Constitutional Bricolage: Thailand’s Sacred Monarchy vs. The Rule of Law 9781509927692, 9781509927722, 9781509927715

Table of contents :
Acknowledgements
Contents
1. Introduction: Is Thailand a Constitutional Monarchy?
I. The Purpose and General Argument of the Book: Why the Thai Constitution Mattters
II. The Issue of Royal Prerogatives in a Constitutional Monarchy: Text, Conventions and Doctrines
III. Sacred Monarchy vs. the Rule of Law: The Interplay of Law and Religion Mediated through Kingship
IV. Constitutional Bricolage: The Indeterminacy of Legal Transplants and Their Political Re-assignments
V. Outline of the Chapters
Part I: Importing the Modern Constitution
2. Siam’s First Constitutions The Rise and Fall of the Sacred Monarchy
I. The Hindu-Khmer Origins of the Traditional Constitution
II. The 1889, 1926 and 1932 Draft Constitutions: The Bonapartist and British Tropes
III. The 1932 Constitutions: The Soviet/Chinese and Prussian/Japanese Influences
3. Legal Positivism and Buddhist Kingship: Establishing the King as the Source of the Constitution
I. Hindu-Buddhist Theories: The Devaraja and Dharmaraja Kings
II. The European Influence: Importing Doctrines of Royal Absolutism
III. From the European Doctrine of ‘Royal Octroy’ to the King’s Granted Rattathammanun
4. From the Sacred Monarchy to the Sacred Constitution
I. Royal Despotism, Theocracy and Sacred Law
II. Royal Reforms: The Westernisation of Law and Kingship
III. Royal Vetoes and Amnesties versus the Sacred Constitution
Part II: Importing the State of Emergency
5. Thailand’s Cold War Constitutions Constitutions for the Military
I. The 1947–1949 Constitutions: The Royalist Restoration and the Rejection of the British Model
II. The 1959, 1968 and 1972 Constitutions: Military Dictatorship and the Gaullist Inspiration
III. The 1974–1991 Constitutions: The US Influence on Military Dictatorship Under Royal Command?
6. Revolutionary Legality and Buddhist Kingship: Theorising the King’s Extra-Constitutional Powers in Times of Crisis
I. From Kelsen's Revolutionary Legality to Thai-Style Democracy
II. From Bagehot's Three Conventional Powers of the Monarch to the Invention of Thai Constitutional Customs
III. Revolutionary Legality Revised: The Doctrine of Shared Sovereignty between the King, the Military and the People
7. From Military Dictatorship to Military Dictatorship under (Sacred) Royal Command
I. The Monarchy against the Military: Practices of Royal Constitutional Veto
II. The Monarchy on Top of the Military: Royally Sanctioned Military Coups and Amnesty Laws for Coup-Makers
III. The Monarchy above the Military: Direct Royal Interventions against Military Juntas
PART III: Importing Constitutional Justice
8. Thailand's Post-Cold War Constitutions: Constitutions for the Judiciary
I. The 1997 Constitution: The Transformative 'Global South' Constitution
II. The 2007 Constitution: Juristocracy under US Inspiration?
III. The 2017 Constitution: Juristocracy and Military Dictatorship Under Royal Command
9. The Rule of Law and Buddhist Kingship: Turning the Constitutional Court into a Substitute King
I. From the Rejection of the British Practice of the Royal Prerogative to the Creation of a Constitutional Court Ruling in the Name of the King
II. From US-Style Judicial Activism to 'Judicialisation': Transferring the King's Extra-Constitutional Powers to the Constitutional Court
III. From Global Discourses on the Rule of Law and Good Governance to the Doctrine of Dharmaraja Governance
10. From Judicialisation at the King's Request to Juristocracy under Royal Command
I. Judicialisation at the King's Request: Practices of Direct and Indirect Royal Vetoes
II. More Judicialisation at the King's Request: The Constitutional Court Defines 'DKHS' and its Customs
III. Royal Constitutional Vetoes, Lèse-Majesté and 'DKHS': The Affirmation of the Royal Prerogative
11. Conclusion: Democracy with the King as Head of State: The Bricolage of Thai Constitutional Identity
I. Summary of the Book's Contribution: Bricolage as a Process and Method in Comparative Constitutional Law
II. Taking Textual Provisions Seriously: On the Royal Prerogative and Constitutional Conventions
III. Taking Local Doctrine Seriously: On the Power of Legal Ideas and the Use of Religion to Localise Legal Transplants
IV. Taking Constitutional Practices seriously: on Political Precedents and the Performativity of Constitutional Story-telling
V. Epilogue: Thailand and the Possibility of Decentring Comparative Constitutional Law
Appendix: Biographical Data of Major Thai and Foreign Jurists and their Contribution to Thai Constitutionalism
Bibliography
Index

Citation preview

CONSTITUTIONAL BRICOLAGE This book analyses the unique constitutional system in operation in Thailand as a continuous process of bricolage between various Western constitutional models and Buddhist doctrines of Kingship. Reflecting on the category of ‘constitutional monarchy’ and its relation with notions of the Rule of Law, it investigates the hybridised semi-authoritarian, semi-liberal monarchy that exists in Thailand. By studying constitutional texts and political practices in light of local legal doctrine, it shows that the monarch’s affirmation of extraordinary prerogative powers strongly rests on wider doctrinal claims about constitutionalism and the Rule of Law. This finding challenges commonly accepted assertions about Thailand, arguing that the King’s political role is not the remnant of the ‘unfinished’ borrowing of Western constitutionalism, general disregard for the law, or cultural preference for ‘charismatic authority’, as generally thought. Drawing on materials and sources not previously available in English, this important work provides a comprehensive and critical account of the Thai ‘mixed constitutional monarchy’ from the late nineteenth century to the present day. Constitutionalism in Asia series

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Constitutional Bricolage Thailand’s Sacred Monarchy vs. The Rule of Law

Eugénie Mérieau

HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK 1385 Broadway, New York, NY 10018, USA 29 Earlsfort Terrace, Dublin 2, Ireland HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2022 Copyright © Eugénie Mérieau, 2022 Eugénie Mérieau has asserted her right under the Copyright, Designs and Patents Act 1988 to be identified as Author of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. While every care has been taken to ensure the accuracy of this work, no responsibility for loss or damage occasioned to any person acting or refraining from action as a result of any statement in it can be accepted by the authors, editors or publishers. All UK Government legislation and other public sector information used in the work is Crown Copyright ©. All House of Lords and House of Commons information used in the work is Parliamentary Copyright ©. This information is reused under the terms of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/ open-government-licence/version/3) except where otherwise stated. All Eur-lex material used in the work is © European Union, http://eur-lex.europa.eu/, 1998–2022. A catalogue record for this book is available from the British Library. A catalogue record for this book is available from the Library of Congress. Library of Congress Control Number: 2021943017 ISBN: HB: 978-1-50992-769-2 ePDF: 978-1-50992-771-5 ePub: 978-1-50992-770-8 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters.

‘Any Constitution is an Act of Regicide’ [‘Toute constitution est un régicide’] Royalist Motto, 1814 Quoted in Pierre Rosanvallon, La Monarchie impossible [The Impossible Monarchy] (Fayard, 1994) 25

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Acknowledgements

T

he writing of this book has spanned some three continents and more seasons than is usually possible. I started writing it in the blossoming summer of a little town of Niedersachsen, Germany, while a postdoc at the Chair of Comparative Constitutionalism at the University of Göttingen. I did most of the work in the ‘Indian Summer’, freezing autumn and snowing winter of the East Coast of the US, while at the Institute of Global Law and Policy, Harvard University. I finished it in the tropical moist of the tiny cityState of Singapore, then in full rainy season, while at the Centre for Asian Legal Studies, National University of Singapore. My first thanks go to these institutions and their respective directors, Ran Hirschl, David Kennedy and Jaclyn Neo, who have generously offered me the support needed to complete this project. I would also like to offer my deepest gratitude to Kevin Tan and Thio Li-Ann for their useful guidance throughout the writing and editing process, Jon Lloyd for meticulous copy-editing and high professionalism, and Linda Staniford and Rosemarie Mearns for their patience. I also extend my thanks to the entire Centre for Asian Legal Studies, in particular Arif Jamal, Michael Dowdle, Andrew Harding, Gary Bell, Weitseng Chen, Dian AH Shah, Bryan Dennis Tojanco, Benjamin Lawrence and Sanjayan Rajasingham, for their consistent input in the form of thoughtful comments, stimulating suggestions and constructive criticism. Special thanks go to Suguna Jeganathan for her assistance on administrative matters. I thank also my peers and (former) co-workers Besmira Sinanaj, Michael Hein, Anna Fruhstorfer, Benjamin Boudou, Sabine Mohamed, Lisa Harms, Serawit Berkwele, Tobias Jakobi, Alexander Hudson, Julius Yam, Faisal Kamal, Berihun Aduna Gebeye, Gayatri Rathore, Mohamed Abdelsalam, Léo Pascault, Eirine Kikarea, Luca Bonadiman, Nadia Lambek, Nafay Choudhury, Richard Clements, Gabriel Lentner, Love Rönnelid, Roxana Vatanparast, Muhammad Nurshazny Bin Ramlan, Dhiraj Nainani, Shirin Chua, Leon Chan, Jan Mihal, Ali Hammoudi and Elena Pribytkova. Their warm and friendly presence has been absolutely crucial to the completion of this project. Over the course of my fieldwork research, I have benefited from funding from the French Ministry of Foreign Affairs, the European Union Commission Delegation to Thailand, the Thai Union for Civil Liberties, the International Commission of Jurists and the Foundation of France, as well as from the National Institute for Oriental Languages and Civilizations (INALCO), and the Research Institute on Contemporary Southeast Asia (IRASEC). Thank you in

viii  Acknowledgements particular to Dominique Doudet, Danthong Breen and Sam Zarifi for entrusting a young PhD student with resources and access to the Thai administration and the community of human rights defenders working on Thailand’s most pressing issues. In Thailand, I have received generous grants from the University of Chulalongkorn’s Thai Studies Department as well as research support from Thammasat University’s German-Southeast Asia Centre for Excellence in Public Policy and Good Governance. Thank you to their respective directors Ritirong Jiwakanon and Henning Gläser. At King Prajadhipok’s Institute, my warm thanks go to then-director Bowornsak Uwanno as well as Thawilwadee Bureekul for welcoming me as one of their own over the course of several years. From France, I thank in particular Michel Troper, Jean-Louis Halpérin, Vishnu Varunyou and Gilles Delouche, the members of my PhD committee; Béatrice Jaluzot, Jérôme Bourgon and François Guillemot at the Lyon Institute of East Asian Studies; Claire Tran, Benoît de Tréglodé, Christine Cabasset, Abigael Pesses and Bertrand Bayet at the Research Institute on Contemporary Southeast Asia; and David Camroux, Alain Dieckhoff, Ewa Kulesza, Elise Massicard, Christophe Jaffrelot and Hélène Thiollet at the Sciences Po Centre for International Studies and Research (CERI). I also would like to thank my Sciences Po students for their enthusiasm and the energy they gave me over the course of researching and writing this book. Finally, my deepest appreciation goes to Worawutr Butrmatr for highly impressive research assistance, and Kongsatja Suwanapech and Thanapol Eawsakul for precious additional inputs. Thank you also to Malavika Reddy, Michael Herzfeld, Tom Ginsburg, Benjamin Schonthal, Kevin Hewison, Chris Baker, Pasuk Phongpaichit, Kasien Tejapira, Nattapol Chaiching, Tyrell Haberkorn, Tamara Loos, Thongchai Winnichakul, Somsak Jiemteerasakul, Nidhi Eoseewong, Janjira Sombatpoonsiri, Khemthong Tonsakulrungruang, Poonthep Sirinupong, Phuttipong Ponganekul, David Streckfuss, Kullada Kesboonchoo-Mead, Tomas Larsson, Viengrat Nethipo, Claudio Sopranzetti, Virot Ali, Puangthong Pawakapan, Aim Sinpeng, Allen Hicken, Jacob Ricks, Wanrug Suwatwattana, Lakkana Punwichai, Stithorn Thananitichot, Rachawadee Saengmahamat, Pattama Subkhampang, Anon Nampha, Michelle Tan, Emilie Testard, Andrew McGregor Marshall, Arnaud Dubus, Paul Handley, Carol Isoux, Sirikan Charoensiri, Tatsanavanh Banchong, Thai Lawyers for Human Rights, Nittirat and iLAW. Many colleagues and friends have taken some of their precious time to comment on parts or the whole manuscript. In particular, Michael H Nelson and Piyabutr Saengkanokkul have blessed me with full and thorough reviews of the whole manuscript. I thank them too, along with the anonymous reviewers. Of course, all mistakes and arguments expressed in this book remain fully mine alone.

Contents Acknowledgements��������������������������������������������������������������������������������������vii 1. Introduction: Is Thailand a Constitutional Monarchy?�����������������������������1 I. The Purpose and General Argument of the Book: Why the Thai Constitution Matters..................................................5 II. The Issue of Royal Prerogatives in a Constitutional Monarchy: Text, Conventions and Doctrines....................................................11 III. Sacred Monarchy vs. the Rule of Law: The Interplay of Law and Religion Mediated through Kingship............................16 IV. Constitutional Bricolage: The Indeterminacy of Legal Transplants and their Political Re-assignments................................20 V. Outline of the Chapters..................................................................27 PART I IMPORTING THE MODERN CONSTITUTION 2. Siam’s First Constitutions: The Rise and Fall of the Sacred Monarchy�����������������������������������������������������������������������������������35 I. The Hindu-Khmer Origins of the Traditional Constitution.............35 II. The 1889, 1926 and 1932 Draft Constitutions: The Bonapartist and British Tropes..........................................................................42 III. The 1932 Constitutions: The Soviet/Chinese and Prussian/Japanese Influences...........................................................47 3. Legal Positivism and Buddhist Kingship: Establishing the King as the Source of the Constitution�����������������������������������������������������������57 I. Hindu-Buddhist Theories: The Devaraja and Dharmaraja Kings......57 II. The European Influence: Importing Doctrines of Royal Absolutism.....................................................................................63 III. From the European Doctrine of ‘Royal Octroy’ to the King’s Granted Rattathammanun..............................................................71 4. From the Sacred Monarchy to the Sacred Constitution���������������������������79 I. Royal Despotism, Theocracy and Sacred Law..................................79 II. Royal Reforms: The Westernisation of Law and Kingship................84 III. Royal Vetoes and Amnesties versus the Sacred Constitution.............94

x  Contents PART II IMPORTING THE STATE OF EMERGENCY 5. Thailand’s Cold War Constitutions: Constitutions for the Military������� 105 I. The 1947–1949 Constitutions: The Royalist Restoration and the Rejection of the British Model����������������������������������������������� 105 II. The 1959, 1968 and 1972 Constitutions: Military Dictatorship and the Gaullist Inspiration��������������������������������������������������������� 115 III. The 1974–1991 Constitutions: The US Influence on Military Dictatorship under Royal Command?������������������������������������������ 120 6. Revolutionary Legality and Buddhist Kingship: Theorising the King’s Extra-Constitutional Powers in Times of Crisis������������������������������������ 130 I. From Kelsen’s Revolutionary Legality to Thai-Style Democracy�����130 II. From Bagehot’s Three Conventional Powers of the Monarch to the Invention of Thai Constitutional Customs������������������������� 137 III. Revolutionary Legality Revised: The Doctrine of Shared Sovereignty between the King, the Military and the People������������ 146 7. From Military Dictatorship to Military Dictatorship under (Sacred) Royal Command���������������������������������������������������������� 152 I. The Monarchy against the Military: Practices of Royal Constitutional Veto��������������������������������������������������������������������� 152 II. The Monarchy on Top of the Military: Royally Sanctioned Military Coups and Amnesty Laws for Coup-Makers������������������� 161 III. The Monarchy above the Military: Direct Royal Interventions against Military Juntas���������������������������������������������������������������� 166 PART III IMPORTING CONSTITUTIONAL JUSTICE 8. Thailand’s Post-Cold War Constitutions: Constitutions for the Judiciary���������������������������������������������������������������������������������������� 177 I. The 1997 Constitution: The Transformative ‘Global South’ Constitution.......................................................... 177 II. The 2007 Constitution: Juristocracy under US Inspiration?............ 189 III. The 2017 Constitution: Juristocracy and Military Dictatorship under Royal Command................................................................. 194

Contents  xi 9. The Rule of Law and Buddhist Kingship: Turning the Constitutional Court into a Substitute King���������������������������������������������������������������� 201 I. From the Rejection of the British Practice of the Royal Prerogative to the Creation of a Constitutional Court Ruling in the Name of the King�������������������������������������������������������������� 201 II. From US-Style Judicial Activism to ‘Judicialisation’: Transferring the King’s Extra-Constitutional Powers to the Constitutional Court���������������������������������������������� 209 III. From Global Discourses on the Rule of Law and Good Governance to the Doctrine of Dharmaraja Governance��������������� 217 10. From Judicialisation at the King’s Request to Juristocracy under Royal Command��������������������������������������������������������������������������������� 224 I. Judicialisation at the King’s Request: Practices of Direct and Indirect Royal Vetoes................................................... 224 II. More Judicialisation at the King’s Request: The Constitutional Court Defines ‘DKHS’ and its Customs......................................... 232 III. Royal Constitutional Vetoes, Lèse-Majesté and ‘DKHS’: The Affirmation of the Royal Prerogative...................................... 240 11. Conclusion: Democracy with the King as Head of State: The Bricolage of Thai Constitutional Identity�������������������������������������� 247 I. Summary of the Book’s Contribution: Bricolage as a Process and Method in Comparative Constitutional Law........................... 250 II. Taking Textual Provisions Seriously: On the Royal Prerogative and Constitutional Conventions.................................................... 254 III. Taking Local Doctrine Seriously: On the Power of Legal Ideas and the Use of Religion to Localise Legal Transplants................... 258 IV. Taking Constitutional Practices Seriously: On Political Precedents and the Performativity of Constitutional Story-telling�������������������������������������������������������������������������������� 262 V. Epilogue: Thailand and the Possibility of Decentring Comparative Constitutional Law������������������������������������������������� 265 Appendix: Biographical Data of Major Thai and Foreign Jurists and their Contribution to Thai Constitutionalism������������������������������������������������ 269 Bibliography���������������������������������������������������������������������������������������������� 282 Index��������������������������������������������������������������������������������������������������������� 319

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1 Introduction: Is Thailand a Constitutional Monarchy?

I

n the middle of Bangkok stands the most emblematic monument after the Temple of the Emerald Buddha: the Democracy Monument. This monument portrays Thai democracy as being made up of five elements: the four branches of the Thai security forces (the Army, the Navy, the Air Force and the Thai police) at the periphery and the Constitution at its core. The Constitution is represented in a Buddhist-scripture-like longitudinal book made of golden palm leaves (the samutthai) placed on top of two golden trays (the phanwenfa), which are traditionally used in Thailand as a medium to make offerings to monks or to the King; in other words, to intermediate between the profane and the sacred.1 The security forces are represented by four erect, obelisk-like 24-metre-high wings surrounding and overlooking the Constitution. The monument has been, over the years, the visual embodiment of the Thai polity’s most burning existential question: if democracy is an offering in the form of a sacred Constitution (whose guardian is the military), who is the Constitution-giver: the King or the people? And, consequently, does the Constitution derive its authority from the King, or is it the King who derives his authority from the Constitution? Commissioned in the late 1930s to commemorate the 24 June 1932 Revolution that imposed the first Constitution on King Prajadhipok (Rama VII), the monument brings together Hindu-Buddhist symbols (the mythical snakes called Nagas) and Western influences (the French Arc de Triomphe on the Champs-Elysées). The visual representation of the Constitution as a Buddhist, sacred book placed on top of a phanwenfa has been the official representation of the Constitution since 1933. After the Revolution, the government of the revolutionaries, the People’s Party, worked relentlessly to appropriate and eventually transfer the king’s sacredness onto the Constitution by turning it into the sacred centre of the Thai nation, ‘worth dying for’.2 To mark this displacement,

1 Nidhi Eoseewong, ชาติไทย, เมืองไทย, แบบเรียนและอนุสาวรีย์ ว่าด้วยวัฒนธรรม, รัฐ และรูปการจิตสำ�นึก [The Thai Nation, Thai Politics, Textbook and Monuments: about Culture, the State, and Consciousness] (Matichon, 2004) 106. 2 Thanavi Chotpradit, ‘Countering Royalism with Constitutionalism: The People’s Party’s Visual Culture after the Boworadet Rebellion’ (2018) 26 South East Asia Research 235.

2  Introduction: Is Thailand a Constitutional Monarchy? the Democracy Monument was chosen as the precise location of Thailand’s National Highway’s Kilometre Zero.3 A law to safeguard the Constitution (a kind of ‘lèse-constitution’ law) was passed, and Constitution replicas were sent to every public building, where they were subject to mandatory worshipping.4 The date of 24 June was made the national day and was named ‘Constitution Petition Day’.5 ‘Nation, Religion, Monarchy’,6 the motto of the country crafted in the early twentieth century by King Vajiravudh (Rama VI), became ‘Nation, Religion, Monarchy and Constitution’. Ecstatic festivals dedicated to the celebration of the Constitution and featuring the much-awaited election of ‘Miss Constitution’ were held on Constitution Day.7 Years later, the lèse-constitution law was repealed, the word ‘Constitution’ was dropped from the national motto, and National Day was eventually moved from 24 June to 5 December, the birthday of King Bhumibol (Rama IX), who ascended the throne in 1946. Another Constitution Day, on 10 December, was never abolished and is still at the time of writing a public holiday. Called the ‘Day the King Granted the Constitution’ (wan phrarachathan rattathammanun), it marks the promulgation of Siam’s first permanent charter, celebrated in an elaborate ceremony marrying Hindu-Buddhist rites with Western practices overseen by King Prajadhipok. Seated on his throne overlooked by a nine-tier-umbrella, he performed the symbolic act of ‘granting the Constitution’ to the Siamese people. Photographs of the ‘granting ceremony’ were printed in the newspapers and widely distributed. In Thai history, not all ulterior constitutions received the same dignified treatment, but when they did, they were broadcast live on radio then on television. The current 2017 Constitution was also promulgated in a solemn ‘granting the Constitution’ ceremony, presided over by King Vajiralongkorn, who succeeded to the throne in 2016. The ceremony was held on 6 April, the anniversary of the foundation of the Chakri Dynasty, which, in the late eighteenth century, established the foundations of modern Thailand.8 In full royal regalia, seated on his royal throne in front of civil and military bureaucrats as well as ambassadors in their Western costumes, the King was given the golden palm-leaf manuscript

3 Thanavi Chotpradit, ‘Revolution versus Counter-revolution: The People’s Party and the Royalist(s) in Visual Dialogue’ (PhD thesis, Birkbeck, University of London, 2016) 123. 4 Puli Fuwongcharoen, ‘Long Live Ratthathammanūn!”: Constitution Worship in Revolutionary Siam’ (2018) 52 Modern Asian Studies 609. 5 Somsak Jiemteerasakul, ‘ประวัติศาสตร์วันชาติไทย: จาก 24 มิถุนาถึง 5 ธันวา’ [‘History of the Thai National Day: From 24 June to 5 December’] (2004) 2 Samesky Journal 95. 6 Walter F Vella, Chaiyo! King Vajiravudh and the Development of Thai Nationalism (University of Hawaii Press, 1978). 7 Pridi Hongsathorn, ‘มอง “งานฉลองรัฐธรรมนูญ” ในแง่การเมืองวัฒนธรรมหลังการปฏิวัติ 2475’ [‘The “Constitution Fair” as Political Cultural War after the 1932 Revolution’] [2012] 6 Thammasat University Archives 122. 8 David K Wyatt, ‘The Subtle Revolution of King Rama I of Siam’ in David K Wyatt and Alexander Woodside (eds), Moral Order and the Question of Change: Essays on Southeast Asian Thought (Yale University Southeast Asia Studies, 1982).

Introduction: Is Thailand a Constitutional Monarchy?  3 of the Constitution on a golden phanwenfa by a kneeling Prayuth Chan-ocha, who was then head of the military junta that had seized power following the 2014 coup. The ceremony featured the reading out loud of the constitutional preamble, which stated how democracy had been granted to the Thai people by King Prajadhipok in 1932 in the form of a Constitution. The King signed three copies of the Constitution, following the tradition of the ancient code of Thai law, the Three Seals Code, which was only available in three copies throughout the kingdom. The ‘granting the Constitution’ ceremony was broadcast live on Facebook, commentated upon by specialists and uploaded to YouTube for people to comment on: ‘Song phra charoen’ (‘long live the King’). At the same time, in Bangkok, monuments commemorating the role of the 1932 revolutionaries in promoting constitutionalism over royalism started disappearing. On 7 April 2017, the plaque commemorating the 24 June 1932 Revolution was mysteriously replaced overnight. The disappeared plaque read ‘Here, at dawn on 24 June 1932, the People’s Party introduced a Constitution for the prosperity of the Thai nation’, while the new plaque replied ‘Loyalty to Buddhism and the King is the key to the prosperity of the Thai nation’. Not long after, the 14-metre-high, stupa-like Safeguarding the Constitution Monument, located in northern Bangkok, also disappeared overnight.9 It had been erected to celebrate the victory of the People’s Party over a royalist revolt, the 1933 ‘Boworadet Revolution’. The failed royalist attempt at counter-revolution assisted in discrediting King Prajadhipok, which eventually led to his abdication in 1935. However, discussing these events is difficult: they are protected by the lèse-majesté law, which de facto punishes any overt or veiled criticism of the King with harsh jail sentences or the threat thereof.10 At stake in this war of monuments was a dispute over worship and supremacy between the competing ideologies of royalism and constitutionalism. The Thai word for Constitution is ‘rattathammanun’. It refers to the notion of dharma (‘dhamma’ in Pali and ‘tham’ in Thai), an extremely polysemic word. It means (Buddhist) justice, but also virtue, as well as the natural, eternal, immutable law of the cosmic universe. ‘Rattathammanun’ is literally the State’s (‘rat’) dharma (‘tham’). The word for Rule of Law, ‘nittitham’, is also built on the notion of dharma. It is literally the Law (‘nitti’) of dharma (‘tham’). The word for ‘law’ (or, rather, for something wider and more generic than law, the equivalent of the German ‘Recht’ or the French ‘droit’) is ‘niti’, from the Pali-Sanskrit ‘rule, ethic’, also written as ‘neti’. According to dharma, it is the King who is responsible for upholding the eternal cosmic law and applying it through

9 Sebastian Strangio, ‘Thai Monuments are Disappearing in the Dead of Night’, Foreign Policy, https://foreignpolicy.com/2020/08/11/thailand-democracy-monuments-protests-king. 10 David Streckfuss, Truth on Trial in Thailand: Defamation, Treason, and Lèse-Majesté (Routledge, 2010); Søren Ivarsson and Lotte Isager, Saying the Unsayable: Monarchy and Democracy in Thailand (NIAS, 2010).

