage.[561] An amendment must not destroy the original sprit of the constitution and the courts shall enforce that limitation on would-be usurpers.From 2011 to 2014, the government of Yingluck Shinawatra in Thailand sought to introduce changes to the 2007 Constitution (2007-14) via constitutional amendments. Thrice it tried and thrice the court rejected the proposals before all descended into the chaos of street politics that ended in the 2014 coup. Superficially, these decisions fit within the idea of abusive constitutionalism as the Constitutional Court condemned a populist authoritarian for abusing an electoral victory to destroy democracy. Therefore, the Court invoked the concept of unamendability, citing the theory of constituent power as well as several implicit unamendable features, to protect the rule of law and the 2007 Constitution.
However, a deeper investigation into the series of 2011-14 amendments raises doubts about the above narrative. Conventionally, a suspicion toward constitutional change assumes that the original charter is already democratic while a change may or may not be of lower democratic quality.
Hence, the notion of unamendability seeks to maintain that liberal democratic arrangement. That assumption, this chapter argues, is not applicable to the case of Thailand. Rather, Thailand complicates this narrative. The 2007 Constitution represented an already ailing democracy, which was hampered by the 2006 coup d’etat. As a response, the people, not yet ready to draft another constitution, endeavoured to amend the existing constitution in order to rescue the sinking democracy. But can the people invoke the secondary constituent power to supersede the primary constituent power to build a more democratic constitution? The Constitutional Court’s response was adamantly negative.This chapter argues that the Thai judiciary abused the concept of unamendability to entrench an undemocratic constitutional structure. It discusses the four amendment cases in the context of the recent political crisis where two political ideologies clashed and the Constitutional Court failed to be a reliable umpire. In these decisions, the Constitutional Court, at length, expressed its understanding of democracy, which was markedly different from liberal democracy and more aligned with what is termed Thai-style democracy adopted by the conservative faction. Thai-style democracy, however, is sometimes regarded as a euphemism for authoritarianism. In this circumstance, the roles are reversed. The amendments represented the people’s will to challenge the authoritarian legacy in the 2007 Constitution, but the Constitutional Court’s invocation of unamendability thwarted that will, ultimately, to the detriment of democracy and the rule of law.
9.2