Introduction
This chapter examines how a constitution-making process, focusing on the case of Thailand’s 20th Constitution - the 2017 Constitution, becomes a battleground whereby the diametrical notions of constituent (or constitution-making) power - the liberal-democratic (LDCP) and the royal constituent power (RCP) - contest against each other to become the primary basis of political authority.
As commentators put it, the making of the 2017 Constitution represents ‘an exclusively domesticated approach to constitution-drafting’, in that, it was ‘essentially animated by local concerns and interests’.1 It took place when Thai society had been riven by a long-drawn concatenation of political crises between the proliberal faction, including supporters of an exiled grassroots-supported former prime minister (PM), Thaksin Shinawatra, and the ruling royalist-conservative elites, namely the palace, senior bureaucrats, and the military, as well as other proestablishment advocates. Initiated by the junta, the National Council for Peace and Order (NCPO), seizing power on 22 May 2014, this constitution-making episode reflected the traditional elites’ effort to reassert declining royal hegemony against competing liberal demands among citizens instilled by the constitutional reform in 1997. At the core of such struggles lay the discord as to whether the ‘declining but still entrenched’ royal constituent power or its ‘sturdier yet still1 Maartje de Visser and Bui Ngoc Son, ‘Glocalised Constitution-Making in the Twenty-First century: Evidence from Asia’ (2019) 8 Global Constitutionalism 297, 301-302, 309. inferior' liberal-democratic counterpart should be the hegemonic model.[1120] They differ mainly as to the role of ‘the people' in a constitution-making process. Such divergent views affect the direction of constitution-making deemed as essential for arranging the Government's power and conflict resolutions. I therefore ask: How and to what extent did the effort of the traditional elites to reinvigorate the declining royal constituent power against sturdier liberal forces affect the making of Thailand’s 2017 Constitution?
Overall, the twentieth occasion of constitution-drafting in Thailand was another unsuccessful quest for ‘constitutional stability’.[1121] The event revealed that non-democratic constitution-making was instrumental for vetoing rising liberal demands fostered by its democratic counterpart in the 1990s, while, at the same time, indicating the failure of the latter to ‘supplant enough of [key] facets [of the RCP] that hamper or do not align with [the LDCP]’[1122] Nonetheless, the 2017 process itself however failed to consolidate constitutional stability as embodied by the RCP as intended as it counterproductively spurred, rather than pacified, anti-establishment movements, intensifying the tension between the competing notions of constituent power.
The scenario presents the story of constitutionmaking in the binary-star system. This metaphor portrays the competing notions of constituent power as two stars orbiting around the mutual centre and exerting their resolute pull of gravity upon each other.[1123] To reinvigorate declining royal hegemony, advocates of the royalist-conservative star must co-opt and contain norms and institutions of the LDCP, turning them into ‘cloak and shield' for institutionalising its royal counterpart. I proceed by exploring the contesting notions of constituent power in Thailand before assessing how the binary-star scenario permeated the impetus for the making of the 2017 Constitution, its design and inclusiveness, and its substantive contents and implementation.II.