4  Introduction: Is Thailand a Constitutional Monarchy? judicial decision-making.11 From there it results that the terms ‘Constitution’ and ‘Rule of Law’ carry with them ambiguities regarding the relationship between the religious and the secular, and, deriving thereof, the role of the King in the politico-legal order. As a result, both terms are the subjects of intense political debates. The word initially used by the 1932 revolutionaries to refer to the Constitution contained no reference to dharma, as did the word for Rule of Law pushed in the 1990s by those who claimed filiation from the 1932 revolutionaries – instead of a ‘Rule of dharma’ word, they advocated for a ‘State of Law’ word (‘nittirat’). Now the current Constitution (‘rattathammanun’) states that the Constitutional Court adjudicates cases based on the dharma-infused version of the Rule of Law (‘nittitham’).12 Unsurprisingly, the logo of the Constitutional Court reproduces the image of the golden Constitution-as-sacred-book, which it complements with the also golden Roman balance of justice, symbolising the harmonious, monochromatic marriage of the Western and Buddhist conceptions of justice. Yet, since the times of the absolute monarchy up to the present day, justice is still rendered exclusively ‘nai phra boromapitai’ (‘in the name of the King’).13 The study of monuments, ceremonies and words offers us an insight into the centrality of the Thai Constitution, discourses, practices and representations thereof to Thai socio-political life. If the fetishisation of law is a rather common trait of former colonies,14 Thailand’s sacralisation of the Constitution and its history of constitutional worship appear to be quite paradoxical, given that the kingdom has had 20 Constitutions since 1932, with most of them lasting no more than four to five years on average.15 Constitutionalism in Thailand, which has been described by some as an obsessional ‘disease’ plaguing the body politic,16 is the site of heightened political struggles over the status of the King vis-a-vis the Constitution, as well as the extent of hybridisation of the indigenous and the

11 Robert Lingat, Royautés bouddhiques: Aśoka et la fonction royale à Ceylan [Buddhist Kings: Ashoka and Kingship in Ceylon] (Editions de l’Ecole des hautes études en sciences sociales, 1989); Robert Lingat, The Classical Law of India (University of California Press, 1973). 12 Eugénie Mérieau, ‘Buddhist Constitutionalism in Thailand: When Rājadhammā Supersedes the Constitution’ (2018) 13 Asian Journal of Comparative Law 283. 13 Piyabutr Saengkanokkul, ในพระปรมาภิไธย ประชาธิปไตยและตุลาการ [In the Name of the King, Democracy and the Judiciary] (Openbooks, 2009). 14 Jean Comaroff and John Comaroff, ‘Law and Disorder in the Postcolony’ (2007) 15 Social Anthropology 133. On hyper-legalism broadly, see Jean Comaroff and John L Comaroff (eds), Law and Disorder in the Postcolony (University of Chicago Press, 2006). On the subject of treating Thailand as a post-colony, see Rachel Harrison et al, The Ambiguous Allure of the West: Traces of the Colonial in Thailand (Cornell University Press, 2018); Tamara Loos, Subject Siam: Family, Law, and Colonial Modernity in Thailand (Cornell University Press, 2018). 15 Eugénie Mérieau, ‘The Legal–Military Alliance for Illiberal Constitutionalism in Thailand’ in Björn Dressel and Marco Bünte (eds), Politics and Constitutions in Southeast Asia (Routledge, 2017) 146. 16 Duncan McCargo, ‘Alternative Meanings of Political Reform in Contemporary Thailand’ (1998) 13 Copenhagen Journal of Asian Studies 5, 5.

The Purpose and General Argument of the Book  5 foreign, of the religious and the secular. Its analysis takes us deep into Thailand’s existential questions about the role and powers of the King. More broadly, the exploration of Thailand’s evolving practice of monarchy and the Constitution over time is an invitation to reflect on several foundational controversies in the field of comparative constitutional law, namely the legal transplants debate and the secularisation thesis, as well as to re-evaluate the extent to which constitutions ‘matter’ outside of familiar Western liberal-democratic settings. Above all, the Thai case highlights the need to rethink the category of ‘constitutional monarchy’ and better theorise its connection to the doctrines of constitutionalism and the Rule of Law, while pondering on the rationale behind the remarkable resilience of the royal prerogative well into the twenty-first century. I.  THE PURPOSE AND GENERAL ARGUMENT OF THE BOOK: WHY THE THAI CONSTITUTION MATTTERS

Does the Constitution matter in Thailand? Thailand’s current constitution, the 2017 Constitution, had a convoluted genesis. It was the outcome of a twoyear-long drafting process initiated in the aftermath of the 2014 coup under the supervision of two of the most prominent and experienced constitutional lawyers in the country. In August 2016, a consolidated draft establishing a powerful Senate entirely appointed by the military was eventually put to a national referendum. Thai voters were asked two questions: ‘do you approve the constitutional draft?’ and ‘do you agree that the Senate participate in the vote on the election of the next prime minister?’ The answer was a resounding ‘yes’ to both questions. Under Article 61 of the Referendum Act,17 criticism of the draft had been made a criminal offence carrying a 10-year imprisonment sentence, but the Constitutional Court had found the provision not to be in breach of the freedom of expression guaranteed by the interim Constitution.18 A transitional provision on the role of the Senate in the selection of the Prime Minister was subsequently added to the draft and was sent to the King for his signature. However, the King did not sign it into law; instead, he asked the military for additional revisions, touching on substantial matters relating to his own royal powers. Swiftly revised as per the royal wish, the text was finally signed and promulgated by the King eight months after it – or, rather, after its referendum version – had been approved by the Thai people. But the King’s exercise of sovereignty did not stop there: two years later, following the much-awaited 2019 elections that promised to ‘return democracy’ to Thailand, a new Cabinet, led by General Prayuth Chan-ocha, was sworn in. Yet, instead of swearing allegiance



17 พระราชบัญญัติว่าด้วยการออกเสียงประชามติร่างรัฐธรรมนูญ

พ.ศ. ๒๕๕๙ [Referendum Act BE 2559], 22 April 2016. Court Decision 4/2559], 29 June 2016.

18 คำ�วินิจฉัยศาลรัฐธธรรมนูญที ๔/๒๕๕๙​[Constitutional

6  Introduction: Is Thailand a Constitutional Monarchy? to the King and the Constitution as per article 161 of the new Constitution,19 the Cabinet swore allegiance to the King and the King only, skipping the part of the oath relating to upholding the Constitution, following a last-minute royal request. Deputy Prime Minister Wissanu Krea-ngam, one of the most eminent constitutional scholars of Thailand, a law graduate from Berkeley, California, declared, in substance, that the trimmed oath was a matter strictly between the monarch and the Cabinet – seised of the matter, the Constitutional Court concurred and declined jurisdiction on the case.20 In trying to interpret this series of events (which are developed further in Chapters 8–10) in constitutional terms rather than discarding it as pure politics – ie, reading the Thai Constitution as irrelevant, Thai constitutional scholars as cynical legal servants of the powers-that-be, and the Constitutional Court as a kangaroo court subservient to the needs of the monarchy and military – this book must first depart from several broad assumptions. First, it must adopt an extensive, non-formalistic definition of the Constitution, which includes but is not restricted to the master text bearing the official name of ‘constitution’ (the ‘big-C Constitution’). Such definition must be inclusive of the statutes, administrative regulations, doctrines, judicial interpretations and conventions (whether codified or uncodified, written or unwritten, justiciable or not justiciable) that regulate the operations of the highest organs of the State, most notably the monarch. This functional understanding of the Constitution echoes the Kelsenian concept of constitutions in the material sense21 and, as such, must be distinguished from its recent, empirically driven refinings under concepts such as the ‘living constitution’22 or ‘small-c constitutions’,23 which have expanded the definition of a Constitution outside of its normative boundaries into the realm of political practices. Second, it must depart from a traditional understanding that constitutions outside the democratic-liberal West are ‘façades’ which do not matter because of a lack of congruence between text and practice,24 namely, that countries

19 Article 61 of the 2017 Constitution states: ‘Before taking office, a Minister must make a solemn declaration before the King in the following words: “I, (name of the declarer), do solemnly declare that I will be loyal to the King and will faithfully perform my duties in the interests of the country and of the people. I will also uphold and observe the Constitution of the Kingdom of Thailand in every respect”.’ 20 คำ�สั่งศาลรัฐธรรมนูญที ๓๕/๒๕๖๒ [Constitutional Court Order 35/2562], 11 September 2019. 21 Hans Kelsen, General Theory of Law and State (Harvard University Press, 1949) 245. See also Walter F Murphy, Constitutional Democracy: Creating and Maintaining a Just Political Order (Johns Hopkins University Press, 2007) 13. 22 Bruce Ackerman, ‘The Living Constitution’ (2007) 120 Harvard Law Review 1737. Ernest A Young, ‘The Constitution outside the Constitution’ (2007) 117 Yale Law Journal 408. See also Karl N Llewellyn, ‘The Constitution as an Institution’ (1934) 14 Oregon Law Review 108. 23 David S Law, ‘Constitutions’ in Peter Cane and Herbert M Kritzer (eds), The Oxford Handbook of Empirical Legal Research (Oxford University Press, 2010) 376. Zachary Elkins, Tom Ginsburg and James Melton, The Endurance of National Constitutions (Cambridge University Press, 2009) 39. 24 See Max Weber, ‘Russlands Übergang zum Scheinkonstitutionalismus’ (1906) 23 Archiv für Sozialwissenschaft und Sozialpolitik 165; Charles Howard McIlwain, Constitutionalism, Ancient

The Purpose and General Argument of the Book  7 making up ‘the rest’ fall prey to the ‘constitution without constitutionalism’ predicament.25 In so doing, this book builds on an emerging body of literature increasingly analysing non-liberal-democratic constitutions not as a façade, deviant form or failed experiment of liberal-democratic constitutionalism, but as modes of constitutional ordering in their own right, based on a coherent articulation of doctrines, texts and practices, and as such deserving of in-depth analysis.26 In that regard, it builds on recent scholarship on the varieties of constitutionalism and the renaissance of the comparative constitutional law field outside of its Euro-American boundaries.27 Against this background, the first purpose of this book is to highlight the quasi-absence of contemporary reflections on constitutions and monarchies, and in particular on the theorisation of the relationship between the royal prerogative and constitutional conventions, which, outside of British legal history and (marginally) continental Europe, remains somewhat fallow territory.28 Recent trends have revived the comparative legal study of reserve powers in the British colonies and the Commonwealth,29 as well as the history

and Modern (Great Seal Books, 1958); Giovanni Sartori, ‘Constitutionalism: A Preliminary Discussion’ (1962) 56 American Political Science Review 853; Karl Loewenstein, ‘Constitutions and Constitutional Law in the West and the East’ (1969) 30 Indian Journal of Political Science 203; David S Law and Mila Versteeg, ‘Sham Constitutions’ (2013) 101 California Law Review 863. 25 HWO Okoth-Ogendo, Constitutions without Constitutionalism: Reflections on an African Political Paradox (American Council of Learned Societies, 1988); Qianfan Zhang, ‘A Constitution without Constitutionalism? The Paths of Constitutional Development in China’ (2010) 8 International Journal of Constitutional Law 950; Augusto Zimmermann, ‘Constitutions without Constitutionalism: The Failure of Constitutionalism in Brazil’ in Mortimer Sellers and Tadeusz Tomaszewski (eds), The Rule of Law in Comparative Perspective (Springer Netherlands, 2010). 26 Gunter Frankenberg and Helena Alviar García, Authoritarian Constitutionalism: Comparative Analysis and Critique (Edward Elgar, 2019); Tom Ginsburg and Alberto Simpser, Constitutions in Authoritarian Regimes (Cambridge University Press, 2013). 27 Ran Hirschl, Comparative Matters: The Renaissance of Comparative Constitutional Law (Oxford University Press, 2014); Mark Tushnet, ‘Editorial: Varieties of Constitutionalism’ (2016) 14 International Journal of Constitutional Law 1; Michael W Dowdle and Michael Wilkinson (eds), Constitutionalism beyond Liberalism (Cambridge University Press, 2017); Günter Frankenberg, Comparative Constitutional Studies: Between Magic and Deceit (Edward Elgar, 2018). 28 In the 1990s and 2000s, only a handful of law scholars focused their scholarly enquiry on the powers of the British monarch, most notably: Vernon Bogdanor, The Monarchy and the Constitution (Oxford University Press, 1995); Vernon Bogdanor, ‘The Monarchy and the Constitution’ (1996) 49 Parliamentary Affairs 407; Rodney Brazier, ‘Legislating about the Monarchy’ (2007) 66 Cambridge Law Journal 86; Robert Blackburn, ‘Monarchy and the Personal Prerogatives’ [2004] Public Law 546; Rodney Brazier, ‘Monarchy and the Personal Prerogatives: A Personal Response to Professor Blackburn’ [2005] Public Law 45; Sebastian Payne, ‘The Royal Prerogative’ in Maurice Sunkin and Sebastian Payne (eds), The Nature of the Crown: A Legal and Political Analysis (Oxford University Press, 1999). 29 See the 2017 special issue of Review of Constitutional Studies, ‘The Crown in the 21st Century’ and notably Robert Hazell and Bob Morris, ‘If the Queen Has No Reserve Powers Left, What is the Modern Monarchy for?’ (2017) 22 Review of Constitutional Studies 5. See also Anne Twomey, The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems (Cambridge University Press, 2018).

8  Introduction: Is Thailand a Constitutional Monarchy? of parliamentary responsibility within European monarchies.30 Still, the common assumption remains that there are two ideal types of monarchs: the pure figurehead British-style monarch, which is characteristic of a democracy, or the opposite, the hands-on ruling king of an unnamed Gulf monarchy, who is simultaneously head of State and government, which is typical of authoritarian regimes.31 The former’s reign is fully constrained by the Rule of Law and the principles of constitutionalism, while the latter’s rule is arbitrary and unfettered. The Thai monarch however, like many other present and past monarchs (and presidents), does not fit into either category. Besides, framing the phenomenon of monarchy according to this oversimplified binary causes the literature dealing with each ideal type to be detrimentally segregated from one another. As a result, there is little political analysis of the British monarchy – as political science studies power, and the British Queen is defined as having none32 – and little constitutional analysis of the Gulf monarchies, as law studies constitutional norms, and the Gulf monarchies are defined as having ‘constitutions without constitutionalism’.33 The shortcomings of the binary are self-evident – the British Queen does have some discretionary ‘reserve’ powers and the Constitution of the unnamed Gulf monarchy does exercise some constraint on the monarch. The Thai case, a hybrid regime fluctuating between both ideal types, sheds light on how unsophisticated and static the category of ‘constitutional monarchy’ is in political science, and how under-theorised the doctrine of royal prerogative and convention is in constitutional law. The category needs to be rethought altogether by studying the complex dynamics of the relationship between the monarch and the constitution, in particular between the extent of the royal prerogative and the nature of constitutional conventions governing the prerogative in light of the twin doctrines of constitutional supremacy/constitutionalism and the Rule of Law. The second purpose of this book is to shed light on two major and interrelated controversies: the legal transplants debate, a dispute about the relevance or

30 Adam Przeworski, Tamar Asadurian and Anjali Thomas Bohlken, ‘The Origins of Parliamentary Responsibility’ in Tom Ginsburg (ed), Comparative Constitutional Design (Cambridge University Press, 2012); Robert Hazell and Bob Morris, The Role of Monarchy in Modern Democracy: European Monarchies Compared (Bloomsbury, 2020). 31 Alfred C Stepan, Juan J Linz and Juli F Minoves, ‘Democratic Parliamentary Monarchies’ (2014) 25 Journal of Democracy 35. 32 The 2017 special issue of Review of Constitutional Studies, ‘The Crown in the 21st Century’ opens with the following words: ‘The modern monarch has no political power. The Queen personal prerogatives – the power to appoint the Prime Minister; to summon and dissolve parliament; and to give royal assent to bills – have been almost entirely extinguished. In exercising these powers, the monarch no longer retains any effective discretion’; Hazell and Morris (n 29). The British Political Studies Association does not have a sub-group on the monarchy, as noted in Norman Bonney, ‘Modernising the Monarchy: The Oaths of Office’ (2010) 81 Political Quarterly 564, 566. 33 A notable exception being Nathan J Brown, Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospects for Accountable Government (SUNY Press, 2012).

The Purpose and General Argument of the Book  9 irrelevance of the local context in the international transplants of legal concepts, rules and doctrines, and the secularisation thesis, according to which (legal) modernisation correlates with (legal) secularisation. In Thailand, not only did the import of modernising legal concepts and doctrines such as constitutional monarchy, constitutionalism and the Rule of Law not secularise the country, but they were themselves re-invested with religious meanings, participating in the desecularisation of law, under the political agenda of securing the King’s power. This phenomenon highlights the fundamental and ontological indeterminacy of constitutional transplants while raising the issue of the role of religion (as a political tool) in the indigenisation of foreign and sometimes global (constitutional) norms. Constitutional monarchy, constitutionalism and the Rule of Law are global legal and political ideals prone to being localised or, according to Robertson’s neologism, glocalised.34 In the Thai case, the very indigenisations of the global concept of constitutional monarchy and the global doctrines of constitutionalism and the Rule of Law have worked towards the consolidation of the King’s position at the apex of the constitutional order. Based on this premise, the third purpose of this book is to refine a promising concept capturing the interplay of politics, religion and law in the active construction of a constitutional order based on eclectic borrowings and their playful assemblage: constitutional bricolage. As opposed to constitutional design or constitutional engineering, the bricolage metaphor emphasises the various contingencies at play in constitution-making and interpretation, in particular in the choice of foreign and traditional influences from various traditions and time periods, and their creative misuses, whether voluntary or involuntary. In this collective, dialectical and often chaotic process of misreadings and misunderstandings, not only constitution-drafters, but also scholars, judges and various political actors are active and often strategic participants. Guided by political interests and religious values, together with a wide range of other factors, they engage in the politics of borrowing, translating and assigning meanings to texts, rules and doctrines. Within that process (transplanted) rules/ doctrines are, first and foremost, signs and signifiers offered to contextual, creative and conflicting normative re-interpretations. The Thai case is paradigmatic of constitutional bricolage: legal categories, concepts, rules and doctrines have been borrowed from common law, civil law and indigenous traditions, mixed together and creatively re-assembled and re-interpreted against one another over time to consolidate the King’s authority by relying on the permanent re-invention of Buddhist doctrines. Yet if legal categories, concepts, rules and doctrines are indeed ­contextual, they are no less rational, coherent or ‘valid’. In Thailand, they must be understood within the Thai constitutional order’s own dogmatic rationality as

34 Roland Robertson, ‘Glocalization: Time-Space and Homogeneity-Heterogeneity’ in Global Modernities (SAGE, 1995).

10  Introduction: Is Thailand a Constitutional Monarchy? defined by the Thai legal profession. Against this background, to study constitutional bricolage, the mainstream formalist-positivist method, which adheres to the fictional principle of the inherent determinate meaning of a rule/doctrine regardless of context, obscures rather than enlightens. Moreover, in looking at constitutional transfers, one common caveat of the formalist-positivist method has been to reject difference as either failure35 or abuse,36 both calling for reform and the elimination of difference. By contrast, thinking of constitutional borrowings in terms of ‘bricolage’ promotes the interpretivist mode of enquiry seeking to understand rather than offer judgement or provide solutions. It relies on ethnographic methods derived from anthropology and, in particular, the Geertzian method of ‘thick description’37 of legal thought to grasp the contextual complexities, fluidities and intricacies of the process of creative meaning re-assignment involved in constitutional bricolage. In this book, I document how doctrinal discourses on constitutional monarchy, constitutionalism and the Rule of Law from various traditions, times and places have been indigenised, re-interpreted and sedimented throughout the country’s constitutional history to produce the current constitutional order with the King at its apex. All in all, I argue that the Thai Constitution, understood in the material sense, matters a great deal in terms of both constituting and constraining the King’s power. Against readings of the Thai monarchy in terms of ‘pure politics’ or ‘pure tradition/religion’, I contend that the reserve powers of the King are legally defined by specific interpretations of glocalised constitutional provisions buttressed by no-less glocalised constitutional doctrines layered on top of one another over time in a dialectical process. In short, this book makes three central claims: first, it is an invitation to rethink and refine the category of ‘constitutional monarchy’, in its relation to constitutionalism and the Rule of Law, by emancipating it from the British model; second, it shows, against the secularisation thesis, how the acculturation of constitutional transplants relies on the political instrumentalisation of religion, which therefore increases its relevance and presence in the context of an increasingly global constitutional discourse; and, third, it proposes relying on bricolage as both a concept and a method in the study of constiutional transplants, with the aim of shifting the focus away from the exporters and towards the importers and the wider local interpretive community. The following sections will develop each of the three claims in the above-mentioned order.

35 David Nelken, ‘The Meaning of Success in Transnational Legal Transfers’ in Beyond Law (Routledge, 2009). 36 Rosalind Dixon and David Landau, ‘1989–2019: From Democratic to Abusive Constitutional Borrowing’ (2019) 17 International Journal of Constitutional Law 489. 37 Clifford Geertz, ‘Thick Description: Toward an Interpretive Theory of Culture’ in The Interpretation of Cultures : Selected Essays (Basic Books, 1973). Gilbert Ryle, ‘The Thinking of Thoughts: What is “Le Penseur” Doing?’ in Collected Essays 1929–1968 (Routledge, 2009).

The Issue of Royal Prerogatives in a Constitutional Monarchy  11 II.  THE ISSUE OF ROYAL PREROGATIVES IN A CONSTITUTIONAL MONARCHY: TEXT, CONVENTIONS AND DOCTRINES

Constitutional monarchy is notably under-theorised. At the time of writing, the doctrine of constitutional monarchy is almost entirely tied to the experience of the British monarchy and is particularly outdated, anchored in the late­ nineteenth-century writings of Walter Bagehot and Albert Venn Dicey, who first attempted a systematic definition of the British ‘constitution’.38 Both authors, later joined by Ivor Jennings,39 devoted much of their considerations to the study of British unwritten ‘constitutional conventions’, whereby the monarch yields a cardinal role of influence rather than actual power. In his influential series of political commentaries published in the Fortnightly Review from 1865 to 1867, journalist Walter Bagehot suggested that Queen Victoria had no political power, but a mere ‘right to be consulted, to encourage and to warn’.40 If Bagehot’s assessment of the reality of royal power at the time was quite inaccurate,41 his remark had a remarkable and unexpected fate by becoming a self-fulfilling prophecy, invoked by monarchs and constitutional lawyers thereafter in Britain42 and soon all over the world, including in Thailand.43 The British model of constitutional monarchy is defined by its main convention, which can be summarised as follows: the monarchy acts on ministerial advice, with ministers being responsible to Parliament.44 It is widely accepted that the British monarch retains reserve powers, whereby he or she has discretion to act in the absence of ministerial advice or even against ministerial advice in specific circumstances.45 However, the extent of the reserve powers and the identification of the circumstances warranting their use is disputed. In her recent edited volume on the matter, Anne Twomey identified the following reserve powers: the power

38 AV Dicey, Introduction to the Study of the Law of the Constitution, (8th edn (Macmillan & Co, 1908 [1885]); Walter Bagehot, The English Constitution (Cambridge University Press, 2001 [1867]). 39 Sir Ivor Jennings, The Law and the Constitution (University of London Press, 1959); Ivor Jennings, The British Constitution (CUP Archive, 1968). 40 ‘To state the matter shortly, the sovereign has, under a constitutional monarchy such as ours, three rights – the right to be consulted, the right to encourage, the right to warn. And a king of great sense and sagacity would want no others.’ Bagehot (n 38) 60. 41 Harold Joseph Laski, Parliamentary Government in England (G Allen & Unwin, 1938) 397. See, generally, Frank Hardie, The Political Influence of Queen Victoria, 1861–1901 (Frank Cass, 1963). According to British journalist and editor of the New Statesman Kingsley Martin, ‘the Queen interpreted the right to be consulted, the right to encourage and the right to warn as the right to obstruct, the right to bully and the right to go behind her ministers’ backs when their policies were displeasing to her’; Kingsley Martin, ‘The Evolution of Popular Monarchy’ (1936) 7 Political Quarterly 155, 171. 42 In some contemporary accounts of Bagehot in Britain, the ‘right to encourage’ is replaced by the broader ‘right to advise’. For instance, Vernon Bogdanor, The Monarchy and the Constitution (Oxford University Press, 1995) 69. 43 Lincoln Allison, ‘Monarchy’ in Bertrand Badie, Dirk Berg-Schlosser and Leonardo Morlino (eds), International Encyclopedia of Political Science (SAGE, 2011). 44 Bogdanor (n 42) 62. 45 See, for instance, Emily Haves, ‘Prerogative Powers of the Crown’, House of Lords Library Briefing, 13 December 2019, research-briefings/lln-2019-0156.

12  Introduction: Is Thailand a Constitutional Monarchy? to advise the government (including the right to be consulted, to warn and to encourage), the appointment of the Prime Minister or Chief Minister, the dismissal of governments, the power of dissolution (including refusing or forcing a dissolution), the summoning and proroguing of Parliament, the power of granting royal assent to bills (including the power to delay or refuse assent and to suggest amendments), and the rejection of advice to act illegally or unconstitutionally.46 If the existence of some of these reserve powers is contested based on the argument that they have ‘fallen into desuetude’, most scholars argue that they in fact remain in the British common law and that their non-use reveals their continued presence and success.47 Reserve powers are indeed intended to be rarely exercised, but to operate as constraints to modify government action both ‘informally’ and upstream. As Twomey argues, there is a ‘fine line between rejection of advice and persuasion to drop advice’, especially when persuasion to drop advice is accompanied by the threat to reject advice if such advice is maintained.48 In the British model of constitutional monarchy, the reserve powers ought not to be used formally – in other words, they should not be seen to be used. Yet the question of the distinction between the legal versus the informal, and the constitutional versus the conventional is commonly used as criteria to assess to what extent the constitution matters or not in specific (non-Western) jurisdictions and, as such, to differentiate between good and bad students of constitutionalism (is the Constitution truly the supreme law in the land?) and, regarding monarchies, to distinguish between ‘real’ constitutional monarchies and the others (is the King truly constrained by the Constitution and the Rule of Law?). This state of the art is common across much of the scholarship on Thai constitutional law. Tom Ginsburg’s otherwise insightful piece on the 1997 Constitution is representative of this: Thai constitutions do little to constrain those in power in accordance with the constitutionalist ideal … Real constitutional constraint comes from unwritten constitutional norms, particularly those concerning the role of the country’s long-ruling and widely respected monarch … Thailand has adopted constitutional processes without accepting constitutional ideals and practices … In short, Thailand’s stabilizing institutions – monarchy, bureaucracy and Buddhism – all derive their power from extraconstitutional sources and are constrained by a set of informal norms rather than by formal rules. One increasingly salient question is whether the unwritten constitutional rules with the traditional monarch at the center are institutional in character or uniquely tied up with the charismatic authority of King Bhumibol Adulyadej.49 46 Anne Twomey, The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems (Cambridge University Press, 2018) ix. 47 Bogdanor (n 42) 127; Twomey (n 46) 31; Cris Shore and David V Williams (eds), The Shapeshifting Crown: Locating the State in Postcolonial New Zealand, Australia, Canada and the UK (Cambridge University Press, 2019) 212. 48 Twomey (n 46) 109. 49 Tom Ginsburg, ‘Constitutional Afterlife: The Continuing Impact of Thailand’s Postpolitical Constitution’ (2009) 7 International Journal of Constitutional Law 83, 86–89.

The Issue of Royal Prerogatives in a Constitutional Monarchy  13 This epitomises the main puzzle capturing constitutional imaginations of Thailand: how much of the King’s power is legal-constitutional as opposed to ‘informal’ (ie, based on the Weberian categories of ‘traditional’ and ‘charismatic’ authority)? This compulsion to distinguish the legal from tradition/the informal is common in statist formalist-positivist comparative law accounts informed by Weberian categories. Here, the comparison with the European model of constitutional monarchy, most prominently the British model (or, rather, idealised representations of it), is implied. It acts as the present-absent reference point against which the Thai constitutional system is to be measured. Following the pattern described earlier, sameness (to the British system) is analysed as constitutional (lack of royal autonomous power), while difference is construed as traditional/informal (existence of royal autonomous power). The irony here is that the point of reference against which the workings of the Thai Constitution are measured is one of the least-codified constitutional systems in the world – even the office of the Prime Minister is conventional. Yet, instead of seeing the ceremonial role of the British monarch as based on some British particularism, inherited from tradition, religion and politics, it is established as a universal, standard model of ‘constitutional monarchy’.50 In light of this, scholars of Thai politics have long pondered about the constitutional role of the Thai monarch, a role seen as ‘peculiar’, ‘unique’ or ‘exceptional’. The uniqueness of the Thai monarchy was, in fact, more often than not celebrated rather than analysed by the authors who wrote about Thai constitutionalism in English for an international audience. Kobkua Suwannathat-Pian wrote: The[re is a] peculiar aspect of the Thai constitutional monarchy which, though it principally resembles those of other countries, yet in practice differs so widely from them. The constitutional monarchy in Thailand represents paradoxes in which the King is above politics but also in politics; in which his powers are prescribed by the constitution yet he may choose with impunity to exercise powers beyond limits set by that august charter; in which he is a constitutional monarch, yet may act like a traditional absolute ruler.51

In spite of the moderate amount of curiosity about the ‘peculiar’ workings of the Thai monarchy, few comprehensive books deal directly with the topic. Two of these are particularly relevant here. The first of these, by Andrew Harding and Peter Leyland,52 is a handbook focusing on the categories established as canonical by Western political science: the Parliament, the Cabinet and the courts. The two major institutions of the monarchy and the military are noted,

50 For instance, John McEldowney, ‘Constitutional Monarchy’ in The New Oxford Companion to Law (Oxford University Press, 2008); Philip Norton, ‘Constitutional Monarchy’ in The Oxford Companion to Politics of the World (Oxford University Press, 2001); Allison (n 43). 51 Kobkua Suwannathat-Pian, ‘The Monarchy and Constitutional Change since 1972’ in Duncan McCargo (ed), Reforming Thai Politics (NIAS, 1981) 61. 52 Andrew Harding and Peter Leyland, The Constitutional System of Thailand: A Contextual Analysis (Hart Publishing, 2011).

14  Introduction: Is Thailand a Constitutional Monarchy? but not to the extent that they warrant being studied and included in a constitutional law handbook. Harding and Leyland briefly mention that: ‘There are not three branches of the State (Executive, Legislature and Judiciary) but five, if we regard both the monarchy and the military.’53 The second book, by Thai historian Kobkua Suwannathat-Pian, is the most detailed and relevant constitutional history published in English so far.54 Not only does the author acknowledge the key role of the military and the monarchy with regard to constitutionalism, but she goes even further by also putting the King at the centre of Thai constitutional history. Yet, both books display a common shortcoming: rather than trying to analyse or at least describe the power of the King (and the military) in legal terms, using constitutional analysis, they leave it out as some sort of mystical element, unexplained and unexplainable, that does not fall within the scope of any legal analysis, something outside of the law, something ‘extra-constitutional’, ‘informal’ or ‘cultural’, with culture perhaps understood as an essence rather than a process or in any case as that which explains rather than that which needs to be explained. The underlying assumption is that the monarchy, being in the realm of the informal and of the unwritten, is mired in constitutional silence. These authors frequently quote the text by Thai intellectual Nidhi Eoseewong on the ‘cultural constitution’ of Thailand, which argues that the Thai Constitution is unlike any Western constitution, in that its main pillars are not the Parliament or the Cabinet, but rather the monarchy, the military, the Buddhist Church and the bureaucracy, all of which derive their power not from the Constitution, but from elsewhere.55 Echoing Nidhi’s thesis, Kobkua writes: ‘The Thai mindset reveals a strong preference for more tangible but extra-constitutional sources of power.’56 Harding and Leyland agree with this assessment, claiming that ‘the monarchy and the military [have] powers of their own … an extra-constitutional power’.57 Thus, the foreignness or the otherness of the Thai constitutional processes is explained away by mobilising either culture/religion or plain politics – in any case, something ‘extra-constitutional’. Not fitting the preconceived, Western categories of constitutionalism, the power of the monarch is construed as a social fact devoid of any constitutional foundation. The same is very much the case in studies of Thai politics. Traditionally, constitutionalism has been considered as non-existent and irrelevant: the military, as the dominant force, rules by decree under Martial Law, the very negation

53 ibid 30. 54 Kobkua Suwannathat-Pian, Kings, Country, and Constitutions: Thailand’s Political Development, 1932–2000 (RoutledgeCurzon, 2003). 55 Nidhi Eoseewong, ‘รัฐธรรมนูญฉบับวัฒนธรรมไทย’ [‘The Thai Cultural Constitution’] (1991) 13 Silapawattanatham 1, 266, translation available in Nidhi Eoseewong, ‘The Thai Cultural Constitution’, Kyoto Review of Southeast Asia, https://kyotoreview.org/issue-3-nations-and-stories/ the-thai-cultural-constitution. 56 Kobkua (n 54) 29. 57 Harding and Leyland (n 52) 255.

The Issue of Royal Prerogatives in a Constitutional Monarchy  15 of constitutionalism, while the monarch only wields charismatic or traditional power. This dominant paradigm was formulated by Fred Riggs in his influential study published in the late 1960s, where he analysed Thai constitutionalism as follows: Clearly these constitutional documents cannot be taken seriously as [a] binding statement of the rules of the political game, as expressions of fundamental law. It is apparent that, whenever important shifts in the personnel of the ruling clique took place, the previous charter was suspended to permit the promulgation of new rules more compatible with the interests and inclinations of the winning group. The rules, no doubt, were followed, but only as they proved convenient for the powerholders. Constitutionalism was not designed so much to constrain the rulers as to facilitate their rule.58

In 2006, the publication of a unauthorised biography of King Bhumibol,59 which emulated pioneering studies and inspired others,60 seriously contributed to a revisionism of the traditional understanding of Thailand as a land where constitutionalism cannot take hold due to the role of the military by shifting ‘the blame’ to the institution of the monarchy instead. From then on, there have been formidable developments in terms of studies re-evaluating the role of the monarchy within the constitutional system. Writing in Thai for a Thai audience, Thai scholars have prolifically renewed their interest in non-formalist understandings of law and have developed a burgeoning literature on political, sociological and historical approaches to constitutionalism, the Rule of Law and the monarchy. In particular, in the last decade, Somsak Jiemteerasakul,61 Nattapol Chaiching,62 Piyabutr Saengkanokkul,63

58 Fred Warren Riggs, Thailand: The Modernization of a Bureaucratic Polity (East-West Center Press, 1966) 152–53. 59 Paul M Handley, The King Never Smiles: A Biography of Thailand’s Bhumibol Adulyadej (Yale University Press, 2006). 60 Kevin Hewison, ‘The Monarchy and Democratisation’ in Political Change in Thailand: Democracy and Participation (Routledge, 1997); Kevin Hewison and Kengkij Kitirianglarp, ‘The Royalist Struggle for Thailand’s Politics’ in Isager Lotte and Ivarsson Soren (eds), Saying the Unsayable: Monarchy and Democracy in Thailand (NIAS, 2010); Andrew MacGregor Marshall, A Kingdom in Crisis: Thailand’s Struggle for Democracy in the Twenty-First Century (Zed Books, 2015); James Wise, Thailand : History, Politics and the Rule of Law (Marshall Cavendish Trade, 2019). 61 Somsak Jiemteerasakul, ประวัติศาสตร์ทเี่ พิ่งสร้าง: รวมบทความเกี่ยวกับกรณี 14 ตุลา และ 6 ตุลา [The History That was Just Built: Collection of Articles on the Events of 14 October and 6 October] (6 October Memorial Press, 2001). 62 Nattapol Chaiching, ขอฝันใฝ่ในฝันอันเหลือเชื่อ: ความเคลื่อนไหวของขบวนการปฏิปักษ์ปฏิวัติสยาม (พ.ศ. 2475–2500) [They Dreamed the Impossible Dream: The Counter-revolutionary Movement in Siam] (Samesky Books, 2013). 63 Piyabutr Saengkanokkul, พระราชอํานาจองคมนตรี และผู้มีบารมีนอกรัฐธรรมนูญ [Royal Prerogative, Privy Council and Extra-constitutional Powers] (Open Books, 2007); Piyabutr Saengkanokkul, ในพระปรมาภิไธย ประชาธิปไตยและตุลาการ [In the Name of the King, Democracy and the Judiciary] (Open Books, 2009); Piyabutr Saengkanokkul, รัฐธรรมนูญ: ประวัติศาสตร์ข้อความคิด อํานาจสถาปนาและการเปลี่ยนผ่าน [Constitution: History of the Concept of Constituent Power and Change] (Samesky Books, 2016);

16  Introduction: Is Thailand a Constitutional Monarchy? Somchai Preechasilapakun,64 Kasien Tejapira65 and Thongchai Winichakul66 have all shown, in various ways, how the monarchy has used the law, including the concepts of constitutional monarchy and the doctrines of constitutionalism and the Rule of Law, to its own advantage. III.  SACRED MONARCHY VS. THE RULE OF LAW: THE INTERPLAY OF LAW AND RELIGION MEDIATED THROUGH KINGSHIP

If the Rule of Law is today hailed as one of the most widely held universal ideals,67 historically, the concept of the Rule of Law is tied to the centurieslong struggle against the arbitrary power of the monarch in England, one of its first milestones being the 1215 Magna Carta, which imposed the first set of constraints on the exercise of royal power.68 In 1885, AV Dicey defined it as ‘the absolute supremacy … of regular law as opposed to the influence of arbitrary power’.69 He found in it a very ‘peculiarity of English institutions’, tied to the British common law, and contrasted it to the French droit administratif.70 Yet today, the French Etat de droit, as well as the German Rechtsstaat, are commonly understood as being rough equivalents to the British Rule of Law – its continental ‘cousins’.71 However, as Rodolfo Sacco states, ‘complete permanent correspondence between two expressions belonging to two different languages can be created only artificially’.72 Or, as Walter Benjamin eloquently discussed, ‘Brot’ and ‘pain’ are not interchangeable concepts of ‘bread’; they are deeply contextual categories, embedded in webs of relations (‘intentions’) Piyabutr Saengkanokkul, ศาลรัฐประหาร: ตุลาการ ระบอบเผด็จการ และนิติรัฐประหาร [Coup Court: The Judiciary, Dictatorship, and Judicial Coups] (Samesky Books, 2017). 64 Somchai Preechasilapakun, นี่คือปณิธานทีห่ าญมุ่ง : ข้อถกเถียงว่าด้วยสถาบันพระมหากษัตริย์ในองค์กรจัดทํารัฐธรรมนูญของไทย ตั้งแต่ พ.ศ. 2475–2550 [This is a Brave Resolution: Discussion of the Monarchy in Constitution-Making Bodies, 1932–2007] (Samesky Books, 2018). 65 Kasien Tejapira, ‘ระบอบประชาธิปไตยอนัมีพระมหากษัตริย์ทรงเป็นประมุข:ที มาและที ไป’ [‘The Democratic Regime of Government with the King as Head of the State: Whence and Whither’] [2011] 9 Samesky Journal 1. 66 Thongchai Winichakul, ประชาธิปไตยทีม่ ีกษัตริย์อยู่เหนือการเมือง: ว่าด้วยประวัติศาสตร์การเมืองไทยสมัยใหม่ [Democracy with the Monarchy above Politics: On the History of Contemporary Thai Politics] (Samesky Books, 2013); Thongchai Winichakul, นิติรัฐอภิสิทธิ์และราชนิติธรรม : ประวัติศาสตร์ ภูมิปัญญาของ Rule by law แบบไทย [Rule of Law, Privilege, and Royal Rule of Law: An Intellectual History of Thai Rule by Law] (Way, 2020). 67 Brian Z Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge University Press, 2004): ‘The Rule of Law stands in the peculiar state of being the preeminent legitimating ideal in the world today.’ 4. 68 Tamanaha (n 67) 25; Ellis Sandoz, The Roots of Liberty: Magna Carta, Ancient Constitution, and the Anglo-American Tradition of Rule of Law (University of Missouri Press, 1993). See also Robin Griffith-Jones and QC Hill Mark (eds), Magna Carta, Religion and the Rule of Law (Cambridge University Press, 2015); Susan Crennan, ‘Magna Carta, Common Law Values and the Constitution’ (2015) 39 Melbourne University Law Review 331. 69 Dicey (n 38) 120. 70 ibid 213. 71 Michel Rosenfeld, ‘The Rule of Law and the Legitimacy of Constitutional Democracy’ (2001) 74 Southern California Law Review 1307. 72 Rodolfo Sacco, ‘Legal Formants: A Dynamic Approach to Comparative Law (Installment I of II)’ (1991) 39 American Journal of Comparative Law 1, 18.

Sacred Monarchy vs. the Rule of Law: The Interplay of Law and Religion  17 with other concepts.73 If the three categories have been decontextualised into a generic ‘legalist’ understanding of the Rule of Law, secular, apolitical and intimately tied to liberal-democratic constitutionalism,74 it is worth remembering, for the purposes of this book, that ‘Rechtsstaat’, ‘Etat de droit’ and ‘Rule of Law’ belong to different ‘legal traditions’,75 tied to different conceptions of law, sovereignty and the State,76 themselves historically shaped by different religious worldviews from which they underwent their own particular trajectories of secularisation.77 Secularisation can be described as the historical process of differentiation between State law and religious law, and the subsequent retreat of the religious into the private sphere.78 The widely challenged but still ‘relatively uncontested’79 secularisation paradigm, which associates modernisation with secularisation, finds its roots in the traditional Weberian argument, whereas modernisation meant rationalisation of the State – in other words, emancipation from the religious towards the rational-legal. An alternative but related view, which has been much less challenged, is that of Schmittian descent, which sees law essentially as political theology – that is, as a displacement of the religious mediated by the idea of the sovereign/sovereignty.80 Ernst Kantorowicz documented this process historically by studying how the idea of European monarchy, from the Middle

73 Walter Benjamin, ‘The Task of the Translator’ in Hannah Arendt (ed), Illuminations (Harcourt Brace Jovanovich, 1968). 74 Judith Shklar, ‘Political Theory and the Rule of Law’ in Allan C Hutchinson and Patrick Monahan (eds), The Rule of Law: Ideal or Ideology (Carswell, 1987); Judith Shklar, Legalism (Harvard University Press, 1964). See also Veit Bader, ‘Secularisms or Liberal-Democratic Constitutionalism?’ in Phil Zuckerman and John R Shook (eds), The Oxford Handbook of Secularism, vol 1 (Oxford University Press, 2017). 75 H Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law, 5th edn (Oxford University Press, 2014); H Patrick Glenn, ‘Comparative Legal Families and Comparative Legal Traditions’ in Reinhard Zimmermann and Mathias Reimann (eds), Oxford Handbook of Comparative Law, 2nd edn (Oxford University Press, 2019). 76 Luc Heuschling, Etat de Droit, Rechtsstaat, Rule of Law (Dalloz, 2002); Martin Krygier, ‘Rule of Law (and Rechtsstaat)’ in James R Silkenat, James E Hickey Jr and Peter D Barenboim (eds), The Legal Doctrines of the Rule of Law and the Legal State (Rechtsstaat) (Springer International, 2014). 77 Harold J Berman, Law and Revolution, the Formation of the Western Legal Tradition (Harvard University Press, 2009). See also Augusto Zimmermann, Western Legal Theory: History, Concepts, and Perspectives (LexisNexis, 2012). 78 Reid Mortensen, ‘The Theory behind Legal Secularisation’ (1993) 18 Bulletin of the Australian Society of Legal Philosophy 19. See also Steve Bruce, Religion and Modernization: Sociologists and Historians Debate the Secularization Thesis (Clarendon Press, 1992). 79 José Casanova, ‘The Secular and Secularisms’ (2009) 76 Social Research 1049, 1050. See also José Casanova, ‘The Secular, Secularizations, Secularism’ in Mark Juergensmeyer, Jonathan VanAntwergen and Craig Calhoun (eds), Rethinking Secularism (Oxford University Press, 2011); Steve Bruce, ‘Secularization and its Consequences’ in Phil Zuckerman and John R Shook (eds), The Oxford Handbook of Secularism, vol 1 (Oxford University Press, 2017). 80 Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (University of Chicago Press, 2005). See also Michael Salter, ‘Carl Schmitt on the Secularisation of Religious Texts as a Resacralisation of Jurisprudence?’ (2013) 26 International Journal for the Semiotics of Law – Revue internationale de Sémiotique juridique 113; Matilda Arvidsson, Leila Brännström and Panu Minkkinen, The Contemporary Relevance of Carl Schmitt: Law, Politics, Theology (Routledge,

18  Introduction: Is Thailand a Constitutional Monarchy? Ages through to the modern age, was modelled on representations of God.81 Anthropologists have long reflected on the varieties of kingship, tracing the origins of law/politics and the idea of sovereignty to religious rituals performed on/by sacred kings.82 Outside of the Western legal tradition informed by Christianity, legal traditions informed by other religious worldviews have a different relationship with sovereignty/kingship. For instance, according to Glenn: ‘Hindu theology is not “monarchical” in form, as are the religions which have so influenced western thought. In Jewish, Christian and Islamic religions, God is up there, a kind of prefiguration of the Austinian sovereign, and we are all down here.’83 In the Hindu tradition, however, dharma, ‘law’ or ‘duty’, described by Geertz as ‘the animating idea’ of Hindu law,84 preexists and is binding on the king: ‘the king is necessarily, and forever, subordinate to the law’.85 As such, it closely resembles the Western concept of natural law, in relation to which the modern, secular concept of positive law was constructed, even though Max Weber outright rejected the proposition that dharma was a form of religious natural law and therefore that it could lend itself to a process of differentiation from positive law as part of a wider secularisation movement.86 In the Thai context, the foundational claim, as articulated by Robert Lingat in the 1930s, suggested that before Westernisation in the mid-nineteenth century, Siam had been heavily influenced by early Indian conceptions of kingship, the Hindu Code of Manu and the concept of dharma.87 In other words, dharma, which he, in contrast to Weber, understood as natural law (but also the cosmic order, duty, destiny and a myriad of other meanings), was a major if not the main source of law in the Thai pre-modern legal order.88 He cautioned: Dharma is a concept difficult to define because it disowns – or transcends – distinctions that seem essential to us, and because it is based upon beliefs that are as 2016); Paul W Kahn, Political Theology: Four New Chapters on the Concept of Sovereignty (Columbia University Press, 2011). 81 Ernst H Kantorowicz, The King’s Two Bodies: A Study in Mediaeval Political Theology (Princeton University Press, 1997). 82 Maurice Hocart, Kingship (Oxford University Press, 1927); David Graeber, On Kings (HAU Books, 2017). Specifically on Southeast Asia, see Clifford Geertz, ‘Centers, Kings, and Charisma: Reflections on the Symbolics of Power’ in Local Knowledge: Further Essays in Interpretive Anthropology, 3rd edn (Basic Books, 2000). 83 Glenn, Legal Traditions of the World (n 75) 304. 84 Clifford Geertz, ‘Local Knowledge: Fact and Law in Comparative Perspective’ in Local Knowledge: Further Essays in Interpretive Anthropology (Basic Books 1983) 195. 85 Glenn, Legal Traditions of the World (n 75) 300. 86 Max Weber, The Religion of India. The Sociology of Hinduism and Buddhism, translated and edited by Hans Gerth and Don Martindale (Free Press, 1958) 143–46. 87 The Indianisation thesis, formulated in the first half of the twentieth century, according to which Siam and other Southeast Asian mainland states have been heavily influenced by Indian civilisation in terms of politics, religions and the arts. See George Cœdès, The Indianized States of Southeast Asia (East-West Center Press, 1968). 88 Robert Lingat, ‘Evolution of the Conception of Law in Burma and Siam’ [1941] Journal of Siamese Society 9.

Sacred Monarchy vs. the Rule of Law: The Interplay of Law and Religion  19 strange to us as they are familiar to the Hindus … dharma signifies the eternal laws which maintain the world … the world is not the product of a fortuitous concourse of elements, but is ruled by certain norms and sustained by an order necessary to its preservation. This order is an objective one, inherent in the very nature of things; and the gods are only its guardians.89

Deriving from this understanding of law as immanent to nature, the King’s duty is to uphold the dharma which pre-exists to him and that he cannot alter. As a result, according to Lingat, before its encounter with the West, the principle of law as a royal act of will that in Europe traditionally mirrored the original God’s will was unknown: law was not an act of authorship, nor was the King to act as a legislator – ‘if the king is allowed to interfere in this domain at all it is only to re-establish a rule of dharma which a custom, or even an ill-advised or perverse king has infringed’.90 Yet, Lingat insisted, pre-modern Siam still had a highly developed legal corpus.91 Lingat’s claim was fundamental insofar as it challenged the definition of sovereignty established in the West, since Jean Bodin’s 16th century ‘Six Books of the Republic’, as absolute legislative power.92 The implications on the Rule of Law are profound: what need is there for a concept of the Rule of Law if constraints on the King’s law-making activity are inherent in the very indigenous concept of law? In the field of Thai law and kingship studies, Lingat’s claim sparked a prolific debate that continues to this day in various disciplines, mostly legal history and anthropology.93 More recently, the discussion has returned to Lingat’s original discipline – that of comparative law. In the wake of pioneering socio-legal work on indigenous understandings of the notions of justice,94 the relationship between kingship, Buddhism and (the Rule of) Law was examined afresh from a legal perspective in two recent PhD dissertations.95 Khemthong Tonsakulrungruang’s thesis on Buddhist constitutionalism, while advocating for a departure from the traditional ‘legal reform/Rule of Law’ promotion framework, still tends to 89 Robert Lingat, The Classical Law of India (University of California Press, 1973) 3, also quoted in Geertz (n 84) 197. 90 Lingat (n 89) 225. See also Lingat (n 88) 9. 91 Robert Lingat, ประวัติศาสตร์กฎหมายไทย [History of Thai Law] (Wattanapanit, 1983). 92 Jean Bodin, Les six livres de la République [The Six Books of the Republic] (Chez Iacques du Puys, 1576). 93 HG Quaritch Wales, Siamese State Ceremonies: Their History and Function (B Quaritch, 1931); David M Engel, Law and Kingship in Thailand during the Reign of King Chulalongkorn (Center for South and Southeast Asian Studies, University of Michigan, 1975); Andrew Huxley, Thai Law, Buddhist Law: Essays on the Legal History of Thailand, Laos, and Burma (White Orchid Press, 1996); Chris Baker and Pasuk Phongpaichit, The Palace Law of Ayutthaya and the Thammasat: Law and Kingship in Siam (Cornell University Press, 2016). 94 Frank E Reynolds, ‘Dhamma in Dispute: The Interactions of Religion and Law in Thailand’ (1994) 28 Law & Society Review 433; Jaruwan S Engel and David Engel, Tort, Custom, and Karma: Globalization and Legal Consciousness in Thailand, vol 41 (Stanford University Press, 2010). 95 Pornsakol Panikabutara Coorey, ‘Restraining Arbitrary Power in Thailand: The Sociological Approach in Examining the Rule of Law’ (PhD thesis, University of New South Wales, 2010); Khemthong Tonsakulrungruang, ‘Toward a New Buddhist Constitutionalism : Law and Religion in the Kingdom of Thailand’ (PhD thesis, University of Bristol, 2020).

20  Introduction: Is Thailand a Constitutional Monarchy? subsume legal analyses to the goal of seeking solutions for the reconciliation between indigenous and Western liberal-democratic understandings of the Rule of Law, based on the diagnosed failure of constitutionalism in Thailand.96 Pornsakol Panikabutara Coorey’s thesis on Buddhism and the Rule of Law still relegates Buddhist kingship to the sphere of the traditional/non-legal, seeing the power of the monarchy as a ‘sociological influence’ on law rather than as a legal category in its own right.97 While extremely valuable in highlighting how Buddhism informs the Rule of Law in Thailand, these analyses leave many questions open: why and how did the Thai legal profession, mostly trained in the UK, engage in the process of ‘Buddhicising’ the Rule of Law by relying on the concept of dharma? Against the secularisation thesis informing the debate on law, religion and kingship, the developments of Thai constitutional doctrine and in particular its local concept of the Rule of Law appear to have increasingly relied on Buddhism to entrench the King’s power. Since the late nineteenth century, constitutional scholars have used Buddhism to indigenise various British legal concepts to elaborate doctrines consolidating the King’s power in the face of changing circumstances. In particular, Thai legal scholars have formulated a legal argument according to which there is no need for formal constraints on the exercise of the King’s power as the constraints are inherent in the Buddhist idea of (the Rule of) Law. The King became a legislator, the constitution-giver, the upholder of dharma and the guardian of the Rule of Law. In other words, the evolving indigenous understandings of the Rule of Law tie together Buddhist and secular positivist principles around the figure of the Sacred King, in a sort of constantly evolving ‘bricolage’ of legal doctrines from various traditions. IV.  CONSTITUTIONAL BRICOLAGE: THE INDETERMINACY OF LEGAL TRANSPLANTS AND THEIR POLITICAL RE-ASSIGNMENTS

The concept of bricolage was first popularised by the work of French anthropologist Claude Lévi-Strauss. In The Savage Mind, a study of how myths are created and diffused, he contrasted the ‘bricoleur’ with the ‘engineer’: Unlike the engineer, [the bricoleur] does not subordinate each of them [the tasks he performs] to the availability of raw materials and tools conceived and procured for the purpose of the project. His universe of instruments is closed and the rules of his game are always to make do with ‘whatever is at hand’, that is to say with a set of tools and materials which is always finite and is also heterogeneous because what it contains bears no relation to the current project, or indeed to any particular project, but is the

96 Khemthong (n 95) 3. See also Björn Dressel, ‘Thailand’s Traditional Trinity and the Rule of Law: Can They Coexist?’ (2018) 42 Asian Studies Review 268. 97 Pornsakol (n 95) iv.

Constitutional Bricolage: The Indeterminacy of Legal Transplants  21 contingent result of all the occasions there have been to renew or enrich the stock or to maintain it with the remains of previous constructions or destructions. The set of the ‘bricoleur’s’ means cannot therefore be defined in terms of a project … It is to be defined only by its potential use or, putting this another way and in the language of the ‘bricoleur’ himself, because the elements are collected or retained on the principle that ‘they may always come in handy’. Such elements are specialized up to a point, sufficiently for the ‘bricoleur’ not to need the equipment and knowledge of all trades and professions, but not enough for each of them to have only one definite and determinate use.98

As Jacques Derrida convincingly argued,99 in using the analogy of the bricoleur and the engineer, Lévi-Strauss did not claim the superiority of the engineer’s rationality over that of the bricoleur. His aim was to show how mythical thought proceeded rationally as a manipulation of signs and symbols creatively put together by anonymous bricoleurs. By doing so, Lévi-Strauss brought agency and authorship to a domain – the study of myths – in which they had traditionally been overlooked. Applied to law, bricolage resonates with concepts such as legal syncretism or legal eclecticism, defined by Geertz as ‘something from abroad, something from home; something secular, something religious; something statutory, something traditional’,100 while emphasising the various agencies at play in these plural processes of borrowings and assemblage. In comparative constitutional law, the bricolage metaphor has been used with various meanings and from various perspectives by Michele Graziadei,101 Günter Frankenberg102 and Kim Lane Scheppele,103 and has been given the most consideration by Mark Tushnet.104 It has emerged as part of a wider discussion on legal transplants built on the foundational controversy of the ‘impossibility’ or the ‘near-absolute possibility’ of legal transplants. The controversy is well known and can be summarised in a few sentences as follows: according to Alan Watson, law is diffused by legal transplants regardless of context;105 according to Pierre Legrand, law has no meaning outside of context,

98 Claude Lévi-Strauss, The Savage Mind (University of Chicago Press, 1966) 11–12. 99 Jacques Derrida, ‘Structure, Sign, and Play in the Discourse of the Human Sciences’ in Writing and Difference (University of Chicago Press, 1978). 100 Geertz (n 84) 221. 101 Michele Graziadei, ‘Legal Transplants and the Frontiers of Legal Knowledge’ (2009) 10 Theoretical Inquiries in Law 14. 102 Günter Frankenberg, ‘Comparing Constitutions: Ideas, Ideals, and Ideology – Toward a Layered Narrative’ (2006) 4 International Journal of Constitutional Law 439. 103 Kim Lane Scheppele, ‘Aspirational and Aversive Constitutionalism: The Case for Studying Cross-constitutional Influence through Negative Models’ (2003) 1 International Journal of Constitutional Law 296. 104 Mark Tushnet, ‘The Possibilities of Comparative Constitutional Law’ (1999) 108 Yale Law Journal 1225. The term had earlier been used by political scientist Gerald Garvey. Gerald Garvey, Constitutional Bricolage (Princeton University Press, 1971). 105 Alan Watson, Legal Transplants: An Approach to Comparative Law, 2nd edn (University of Georgia Press, 1993).

22  Introduction: Is Thailand a Constitutional Monarchy? so law cannot be transplanted from one context to another.106 In spite of the ‘methodological extremism’107 of both Watson and Legrand, this debate has sparked a huge literature, which has produced many metaphors, such as circulation, diffusion, reception, transfer, borrowings, migration and even IKEA kits.108 These metaphors all place emphasis on specific aspects of legal transplants: each has its own benefits and shortcomings. The migration metaphor gives agency to ideas and norms, while obscuring the role of the recipient; the transplant metaphor gives agency to some technical external actor and confines the recipient to a state of passivity and anaesthesia; and the borrowing metaphor implies some agreement or contract between the lender and the borrower, as well as the principle of precarity of the borrowed object. The IKEA theory sees constitutional items as commodities and actors as self-interested rational homo economicus. The value of the constitutional bricolage metaphor lies first in its counterhegemonic potential. It challenges the mainstream discourse of ‘constitutional engineering/design’ that justifies a technocratic approach to constitutionmaking, which itself in turn advocates for transferring constitutional ‘technical assistance’ from the Global North to the Global South.109 Bricolage builds on the idea that constitution-making is a symbolic, emotional and even at times aesthetic political process made up of misunderstandings, self-interested strategies, accidents/errors and much imagination.110 Against the representation of

106 Pierre Legrand, ‘The Impossibility of ‘Legal Transplants’’ (2017) 4 Maastricht Journal of European and Comparative Law 111. 107 David Kennedy, ‘The Methods and the Politics’ in Pierre Legrand and Roderick Munday (eds), Comparative Legal Studies: Traditions and Transitions (Cambridge University Press, 2003) 406. See also Andrew Harding, ‘The Legal Transplants Debate: Getting beyond the Impasse?’ in Vito Breda (ed), Legal Transplants in East Asia and Oceania (Cambridge University Press, 2019). 108 Sujit Choudhry, ‘Migration as a New Metaphor in Comparative Constitutional Law’ in The Migration of Constitutional Ideas (Cambridge University Press, 2007); Vlad Perju, ‘Constitutional Transplants, Borrowing, and Migrations’ in Michel Rosenfeld and András Sajó (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012); Michele Graziadei, ‘Comparative Law, Transplants, and Receptions’ in Mathias Reimann and Reinhard Zimmermann (eds), The Oxford Handbook of Comparative Law (Oxford University Press, 2006); Günter Frankenberg, ‘Constitutional Transfer: The IKEA Theory Revisited’ (2010) 8 International Journal of Constitutional Law 563. 109 See, for instance, the following foreword: ‘This book is written for anyone anywhere sitting down to write a constitution’ – Donald S Lutz, Principles of Constitutional Design (Cambridge University Press, 2006). See also Arend Lijphart, ‘Constitutional Design for Divided Societies’ (2004) 15 Journal of Democracy 96; Sujit Choudhry, Constitutional Design for Divided Societies: Integration or Accommodation? (Oxford University Press, 2008). See also the following foreword: ‘The world is changing at a rapid pace. The constitution builder today has an advantage lacked by his or her predecessor. National constitutions have become a worldwide resource for understanding shared global values and at the click of a button information technology permits an array of constitutional design options to be immediately accessed’ – IDEA International, A Practical Guide to Constitution Building | International IDEA (IDEA International, 2011), https://www.idea.int/ publications/catalogue/practical-guide-constitution-building. 110 Jon Elster, ‘Forces and Mechanisms in the Constitution-Making Process’ (1995) 45 Duke Law Journal 364. See also Jon Elster, Ulysses Unbound: Studies in Rationality, Precommitment, and Constraints (Cambridge University Press, 2000).

Constitutional Bricolage: The Indeterminacy of Legal Transplants  23 constitution-making as a deliberate, rational, ‘masterplan’ conveyed by the metaphors of constitutional engineering/design, bricolage highlights that rules and doctrines are taken from what is ‘readily at hand’ in the immediate environment. Bricolage sees transplants as operations of re-assignment of meaning and creative assemblage, involving considerable improvisation to adapt extremely heterogeneous already-existing signifiers to new ends. Unlike the traditional account, the bricolage metaphor relies on postmodern, critical understandings of law as fundamentally indeterminate signs whose meaning is the result of a contested political process relying on specific interests and worldviews.111 The bricolage metaphor has major epistemological implications. It promotes an empirical, critical and contextualist approach to legal transplants, bringing religion and politics back into the picture of legal borrowing. It also promotes the interpretive method of enquiry aiming to understand the meanings given by the ‘bricoleurs’ (here the legal profession) to their own action of bricolage. Rather than promoting an external, illusory, ‘objective’ or unidimensional point of view, it takes into account the pluralism of the bricoleurs’ motivations. Therefore, it is helpful in terms of emphasising the creative work of importers, passers and transferors, restoring their agency lost in the ‘transplants’ metaphor. Meanwhile, against the atomistic Watsonian approach to legal transplants, and in line with Sacco’s approach in terms of ‘legal formants’,112 it endorses a holistic understanding of constitutional transfers, formed not only of rules written in the constitution, but also of doctrines and interpretations, which cannot be understood in isolation from one another or abstracted from the specific worldviews they derive from. It also conveys the idea of a constitutional order as a dynamic system, in the same vein as Teubner’s analysis of ‘legal irritants’, itself influenced by systems theory.113 Another added value of the bricolage metaphor lies in its methodological approach, which is based on the gathering of ethnographic materials to reconstitute a ‘layered narrative’114 of a constitutional order from the point of view of its architects. This approach, commonly known as ‘constitutional ethnography’,115 strives to uncover the constitutional epistemes of a given polity: the modes of constitutional reasoning and interpretation, the modes

111 Pierre Legrand and Roderick Munday, Comparative Legal Studies: Traditions and Transitions (Cambridge University Press, 2003). 112 Rodolfo Sacco, ‘Legal Formants: A Dynamic Approach to Comparative Law (Installment I of II)’ (1991) 39 American Journal of Comparative Law 1. 113 Gunther Teubner, ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends up in New Divergences’ (1998) 61 Modern Law Review 11. See also Niklas Luhmann, ‘Law as a Social System’ (1988) 83 Northwestern University Law Review 136. 114 Günter Frankenberg, ‘Comparing Constitutions: Ideas, Ideals, and Ideology – Toward a Layered Narrative’ (2006) 4 International Journal of Constitutional Law 439. 115 Kim Lane Scheppele, ‘Constitutional Ethnography: An Introduction’ (2004) 38 Law & Society Review 389; Bruno Latour, The Making of Law: An Ethnography of the Conseil d’État (Polity Press, 2010); Nick Cheesman, ‘Rule-of-Law Ethnography’ (2018) 14 Annual Review of Law and Social Science 167.

24  Introduction: Is Thailand a Constitutional Monarchy? of normative self-inference and recursivity, and more broadly the specific legal rationalities at play. To paraphrase Geertz, the aim is to decipher the if/then and as/therefore line of legal reasoning.116 This approach necessarily postulates that the Other is no less dogmatic than the self, but in different ways. In doing so, some degree of difference as well as some degree of sameness has to be hypothesised. The challenge, of course, remains to resist the urge towards total sameness (expressed either in functionalist or evolutionary terms) as much as the urge towards ‘othering’ (which necessarily implies hierarchising).117 The balance between maintaining ‘otherness’ while not succumbing to ‘othering’ is extremely difficult to strike, but is precisely what makes constitutional ethnography a fascinating enterprise. An example of this can be found in Harding and Leyland’s contextual analysis of Thailand’s constitutional system: ‘Given the patchy adherence to constitutional rules when they are put in place, it is somewhat ironic to observe the enormous debate that has surrounded quite technical constitutional provisions and devices.’118 These ‘ironies’ are in the eyes of the interpreter and, as such, are precisely the things to be deciphered, investigated and subjected to a Geertzian ‘thick description’ – a description of meanings behind phenomena.119 Ironies, apparent paradoxes and anomalies provide a hint that there is some context to be understood there. Likewise, ‘strange’ categories of legal thought provide an extraordinary entrance point into the histories, traumas, hopes and anxieties underpinning them. An ethnographic account is precisely here to provide some answers by using the local legal categories rather than the comparatist’s own categories. As Sacco puts it: ‘A jurist who deals with a system that is not his own often has problems of perception with legal formants that do not exist in his own system. Anglo-American jurists, for examples, dismiss the ideological statements in socialist laws and hence the legal categories that socialist jurists produce on the basis of their ideology.’120 Legal categories are contextual, as much imbued with religious (or secular) worldviews as they are subservient to political needs. In the Thai context, bricolage itself is an ideology, which is celebrated as a part of the national identity.121 According to the ‘father of Thai history’, Prince Damrong (1862–1943), the genius of the Thais is to have excelled at the

116 Geertz (n 84) 174. 117 Günter Frankenberg, Comparative Law as Critique (Edward Elgar, 2016). See also David Nelken, Comparing Legal Cultures (Dartmouth, 1997). 118 Andrew Harding and Peter Leyland, The Constitutional System of Thailand: A Contextual Analysis (Hart Publishing, 2011) 256. 119 Geertz (n 37). 120 Sacco (n 72) 33. 121 Rachel Harrison, ‘The Allure of Ambiguity: The “West” and the Making of Thai Identities’ in Rachel Harrison et al, The Ambiguous Allure of the West: Traces of the Colonial in Thailand (Cornell University Press, 2018).

Constitutional Bricolage: The Indeterminacy of Legal Transplants  25 practice of selective borrowing and assimilation, thanks to which they have skilfully managed to escape colonisation: ‘The Tai [sic] knew how to pick and choose. When they saw some good feature in the culture of other people, if it was not in conflict with their own interests, they did not hesitate to borrow it and adapt it to their own requirements.’122 Yet this genius has often been the target of criticism due to its focus on borrowing techniques without the underlying theoretical knowledge. For instance, the Siamese are said to have borrowed technical tools of geographical mapping without discarding the traditional Traiphum geography placing Siam at the centre of the universe,123 the science of astronomy without discarding astrology,124 and the techniques of Western medicine without discarding Buddhist cosmogonies and beliefs in the karmic cycle of rebirths. In the early twentieth century, an anonymous op-ed published in one of the main newspapers read: ‘When we speak of the material side of Western civilization we are, of course, thinking mainly of the products of Western science. But we cannot pick out only the products and leave out the philosophy of science. We cannot, for instance, adopt vaccination and leave out the theory of evolution.’125 Likewise, when it comes to constitutional law, the process of borrowing empty forms is also commonly denounced. In the words of the prominent Thai intellectual Nidhi Eoseewong: The constitution is said to be the supreme law, but only because foreigners said [so]. We copied their textbook and memorized it like parrots. [But i]t has no real meaning in Thai culture. If it had real meaning, the constitution could not be torn up [so] often, and laws, ministerial orders, regulations, and so on could not contravene the constitution. But in Thailand the Constitution is torn up often, and more easily than the various rules and regulations of ministries and departments. Besides, there are many laws, ministerial orders, regulations, and so on, which contravene the Constitution. Yet neither those enforcing these rules, nor those subject to them, feel any embarrassment at all.126

Here, the over-depreciation of Thai constitutionalism is predicated on the opposite over-idealisation of Western constitutionalism. As Ackerman puts it, ‘there are many flesh-and-blood thinkers and doers around the world who actually believe that Americans are operating on the basis of the formal constitution. This has caused all sorts of mischief as they use the world hegemon as a

122 Prince Damrong, Monuments of the Buddha in Siam (Siam Society, 1973) 4, quoted in Maurizio Peleggi, Thailand: The Worldly Kingdom (Reaktion, 2007). 123 Thongchai Winichakul, Siam Mapped: A History of the Geo-body of a Nation (University of Hawaii Press, 1994). 124 Andrew J Harding, ‘The Eclipse of the Astrologers: King Mongkut, His Successors, and the Reformation of Law in Thailand’ in Sarah Biddulph and Helen J Nicholson (eds), Examining Practice, Interrogating Theory: Comparative Legal Studies in Asia (Brill, 2008). 125 Benjamin A Batson, Siam’s Political Future : Documents from the End of the Absolute Monarchy (Cornell University Press, 1974) 57. 126 Nidhi (n 55). Translation by Chris Baker, available at https://kyotoreview.org/issue-3-nations-andstories/the-thai-cultural-constitution.

26  Introduction: Is Thailand a Constitutional Monarchy? model for their own constitutional arrangements’.127 Ackerman continues by describing how the US has had surprising success in terms of ‘fooling the world’ about the perceived congruence between its constitutional text and the reality on the ground. Against this background, Nidhi’s assumption is that in Thailand, unlike in the West, there is no consistency between forms and meanings, so there is no constitutional supremacy and eventually the written Constitution does not matter. This local, highly pervasive discourse of Thailand’s Constitution as a ‘failed copy’ of the West is a self-orientalising narrative of Thai legal under-development because of culture, politics and religion as much as it is an occidentalising narrative of Western legal achievement assumed to be free from culture, politics or religion.128 Departing from both orientalising and self-orientalising discourses about the inevitable ‘failures’ of constitutional transplants outside the West, this book documents the never-ending process of mixing forms and meanings, manipulating symbols, signifiers and signified by focusing on the work of constitutional scholars – namely re-assignment, playful combination and local hybridisation. In so doing, it strives to uncover the rationalities at play in the bricoleur’s mind, in particular the work of ordering borrowed constitutional items into a coherent dogmatic construction responsive to specific political aims – here, the authority and resilience of the monarchy. There is no comprehension of concepts such as constitutional monarchy and its associates the Rule of Law and constitutionalism without an understanding of not only the context but also specifically the local interpretations that give them their local meaning and validity.129 As Clifford Geertz noted: ‘Law, here, there, or anywhere, is part of a distinctive manner of imagining the real … law is local knowledge, not placeless ­principle.’130 In turn, the meaning of law is embedded in ‘webs of significances’131 to be uncovered and deciphered. In short, this book is not a blueprint for constitutional reform; it makes no claim as to what would be the ‘right’ way to interpret specific Thai constitutional provisions, nor does it offer suggestions for constitutional revision or argue for specific political solutions. Rather, it is an analysis of Thailand’s bricolaged constitutional identity over time, belonging to the realm of interpretive inquiry. In it I offer a ‘layered narrative’132 of Thai constitutional history in

127 Bruce Ackerman, ‘The Living Constitution’ (2007) 120 Harvard Law Review 1737, 1743–44. 128 Pattana Kitiarsa, ‘An Ambiguous Intimacy: Farang as Siamese Occidentalism’ in The Ambiguous Allure of the West Traces of the Colonial in Thailand (Hong Kong University Press, 2010). 129 Pierre Legrand, ‘Comparative Legal Studies and the Matter of Authenticity’ (2006) 1 Journal of Comparative Law 2, 365. 130 Geertz (n 84) 218. 131 Geertz (n 37) 5. 132 Frankenberg (n 114).

Outline of the Chapters  27 matters relating to the royal prerogative, focusing on three ‘layers’: the textual, the doctrinal (as produced by Thai scholars and judges), and the political. This study is informed by a six-year-long immersion in the country, the mastering of the local language, participant observation at various Thai institutions, including several years spent at the public law research and training King Prajadhipok’s Institute under the Thai Parliament, as well as participant and nonparticipant observation of relevant state ceremonies, constitutional law courses and seminars. It relies on a documentary corpus comprising textual sources of Thai constitutional law, court rulings, constitutional law handbooks and essays, but also constitution-drafting archives, parliamentary archives, biographies of kings and constitutional scholars, royal speeches and royal correspondence. It is interested first and foremost in understanding and interpreting how constitutional bricolage works in a setting like Thailand, and to which extent this process accounts for the perceived peculiarity of the Thai monarchy. Against readings of the monarchy as characterised by informality and personalisation,133 this book documents the constitutional foundations of the king’s authority, power and legitimacy as buttressed by elaborate doctrines of the Rule of Law. V.  OUTLINE OF THE CHAPTERS

This book traces Thailand’s constitutional history from the late nineteenth century until the present day. It proceeds both chronologically and thematically: each part corresponds to a period of Thai history; and, within each part, the first chapter focuses on constitutional texts (the first ‘layer’ of the constitutional order), the second chapter on legal doctrinal thought (the second ‘layer’) and finally, the third chapter examines constitutional practices (the third ‘layer’) – each ‘triad’ of chapters follows a parallel chronological pattern. Chapter introductions situate Thai constitutional history within a wider global constitutional history, characterised by the rise and fall of hegemonic ideals and their corresponding institutional models: parliamentarism/the modern constitution within the context of the rise of revolutionary ideas, fascism and communism (1850s–1930s) (Part I); military dictatorships/the state of emergency within the context of the Cold War, the rise of nationalism, independence movements and counter-revolutions (1947–1980s) (Part II); and juristocracy/constitutional courts within the rise of the Rule of Law discourse (from the 1990s onwards) (Part III). Within this global historical context, Part I, ‘Importing the Modern Constitution’, investigates the introduction of the idea of parliament/constitution in Thailand from the late nineteenth century until the Second World War. It shows how Buddhist kingship served as a vehicle for constitutionalism and 133 Duncan McCargo, ‘Network Monarchy and Legitimacy Crises in Thailand’ (2005) 18 Pacific Review 499.

28  Introduction: Is Thailand a Constitutional Monarchy? how the idea of Buddhist kingship was regenerated in the process (Chapters 2–4). Part II, ‘Importing the State of Emergency’, examines the adoption of military dictatorship and its many mutations and re-inventions from the end of the Second World War until the early 1990s. It shows how military dictators progressively subdued themselves to the King based on ideas of Buddhist kingship (Chapters 5–7). Part III, ‘Importing Constitutional Justice’, analyses the adoption of juristocracy from the 1990s onwards. It shows how judges of the Constitutional Court engaged in a similar process of subjugating themselves to the King’s needs based on ideals of Buddhist Kingship throughout the 1990s to the present day (Chapters 8–10). Within each part, I narrate three interlocked and synchronic histories – the textualist-positivist (focusing on text, processes of constitution-making and unmaking) (Chapters 2, 5, 8), the doctrinal (focusing on constitutional scholars’ and judges’ doctrinal production) (Chapters 3, 6, 9) and the political (focusing on the King’s actions and, incidentally, the military and the courts) (Chapters 4, 7, 10). Chapter 2 (on texts) documents how the main body of law, codified in the early nineteenth century under the name of the Three Seals Code was much influenced by Hindu-Buddhist conceptions of law and kingship. In order to establish absolutism, King Chulalongkorn attempted to impose a Bonapartist Constitution in the late nineteenth century. His successors, King Vajiravudh and King Prajadhipok, likewise engaged in Constitution-drafting experiments, drawing from various models derived from the unwritten British Constitution, but all nonetheless articulated around the project of securing royal sovereignty. When the 1932 Revolution imposed on King Prajadhipok a revolutionary Soviet-like Constitution that drastically curtailed his powers, he reacted skilfully by discarding Siam’s first Constitution as ‘interim’ and prompting the drafting of a second Constitution re-establishing, in an ambiguous wording derived from the Prussian-influenced Meiji Constitution of Japan, a disguised form of royal rule. Chapter 3 (on doctrines) examines the move from traditional doctrines of kingship (the Hindu-Buddhist doctrines of devaraja and dharmaraja) to absolutism and constitutionalism imported from the West. Doctrines such as the Austinian doctrine of law as the command of the sovereign and ‘the King can do no wrong’ were imported into Thai constitutional discourse by King Chulalongkorn and his son Prince Rhabi, being re-interpreted in Thai constitutional law handbooks as related to the sacred dimension of Siamese Kingship. The fall of absolutism in the early twentieth century prompted a doctrinal redefinition of the King’s sovereignty through the borrowing of the European ‘granted constitution’ doctrine. Meanwhile, the Mahasammata or Buddhist doctrine of the elected King was excavated and blended with modern doctrines of constitutionalism to lend renewed power and legitimacy to the King. Chapter 4 (on practices) shows how, from the mid-nineteenth century onwards, the monarchy downplayed its Hindu-Buddhist traditions of k ­ ingship (boddhisatva, chakravatin and mahasammata) in order to distance itself from

Outline of the Chapters  29 the image of ‘oriental despot’. To enhance royal power, the monarchy also discarded the principle according to which the King could only adjudicate based on the Phrathammasat; instead, it sought to adopt and adapt Western practices of royal sovereignty. Successive kings adopted British-inspired succession laws, Prussian-inspired lèse-majesté laws and French-inspired martial law. These legal transplants were hybridised with the Hindu-Buddhist traditions. From 1932 onwards, the transplant of constitutionalism, inspired by British (Singapore), Prussian (Japanese) and Soviet (Chinese) practices, gave rise to conflicts between King Prajadhipok and the perpetrators of the 24 June Revolution. When King Prajadhipok abdicated, his sacredness was displaced onto the Constitution, and the Constitution was effectively turned into a substitute of the sacred King. Chapter 5 (on texts) analyses the 1947–49 royalist restoration Constitutions, which sought to re-instate royal powers by creating a King’s Privy Council and an appointed Senate to serve as the King’s representatives, based on early versions of the British model. The 1959 interim Constitution, inspired by the design of the French Fifth Republic, inaugurated the design of military dictatorship under royal command and laid the template for the subsequent interim constitutions of military rule. It gave the military, under the patronage of the King, absolute power to rule. The 1974 Constitution marked a veiled return to the 1947 design in democratic clothing. It associated the King, the military and the people in its drafting, yet gave the King unprecedented power. One of its avatars, the 1991 Constitution, caused another mass uprising calling for a return to truer forms of democratic constitutionalism. Chapter 6 (on doctrines) documents how in the 1950s, constitutional scholars, as strong defenders of legal positivism under the lead of Yut Saeng-Uthai, imported Kelsen’s theory of revolutionary legality to justify the legality of military coups. In the 1960s, Thai constitutional discourse appropriated the discourse on ‘ancient constitutionalism’: in particular, legal scholar Seni Pramot stated that Sukhothai’s thirteenth-century Ramkhamhaeng inscription was Thailand’s Magna Carta, and that the fifteenth-century Palace Law and the practice of the Totsapitrajadharma functioned as ancient constitutionalism. Scholars maintained that the King was elected and was therefore a People’s Representative, which allowed him to intervene in politics. From the mid-1970s onwards, legal positivism was discarded. Based on borrowings from theorists of the British monarchy such as Bagehot, Thanin Kraivichien invented ‘constitutional customs’ giving the King special extra-constitutional powers in times of crisis. Chapter 7 (on practices) looks at how, from 1947 onwards, a regular pattern of coups and constitutions was progressively institutionalised, as the King’s political involvement grew. Until 1957, royal legitimation of coups was not yet required for a coup to succeed, and royal involvement in Constitution-making processes remained minimal (although increasingly assertive). From 1957 to 1973, the institutionalisation of the vicious cycle was first marked by a competition between the King and the military, until a stable alliance was found under the leadership of the King. The newfound alliance materialised in the

30  Introduction: Is Thailand a Constitutional Monarchy? composition of the Privy Council and the Senate, as well as in the military use of the lèse-majesté law. The need for royal legitimation/legalisation of coups became institutionalised and increasingly recognised by the courts. From 1973 onwards, the King made several royal interventions, using the following royal prerogatives: dissolution of the Assembly, appointment of the Prime Minister and of the National Assembly, and constitutional vetoes. Chapter 8 (on texts) analyses the constitutional design of Thailand’s juristocracy. The 1997 Constitution was the perfect embodiment of the Global (South), transformative Constitution committed to the Rule of Law. It was based on French-style rationalised parliamentarism for governmental stability and a German-style Constitutional Court with the tools to dissolve anti-democratic political parties for democratic transition, while consecrating Thai democracy with the King as Head of State as ‘constitutional custom’. The 2007 Constitution created a militaristic juristocracy and turned the Senate into a half-appointed body while adopting increasingly Buddhist articles on the Rule of Law. The 2017 Constitution maintained and further entrenched the militaristic-juristocratic, Buddhist, royalist nature of constitutionalism. Chapter 9 (on doctrines) explores how, against the previous tradition of legal positivism, a new generation of constitutional jurists, born in the 1950s, worked towards the re-establishment of the dominance of natural law theories. Under the impulse of leading legal scholars such as Wissanu Krea-ngam, Bowornsak Uwanno and Thongthong Chandransu, they re-introduced the dharmaraja doctrine into Thai constitutional thought. They established the Thai monarch as the embodiment of a natural justice rooted in immemorial Thai customs, and re-interpreted ideas of the Rule of Law, judicial activism and good governance in Buddhist terms. The dharmaraja concept became the explaining doctrine of the provision on customs/conventions adapted from Bagehot’s analysis of British royal power. The King, the personification of Buddhist virtue and a figure of morality, came to personify the Rule of Law, and the judiciary, ruling in the name of the King, was empowered to act against the Constitution on the King’s behalf. Chapter 10 (on practices) documents how the Thai monarchy unleashed the process of the judicialisation of politics through his April 2006 speech to judges of the Supreme Court and the Supreme Administrative Court. By relying on the British doctrine of ‘the King can do no wrong’ and imported notions of the Rule of Law and good governance, the monarchy has pushed for judicial activism in the King’s name and has established a juristocracy under royal command as a proxy form of rule. As a result of royally-supported judicial empowerment, the Constitutional Court has taken on the mandate of defining ‘Democracy with the King as Head of State’ based on notions of Buddhist Kingship and has aggressively engaged in the policing of compliance thereof. The conclusion analyses the current and precarious definition of Thailand’s constitutional identity of ‘Democracy with the King as Head of State’ as a paradigmatic example of constitutional bricolage, made of elements derived from

Outline of the Chapters  31 Buddhist Kingship and European constitutional monarchy, themselves derived from hybridised Hindu-Buddhist doctrines, as well as from civil and common law traditions. The conclusion then turns to the theoretical and methodological implications of using bricolage as an entry point into the study of constitutional transplants. As an opening end statement, it offers a few reflections on the contribution of the Thai case to the wider conversation on comparative constitutional law. The Appendix lists the biographies of the Thai constitutional scholars mentioned in the book.

32

Part I

Importing the Modern Constitution

34

2 Siam’s First Constitutions The Rise and Fall of the Sacred Monarchy

I

n much of Asia, the late nineteenth century was a period of intense colonisation. Threats to Siamese independence came from the West (the British in Burma), from the South (the British in Malaya) and from the East (the French in Indochina). Within that context, ‘modern constitutionalism’, understood as the introduction of a parliament, appeared as the distinctive marker of ‘civilisation’ and the means to escape colonisation. As an aspirational ‘civilised’ country of Asia,1 Siamese elites first looked to France and Britain, the two regional colonial powers, for inspiration, but soon turned to imperial Japan, a country whose Constitution had thwarted colonial endeavours while restoring the Emperor as a sacred ruler. However, a younger generation of Siamese developed a fascination for revolutionary China and for the worship of constitutions rather than kings. I.  THE HINDU-KHMER ORIGINS OF THE TRADITIONAL CONSTITUTION

In the late nineteenth century, the laws governing the Siamese monarchy were part of a wider body of legal dispositions assembled together in a Code called ‘the Three Seals Code’ (khotmai tra sam duang). The Three Seals Code had been compiled on the orders of Rama I (r 1782–1809), the founder of the Chakri dynasty, by a commission of royal scribes, Pandits and Brahmins.2 It was named after the three seals of the North (mythological lion), South (mythological elephant) and Centre (crystal lotus) corresponding respectively to the Ministry of the Interior, the Ministry of Defence and the Ministry of Finance, 1 Thongchai Winichakul, ‘The Quest for “Siwilai”: A Geographical Discourse of Civilizational Thinking in the Late Nineteenth and Early Twentieth-Century Siam’ (2000) 59 The Journal of Asian Studies 528. 2 HG Quaritch Wales, Ancient Siamese Government and Administration (Bernard Quaritch Ltd, 1934) 167; Robert Lingat, ‘Note sur la Révision des Lois Siamoises en 1805’[‘Note on the Revision of Siamese Laws in 1805’] (1923) 23 Journal of Siam Society 19, 22–23.

36  Siam’s First Constitutions a testimony to the territorial rather than functional organisation of the administration of Siam. Three official copies of the Code were kept: one was deposited at the Royal Library, another in the King’s apartment and a third in the Court of Justice. The Three Seals Code displayed a reconstructed version of the old laws of Siam, dating back to the Ayutthaya, Thonburi and early Bangkok periods. It had three components: the Phrathammasat or sources of disputes as derived from the Hindu Code of Manu;3 the Phrarachasat or laws/rulings made by kings based on the principles of the Phrathammasat;4 and other pieces of royal legislation not derived from the Phrathammasat, called the Phrarachanitisat, which were concerned mostly with administrative matters, such as key royal edicts on legal procedures and civil and military administration, but also to some extent with constitutional matters, such as the Palace Law (kot montien ban) regulating the exercise of royal power within the palace.5 The entire legal order as laid out by the Three Seals Code can be read as a constitutional order. The higher norm was the Phrathammasat, literally ‘the sacred treatise on dharma’. The Phrarachasat, royal judicial law-making as derived from the Phrathammasat, ranked directly below it. The Phrarachanitisat, the area of royal law-making proper, would be elevated to Phrarachasat status only if it conformed to the Phrathammasat. The Phrathammasat thus served as the fundamental norm on the basis of which the King and his court officials were to adjudicate cases, thereby engaging in judicial law-making.6 In short, the Siamese Phrathammasat taught that royal decisions, when they had been rendered in accordance with the prescriptions of the Phrathammasat, contributed to the enrichment of the law.7 As analysed by Robert Lingat: In the entire code, indeed, legal articles are announced as being derived from the precepts of the dhammasattham. According to a formula that is repeated in the preambles, they have been inspired to the kings by a deep reflection on the sacred text. The codified part of the corpus thus appears as positive legislation, folded in the mold of a preexisting dhammasattham which derives its authority from its conformity with the Manu rules.8 3 The Phrathammasat laid out the ‘sources/roots of dispute’ called mula-khadi. 4 The Phrarachasat laid out the ‘ramifications of disputes’ called saka-khadi. They can be described as the jurisprudence of kings in concrete cases which enjoyed the force of law. The legal dispositions were arranged depending on their object: spouses, slavery, kidnapping, inheritance, debts, miscellaneous laws, disputes, theft, crimes against the government and treason. 5 Among the royal edicts, called Phrarachanitisat or rachaniti-khadi, promulgated by Rama I or the preceding kings in the Ayutthaya era, many relate to procedure to be applied by high-ranking civil servants in the administration of the kingdom and in the adjudication of cases, such as: laws on fines and compensation, litigation, witnesses, ordeals, judges and the appeals procedure. Others deal with the administration of the kingdom, such as laws on civil hierarchy, military hierarchy and provincial hierarchy. Others regulate the exercise of royal power such as the Palace Law. 6 Krisada Bunyasamit, กฎหมายตราสามดวง: แว่นส่องสังคมไทย [The Law of Three Seals: a Window on Thai Society] (Fund for the Promotion of Research, 2004). 7 Robert Lingat, ‘La conception du droit dans l’Indochine hîniayâniste’[‘The Conception of Law in Hinayana Indochina’] (1951) 44 Bulletin de l’Ecole française d’Extrême-Orient 163, 185. 8 ibid 181.

The Hindu-Khmer Origins of the Traditional Constitution  37 The Phrathammasat was a slightly Buddhicised version of the Hindu dhammasattham.9 It opened with a mention of the Three Jewels: the Buddha, ‘discoverer of the Four Noble Truths’, the Dharma, or ‘nine transcendental practices, to which must be added knowledge’, and finally the Sangha, ‘the noble community of the eight perfect disciples of the monk community’. It also referred briefly to the Buddhist concepts of King’s Duty (rachatham) or 10 Virtues of a Righteous King (tosapit rachatham 10 prakan) as well as to the figure of Mahasammata, a great mythical elected King whose origins can be found in the Pali Canon.10 The Phrathammasat transformed the Hindu Manu, who in the Hindu Code was a king, into ‘Manosara’, a judge at the royal court of the great elected King Mahasammata. It tells the story as follows. One day, in a dispute involving two neighbours about the ownership of cucumbers, Manosara delivered a flawed judgment. This affected him deeply and he retired in the forest to live an ascetic life. He acquired supernatural powers that allowed him to fly to the ends of the world. There stood a huge wall on which the laws were inscribed in letters the height of an elephant. He learned them by heart and returned to compose the text of the Phrathammasat, which was intended to serve as guidance to the King in its delivering of justice.11 The Phrathammasat then turned to making prescriptions on Kingship: it mandated the King to dedicate time to study the Phrathammasat each day and apply its principles in the adjudication of cases. It urged the King’s servants to also apply the principles of the Phrathammasat while being faithful to their King. Finally, the Phrathammasat gave the King a detailed daily schedule, including the list of daily meetings to attend to, how to

9 The work of Buddhicisation of the Thammasat was attributed to the Mons. The question of when the translation happened is still under dispute. Siamese historians consider that the Hindu Code entered Siam during the sixteenth century, when Ayutthaya came briefly under Burmese influence. Lingat stated that the introduction of the Dharmasat preceded the foundation of the Kingdom of Sukhothai in the thirteenth century, based on evidence from thirteenth and fourteenth-century epigraphs referring to ‘dharmasat-rajasat’ introduced at the occasion of the encounter between the Siamese and the Mons, before the founding of Ayutthaya in the mid-fourteenth century. For a summary of the discussion, see Michael Vickery, ‘The Constitution of Ayutthaya’ in Andrew Huxley (ed), New Light on Thai Legal History (White Orchid Press, 1996) 132. 10 ประมวลกฎหมายรัชกาลที่ 1 จุลศักราช 1166 เล่ม 1 [1805 Code of Rama I, Volume 1] (Thammasat University Press, 1938) 7. For an English translation, see Chris Baker and Pasuk Phongpaichit, The Palace Law of Ayutthaya and the Thammasat (Cornell University Press, 2016). 11 Lingat (n 7) 171–81. On the tale of the flying Manu, it is useful to cite Robert Lingat at length: ‘It would be a grave error to take this addition to the legend [of the flying Manu] for a mere embellishment. As naive as can be the invention, it is of huge importance for the later development of law in the Buddhist countries of Indochina. It tends, indeed, to maintain in the Buddhist world the Indian notion of a Law linked to the cosmic order, source and constant model of express fundamental laws always existing, that impose themselves even to a king like Mahasammata, if he wants to succeed to make justice reign among men … The success that the tale of the flying Manu has met in Siam and in Cambodia shows that our authors have been good psychologists. Thanks to the tale, the dhammasattham will bring to Buddhist nations an instrument for the organization and the perfecting of their law.’

38  Siam’s First Constitutions conduct royal affairs and even how to brush ‘the royal teeth’ while ‘facing the East’.12 Yet it remains difficult to find in the Phrathammasat anything remotely resembling a constitution organising and limiting the exercise of political power. It bore more resemblance to a sort of natural law: the King, as judge of the disputes arising among his subjects, was mandated to make decisions based on the Phrathammasat, and these decisions were later codified as Phrarachasat. They had the force of law as being an emanation of Thammasat, but did not constitute a legislative act in the modern sense of the word; they were not acts of royal will, but were mere implementation of the Phrathammasat. In fact, it is much easier to recognise the form of a Constitution in the Palace Law, which conspicuously worked towards the consolidation of an absolute royal power – at least in the Palace. The Palace Law was probably promulgated at the beginning of the Ayutthaya period, either during the reign of King Uthong (r 1351–69), who was known as Ramathibodi, or the reign of King Trailok (r 1448–88).13 The Palace Law, traditionally analysed as being of Khmer inspiration, institutionalised and consolidated absolute royal power.14 Classified as rachanitisat, it did not draw its legitimacy from the ‘Sacred Book of the Thammasat’ – although whole sections of the Law, notably the King’s daily schedule, very closely resembled Chapter VII of the Hindu Code of Manu – but as an act of royal will premised on the need to maintain order. Its main focus was the set of rules applicable to people in the Palace premises and/or in presence of the King. As the Palace represents the kingdom according to the Hindu-Buddhist cosmogony, the Palace Law also represented, perhaps only metaphorically, the law of the entire kingdom. Therefore, it can be understood as a proto-constitution of the Ayutthaya Kingdom. It opened with a preamble given in the name of Trailok: ‘His Majesty the King Ramathibodi Boromma Trailokannat … promulgates edicts and laws

12 The fact that the Thai Phrathammasat offers many details on how to ‘brush the royal teeth’ is a clear indicator that the Hindu Code of Manu reached Siam through the intermediation of the Mons. There are no details about royal teeth brushing in the Hindu Code of Manu, whereas they are featured in the Burmese Wageru Code. 13 The Law’s preamble refers to the date of 1358 as well as to King Trailok, whose reign began in 1448. It is commonly admitted that 1358 is wrong and that the law was promulgated during the reign of King Trailok in around the mid-fifteenth century. Prince Damrong proposed 1458, David Wyatt 1468 and Michael Vickery an even later date. See George Coedès, Les États Hindouisés d’Indochine et d’Indonésie [The Hinduized States of Indochina and Indonesia] (De Boccard, 1948) 439; David K Wyatt, ‘The Thai “Kaia Mandiarapala” and Malacca’ (1967) Journal of Siam Society 279; Michael Vickery, ‘Prolegomena to Methods for Using the Ayutthayan Laws as Historical Source Material’ (1981) Journal of Siam Society 37; and Rachanuphap Damrong, ตำ�นานกฎหมายเมืองไทย [A History of Thai Laws] (Sophonphiphatthanakorn, 1930). 14 This understanding was adopted by Quaritch Wales in the 1930s and was popularised by Jit Phumisak in the 1950s; see Quaritch Wales (n 2); Jit Phumisak, โฉมหน้าศักดินาไทย [The Real Face of Thai Sakdina] (Sripanya, 1996).

The Hindu-Khmer Origins of the Traditional Constitution  39 for the military and civilians, men and women, monks, Brahmins and teachers, merchants and all groups of subjects.’15 The Palace Law’s main concern was to elevate the status of the monarch, both as an absolute ruler and as a divine, sacred king. Its 211 articles addressed substantive and procedural concerns, including the procedure of the promulgation and implementation of royal edicts in oral and written form, the protocol during royal audiences, the allocation and implementation of police powers, rules of conduct of court officers, royal duties and ceremonies,16 as well as the nature of the relations linking Siam to its tributary kingdoms and their obligations.17 It dealt at length with royal legislation, making the falsification of royal orders a capital offence and punishing disobedience in relation to royal law using various penalties ranging from fines to the death sentence, depending on the written or oral nature of the royal order in question.18 It consecrated the absolute power of the King: ‘If the King speaks on any government matter connected with law or custom, it is considered a ruling to be followed.’19 Yet the same article also posed a mild limitation upon the King’s absolute power by providing for a right to voice an opposition to the King’s decision: If the King speaks on any government matter connected with law or custom, it is considered a ruling to be followed. Anyone who objects may petition in opposition three times. If the King does not listen [to the petitions], the matter is closed; do not try to speak to the King in private. If the King does not listen [to the petitions] and hence the ruling is to be followed, anyone who does not act on this command is considered by the King to have violated royal authority.20

15 1805 Code of Rama I, vol 1 (n 10) 58; Baker and Pasuk (n 10) 77. 16 กฎมณเฑียรบาล [Palace Law] in 1805 Code of Rama I (n 10). The Palace Law covers a wide range of areas: clothing and accessories according to social rank (arts 3–11), protocol during royal audiences (arts 11–13), allocation and implementation of police powers (arts 15–22), protocol relating to processions of the King and the royal family (arts 23–43), rules to be followed in combat (arts 44–49), rules to be followed during royal audiences (arts 50–57), rules on theft, disorder and wrongdoing (arts 58–76), clothes (arts 76–78), prohibition on political alliances (arts 79–84), oath of loyalty and rules regarding behaviour of court officers (arts 85–99), royal duties (arts 99–127), rules within the Palace (arts 128–49), Brahmins (arts 150–56), royal ceremonies (arts 157–96), sanctions against the royal family and Palace officials (arts 197–201), and the use of royal vocabulary (arts 202–11). See Woraporn Poopongpan, กฎมณเฑียรบาลในฐานะหลักฐานประวัติศาสตร์ไทนสมัยอยุธยาถึง พศ 2348 [The Palatine Law as a Source for Thai History from the Ayutthaya Period to 1805] (Chulalongkorn, 2006). 17 Tributary kingdoms were classified into two categories to which differentiated obligations corresponded. The kings of kingdoms of the first category must present money and gold to the King of Ayutthaya, whereas kingdoms of the second category must take an oath of loyalty. The classification of kingdoms is established under Article 2 of the Palace Law: ‘Article 2. Kingdoms of the first category are Angkor, Si Sattanakhanahut, Chiang Mai, Tongsu, Chiang Krai, Chiang Kran, Chiang Saen, Chiang Rung, Chiang Rai, Saen Wi, Khemmarat, Phrae, Nan, Taithong, Khotrabong, Reo Kaeo, Uyongtana, Malaka, Malayu, Worawari. Kingdoms of the second category are Phitsanulok, Satchanalai, Sukhothai, Kamphaeng Phet, Nakhon Si Thammarat, Nakhon Ratchasima, Tenasserim, Tavoy.’ 18 Articles 111–14 of the Palace Law, translation by Baker and Pasuk (n 10). 19 ibid art 118. 20 ibid.

40  Siam’s First Constitutions Another provision seemingly introduced some checks on the absolute nature of royal power: ‘If the King is angry at anyone and calls for the royal sword, officials must not present him with the sword; anyone who does so is condemned to death.’21 Besides these provisions, the Palace Law established variegated mechanisms to pre-empt and neutralise all competition to royal power, punishing any governor who engaged in a meeting with another governor or who refused to partake in the water-drinking ceremony of allegiance to the Siamese King with a death sentence.22 In order to build and protect the sacred character of the King, the Palace Law also relied on ritual ceremonies as well as the policing of language. Two ‘handbooks’, annexed to the Palace Law, established a link between the King and the divine: the handbook of rachasap,23 a specific language to be applied when speaking to or about the King, and the handbook of the various royal ceremonies to be held each month in honour of the King. The Palace Law also relied on severe repression for those who displayed disrespectful behaviour towards the King. For anyone who whispered in the presence of the King and for those who dared look the King in the eye, the punishment was death.24 Royal authority was also buttressed by a series of other laws such as the Royal Acts Regarding Crimes against the King (Phraayakan Aya Luang) or the Laws against Rebellion and Treason (Phraayakan Kabot Seuk).25 Both of these protected the King’s authority from any threat or challenge. The Phraayakan Aya Luang was entirely devoted to regulate the punishment of those who would violate the King’s majesty.26 Sanctions for offences against the King included beheading, the amputation of ears and feet, lashes, imprisonment, forced labour, slavery and fines.27 More than 100 other articles regulated proper behaviour relating to things royal. Wrongdoings, such as the lack of respect towards royal symbols, or royal vocabulary, were made the subject of severe sanctions. For instance, the wrongful use of royal vocabulary was punishable by death by suffocation from a coconut in the mouth.28 More importantly, the Royal Acts Regarding Crimes against the King made it a serious offence or rebellion not to obey the King’s orders: ‘Any Royal Command or Royal Legislative Act must be

21 ibid art 123. 22 ibid arts 82, 84 and 86. 23 ibid arts 204–11. For instance, art 210 stated that: ‘If responding to the King, use the form “Phra Phutthajao kha”; if addressing the King, “Kha Phraphutthajao kho thun”. If conversing, use the form “Phra-ong jao trat ang trat chai”. If appointed as khun, muen, phan, or thanai in the department of the royal children, do not use the name as khun, muen, phan, thanai in the royal palace’; Baker and Phongpaichit (n 10) 86. 24 Articles 57 and 87 of the Palace Law. 25 Seni Pramot, กฎหมายสมัยอยุธยา [The Laws of Ayutthaya] (Winyuchon, 2016). 26 David Streckfuss, Truth on Trial in Thailand: Defamation, Treason, and Lèse-Majesté (Routledge, 2010) 61. 27 Articles 7 and 72 of the Royal Acts Regarding Crimes against the King. 28 Sawaeng Bunchalemphiwat, ประวัติศาสต์รกฎหมายไทย [Thai Legal History] (Winyuchon, 2000) 100.

The Hindu-Khmer Origins of the Traditional Constitution  41 obeyed. Anyone who does not obey the Royal Command or the Royal Legislative Act will be punished.’29 The laws of Sakdina, or Laws on Civil Hierarchy, Military and Provincial Hierarchies, organised society along feudal lines, placing the King at its apex. Each member of society had a numerical value attributed to his person, ranging from 5 for slaves and beggars to 100,000 for princes and ‘infinite’ for the King. Also constituting the fundamental rules of the legal order were the laws regulating the Buddhist clergy (kot phrasong). Unlike the Phraayakan from the Kingdom of Ayutthaya, they had been enacted in the early years of the reign of Rama I, between 1782 and 1801, at the beginning of the Bangkok/Rattanakosin era. They notably prevented monks from conspiring to overthrow royal authority or from practising magic and rivalling the King’s power.30 Some of the royal decrees promulgated during the Ayutthaya, Thonburi and early Rattanakosin periods (phrarachakamnot kao, phrarachakamnot mai and phrarachabanyat) also worked towards consolidating the King’s authority.31 If the Palace Law can indeed be considered as a type of ancient constitution organising the King’s absolute power, it nevertheless suffered three major limits: first, its application was limited to the Palace – beyond this, its provisions were only known to a minority of individuals; second, it did not include any provision for amendment; and, third, it did not set in place any rule of royal succession. More importantly, its status did not appear to place it above other forms of legislation, such as the Royal Acts Regarding Crimes against the King, which, unlike the Palace Law, were part of the Rachasat as a result of being derived from the Phrathammasat and therefore of a higher status. The Phrathammasat remained the mother of all legislation in the kingdom. The Three Seals Code survived the death of Rama I. Decrees issued by his successors were added to the Code as they were promulgated. In particular, Mongkut (r 1851–1868) and Chulalongkorn (r 1868–1910) issued hundreds of royal decrees codified under phrarachakamnot mai and phrarachabanyat in the Code. Yet if they enriched the body of positive ordinary laws, they did not, at least in theory, alter its fundamental norm, the Phrathammasat. By the late nineteenth century, the Palace Law was still being implemented in practice in the premises of the Palace, but the entourage of King Chulalongkorn started to think about a Constitution in the modern sense.

29 Article 21 of the Royal Acts Regarding Crimes against the King. 30 กฎพระสงฆ์ [Sangha Laws] in 1805 Code of Rama I (n 10). The Third Sangha Law, promulgated in 1783, prohibited monks from practising magic so as to present themselves as phu mi bun with claims to power. This resulted in a real case of conspiracy against the throne that occurred in 1783. See Siriporn Dabphet, The Legal Foundation of State Stability in the Early Bangkok Period (National University of Singapore, 2013) 130. 31 The ‘old decrees’ or phrarachakamnot kao (พระราชกำ�หนดเก่า) were issued by the successive Kings of Ayutthaya between the mid-16th and late 18th century. The ‘new decrees’ or phrarachakamnot mai (พระราชกำ�หนดใหม่ ) as well as the ‘legislative acts’ or phrarachabanyat (พระราชบัญญัต)ิ were both issued between 1782 and 1805 during the reign of Rama I.

42  Siam’s First Constitutions II.  THE 1889, 1926 AND 1932 DRAFT CONSTITUTIONS: THE BONAPARTIST AND BRITISH TROPES

In 1885, Prince Prisdang,32 then an ambassador in Paris, and other high-ranking officials sent a long letter to Chulalongkorn. In this letter they asked the King to consider the adoption of European constitutionalism, following the path set by the Japanese.33 They argued that this course of action would protect the monarchy by codifying it along the lines of the Western model, while abiding by Thai traditions.34 The Constitution would not need to reduce the powers of the King or create a King who was responsible to Parliament. According to the petitioners, the drafting of a constitution was the only way to escape colonialism: We must replace our ancient traditions by the constitutional tradition, and follow the European example, as accurately as possible, emulating Japan, the only Eastern country to have followed the European way. We must change our traditions which give the King the power to decide everything, what the British call the ‘absolute ­monarchy’ [in English], and replace them by the tradition of what we call ­‘constitutional ­monarchy’ [in English] … The change must be based on the Japanese way of ­borrowing from Europe and all the civilized countries; this is the only way to preserve our country.35

Chulalongkorn rejected the proposal and punished its authors.36 Yet, four years later, in 1889, the King published his own constitutional draft, calling it the ‘law on royal custom’ (phrarachakrisdika wa duai rachaphrapheni krung sayam).37 Chulalongkorn’s constitutional draft was the work of his Foreign Minister, Somdeth Khrom Phrayathewawong Woropakan.38 The inspiration came from the Imperial Constitution of Napoleon III, which the King had ordered translated

32 For an account of Prince Prisdang life, see Tamara Loos, Bones around My Neck: The Life and Exile of a Prince Provocateur (Cornell University Press, 2016). 33 Bandit Chanrochanakit, รัฐธรรมนูญสถาปนา : ชีวิตและชะตากรรมของประชาธิปไตยในวัฒนธรรมไทย [The Foundational Constitution: The Life and Fate of Democracy in Thai Culture] (Vipassa, 2006) 68; Loos (n 32) 45–49 See also, generally, Chai-anan Samudavanija, แผนพัฒนาการเมืองฉบับแรกของไทย [Thailand’s First Political Development Plan] (Manager Press, 1995). 34 เจ้านายและข้าราชการกราบบังคมทูลความเห็นจัดการเปลี่ยนแปลงราชการแผ่นดิน ร.ศ. 103 และพระราชดำ�รัสในพระบาทสมเด็จพระจุลจอมเ กล้าเจ้าอยู่หัวทรงแถลงพระบรมราชาธิบายแก้ไขการปกครองแผ่นดิน [The Princes and Royal Servants Advise the King to Change the Kingdom’s Administration Rattanakosin Era 103 and Royal Discourse on the Change of Administration] (Fine Arts Department, 1967). 35 ibid. See also Bandit (n 33) 67; Saneh Chamrik, การเมืองไทยกับพัฒนาการรัฐธรรมนูญ [Thai Politics and Constitutional Developments] (Foundation for the Promotion of Social Sciences and Humanities, 2006) 28. 36 They were recalled to Bangkok from their respective embassies. Prince Prisdang lost his royal civil servant status and went into permanent exile in 1890. Tamara Loos questioned the common assumption that Prince Prisdang owed his fall from grace to Chulalongkorn’s irritation with the petition; see Loos (n 32) 49. 37 พระราชกฤษฎีกาฉบับ ๑ ว่า ด้วยราชประเพณีกรุงสยาม ราวปี ๒๔๓๒ สมัยรัชกาลที  ๕ [Law on Royal Custom in Siam, Year 1889, Fifth Reign] (hereinafter ‘1889 Constitutional Draft’). 38 Wissanu Krea-ngam and Bowornsak Uwanno, ธรรมนูญการปกครองราชอาณาจักร 2520 [The 1977 Charter] (Chulalongkorn, 1977) 11.

The 1889, 1926 and 1932 Draft Constitutions  43 and summarised.39 In this draft, the King concentrated all three powers: he was the supreme and only legislator, the holder of executive power and the fountain of justice. Article 2 stated: ‘The King is the holder of absolute and discretionary powers, there is nothing above [him].’40 The principle of royal government, founded on a King-legislator, was worded as follows: The orders of the King already promulgated are the laws of the kingdom. The laws of the kingdom are of three types: laws promulgated by the King alone (phrarachabanyat), decrees promulgated by the King upon the advice of the council of Department chiefs (phrarachakamnot), and decrees, promulgated upon the advice of the Council of Ministers (phrarachakrisdika).41

The doctrine of the King as fountain of justice was laid out in Article 3(2) of Chulalongkorn’s constitutional project: ‘The King is the source of justice which frees from suffering; he forgives those who have violated the law.’42 The Constitution also filled the gap regarding succession rules by establishing a clear dynastic principle.43 However, unlike the Constitution of France’s Second Empire, Chulalongkorn’s Constitution did not provide for a parliament, although it did establish ministerial responsibility in Article 4, in a wording inspired by the British maxims of sovereign immunity: ‘The King can do no wrong. No power can punish him in any way whatsoever; because for each action of the King, there is an informed minister; he bears the responsibility of this act.’44 Thus, Chulalongkorn wished for an authoritarian constitution providing for a monarchy without parliament, in clear contrast to the European monarchies he had used as models, namely France and Britain. In the end, his constitutional project of royal absolutism never came to life. Vajiravudh, Chulalongkorn’s successor, ascended the throne three years later in 1910. Like his father, he also ordered the drafting of a constitution, but his

39 Baker and Phongpaichit (n 10) 70; Sattayanurak Atthachak, การเปลี่ยนแปลงโลกทัศน์ของชนชั้นผู้นำ�ไ ทยตั้งแต่ราชกาลที่ 4–2475 [Change in Worldviews of Thai Elites from the Fourth Reign until 1932] (Chulalongkorn University, 1995) 150; Kullada Kesboonchoo Mead, The Rise and Decline of Thai Absolutism (Routledge, 2004) 48, 52, 193. Kullada reproduces the text of the summary of the 1852 Bonapartist Constitution: ‘The Emperor is an absolute monarch. He is above all the French people and is the ruler of the Kingdom. He does not need to justify his action to anyone. He is respected and must not be slandered. He appoints ministers to various ministries as he wishes. He has the power to grant pardons to convicts. He is the supreme commander of the army and the navy and has authority to declare war and to sign treaties of commerce and friendship with other countries. He appoints members of the nobility to administrative positions throughout the kingdom. He has legislative power, and in the absence of his presidency no law can be passed. Law courts throughout the empire exercise their power in his name. He is the source of righteousness, and without his consent to every clause of a law, that law is null and void.’ 40 Article 2 of the 1889 Constitutional Draft states: ‘พระเจ้าแผ่นดินย่อมมีพระราชอาญาสิทธิ์ เด็จขาดโดยพระราชหฤไทย์ ไม่มีสิ่งใดยิ่งขึ้นไปดีกแล้ว’. 41 ibid art 3(6). 42 ibid art 3(2). 43 ibid arts 7–10. Articles 7–10 also provide a list of the 30 closest heirs in the line of succession, ranked. 44 ibid art 4.

44  Siam’s First Constitutions was by all accounts very unconventional, perhaps even unique in the world. The resulting document was a municipal constitution for a ‘miniature city’, Dusit Thani, the ‘House of Heaven’,45 which was built to resemble a giant doll’s house like that of Queen Mary, the wife of the British King George V,46 but on a surface of 4,000 square metres within the Dusit Palace.47 The miniature city comprised more than 100 houses, all equipped with electricity, and featured real trees. Its Constitution, effectively promulgated on 7 November 1918, had 51 articles organised into 10 titles preceded by a preamble.48 It had all the characteristics of a constitution, including that of providing for mechanisms of constitutional amendment. In fact, it was actually amended by a ‘revision decree of the constitution of the administration of the Dusit Thani government’ published on 13 December 191849 and itself revised by a law in 1920,50 being completed in 1922 by a decree on public works at Dusit Thani.51 According to the mini-Constitution, the head of government would be directly elected each year for a one year-term.52 The first constitutional revision introduced the election of a parliament which would in turn elect the prime minister, bringing the Dusit Thani political system more closely into line with the British system.53 Elections did take place and a bipartisan system emerged, featuring a ‘blue’ and a ‘red’ party. The King himself acted as the chief of the ‘blue’ party when one of his closest court officials led the ‘red’ party.54

45 ธรรมนูญลักษณปกครองคณะนคราภิบาล พ.ศ. 2461 [Constitution of the Administration of the Municipality B E 1918] (hereinafter ‘1918 Dusit Thani Constitution’). 46 The miniature city, which had required for its construction as many as 300 royal civil servants, included a royal palace, a military barracks, a house of government, a school, a hospital, a bank, a post office, a theatre, a cinema, public baths, a water and electricity company, a sports club, a market, houses, parks, streets, bridges, canals, mountains, waterfalls, fountains, restaurants and a British royal palace. See Puttiphong Ponganekul and Chanan Yothong, ‘ดุสิตธานี’ หลุมหลบภัยของร าชาธิปไตยและป้อมโจมตีประชาธิปไตย [‘Dusit Thani, the Royalty’s Bunker and the Citadel of Attacks against Democracy’] (2012) Samesky Journal 78. 47 In the following year, the miniature city was transferred to Phaya Thai. 48 The first title deals with the name and the mode of promulgation of the Constitution (ว่าด้วยนามและการใช้รัฐธรรมนูญ), the second with vocabulary (บทวิเคราะห์ศัพท์), the third with the elections of the chief of government (ว่าด้วยกำ�หนดและการเลือกตั้งนคราภิบาล) the fourth with the powers and duties of the chief of government (ว่าด้วยอำ�นาจและหน้าที ข องนาคราภิบาล) the fifth with public salubrity and prevention of diseases (ว่าด้วยการบำ�รุงรรักษาความสอาดและป้องกันโรคภัย) the sixth with the nomination of the chief of government (ว่าด้วยการสับเปลี่ยนและตั้งนาคราภิบาล) the seventh with the duties of the Council of the Secretary-General (ว่าด้วยหน้าที ส ภาเลขาธิการ), the eighth with the budget (ว่าด้วยทุนและการเงินทองของคณะนคราภิบาล), the ninth with penal sanctions (ว่าด้วยกำ�หนดโทษผู้ที ก ระทำ�ผิด) and the tenth with the safeguarding of the Constitution (ว่าด้วยการรักษาธรรมนูญ). 49 พระราชกำ�หนดเพิ่มเติมและแก้ไขธรรมนูญลักษณะปกครองคณะนคราภิบาลดุสิดธานี พ.ศ. 2461 [Decree on the Revision of the Constitution of the Municipality of Dusit Thani, 1918]. 50 พระราชบัญญัติแก้ไขพระราชกำ�หนดเพิ่มเติมธรรมนูญลักษณะปกครองนคราภิบาลดุสิตธานี พ.ศ. 2461 พ.ศ. 2463 [Decree on the Revision of the Decree on the Revision of the 1918 Constitution of the Municipality of Dusit Thani, 1920]. 51 กฎธานิโยปการ พ.ศ. 2465 [Regulation on Public Works 1922]. 52 Article 8 of the 1918 Dusit Thani Constitution. 53 ibid art 4. 54 Walter F Vella, Chaiyo! King Vajiravudh and the Development of Thai Nationalism (University of Hawaii Press, 1978) 76.

The 1889, 1926 and 1932 Draft Constitutions  45 Dusit Thani possessed its own newspapers, associations and clubs.55 The number of people voting was about 200, who were all royal court officials and friends of the King. Vajiravudh participated in the miniature city as ‘Mister Ram of Bangkok’ (Nai Ram Heng Krungthep), a lawyer by profession. According to the Constitution, the citizens had to obey the Chief of government if his orders were in compliance with the law,56 which seemed to hint at the fact that disobedience was warranted if the orders were not in compliance with the law; they could also file complaints before the tribunals.57 The Acts adopted in Dusit, including the Constitution, had the force of law and were fully integrated into the Thai legal order. Petitions against decrees issued for Dusit Thani could be filed before the national courts.58 Nevertheless, this measure was theoretical because at the time, administrative justice only existed to the extent it was authorised by the King.59 In spite of the introduction of ‘elections’ and a parliament, the Constitution maintained royal sovereignty and worked towards the consolidation of royal power. It belonged to the granted type, being adequately described as a ‘royal octroy’. Its preamble stated: ‘His Majesty the King, supreme holder of power, source of justice and compassion towards all living beings benevolently grants (phrarachathan) the Dusit constitution by his royal will.’60 The preamble also stated that, by default, all decision-making powers were vested in the King, as the King retained full sovereignty over all the competences he had not delegated: ‘The subject-matters not covered [by this Constitution] are under the jurisdiction of the central government, whose common apex (yotruom) is the person of the King.’61 The King also retained his position of final arbiter of the realm. The citizens of Dusit Thani could, if they were unhappy with the decrees or royal ordinances, address a petition (rongrien) to the King himself.62 What was the exact nature of the Dusit Thani Constitution? Was it merely intended as an entertainment for a cohort of bored royal ‘favourites’? Was the entire miniature democracy more than a game-experiment? On the day of the inauguration of Government House in Dusit Thani, the King declared that Dusit was actually a prelude to the implementation of a constitution at the State level: the ‘game’ had a pedagogical aim.63 However, in the end, the King opposed

55 Such as the Dusit Times (ดุสิตสมัย), the Dusit Observer (ดุสิตสักขี), and the Dusit Recorder (ดุสิตริคอร์เดอร์ ). 56 Article 22 of the 1918 Dusit Thani Constitution. 57 ibid art 48. 58 Articles 34, 48 and 50 of the 1918 Constitution of the Municipality of Dusit Thani. 59 Piyabutr Saengkanokkul, ‘La Juridiction Administrative en Thaïlande : Genèse d’une Institution’ [‘The Administrative Court in Thailand: The Genesis of an Institution’] (PhD thesis, University of Toulouse, 2011). 60 Preamble to the 1918 Dusit Thani Constitution. 61 ibid. 62 ibid art 47. 63 Chem Sundaravej, ดุสิดธานี เมืองประชาธิปไตยของพระบาทสมเด็จพระมงกุฎเกล้าเจ้าอยู่หัว [Dusit Thani, Democratic City of King Vajiravudh] (Chulalongkorn University Press, 1974) 111, 123.

46  Siam’s First Constitutions the adoption of a Constitution in Siam,64 declared himself opposed to the introduction of a parliament and re-affirmed the principle of royal supremacy: Our country is Thailand. Citizens are Thais. Nobody is the lord (nai) of nobody else, with the only exception of the King. Only the King has the power and the authority above Thais according to custom, which constitutes the rule of law (nittitham) of our nation.65

King Vajiravudh died in 1925 without leaving an heir. Prajadhipok, the youngest son of Chulalongkorn, succeeded him as Rama VII. During his reign, the question of a constitution for Siam became more pressing. Like Chulalongkorn, Prajadhipok was seduced by the idea, but remained profoundly hostile to the existence of a parliament. He asked his foreign advisers to submit proposals to him regarding a parliament and/or a constitution, although he himself thought the granting of a constitution to Siam would be premature: Must this country have a parliamentary system one day? And is really the Anglo-Saxon type of Parliamentary Government suitable to an Eastern people? Is this country ready to have some sort of representative government? I personally have my doubts as to the [2nd] question. As to the [3rd] question, my personal opinion is an emphatic NO.66

In the search for answers, King Prajadhipok first turned to his American, Harvard-trained adviser Francis B Sayre. In 1926, he asked Sayre nine questions, the first two of which were concerned with the modes of royal succession, while the third, the fourth and the fifth related to the suitability of the importation of the British parliamentary model into Siam (respectively the creation of a parliamentary system, of a representative government and of a prime minister based on the British model).67 Sayre responded that Siam was ‘not yet prepared for representative government’, even though he believed ‘that those who are shaping the destinies of Siam should not lose sight of some representative form of government at some future time’. He also expressed his ‘hope’ that ‘Siam will never become completely Westernized’, cautioning the King about ‘blindly’ copying institutions from the West.68 He submitted a proposed draft Constitution in English, comprising 12 articles, which enshrined royal absolutism.69 It opened with the following statement: ‘The Supreme Power throughout the Kingdom shall be vested in His Majesty the King.’70 In Sayre’s draft Constitution, legislative power was vested in the King.71 So was executive power, through a prime minister appointed by the King and 64 Walter F Vella, The Impact of the West on Government in Thailand (University of California Press, 1955) 355. 65 Quoted in Phuttipong and Chanan (n 46) 87. 66 King Prajadhipok, ‘Problems of Siam, Memorandum to Dr. Sayre’, 23 July 1926, reproduced in Benjamin A Batson (ed), Siam’s Political Future: Documents from the End of the Absolute Monarchy (Cornell University Press, 1976) 15. 67 ibid 14–20. 68 F Sayre, ‘Sayre’s Memorandum’, 27 July 1926, quoted in Batson (n 66) 29–30. 69 ibid 23–24. 70 Article 1 of Francis B Sayre’s draft Constitution. 71 According to ibid art 11, ‘legislative power belongs to the King’.

The 1932 Constitutions  47 responsible before him, mandated to implement the royal will.72 Ministers were appointed among the high dignitaries from each ministry and were answerable to the prime minister.73 Judges were appointed by the King.74 The proposed draft constitution did not specify the rules for the royal succession, but included an article on constitutional revision, stating that: ‘Changes in this fundamental law may be made only by the King with the advice and consent of three quarters of the members of the Privy Council.’75 Finally, the draft rather closely resembled that of Chulalongkorn inspired by the Bonapartist Second Empire. Like Chulalongkorn’s project, the Sayre project was never implemented. A few years later, in 1932, the King directly commissioned a constitutional draft. For this project, he turned to the Oxford-educated jurist Phraya Sriwisanwacha and to Sayre’s successor, the Harvard-trained lawyer Raymond B Stevens. The resulting document, entitled ‘An Outline of Changes in the Form of Government’, was more liberal than its predecessor. The prime minister was still chosen by the King and was responsible to him, but he would preside over Cabinet meetings and become ‘the sole means of communication between His Majesty and the Cabinet’.76 Sriwisanwacha and Stevens proposed the establishment of a legislative council, ‘composed entirely of appointed members or solely of elected members or of a combination of the two’, endowed with legislative power to examine bills introduced by the prime minister.77 In their comments appended to the ‘Outline’, both advisers believed that the time had not yet come to give the Siamese people a constitution – both favoured gradualism.78 Do they bear responsibility for persuading Rama VII to forego a timely engagement with constitutionalism? The evidence points to the fact that the King had planned to grant the constitution to his subjects on 6 April 1932, the date of the anniversary of the foundation of the Chakri dynasty, but that both authors of the draft persuaded him not to.79 April and May went by, and the King still reigned as an absolute monarch. III.  THE 1932 CONSTITUTIONS: THE SOVIET/CHINESE AND PRUSSIAN/JAPANESE INFLUENCES

On 24 June 1932, a group of military and civilian civil servants, calling themselves the ‘People’s Party’ (khana rassadorn), staged a bloodless revolutionary 72 ibid arts 2 and 3. 73 ibid arts 4 and 5. 74 ibid art 10. The Constitutional Draft created a consultative organ (aphiratmontri อภิรัฐมนตรี) appointed by the King and comprising five members. The prime minister was ex officio the member of the organ, which could dismiss the prime minister and the various ministers (art 7). 75 ibid art 12. 76 ‘An Outline of Changes in the Form of Government’, quoted in Batson (n 66) 87. 77 ibid. 78 ibid 91–93. 79 ibid 82–85. According to Pridi’s testimony of his audience with the King on 30 June 1932, ‘the King said that he had wished to grant a constitution, but when he consulted high-ranking officials of the time, they disagreed. Finally when he returned from a visit to America he asked someone who

48  Siam’s First Constitutions coup to impose a constitution on King Prajadhipok. In his response statement released on 26 June, Prajadhipok claimed that he had for a long time planned to grant such an institution to his people: We acknowledge the courageous action of the People’s Party to make changes to the government … so that [Siam] can be, from now onwards, on an equal footing to other countries; the People’s Party has seized power in order to govern through a constitution … in reality, to govern through a constitution, we already thought about it; the action of the People’s Party was just and is in accordance with our own preferences.80

The text was composed of 39 articles hastily drafted by Pridi Banomyong,81 a young civil servant fascinated by the 1911 Chinese revolution who had studied law and economics in France in the 1920s.82 The Constitution created a ‘regime of assembly’, in which the executive power was held by a parliamentary committee.83 The supremacy of the unicameral parliament was absolute. The ‘chairman of the People’s Committee’ was elected by the Assembly and was accountable to it, but neither he nor the King had powers to dissolve it. The organisation resembled revolutionary republican models such as the Constitutions of France in 1793, China in 1912 or Russia in 1918, although Pridi never explicitly revealed his sources of inspiration.84 Pridi’s text in fact referred explicitly to the Russian constitutional model by drawing on Soviet terminology: the government was called the ‘People’s Committee’ (khanakamakan rassadorn), ministers were ‘People’s Commissars’ (kamakan rassadorn), and the unicameral parliament was the ‘Assembly of People’s Representatives’ (sapha phuthen rassadorn). All members of the Assembly were appointed during a transitory period, before being progressively replaced as elected members.85 The transitional ­dispositions attended in audience on that day to consider the issue. This person offered his opinion that it was not yet time, and the advisers agreed … I can remember the impressive scene of that audience. The King had tears in his eyes when he pointed his finger at Phraya Siwisan, who joined the audience on that day, and said: “Siwisan, I sent a matter for you to consider, and you wrote a memo that it was not yet time. You also sent the memo of Stevens (an American adviser on foreign affairs) which agreed with you.”’ Pridi Banomyong, Pridi by Pridi: Selected Writings on Life, Politics, and Economy (Silkworm Books, 2000) 140. 80 พระราชกำ�หนดนิรโทษกรรมในคราวเปลี่ยนแปลงการปกครองแผ่นดินพุทธศักราช 2475 [Amnesty Decree Regarding the 1932 Regime Change], 26 June 1932, quoted in Charnvit Kasetsiri and Thamrongsak Petchlertanan, 2475, การปฏิวัติสยาม [1932: The Siamese Revolution] (Foundation for the Promotion of Social Sciences and Humanities Textbook Projects, 2000) 150. 81 Suphot Dantrakun, ประวัติรัฐธรรมนูญ [Constitutional History] (Foundation for the Promotion of Social Sciences and Humanities, 2007) 22. 82 On the fascination for revolutionary China, see Pridi Banomyong, Ma vie mouvementée et mes 21 ans d’exil en Chine populaire [My Chequered Life and My 21 Years of Exile in People’s China] (Varap, 1974) 27–30. 83 Article 33 of Siam’s 1932 interim Constitution. 84 Thawatt Mokarapong, History of the Thai Revolution: A Study in Political Behavior (Chalermnit, 1972) 116. The three revolutionary movements Pridi constantly referred to as points of comparison were revolutionary France, China and Russia. See, for instance, Pridi (n 79) 167–68. 85 In the first stage, the 70 parliamentarians were to be appointed by the People’s Party. After six months, 70 elected parliamentarians (one per province) would join the appointed parliamentarians. This system of a half-appointed, half-elected legislature would be ended after 10 years or as soon as half of the Thai population had completed primary school (art 10).

The 1932 Constitutions  49 were most likely inspired by the Chinese constitutional developments of the period from 1908 to 1912.86 The Constitution proclaimed that ‘sovereignty belongs to the people’87 and that its executive, namely the King, the ‘Assembly of People’s Representatives’, the ‘People’s Committee’ and the tribunals exercised this sovereignty,88 reproducing the terms of the Chinese Constitution of 1912.89 It did not include provisions on constitutional supremacy; it was silent on the issue of constitutional interpretation, although it seems clear that it adhered to the principle of parliamentary supremacy. The text considerably curtailed the powers of the King by placing him under the control of the People’s Committee. The government acquired several prerogatives that were usually the preserve of the King: the right to pardon90 and to sign international treaties.91 All texts – legislative, executive acts and judgments – had to be issued in the name of the King,92 but had to be countersigned by a member of the People’s Committee.93 The King retained the privilege of immunity of jurisdiction before the criminal courts, but could be ‘judged’ by the Assembly of People’s Representatives,94 an innovation likely to have been inspired by the post-revolutionary French experience and a testimony to Pridi’s mistrust of the King.95 In other words, his immunity as a Head of State was functional, not personal, by virtue of his majesty. He was given a royal veto, but this was a merely suspensive one: if he did not promulgate a law voted upon by the Assembly in the seven days after it was forwarded to him, he could still try to send it back to the Assembly, but if the Assembly confirmed the law, then it was promulgated nonetheless.96 The King also lost the key prerogative of appointing his regent: the People’s Committee itself was to act directly as regent in the event of the absence or incapacity of the King.97

86 In 1908, a nine-year plan was adopted towards the establishment of a constitutional monarchy in China. It included a progressive adoption of representative institutions. In August 1908, an imperial edict, Xianfa Dagan (General Principles of Constitutional Government), was adopted. It guaranteed imperial sovereignty, based on the Meiji Constitution. In 1911, the 19 articles came to complement the Xianfa Dagan. The Constitution was abolished by the 1911 Xinhai Revolution and was replaced by the 1912 Constitution of the Chinese Republic. The 1912 Constitution was called a ‘temporary constitution’ and provided for the election of a constitution-drafting assembly in the 10 months following the promulgation of the temporary Constitution (arts 53 and 54). 87 Article 1 of Siam’s 1932 interim Constitution. 88 ibid art 2. 89 Articles 2 and 4 of the 1912 Constitution of the Chinese Republic. Article 2 states: ‘The sovereignty of the Chinese Republic is vested in the people.’ Article 4 states: ‘The sovereignty of the Chinese Republic is exercised by the Advisory Council, the Provisional President, the Cabinet and the Judiciary.’ 90 Article 30 of Siam’s 1932 interim Constitution. 91 ibid art 36. 92 ibid art 3. 93 ibid art 7. 94 ibid art 6. 95 Piyabutr Saengkanokkul, ‘องค์กษัตริย์ไม่อาจถูกละเมิดได้คืออะไร?’[‘What is Royal Inviolability?’] (2012) 44 Samesky Journal 51. 96 Article 8 of Siam’s 1932 interim Constitution. 97 ibid art 5.

50  Siam’s First Constitutions This text did nothing less than end royal sovereignty, both symbolically and in practice. Instead, sovereignty, called supreme power (amnat sung sut), fully ‘belonged’ to the people, and the monarchy was merely one of four institutions identified as exercising it in the name or on behalf of the people, along with the Assembly of People’s Representatives, the People’s Committee and the tribunals.98 King Prajadhipok was particularly displeased with the Soviet ‘feel’ of the draft,99 claiming it was necessary to ‘avoid copying [elements from foreign constitutions] that do not correspond to the manners of Siam’.100 It took him three days to give Pridi’s text his royal sanction, and when he eventually returned the text with his signature affixed on it, he had added the term ‘provisional’ next to the word ‘constitution’. This was a skilful dilatory maneuver: Prajadhipok bought himself time to renegotiate the terms of a new constitution.101 In other words, the King made his signature conditioned upon the acceptance by the People’s Party of the set-up of a new Constitution-Drafting Committee, the membership of which he would control.102 The demand was acceded to and the next day, at the opening of Parliament, Pridi announced that his Constitution was in fact an imperfect, interim document, which had been ‘drafted under emergency conditions’.103 Unsurprisingly and in accordance with the King’s wishes, the Parliament immediately appointed the most prominent jurists of the King’s circle to form a new Constitution-Drafting Committee.104 The presidency was handed over to the Prime Minister, Phraya Manopakorn Nititada, whose wife had been lady-in-waiting to the Queen, while Pridi was named Secretary-General. On the seven-member Committee, Pridi was an exception in numerous respects: he was the sole representative of the People’s Party, the only one to have studied in republican France, and the youngest member. Other members of the Committee were much more senior, had received their legal education from Britain, and were former royal advisers under the absolute monarchy. Two new members, both close to the King, later 98 ibid art 2. 99 According to Pridi, as quoted in Noranit Settabutr, รัฐธรรมนูญกับการเมืองไทย [The Constitution and Thai Politics] (Thammasat University Press, 2007) 96. 100 Declaration of the President of the Constitution-Drafting Committee, รายงานการประชุมสภาผู้แทนราษฎรค รั้งที 34/2475 [Report on the Sitting of the House of Representatives 34/2475], 16 November 1932. 101 Bandit  Chanrochanakit,  ชี ว ประวั ต ิ ธ รรมนู ญ การปกครองและรั ฐ ธรรมนู ญ แห่ ง ราชอาณาจั ก รไทย  พศ  2475–2520  [A Biography of the Interim Constitution and the Constitutions of the Kingdom of Thailand 1932–1977] (Research Development Fund, 2007) 1; Nattapol Chaiching, ขอฝันใฝ่ในฝันอันเหลือ่ เชือ่ [They Dreamed the Impossible Dream: The Counter-revolutionary Movement in Siam] (Samesky Books, 2013) 14. 102 Bandit (n 101) 5–6. 103 On 28 June 1932, Pridi declared to the House of Representatives: ‘this constitution is temporary because it was drafted as a matter of emergency. It might have flaws. It is therefore appropriate to appoint people with knowledge and expertise to verify and revise the constitution’. Noranit Settabutr (ed), เอกสารการพิจารณาร่างรัฐธรรมนูญ 10 ธันวาคม 2475 (โดยสภาผู้แทนราษฎรชุดแรก) [Documents Related to the Examination of the Draft 10 December 1932 Constitution (by the First Assembly of People’s Representatives)] (Thammasat University Press, 1999) 4. 104 Besides Phraya Manopakorn Nititada and Luang Pridi Banomyong, the following individuals were appointed to the Constitution-Drafting Committee: Phraya Thepwithun (พระยาเทพวิฑุร), Phraya Manawarachasewi (พระยามานวราชเสวี) Phraya Nitisatpaisan (พระยานิติศาสตร์ ไพศาลย์), Phraya Pridanribet (พระยาปรีดานฤเบศร์) and Luang Sinadyotharak (หลวงสินาดโยธารักษ์). See Bandit (n 101) 1; Noranit (n 103) 4.

The 1932 Constitutions  51 joined the Committee, including Phraya Sriwisanwacha, the author of the King’s 1932 absolutist constitutional draft.105 Within a few months, a new text was drafted and presented to Parliament. King Prajadhipok followed the process closely, offering his ‘advice’ informed by the thorough ‘study of foreign constitutions’ and his possession of a ‘copy of the Chinese Constitution’.106 He did not hesitate to summon both Pridi and Phraya Manopakorn to offer his ‘opinions and proposals about the constitution’; at their invitation, he even authored the preamble.107 Finally, the drafting process was dominated by the King both directly and through his advisers. As the President of the Committee and Prime Minister Phraya Manopakorn stated in the opening statement of the parliamentary session on the draft Constitution on 25 November 1932: Throughout the process of constitutional drafting, the Committee was in permanent contact with the King, so much [so] that it can be said that he actually participated in the drafting of the project draft we proposed for him to sign, and that he has approved of all its articles. When I say he has approved, it is not only that he has approved the content of what we have submitted to him, but also that it is to His great satisfaction [pen thi phophraracharithai mak].108 (Emphasis added)

The Assembly, fully composed of members of the People’s Party, examined the draft in its plenary session and did so article by article within four days.109 On 29 November, parliamentarians unanimously adopted the text and its p ­ reamble, without having altered even a word of the proposed draft. Concluding the session, Phraya Manopakorn re-affirmed the King’s influence and approval of the entire project: During the process of drafting and examination of the constitution, I had the occasion of being in contact with the King and to benefit from his observations and teachings on various aspects of the Constitution. Consequently, the completion of

105 Besides Phraya Sriwisanwacha (พระยาศรีวิศาลวาจา) Phraya Rachawangsan (พระยาราชวัวสัน) also later joined the Committee. See Nattapol (n 101) 12; Noranit (n 103) 4. 106 The King reportedly declared: ‘You can ask for my advice. I have been studying foreign constitutions a lot lately. I even have a copy of the Chinese Constitution.’ Chao Phraya Mahitorn, quoted in Vishnu Varunyou, ‘Les Sources nationales et étrangères du constitutionnalisme thaïlandais depuis 1932 : Recherche sur l’instabilité constitutionnelle en Thaïlande’ [‘The National and Foreign Sources of Thai Constitutionalism since 1932 : Research on Constitutional Instability in Thailand’] (PhD thesis, Université Paris-II, 1987) 124. 107 According to Pridi’s testimony in Pridi Banomyong, รวมข้อเขียนของปรีดี พนมยงค์: ปรีดี พนมยงค์กับสังคมไทย [Collected Essays of Pridi Banomyong: Pridi and Thai Society] (Thammasat University Press, 2000) 433. Also quoted in Suphot (n 81) 23. Translated by Pasuk and Baker (n 10) 249. 108 Opening statement, Session 35/2475, 25 November 1932, House of Representatives, reproduced in Noranit (n 103) 17. See also Bandit (n 101) 2. 109 The House considered the draft from 25 to 29 November. In its intervention before the House on 25 November 1932, the Constitution-Drafting Committee had asked parliamentarians to respect strict time constraints: astrologists had set 10 December as the most auspicious date to promulgate the text. Noranit (n 103) 16.

52  Siam’s First Constitutions [the constitutional process] went smoothly, and by great royal grace [phramahakarunathikun]. We will never forget this.110

To mark the adoption of the Constitution, the parliamentarians stood up and shouted: ‘Long live the King, hurrah.’111 The second Constitution of the kingdom was promulgated a few days later on 10 December 1932. Its preamble turned the Constitution into a ‘grant by royal grace and royal will’ so as to ‘put in place a mode of government in accordance with the principles of the contemporary civilised nations’.112 Its main focus was continuity of the State by placing emphasis on the work of civil servants, stating that ‘civil servants [kharachakan, literally ‘royal servants’] having qualifications in the field of public administration’ shall succeed in taking ‘the country [in]to the league of civilised nations of the world in the best way’.113 The Constitution of December 1932 clearly drew inspiration from the 1889 Meiji Constitution. Both preambles invoked the same rationale: the need to modernise the country as part of a top-down process initiated by the benevolent King/Emperor.114 With the exception of the last title, the structure of the Siamese Constitution fully reproduced that of the Meiji Constitution.115 It created a parliamentary regime with a prime minister responsible to parliament and instituted the political irresponsibility of the King through the mechanism of ministerial counter-signature.116 Nonetheless, unlike its predecessor, it did not provide for the nullification of an Act in the event that it was not countersigned.117 In fact, the royal sanction over legislative acts no longer appeared in the short title on royalty at the top of the Constitution, but in the last article of the title on the government. This can be read as an act of deference towards the King, a mechanism first put into place in the Meiji Constitution with regard to the Emperor.

110 Session 42/2475, 29 November 1932, House of Representatives, reproduced in Noranit (n 103) 191. 111 ibid. 112 Preamble to the 1932 Constitution. 113 ibid. 114 The Preamble to the Meiji Constitution reads as follows: ‘In consideration of the progressive tendency of the course of human affairs and in parallel with the advance of civilization, We deem it expedient, in order to give clearness and distinctness to the instructions bequeathed by the Imperial Founder of Our House and by Our other Imperial Ancestors, to establish fundamental laws formulated into express provisions of law.’ 115 The Meiji Constitution has 76 articles, which are arranged as follows: ‘the Emperor’ (title 1), ‘rights and duties of subjects’ (title 2), ‘the Imperial Diet’ (title 3), ‘ministers and the Privy Council’ (title 4), ‘judicial institutions’ (title 5), ‘finances’ (title 6) and ‘additional rules’ (concerning the revision of the Constitution) (title 7). The 1932 Constitution has 68 articles, which are arranged as follows: ‘the monarchy’ (title 1), ‘rights and duties of the Siamese’ (title 2), ‘the House of Representatives’ (title 3), ‘the government’ (title 4), ‘tribunals’ (title 5), ‘constitutional revision’ (title 6) and ‘the promulgation of the Constitution’ (title 7). 116 Article 55 of the Meiji Constitution; art 57 of Siam’s 1932 Constitution. 117 Article 47 of Siam’s 1932 Constitution.

The 1932 Constitutions  53 The laws, acts and judgments were all to be rendered in the name of the King. In contrast to the previous Siamese Constitution, which claimed that sovereignty belonged to the citizen (rassadorn), the new version acknowledged that it ‘emanated’ from the people (prachachon) and was ‘exercised by the King in accordance with the provisions of the Constitution’, a wording also found in the Meiji Constitution.118 The Siamese text stated that ‘the King exerts legislative power with the advice and the consent of the Assembly’.119 Such reference to the ‘advice’ of the Assembly, a residue of Pridi’s Interim Constitution implying the King’s subordination to the legislature, is missing from the corresponding Japanese article, according to which the Emperor exercises legislative power solely ‘with the consent’ of the Diet, in a formulation suggesting the Emperor’s ability to exercise autonomous power.120 Yet to interpret this difference as a conscious attempt at curtailing the King’s power would be far-fetched. Indeed, the transcriptions of parliamentary debates reveal that this article was drafted in the belief that it was actually reproducing the Japanese wording.121 In both texts, the King was made ‘sacred and inviolable’122 – literally, ‘[the King] is in a sacred position of worship and cannot be violated’. In other terms, the King could no longer be judged by the Assembly, having gained personal sovereign immunity, on the model of the Meiji Emperor.123 However, unlike Meiji Japan, Siam chose unicameralism. But Siam’s unique Chamber was composed of two ‘categories’ of parliamentarians, both elected and appointed – de facto, bicameralism in disguise. ‘Type 2’ parliamentarians were ‘appointed by the King’,124 an ambiguous wording, especially when considered against the Meiji Constitution, which stated that members of the second house were appointed at the discretion of the Emperor.125 In addition, the King’s suspensive veto was extended from seven to 45 days.126 According to the President of the Constitution-Drafting Committee, the rationale for this extension lay in unicameralism: ‘as we only have one chamber, we need [a royal veto]’.127

118 Article 4 of the 1889 Meiji Constitution; art 2 of Siam’s 1932 Constitution. 119 Article 6 of Siam’s 1932 Constitution. 120 Article 5 of the 1889 Meiji Constitution. To Pridi, such innovation demonstrated how ‘advanced’ the Siamese were in comparison to Japan and other nations. Session 35/2475, 25 November 1932, House of Representatives, reproduced in Noranit (n 103) 41. 121 Session 35/2475, 25 November 1932, House of Representatives, reproduced in Noranit (n 103) 41. 122 Article 3 of the 1889 Meiji Constitution; art 3 of Siam’s 1932 Constitution. 123 See Session 35/2475, 25 November 1932, House of Representatives, reproduced in Noranit (n 103) 31. 124 Article 65(2) of Siam’s 1932 Constitution. 125 Article 34 of the 1889 Meiji Constitution. 126 The King can send back a bill voted upon by the Assembly within a month. If the Assembly confirms the bill, the King can delay the bill by an additional 15 days. See art 39 of Siam’s 1932 Constitution. 127 President of the Committee, Session 37/2475, 26 November 1932, House of Representatives, reproduced in Noranit (n 103) 116.

54  Siam’s First Constitutions The members of the Assembly raised concerns about the ability given to the King to effectively delay any legislation by 45 days, but the concerns were not heard by the Constitution-Drafting Committee members.128 Crucially, the King also obtained the power to declare martial law129 and also special legislative powers in the event of an emergency. Article 52 provided: In the case of an emergency, when a meeting of the House of Representatives cannot be held on time, the King can issue decrees having force of an Act. Such decrees shall be presented to the House at its next meeting for approval. If the House does approve such decree it becomes an Act; if it does not, this decree is void; without prejudice to the acts taken during the time of its application. The approval and disapproval motions shall take the form of an Act.130

This provision was a word for word translation of Article 8 of the Meiji Constitution,131 which gave the Emperor the means to pass emergency legislation outside of parliamentary sessions, a very powerful power indeed as the Imperial Diet only sat in short sessions of a few months per year. In fact, there was only one real difference between the Siamese Constitution and its Meiji model: the former included ‘transitional dispositions’,132 a remnant of Pridi’s Constitution, which was typical of Chinese constitutional texts. The President of the Constitution-Drafting Committee explained: We have just adopted a constitution; our familiarity regarding the constitutional practice remains very limited … when we read the recently adopted constitutions, [we realised] that they included these [transitory] provisions.133

Responding to the concerns of the Assembly on the expansion of royal powers, the Constitution-Drafting Committee invoked (although vaguely) the need to conform to the practices of ‘civilised nations’. Besides, members of the Constitution-Drafting Committee argued that the new draft was not fundamentally different from the one drafted earlier by the People’s Party. They added that it had simply been adjusted following a thorough study of foreign models: At first glance, the Constitution could give the impression that it is considerably different from the interim constitution. Yet I would like to affirm that there is no

128 Session 37/2475, 26 November 1932, House of Representatives, reproduced in Noranit (n 103) 116. 129 Article 53 of Siam’s 1932 Constitution. 130 ibid art 52. 131 Article 8 of the Meiji Constitution states: ‘The emperor, in consequence of an urgent necessity to maintain public safety or to avert public calamities, issues, when the Imperial Diet is not sitting, imperial ordinances in the place of law. Such imperial ordinances are to be laid before the Imperial Diet at its next session, and when the Diet does not approve the said ordinances, the government shall declare them invalid for the future.’ 132 Article 65 of Siam’s 1932 Constitution. 133 Session 34/2475, 25 November 1932, House of Representatives, reproduced in Noranit (n 103) 23.

The 1932 Constitutions  55 difference in fundamental principles. Just like the transitional constitution, the new constitution adopts the system of constitutional monarchy, but in a new format, with a few changes. To make the changes, the committee studied with great care the constitutions of other countries and adapted some of their provisions to the needs of our country.134

Indeed, most of the changes requested by Prajadhipok were, at first glance, merely symbolic. He had gained the power to appoint his regent,135 but royal succession had to be approved by Parliament.136 He had managed to restore the royal vocabulary: when Siam’s interim Constitution referred to the King as kasat, the new Constitution called him phramahakasat, literally ‘the great sacred king’, in accordance with a request he had made to Pridi during the Constitution-drafting process.137 He also obtained other adjustments of vocabulary, such as the change from ‘People’s Committee’ to ‘Council of Ministers’. The Constitution declared him to be the upholder of Buddhism and the Commander-in-Chief of the military.138 His traditional powers to pardon prisoners,139 declare war and sign international treaties were restored.140 Meanwhile, he gained the right to open, close, and dissolve Parliament.141 Although the King did not have to swear an oath of allegiance to the Constitution, constitutional supremacy was enshrined, as the Constitution affirmed that ‘any law contrary to the Constitution is void’.142 Parliament was endowed with the exclusive competence of constitutional interpretation,143 another remnant of Pridi’s Interim Constitution. Finally, specific procedures of constitutional revision completed the framework, mandating a threequarters majority in the House, which made the Constitution particularly rigid.144 This rigidity was premised on the idea that the Constitution was to become a revered, permanent text, like the US Constitution145 – it remains

134 Session 34/2475, 25 November 1932, House of Representatives, reproduced in Noranit (n 103) 17. See also Prachert Aksornluksa La Constitution Siamoise de 1932 [The 1932 Constitution of Siam] (University of Paris, 1933) 200. 135 Article 10 of Siam’s 1932 Constitution. 136 President of the Committee, Session 36/2475, 25 November 1932, House of Representatives, reproduced in Noranit (n 103) 47. 137 Pridi (n 107) 441–42. For an English translation, see Pridi (n 79) 256. 138 Articles 4 and 5 of Siam’s 1932 Constitution. 139 ibid art 55. 140 ibid art 54. 141 ibid art 35. 142 ibid art 61. 143 ibid art 62. 144 ibid art 63. The Constitution can be revised according to the following procedure: (1) the proposal must be made by at least a quarter of the members of the House or the Cabinet; (2) there must be one month’s delay between the first and the second reading; and (3) the vote must receive support of three-quarters of those voting. 145 Session 34/2475, 16 November 1932, House of Representatives, reproduced in Noranit (n 103) 22.

56  Siam’s First Constitutions to date the only ‘permanent’ Constitution not to have been abolished by a ­military coup, as well as the most durable Constitution in Thai history, lasting almost 15 years.  In the precolonial period, the main body of law, codified in the early nineteenth century under the name of the Three Seals Code, was much influenced by Hindu-Buddhist conceptions of law and kingship. Its various laws regulating royal power were incomplete: the Palace Law provided for royal ­absolutism, but was only applicable within the Palace; while the Phrathammasat made extremely detailed prescriptions concerning the King’s daily schedule but only vague mentions of the King’s powers and duty. From the mid-nineteenth century onwards, in their quest to consolidate royal power and appear ‘civilised’ in the eyes of Westerners, successive Siamese Kings started to ponder about adopting a Western Constitution. However, the drafts of King Chulalongkorn, King Vajiravudh, and King Prajadhipok did not allow for the establishment of parliaments or representative institutions. The Chulalongkorn project aimed at achieving absolutism by drawing on a Bonapartist inspiration. The Vajiravudh project, inspired by British parliamentarism, was a mere game-experiment. The Prajadhipok drafts were also articulated around the project of securing royal sovereignty. These endeavours were hijacked by the 1932 Revolution, which imposed on King Prajadhipok a revolutionary Soviet/Chinese-like Constitution that drastically curtailed his powers. The King reacted by discarding Siam’s first Constitution as ‘interim’ and prompting the drafting of a second Constitution re-establishing, in an ambiguous wording derived from the European model of ‘limited monarchy’ (via a word for word translation of the Prussian-influenced Meiji Constitution of Japan), a disguised form of royal rule. All in all, no matter how genuinely interested in constitutions successive Siamese Kings were, they all clearly rejected the idea of a functioning Parliament.

3 Legal Positivism and Buddhist Kingship Establishing the King as the Source of the Constitution

I

n the mid-nineteenth century, doctrines of law and kingship still relied mostly on Hindu-Buddhist concepts in religious texts, treatises and tales as well as in the Phrathammasat and the Palace Law of the Three Seals Code, all dating back from the Chakri Reformation of the early nineteenth century. The prestige of the nineteenth-century European model of so-called ‘limited monarchy’, especially in its Bonapartist version, provided a reservoir of doctrines to draw from in order to ‘modernise’ the monarchy in accordance with the newly imported tenets of legal positivism, while consolidating royal authority. In particular, the doctrine of ‘granted constitutionalism’ established the King as the sovereign source of the Constitution, a modern construct that could easily be hybridised with traditional theories of Buddhist kingship. I.  HINDU-BUDDHIST THEORIES: THE DEVARAJA AND DHARMARAJA KINGS

In the mid-nineteenth century, doctrines of royal power were a hybridisation of several Hindu and Buddhist doctrines of kingship mixed together in the Siamese Phrathammasat and the Palace Law of the Three Seals Code. The Phrathammasat established the King as a bodhisattva, a Buddha-to-be, as well as a mahasammata or elected King, and finally as a chakravatin, a universal sovereign ruler. In the Palace Law, he was called a ‘divine-human’ crowned King, in reference to the devaraja cult of Khmer origin establishing the King as a human avatar of Vishnu or Shiva.1 In both texts, the King, associated to the Sun as well as to Indra following the Hindu tradition,2 was also referred to as

1 Stanley Jeyaraja Tambiah, World Conqueror and World Renouncer: A Study of Buddhism and Polity in Thailand against a Historical Background (Cambridge University Press, 1976) 89. 2 The Hindu Code of Manu compared the King to the sun, a king formed of ‘particles’ of the sun: ‘3. For, when these creatures, being without a king, through fear dispersed in all directions, the

58  Legal Positivism and Buddhist Kingship a dharmaraja or a Buddhist righteous ruler, who governs according to the 10 Virtues of a Righteous King.3 Dharmaraja means the ‘King (raja) governing in accordance with the dharma’: one of the first missions of the King towards his subjects is to reveal dharma to his people and to uphold it.4 The dharmaraja presides over the two wheels or domains (chak) of dharma, the temporal (raja-anachak) and the religious (sasana-anachak): he is a ‘wheel-turning monarch’.5 Unlike the Kingdevaraja, the King-dharmaraja does not have any divine right, but he has both temporal and spiritual power. In the temporal domain, he acts as chakravatin, a universal ruler who yields unlimited sovereignty, and in the spiritual domain, he acts as bodhisattva, a Buddha-to-be. The doctrine of dharmaraja thus aims to transcend the dichotomy between the cakravatin and bodhisattva: the King-dharmaraja must be, in Tambiah’s terminology, both a Buddhist ‘World Renouncer’ and a warrior ‘World Conqueror’,6 both an upholder of the dharma and a powerful ruler. These interlocked and somewhat contradictory theories of kingship were mixed together in the Three Seals Code, and notably in the Phrathammasat and the Palace Law. In fact, these contradictions reflected to some extent the tensions that existed between the Phrathammasat and the Palace Law. In the Palace Law, the King is called the ‘great crowned divine-human, of pure solar lineage, a future Buddha, a great monarch upholding the 10 Virtues of a Righteous King, ruling the realm according to ancient royal tradition, the great holy king of kings, the royal foot that maintains the territories and frontiers, the great protector of the populace, the great monarch’.7 The ‘great crowned divine-human’ refers to the King-devaraja, a cult registered in Angkor, whereby the crowning ceremony would endow the crowned King with celestial attributes and make

Lord created a king for the protection of this whole (creation), 4. Taking (for that purpose) eternal particles of Indra, of the Wind, of Yama, of the Sun, of Fire, of Varuna, of the Moon, and of the Lord of wealth (Kubera). 5. Because a king has been formed of particles of those lords of the gods, he therefore surpasses all created beings in lustre.’ Manu, The Laws of Manu (Clarendon Press, 1886). 3 Paphatsaun Thianpanya, ‘จักรวาลวิทยาสยาม : การศึกษาที มาของอาํ นาจทางการเมือง และกฎหมายในกฎหมายตราสามดวง’ [‘Siamese Cosmology: A Study of the Sources of Political and Legal Authorities in the Three Seals Law’] (Thammasat University, 2008). 4 Tambiah (n 1) 60; See also Robert Lingat, Royautés bouddhiques: Asoka et la fonction royale à Ceylan [Buddhist Kingdoms: Ashoka and Kingship in Ceylon] (Editions de l’Ecole des hautes études en sciences sociales, 1989). 5 Tambiah disputed these common translations and proposed the following alternative translations: ‘the wheel of dominion’ and ‘the wheel of morality’; Tambiah (n 1) 42. On the theory of the two wheels, see Balkrishna Gokhale, ‘Early Buddhist Kingship’ (1966) 26 Journal of Asian Studies 15, 22; Frank Reynolds, ‘The Two Wheels of Dhamma: A Study of Early Buddhism’ in Gananath Obeyesekere, Frank Reynolds and Bardwell Smith, The Two Wheels of Dhamma: Essays on the Theravada Tradition in India and Ceylon (American Academy of Religion, 1972) 6–30. 6 Tambiah (n 1) 43. See also Patrick Jory, Thailand’s Theory of Monarchy: The Vessantara Jataka and the Idea of the Perfect Man (State University of New York Press, 2016) 50. 7 Chris Baker and Pasuk Phongpaichit, The Palace Law of Ayutthaya and the Thammasat (Cornell University Press, 2016) 31.

Hindu-Buddhist Theories: The Devaraja and Dharmaraja Kings  59 him an avatar of Vishnu or Shiva;8 the ‘pure solar lineage’ refers to Indra, the equivalent of Zeus/Jupiter in Greek-Roman mythology and a sun-god (surya);9 the ‘great monarch upholding the 10 Virtues of a Righteous King’ refers to the dharmaraja; and, finally, the ‘great king of kings’ refers to the chakravatin. By contrast, the Hindu doctrines of kingship, which treated the King as a GodKing and gave him absolute power, are notably absent from the Phrathammasat. There only remains the reference to the ‘solar lineage’ of kingship. Rather, the Phrathammasat places emphasis on the legitimacy of the King as a mahasammata or ‘elected king’. It opens on the following tale of origin: ‘A Lord Bodhisatta was born as a great man at the start of this era. After a time, disputes arose, and nobody could be found to control them. Everyone came together in a meeting and appointed this great man to be the ruler with the name King Mahāsammata’.10 The mahasammata is elected by popular acclamation for his qualities – he is the ‘most capable’ of men – to end chaos through the implementation of dharma. The mahasammata theory thus posits a contractual basis of kingship, but without discarding the religious-karmic origin of kingship either – after all, in the mahasammata tale, the ‘most capable’ of men logically happened to be a bodhisattva, a Buddha-to-be. As Tambiah puts it: [The] elective theory of kingship is counterbalanced by asserting at the same time that Mahasammata was a virtuous man, an embodiment of dharma and destined to become a Buddha; and that it was as his minister that the sage Manu discovered the perfect law. Thus we see how a contractual theory of government is yoked to the charismatic properties of kingship, thereby constantly compelling the pragmatics of politics to measure itself against an enduring standard.11

The King is understood to have been chosen because of his ‘barami’, a term often translated as ‘charisma’, which refers to the stock of merits accumulated thanks to the perfect practice of Buddhist virtues.12 The King is the one who ‘charms others by the Norm (dhamma) he observes and whose virtues clearly mark him out as the chief among men’.13 As the accumulation of merits (bun) is rewarded

8 In the Khmer Empire, the King was not a god, but the human king of gods, a ‘human vehicle of the gods, for Vishnu, or Shiva’; Fred Riggs, Thailand: The Modernization of the Bureaucratic Polity (East-West Center, 1966) 99. See Nidhi Eoseewong, ‘The Devarāja Cult and Khmer Kingship at Angkor’ in Kenneth R Hall and John K Whitmore (eds), Explorations in Early Southeast Asian History: The Origins of Southeast Asian Statecraft (Center for South and Southeast Asian Studies, University of Michigan, 1976). 9 Woraporn Poopongpan, ‘Thai Kingship during the Ayutthaya Period : A Note on its Divine Aspects Concerning Indra’ (2007) 7 Silpakorn University International Journal 143. 10 Baker and Pasuk (n 7) 106. 11 Tambiah (n 1) 483. See also Stanley Jeyaraja Tambiah, ‘King Mahasammata: The First King in the Buddhist Story of Creation and His Persisting Relevance’ (1989) 20(2) Journal of the Anthropological Society of Oxford 101. 12 See Patrick Jory, ‘The Vessantara Jataka, Barami, and the Bodhisatta-Kings: The Origin and Spread of a Thai Concept of Power’ (2002) 16 Crossroads: An Interdisciplinary Journal of Southeast Asian Studies 36. 13 Tambiah (n 11) 107.

60  Legal Positivism and Buddhist Kingship by a happy rebirth and the accumulation of sins (bap) by a painful rebirth, the King, at the top of the hierarchy, is then by definition legitimate, being the one who has accumulated the most merits during his past and present existence and who therefore possesses the highest barami in the kingdom. In order to maintain his barami, the King must have an exemplary practice of dharma at all times and must purge his ‘demerits’ through the realisation of good actions. Thus, royal legitimacy has its origin in the Buddhist conception of karma according to which becoming a king is a reward of the merits accumulated in an individual’s preceding lives and present life. In short, kingship is acquired and maintained through the principle of karmic retribution.14 But the law of karma is not without its ambiguities or paradoxes; it is a philosophy justifying people’s status as being the just result of past actions and causes. Thus, it also justifies power usurpations and coups as soon as they are successful. According to the a posteriori justification of the law of karmic retribution, kings are supposed to have attained the throne thanks to their merit, even if they have reached this position as a result of a coup/assassination of the incumbent King.15 The ancient theory forecasts the ‘fait accompli’ theory that would be used in the modern period to legalise coups. The King’s merit founded the legitimacy of his reign; royal merit was the guarantee of the kingdom’s prosperity. Thus, in the exercise of his power and in order to legitimise his position, the King must ensure that his merit is retained through the regular performance of merit-making actions. He always had to be the one person who, within the

14 According to the Three Worlds, in order to be a King-dharmaraja, the King must abide by the 10 Virtues of a Righteous King (tosapit-rajadharma): generosity, morals, sacrifice, honesty, gentleness, diligence, compassion, non-violence or patience and righteousness. In order to be a chakravatin, he must abide by 12 Imperial Virtues (chakravativat): to love and be compassionate to his subjects, to adhere and maintain dharma, to judge cases with justice, equity and rapidity, to listen to the advice of philosophers and act accordingly, to abstain from committing the five major sins (killing, stealing, committing adultery, lying and drinking alcohol), to feel compassion and not envy the wealth or the work of the people, to collect taxes but not to increase them, to give to the poor, to distribute wealth to civil servants, to judge cases meticulously, to honour and look after brahmins and philosophers, and to distribute rewards and honours to those who are deserving. In addition to these 22 virtues, there are four further commandments (rajasangkahawatthu) for the King to be considered a bodhisatva or Buddha-to-be: a sense of sacrifice, carefulness in speech, social usefulness in action, and consistency and appropriateness of action. The aim of a King-dharmaraja is to attain the status of chakravatin and bodhisattva by demonstrating the perfect practice of these 26 virtues. The Buddhist King should not only care about the consolidation of his temporal power as a chakravatin, but must also pursue his own spiritual salvation as a bodhisattva. See Frank Reynolds, Three Worlds According to King Ruang: A Thai Buddhist Cosmology (University of California Press, 1982) 125–72; for a summary, see Sawaeng Bunchalemphiwat, ประวัติศาสตร์กฎหมายไทย [Thai Legal History] (Winyuchon, 2000) 90–93. 15 Rama I, the founder of the Chakri dynasty, seized power in a coup against the incumbent King Taksin in 1782 and took the title of ‘Elected King’ (anekchonnikorn); Taksin was executed; he had easily surrendered, reportedly declaring that his store of merits had run out. See Nidhi Eoseewong, การเมืองไทยสมัยพระเจ้ากรุงธนบุรี [Thai Politics in the times of the King of Thonburi] (Silapawattanatham, 2004).

Hindu-Buddhist Theories: The Devaraja and Dharmaraja Kings  61 kingdom, had the most barami. He would always be in competition with potential rivals, generals or strong men, who could at any time prove their karmic superiority vis-a-vis him. To legitimate his role, the King had to prove that he was a dharmaraja. When he ceased to exercise power according to the dharma, his power was undermined and he was overthrown.16 The beliefs or religious-legal doctrines of kingship listed above, as written in the Phrathammasat, have their origins in the Pali Canon, most notably in the Jataka tales of the past lives of Buddha,17 as well as in various treatises and epics, most notably the Three Worlds18 and the Ramakien.19 These important works were rewritten in the early nineteenth century on the order of Rama I as part of his project of royal restoration relying on Buddhism to strengthen royal authority.20 Among the Jataka tales, Rama I had placed particular emphasis on the tale of the very last incarnation of the Buddha as Prince Vessantara.21 In the tale, the Prince gives away everything he possesses, including his wife and children, to attain enlightenment, and this is precisely how he succeeds in becoming the Buddha. In his version of the Three Worlds, Rama I had put the story of the King-dharmaraja (chakravatin-bodhisattva) centre stage.22 Likewise, in his version of the Ramakien, he had focused on how the practice of Buddhist virtues by the hero, Prince Rama (Phra Ram in Thai), who is of divine nature as an avatar of the God Vishnu (Phra Narai in Thai), accounts for his victory

16 Lorraine Gesick, ‘The Rise and Fall of King Taksin: A Drama of Buddhist Kingship’ in Centers, Symbols, and Hierarchies: Essays on the Classical States of Southeast Asia (Yale University Southeast Asia Studies, 1983) 87. 17 The Jataka tales are stories of the past lives of Buddha in his earlier animal or human incarnations. See Pasuk Pongpaichit and Chris Baker, From the Fifty Jātaka: Selections from the Thai Paññāsa Jātaka (Silkworm Books, 2019). 18 The Three Worlds or Traiphum is a fourteenth-century treatise about paradise and hell that contains the first systematic description of the world according to the Buddhist cosmogony. See Reynolds (n 14). 19 The Ramakien is the Siamese version of the Hindu epic Ramayana, often compared to the Iliad and the Odyssey. See JM Cadet, The Ramakien: The Thai Epic (Kodansha International, 1971). 20 Klaus Wenk, The Restoration of Thailand under Rama I, 1782–1809 (University of Arizona Press, 1968); David K Wyatt, ‘The Subtle Revolution of King Rama I of Siam’ in David K Wyatt and Alexander Woodside (eds), Moral Order and the Question of Change: Essays on Southeast Asian Thought (Yale University Southeast Asia Studies, 1982); Saichon Sattayanurak, พุทธศาสนากับแนวคิดทางการเมืองใน รัชสมัยพระบาทสมเด็จพระพุทธยอดฟ้าจุฬาโลก (พ.ศ. 2325–2352) [Buddhism and Political Ideologies in the Times of Phraphuttayotfachulalok (1782–1809)] (Matichon, 2003). 21 Rama I’s first sangha law (กฎพระสงฆ์ 1), promulgated in 1782, aimed to regulate the recitation of the Vessantara tale. See Jory (n 6) 37. 22 In the fourteenth-century version of the Three Worlds, the Traiphumphraruang [ไตรภูมิพระร่วง], the character of the Universal Monarch, the chakravatin, appears halfway through the book, between hell and paradise. In the Rama I version of the Three Worlds, the Traiphumlokawinnichai [ไตรภูมิโลกวินิจฉัย], the book opens on the very figure of the Dharmaraja. In both versions, he is described as resting in his Palace when the Wheel of the Law, the Dharmachak, rises out of the Ocean to reward his practice of the 10 Buddhist Virtues. Then, turning the Wheel of the Law, the Universal Monarch conquers the four continents of the Universe, before returning to the Palace. His triumphant return is welcomed by the apparition of celestial attributes: woman, elephant, horse etc. See Nittaya Kewkalna, ‘วรรณกรรมโลกศาสตร์ของไทยกับบริบททางสังคมแห่งยุคสมัย’ [‘Three Worlds Literature in Social and Historical Contexts’] (2004) 4 Wannawithat 159.

62  Legal Positivism and Buddhist Kingship against the demons and the successful rescue of his abducted wife Sita.23 These tales as rewritten in the early nineteenth century included powerful allegories of the Siamese concept of kingship, mixing Hindu and Buddhist beliefs together. Thus, Hindu concepts of divine kingship were maintained in a hybrid form as a set of beliefs that underpinned royal power, even though the Buddhist tradition makes the origin of kingship and sovereignty a contractual matter.24 Apart from the Phrathammasat and the Palace Law, the various HinduBuddhist doctrines of kingship also pervaded the royal decrees in the noncodified part of the Three Seals Code.25 For instance, in a decree issued in 1782 prohibiting parodies of Jataka tales, the preamble stated that the law was motivated by the aim of the King to attain enlightenment.26 The bodhisattva-devaraja conceptions were also found in the many laws relating to the rachasap or royal vocabulary, which aimed to imbue the King with an aura of Hindu-Buddhist sanctity, built mostly on religious words from the Pali and Sanskrit languages. ‘Phraphuttachao’ referred to Buddha as well as to the King. It conveyed the idea that the King was a near-equivalent to Buddha himself rather than merely a reincarnation of a remote Hindu God.27 Yet in spite of the mixing of the doctrines giving divine status to the King and enormous power in the religious and temporal spheres, the Siamese dharmaraja did not, in theory, have legislative power and his adjudicative and executive powers were theoretically limited by the necessity to uphold and respect the Thammasat at all times and to abide by the 10 Virtues of the Righteous King (totsapit-rajadharma).28

23 See Frank Reynolds, ‘Rāmāyaṇa, Rāma Jātaka, and Ramakien: A Comparative Study of Hindu and Buddhist Traditions’ in Paula Richman (ed), Many Rāmāyaṇas (University of California Press, 1991). 24 On the issue of ‘contractual Buddhist kingship’, see Andrew Huxley, ‘The Buddha and the Social Contract’ (1996) 24 Journal of Indian Philosophy 407; Steven Collins, ‘The Lion’s Roar on the Wheel-Turning King: A Response to Andrew Huxley’s “The Buddha and the Social Contract”’ (1996) 24 Journal of Indian Philosophy 421. 25 See, for instance, King Borommakot’s decree (r 1733–58), ‘The King is a supposed angel who can turn a high-status man into a low-status man, and a low-status man into a high-status man, if so is royal will’, in Sawaeng (n 14) 80. 26 Jory (n 6) 86. 27 According to HG Quaritch Wales, ‘a Hindu king was regarded as the receptacle of the god, of the divine essence. He was even identified pantheistically with the god; but he was not the god himself. In Buddhism the king is a Bodhisattva or a Cakravartin, a greater being in the eyes of the Buddhists than any Hindu god When added to this it be remembered that to this day the correct phrase for expressing “I” when addressing the Siamese king means “the Lord Buddha’s slave”, can one wonder that ambitious monarchs sometimes forgot the humility inculcated by Buddhism’; HG Quaritch Wales, Siamese State Ceremonies: Their History and Function (Bernard Quaritch Ltd, 1931) 31. Tambiah agrees as follows: ‘[Buddhist kingship] has effectively led to more ambitious heights than what was possible in classical Hinduism’; Tambiah (n 1) 97. 28 According to the Preamble to the Phrathammasat: ‘The King endeavors to respect the book of Thammasat at all times, and act according to the Four Principles of Justice, namely: to examine the right or wrong of any person’s actions that benefit or do not benefit the King; to support those who act with moral truth; to acquire royal wealth justly; and to maintain the happiness and contentment of the territory through justice. He upholds royal traditions without fail. In the evening, the

The European Influence: Importing Doctrines of Royal Absolutism  63 From the mid-nineteenth century onwards, the Jataka tale of Vessantara, the Three Worlds, and the Ramakien which had exerted a crucial influence on Siamese traditional conceptions of kingship, started to be progressively downgraded to the status of non-historical, non-scientific ‘tales’, while the Hindu gods were sidelined to make way for the worship owed to Buddha. This process aimed to make traditional kingship more resilient to change within the context of growing secularism.29 The Siamese Kings were nonetheless considered sommuthithep or ‘supposed gods’, avatars of Vishnu or Shiva, an idea that was re-enacted in State ceremonies.30 Yet the entire status of Buddhist literature as knowledge was rethought anew. The Jatakas and stories of the previous lives of Buddha, which until then had been considered historical facts, as well as the Three Worlds, which until then had been considered a treatise on geography,31 were re-assessed and rebranded as ‘folk tales’: they became part of the Western category of ‘literature’.32 The theories of the bodhisattva and chakravatin as well as the mahasammata were likewise turned into old superstitions. The rationalisation and secularisation challenged the legitimacy principle of the monarchy, which no longer derived its authority from Buddha; likewise, the doctrine of the Great Elected King also lost its appeal. Instead, the monarchy would have to base its legitimacy on the dynastic principle, following European understandings of sovereignty, law and kingship. This in turn would enable Siamese kings to free themselves from the reference to the Phrathammasat when exercising power. II.  THE EUROPEAN INFLUENCE: IMPORTING DOCTRINES OF ROYAL ABSOLUTISM

From the reigns of Mongkut (1851–68) and Chulalongkorn (1868–1910) onwards, Western ideas concerning the territoriality and temporality of sovereignty

King listens to music and legal principles of royal tradition at the first watch; then at the middle watch he listens to judicial traditions; then at the last watch, he enters the royal bedroom and sleeps at the appropriate time … [In the morning, after] conversing with these four groups as befitting, he proceeds to the hall of judgment along with ministers, poets, royal priests, astrologers, those upholding moral truth, to concentrate on hearing cases being examined by magistrates as justly as with gem spectacles, and uses the Thammasat as his eyes to see the affairs of state appropriately.’ See Baker and Pasuk (n 7) 109. 29 As Fred Riggs stated: ‘The Hinduistic ideology of the divine kingship had been replaced by the Buddhistic ideal of the Great Man who rules so that the welfare of all may increase … drawing on Buddhism rather than Hinduism, Thai Kings have been able to withstand the forces of secularism.’ Fred Riggs, Thailand: The Modernization of the Bureaucratic Polity (East-West Center, 1966) 96, 109. 30 See Quaritch Wales (n 27) 67–174. 31 Thanet Aphornsuvan, ‘The West and Siam’s Quest for Modernity: Siamese Responses to Nineteenth Century American Missionaries’ (2009) 17 South East Asia Research 401, 416–19. For a detailed discussion on the relation between the Three Worlds, indigenous geography and maps, see Thongchai Winichakul, Siam Mapped: A History of the Geo-body of a Nation (University of Hawaii Press, 1994) 20–36. 32 Jory (n 6) 21.

64  Legal Positivism and Buddhist Kingship came to disrupt traditional beliefs surrounding the King-chakravatin. Western Buddhist scholarship as well as new conceptions of historical time also came to disrupt traditional beliefs surrounding the King-bodhisattva.33 The importation of Western concepts of sovereignty paved the way for the reception of royal absolutism doctrines. The King was no longer seen only as the protector of an immutable dharma, but also as a ruler able to change the course of history.34 He could thus become a legislator, and an absolute ruler, breaking with Buddhist conceptions of kingship. Chaophraya Thiphakorawong, soon to become King Chulalongkorn’s constitutional advisor and Foreign Minister, published a Book on Various Things in 1867,35 which advocated separating religion from law and politics, and embracing a different, modern worldview. The diffusion of Western legal science in Siam was slow and gradual, and efforts were made early on to merge it with traditional concepts. A handful of legal advisers, both Siamese and foreign, worked towards the legal Westernisation of the country. During the reign of Chulalongkorn, the key Siamese legal advisor was Prince Phichit Preechakorn, Chulalongkorn’s half-brother. A judge and Privy Councillor, and the first-ever President of the Supreme Court, he was the main architect of a first attempt at hybridising Western understandings of law and Hindu-Buddhist conceptions. In his 1885 essay entitled ‘Critique on Justice’, he explained that the King could and in fact should enact laws based on dharma, but not on the Phrathammasat version of it. Instead, he detailed four dharmas that should guide the King in relation to legislation: providing food; building up stocks and supplies for times of war or famine; ensuring equality and fair treatment; and guaranteeing peace and protection from danger.36 Prince Preechakorn aimed at limiting the domains in which the King could legislate, while arguing for a legislator-king whose duty was to legislate in order to ensure the wellbeing of the population.37 This understanding resonates with British doctrines of utilitarianism, which at the time were popular in the West. The four dharmas bear striking similarities to Jeremy Bentham’s view of happiness, which consists of subsistence, abundance, equality and security.38 33 Patrick Jory, ‘Thai and Western Buddhist Scholarship in the Age of Colonialism: King Chulalongkorn Redefines the Jatakas’ (2002) 61 Journal of Asian Studies 891. 34 See Attachak Sattayanurak, ‘The Intellectual Aspects of Strong Kingship in the Late Nineteenth Century’ (2000) 88 Journal of the Siam Society 72; Attachak Sattayanurak, ‘Intellectual Origins of Strong Kingship (Part 2)’ (2001) 89 Journal of the Siam Society 12. 35 See Sven Trakulhun, ‘Chaophraya Thiphakorawong: A Book on Various Things (Thailand, 1867)’ in Religious Dynamics under the Impact of Imperialism and Colonialism (Brill, 2017). 36 Phichit Preechakorn, ‘ธรรมสารวินิจฉัย’ [‘Critique on Justice’] in Royal Society (ed), ประชุมพระนิพนธ์ (Collected Literary Works) (National Cultural Office of Thailand, 1929); David M Engel, Law and Kingship in Thailand during the Reign of King Chulalongkorn (Center for South and Southeast Asian Studies, University of Michigan, 1975) 10; Kittisak Prokati, การปฏิรูประบบกฎหมายไทยภายใต้อิทธิพลยุโรป [Legal Reform under the European Influence] (Winyuchon, 2013) 58–60. 37 Kittayapong Rungsaeng, ‘The Origins of Thailand’s Ministry of Justice and its Early Development’ (thesis, University of Bristol, 1990) 89. 38 Kittisak (n 36) 58–60. See Jeremy Bentham, ‘Principles of the Civil Code’ in The Works of Jeremy Bentham, published under the superintendence of his executor, John Bowring (William Traits,

The European Influence: Importing Doctrines of Royal Absolutism  65 Phichit first defined law or ‘what the British call “Law” [in English]’ as the ‘customs of the people’, an equivalent to what in Siam was called ‘conventions’ or traditions (thamniem).39 He concluded his speech by defining law as what was written in a code and what was known and remembered by the population, breaking with traditional understandings of law.40 Yet royal authority was still said to derive from dharma and the Phrathammasat. In his essay, Phichit still placed the King centre stage as the source of both law and justice. He insisted on the need for the King’s law-making power to be respected by all.41 The measure of royal legislation was no longer based on its conformity with the Thammasat (a natural law conception), but with the customs of the people (a common law conception). The revolution Phichit was making lay in his putting the people rather than nature at the centre of legislation and at the source of dharma.42 The influence of legal positivism is evident: the law is the act of the sovereign, while its rule of recognition is that it is what is sanctioned. Prince Preechakorn skilfully rooted his analysis in traditional conceptions of justice. He referred to the ‘Message of Indra’ regarding the four wrong paths of judging. He also gave some orthodox accounts by stating the need to define power as law-making in order to ensure that the King’s power remained true to its double mission to reward and to punish,43 which is the traditional understanding of Buddhist kingship.44 Thus, in his ‘critique’, Phichit offered an attempt to reconcile Western concepts of law and kingship with traditional Siamese concepts in order to root the modern sovereign authority of the King in the concept of dharma. The Prince wanted to endow the King with legislative power while connecting royal power to traditional dharma doctrines.45 It is the same year that Prince Prisdang and others submitted their petition to the King asking him to emulate Meiji Japan, which had ‘followed the European way’ by engaging in a constitutional process.46 In his 1888 speech on royal reform, which can be read as both a response to Prince Preechakorn and to the petitioners

1843) 297–358. John Bowring, Queen Victoria’s emissary to Siam, probably took part in the diffusion of Bentham’s ideas on legislation in Siam, as he was King Mongkut’s personal friend. See DGE Hall, ‘Siam under Mongkut and Chulalongkorn, 1851–1910’ in DGE Hall (ed), A History of South-East Asia (Macmillan, 1981) 709. 39 Phichit (n 36) 130. 40 ibid 137. 41 ibid 52. 42 Jaran Kosanan, ปรัชญากฎหมายไทย [Thai Legal Philosophy] (Ramkamhaeng University, 2006) 384. 43 Phichit (n 36) 139–40. 44 Robert Lingat, Royautés bouddhiques : Aśoka et la fonction royale à Ceylan [Buddhist Kingdoms: Ashoka and Kingship in Ceylon] (Editions de l’Ecole des hautes études en sciences sociales, 1989). 45 Engel (n 36) 9. 46 Fine Arts Department, เจ้านายและข้าราชการกราบบังคมทูลความเห็นจัดการเปลี่ยนแปลงราชการแผ่นดิน ร.ศ.103 และพระ ราชดำ�รัสในพระบาทสมเด็จพระจุลจอมเกล้าเจ้าอยู่หัวทรงแถลงพระบรมราชาธิบายแก้ไขการปกครองแผ่นดิน [The Princes and Royal Servants Advise the King to Change the Kingdom’s Administration Rattanakosin Era 103 and Royal Discourse on the Change of Administration] (Fine Arts Department, 1967) 2.

66  Legal Positivism and Buddhist Kingship asking for a Constitution, King Chulalongkorn adopted strong absolutist views: ‘The power of the Siamese King is not specified by any law and is free from all restraint because it is unlimited. But in practice the King is full of conscience and justice in performing his duties … [The people] trust the King because they know the King is just and loves them. Therefore, I am of the opinion that the power of the King should be maintained as it has always existed.’47 He also seems to have appropriated the British ‘King can do no wrong’ doctrine: ‘[The King] is called the Lord of Life (chao chiwit) which means the King can kill anybody without any guilt.’48 A year later, King Chulalongkorn’s 1889 constitutional draft reformulated and constitutionalised these ideas in Articles 2 and 4, stating, respectively, that ‘The King has absolute power. There is no authority above him’ and ‘the King can do no wrong. No authority can prosecute him’.49 King Chulalongkorn’s draft was permeated by many other doctrines inspired by European absolutism. Article 6 posed the principle of the King’s immortality and continuity of the monarchy: ‘The King is immortal because the heir to the King by blood succeeds to the King and because according to this custom the kingdom cannot be without a King.’50 The Siamese monarchy also used the European doctrine of the two bodies of the King, trying to create a royal continuity as summarised in the sentence ‘the King is dead, long live the King’.51 The second most influential Siamese lawyer of the period is unquestionably Prince Raphi, a son of King Chulalongkorn who was sent to study law in England. Prince Raphi, who was later dubbed the ‘father of Thai law’, was also heavily influenced by legal positivism. After studying in England, he came back to Siam in 1897 and wrote the first Thai legal treatises. In them, he introduced the idea that law was the command of the sovereign backed by a sanction, in terms resembling those of John Austin’s imperative theory of law.52 The sovereign, of course, was King Chulalongkorn. He opened his first key legal handbook with the following words: Law is the command of a country’s power-holder [phu seung mi amnat nai banmuang]. Those who violate it must be punished. The ‘country’s power-holder’ referred to in this handbook must be understood as the highest authority figure in the administration (rachakan), His Majesty the King.53 47 ibid 106. Translation by Kittayapong (n 37) 36. 48 ibid 107–08. 49 พระราชกฤษฎีกาฉบับ ๑ ว่า ด้วยราชประเพณีกรุงสยาม ราวปี ๒๔๓๒ สมัยรัชกาลที ๕  [Law on Royal Custom in Siam, Year 1889, Fifth Reign] (hereinafter ‘1889 Constitutional Draft’), arts 2 and 4. 50 Article 6 of the 1889 Constitutional Draft. 51 Visuth Krairik/Luang Chakpanisrisilvisuth, คำ�อธิบายธรรมนูญปกครองแผ่นดินสยามเปรียบเทียบกับประเทศ ต่างๆ [Explanation of the Siamese Constitution in a Comparative Perspective] (Siam Bannakit, 1932) 93; Thongthong Chandransu, ‘พระราชอำ�นาจของ พระมหากษัตริย์ในทางกฎหมายรัฐธรรมนูญ’ [‘Royal Power according to Constitutional Law’] (Chulalongkorn, 1986) 153. 52 John Austin, The Province of Jurisprudence Determined (John Murray, 1832); John Austin, Lectures on Jurisprudence, or the Philosophy of Positive Law (John Murray, 1885). 53 Raphi Phatthanasak, อธิบายคำ�กดหมาย [Law Handbook] (Bangkok Law School, 1899) 1–2.

The European Influence: Importing Doctrines of Royal Absolutism  67 Prince Raphi was not a strict legal positivist. In his commentary on a 1910 Supreme Court decision, he wrote that in the event that there was no applicable law, the judges should refer to traditions (phrapheni) as well as foreign laws.54 Yet his teaching material seldom mentioned any other source of law than ‘the command of the sovereign’. He opened his Lecture on Law, published in 1925, as follows: Before understanding what law is, one must first understand who the ruler of the realm (phupokkrong wakanphaendin) is … There are several models, the model called by the farang [Westerners] ‘absolute monarchy’ [transliteration], where one person [rules], the one called the King, like in Siam, Russia and China; and another model, called ‘constitutional monarchy’, where the King and a council of nobles and commoners are associated and where the King cannot make any command alone like in England, in Portugal etc.; there is also what is called ‘republic’ where the assembly of the people have the power to command other people like in France. In all this, the law is the command of the ruler of the realm over the people. If the people do not abide, they are in principle punished. Yet some orders of rulers are not assorted of a sanction, even if the people do not abide, for instance [individual] orders conferring titles will not be called law. Likewise, commands of the ruler that apply to one person and do not have a general purpose are not called law because based on what I have explained, [law] is a command on the general population. Today the commands of the King towards the general population, even if not assorted of a sanction, are all to be called law, based on a provision in the Crimes against the King, which gives broad sanction to anyone who does not abide by the law.55

Prince Raphi’s teaching at the School of Law was based on common law handbooks. He was persuaded that the British uncodified common law system was the most suitable system for the Siamese people.56 He fiercely opposed the introduction of legal codes in Siam, leading to an open conflict with his uncle Prince Damrong Rajanuphap, who advocated the codification and adoption of the civil law system. In a telegram sent to the King, Prince Raphi stated that he preferred the common law tradition, which he saw as being more suitable for the royal elites, a code being too much of a ‘constraint’ on them.57 His influence was great, in particular on another influential jurist of the time, Phraya Nitisatpaisan, who, in his Principles on Law published in 1917,58 built on Prince Raphi’s work, adhering to positivism.59 However, unlike Prince Raphi, he cited John Austin

54 คำ�พิพากษาศาลฎีกาที ๔๐๙/๑๒๙ [Supreme Court Decision 409/129], 1910, quoted in Phraya Manawarachasewi, บันทึกคำ�สัมภาษณ์พระยามานวราชเสวี (ปลอด วิเชียร ณ สงขลา) [Interview with Manawarachasewi] (Winyuchon, 2014) 17. 55 Raphi Phatthanasak, เลคเชอร์กฎหมาย [Lecture on Law] (Sobhon Bhibanakorn Publishing House, 1925) 1. 56 Manawarachasewi (n 54) 16. 57 โทรเลขถึงพระบาทสมเด็จพระจุลจอมเกล้าเจ้าอยูห่ วั [Prince Raphi’s Telegram to King Chulalongkorn], 2 December 1904. 58 Nitisatpaisan, หลักวินิจฉัยกฎหมาย [Principles on Law] (Botbandit, 1917). 59 Kittisak (n 36) 75–76.

68  Legal Positivism and Buddhist Kingship directly as the author of the authoritative definition of law used in Siam.60 In the meantime, neither Prince Raphi nor Phraya Nitisatpaisan developed elaborate theories on kingship, nor did they try to root these theories in the traditional concepts of dharmaraja, bodhisattva, mahasammata or chakravatin. The traditional doctrines of law and kingship seemed to have faded away under the attacks of legal positivism. The most influential jurist after Prince Raphi was undoubtedly Pridi Banomyong, the first Siamese student to have been sent to France to study law.61 His early writings during the era of absolute monarchy worked, on the same model as those of Phichit Preechakorn, towards limiting the King’s power by reference to both traditional and Western conceptions of law and kingship. Pridi’s life mission was undoubtedly to Westernise the Thai legal system through the introduction of constitutionalism,62 which he saw as the main device against the supremacy of the King’s power. In 1927, when Pridi and his friends prepared the overthrow of the Siamese absolute monarchy from Paris, they talked about a ‘regime change’ (kanplienphleng kanpokkrong), which would allow them to move from a system in which ‘the king is above the law’ to one in which ‘the king is under the law’.63 Upon his return to Siam, as a jurist recruited to teach the newly created subject of administrative law, he managed to insert constitutional law teaching into the curriculum – at the time in Siam, the teaching of constitutional law was strictly prohibited.64 In 1931, he published the first modern commentaries on administrative law, for which he visibly compiled various sources of mostly French jurists of the late nineteenth and early twentieth centuries.65 In his Handbook of Administrative Law,66 he did not show a strong and exclusive commitment to the legal positivism of his predecessor Prince Raphi. In the first lecture, asking ‘what is law?’, he acknowledged traditions/customs as a source of law. In his words: The word of ‘Law’ can be defined in two ways. First, according to the definition in the strict sense, the word ‘Law’ means the Command of the Sovereign of the Land

60 See, for instance, Nittisat Paisan, คำ�สอนชั้นปริญญาตรีวิชาประวัติศาสตร์กฎหมายไทย [Undergraduate Lecture on Thai Legal History] (Thammasat University Press, 1959) 7–8. 61 Nakharin Mektrairat, การปฏิวัติสยาม พ.ศ. 2475 [The 1932 Revolution] (Samesky Books, 2010) 207. 62 Pridi Banomyong, Pridi by Pridi: Selected Writings on Life, Politics, and Economy (Silkworm Books, 2000) xiii. 63 ibid 125. 64 Tipawan Jiemteerasakul, ปฐมทรรศน์ทางการเมืองของปรีดี พนมยงค์ [The Genesis of Pridi Banomyong’s Political Thought] (Santhi Prachatham, 1988) 86. 65 Pridi Banomyong, คำ�อธิบายกฎหมายปกครอง [Commentaries on Administrative Law] (Nittisat, 1931). I follow Baker and Pasuk in translating Pridi’s early work published by Nittisat in 1931 as ‘commentaries’ although I translate the Thai word คำ�อธิบาย as ‘handbook’ elsewhere. 66 Pridi Banomyong, คำ�อธิบายกฎหมายปกครอง [Handbook of Administrative Law] (Law School of the Ministry of Justice, 1932). The Handbook compiles Pridi’s lectures to the Law School of the Ministry of Justice between 24 February 1932 and 31 March 1932, as well as his commentaries published by Nittisat in 1931.

The European Influence: Importing Doctrines of Royal Absolutism  69 [khamsang bangkhap khong phu songwai seung amnat sungsut nai phaendin] (as defined by the Charter or the administrative traditions such as in Siam the King). Second, according to the definition in the broader sense, the word law means the set of rules that people must abide by or be forced to do so or be faced with criminal, civil or administrative sanctions etc. These rules can be the commands of the sovereign as recorded or they can also be other regulations or other regulations that are not written but that if there is disobedience, there are consequences, such as traditions [charitphrapheni] or general principles of law [lak kotmai tua pai].67

He then hinted at a fundamental contradiction in Thai law: although the 1923 Civil and Commercial Code adopts the first definition of law (the positivist definition, only written law is law), its new Article 4 acknowledges the second definition (the customary definition, customs and general principles of law are sources of law).68 However, he did not clearly state his preference for either the legal positivist or the customary definition of law. Meanwhile, against what could be expected as a logical outcome of his French training, he by no means rejected the idea of dharma or of dharmaraja as being connected to law. Instead, he dedicated many chapters to dharma from an administrative law perspective, for instance, on the relation between dharma and rights.69 He also devoted an entire section to ‘governance by harmony’ during the times of Lord Buddha.70 However, he did not identify dharma as a source of law, limiting his analysis to pointing out a connection between the ethics of law and dharma. On the model of what his predecessor Prince Raphi had done with English concepts, Pridi relied heavily on the importation of French notions and systems of legal classifications to articulate his explanations of administrative law, for which he gave the French word in brackets, while, like his predecessor, making very parsimonious use of referencing. First, he tied administrative law to the notion of ‘liberty, equality, fraternity’, the motto of the French Republic.71 To him, there were only two types of democracy: the democracy in which the Head of State, called a president, is elected by the people (like in France) and the democracy in which there is no Head of State per se, but administrative power is vested in a group of commoners (like in the USSR).72 According to his categorisation of political regimes, Siam was ‘an absolute monarchy’,73 which he

67 ibid 1. An alternative translation is provided by Pasuk and Baker in Pridi (n 62) 43. However, Pasuk and Baker’s translation obscures John Austin’s influence on Pridi’s definition of law, so I am using my own translation here. 68 ibid 2. Article 4(2) of the 1923 Civil and Commercial Code states that whenever no written law is applicable to a case, it must be decided in accordance with customs. Article 4 (3) states that whenever there is no applicable custom to a case, it must be decided in accordance with general principles of law. See art 4 of ประมวลกฎหมายแพ่งและพาณิชย์ พ.ศ. 2466 [1923 Civil and Commercial Code]. 69 ibid 23. 70 ibid 38. 71 ibid 13. See also Noranit Settabutr, รัฐธรรมนูญกับการเมืองไทย [The Constitution and Thai Politics] (Thammasat University Press, 2007) 38. 72 Pridi (n 66) 34. 73 ibid 13.

70  Legal Positivism and Buddhist Kingship defined as ‘a government where monarchical power is unlimited, the King has the power to do whatever without limits and uses his powers alone’ – he adds ‘like in Siam’.74 This definition went against the traditional discourse on royal legislation, according to which, if the power of the King was absolute, it was limited by the imperatives of Buddhism. Likewise, he explained that the principle of ‘the King can do no wrong’, positing ministerial political responsibility, belonged to the category of ‘limited monarchy’ rather than absolute monarchy as King Chulalongkorn had argued in his response to Prince Prisdang petition (and Prince Phichit’s essay on justice).75 At the same time, in a somewhat dissonant voice, Pridi subscribed to the traditional conceptions of law and kingship when he wrote that ‘No law can limit the sovereignty [phrarachanuphap] of the Monarch, but the Monarch still is limited by the 10 Virtues of the Righteous King-Chakravatin [totsapitrajadharma-chakravat] as well as other royal Buddhist virtues [rachanya]’, using as a reference a quote from the coronation speech of King Prajadhipok in 1925,76 before turning to a detailed examination of the 10 Royal Virtues, the 12 Virtues of the Chakravat and the Four Additional Virtues that a King must abide by. Pridi also relied on Prince Damrong’s 1927 lecture on the history of kingship77 to adopt the very traditional view that Thai kingship was based on paternal rule, in contrast to the kind of divine kingship found in the Khmer Empire or in Europe, ‘what the British call “autocratic government”’. In other words, he glorified Siamese paternal kingship by opposing it to Western forms of autocratic government.78 Like Prince Damrong before him, Pridi mentioned the means by which Thais could seek redress for State wrongdoings, namely, the royal petition to the King (kantunklao thawai dika), a practice he rooted in the Sukhothai tradition.79 He dedicated a section of his Handbook of Administrative Law to the Royal Petition Act issued by King Vajiravudh. This section was part of an examination of administrative responsibility as implemented in France: the procedures of absolute monarchy were framed within the French categories and practices of public law. Pridi also managed to fit the various royal acts of the absolute monarchy into the French administrative law category of ‘unilateral administrative acts’ (actes administratifs unilatéraux) having the force of law: royal decrees

74 ibid 32. 75 ibid 33, 41–43. Pridi refers to Chulalongkorn’s 1888 Speech on Royal reform. See Fine Arts Department (n 46) 106–08. 76 ibid 43. Pridi refers to พระปฐมบรมราชโองการรัชกาลที  7 [Rama VII’s Coronation Speech], 25 February 1925. 77 ibid 48. Pridi refers to ปาฐกถาสมเด็จฯ กรมพระยาดำ�รงราชานุภาพทรงแสดงที สามัคคยาจารย์ วันที  8 ต.ค. 2470 [Prince Damrong’s Speech to the Academic Association on 8 October 1927], reproduced in Damrong Rachanuphap, ลักษณะการปกครองประเทศสยามแต่โบราณ [Ancient Siamese Administration] (Sophon Phipatanakan, 1928). 78 Pridi (n 66) 49. 79 ibid 195.

From ‘Royal Octroy’ to the King’s Granted Rattathammanun  71 (phrarachakrisdika and phrarachakamnot) and royal announcements (prakat krase phraboromrachaongkan).80 Throughout the entire Handbook, Pridi did not introduce the notion of a Constitution nor did he use a term that could be interpreted as a Constitution. Nevertheless, he hinted at the possibility of administrative responsibility for State wrongdoings, suggesting that the State’s use of power should be constrained by law. This was already too revolutionary for the time. Soon enough, the content of Pridi’s teachings came to the ears of King Prajadhipok. As Pridi told the story: I was appointed by the Ministry of Justice to teach administrative law, a new subject that had just been integrated in the Law School curriculum. I had taken this opportunity to cultivate among the students of that time an interest for the concept of democracy and issues related to the economy, as pillars of society, and push the idea that the law was merely the framework of society. My teachings had been reported to King Prajadhipok as being an indoctrination of law students. King Prajadhipok ordered to the chief of the Ministry of Justice to enquire about the nature of my teachings. [He] came to question me and warned me to be careful.81

In April 1932, Pridi was joined in the classroom by Phra Sarasan Phraphan, a more conservative jurist trained in both Paris and London, probably to monitor him. A few months later, Pridi participated in the overthrow of the absolute monarchy. III.  FROM THE EUROPEAN DOCTRINE OF ‘ROYAL OCTROY’ TO THE KING’S GRANTED RATTATHAMMANUN

In June 1932, the People’s Party, under the leadership of Pridi, needed to find a Thai term to name the Constitution they were imposing upon King Prajadhipok. To translate the foreign word ‘constitution’, they could either employ a secularised term or a term rooted in the Buddhist idea of law, dharma, ‘thamma’ in Thai. The People’s Party chose to rely on terms found in the Three Seals Code and called its first Constitution the ‘fundamental rule of procedure for the administration of Siam’ (phrarachabanyat thammanun kan pokkrong phaendin).82 A phrarachabanyat referred at the time to royal legislation, while thammanun referred to dharma: in the Three Seals Code, the title containing the divine law revealed to Manu was called laksana phrathammanun. Finally, phaendin was the traditional term for territory, which was strongly associated

80 ibid 148. 81 Quoted in Noranit (n 71) 36. In his autobiography, Pridi clearly stated that he had used his law teaching to ‘arouse, by stages, the consciousness of students to be interested in the necessity of changing the absolute monarchy to a form of monarchy under a democratic constitution’ and to recruit and train members and supporters of the People’s Party. Pridi (n 73) 35. 82 The name for the Constitution, as proposed to the King for signature, was พระราชาบัญญัติธรรมนูญ การปกครองแผ่นดินสยาม [Fundamental Rule for the Administration of Siam]. See Noranit (n 71) 39.

72  Legal Positivism and Buddhist Kingship with traditional conceptions of kingship. The term was thus entirely rooted in Thai traditional concepts of law and kingship. An influential prince who was sympathetic to the Revolution, Oxfordeducated Wan Waithayakon,83 the author of numerous neologisms in the political domain,84 did not agree with the use of this term. To him, if the word thammanun did quite grasp the importance of the Constitution, the word phaendin was inappropriate, as was phrarachabanyat, a word which had the effect of turning the Constitution into a mere piece of ordinary legislation. In an article published in his newspaper Prachachat after the revolution,85 he proposed a new word: rattathammanun, based on a new, secularist, Western-oriented word rat for State and on the traditional, Buddhist-connoted word thammanun. He explained: ‘This is a correct use of the word thammanun because the Constitution refers to the organization of the Supreme institutions of the State.’86 Prince Wan introduced the word rat as State to refer to the equivalent of the British word State and to replace the Thai word phaendin, which itself referred to the territory. He defined the State as follows: ‘The State rat has a given territory and population and is administered by a government rattaban.’87 In so doing, he imported more civil law conceptions of the State. Rat comes from Pali-Sanskrit and means ‘to establish’. The word thus comes with conceptions of the State as being ‘constituted’ through an act of sovereign will. Prince Wan moved on to propose many other terms on the same root: rattamontri (minister), rattaprahan (coup d’etat), rattaban (government), rattasapha (Parliament), etc. In several lectures delivered in 1932–33, Prince Wan referred to the sacred character of the Constitution: the Constitution was to the legal order what dharma was to the religious order; it was the sacred ‘law of laws’.88 In a lecture 83 Prince Wan Waithayakon (1891–1974) graduated from Oxford and went to become an ambassador in London and then a professor of literature at Chulalongkorn University. He was the first director of the Royal Institute created in 1933 to translate freshly imported Western concepts and include them in the official dictionary. The Royal Institute was composed of four departments: the  law department (thammasat), the politics department, the arts department, and the sciences department. Prince Wan Waithayakon also founded the Prachachat newspaper. 84 Wan Waithayakon was a strong advocate of translating Western terms into Thai. In his 15 July 1932 speech at Chulalongkorn University, he stated: ‘The Thai language is the guarantee for the future of the security of the Thai nation because if we prefer to use foreign terms (farang) transliterated, it is possible that we go too fast by copying them directly instead of adapting them beforehand so that they correspond to the modes and characteristics of [our] thought.’ Wan Waithayakon, ‘Coining Thai Words’ in Wan Waithayakon Foundation, วิทยทัศน์พระองค์วรรณ [Prince Wan’s Vision] (Wan Waithayakon Foundation, 2001) 107. 85 Pridi Banomyong, ประสบการณ์และความเห็นบางประการของรัฐบุรุษอาวุโส ปรีดี พนมยงค์: สัมภาษณ์โดย ฉตรทิพย์ นาถสภา [Some Experiences and Opinions of Senior Statesmen Pridi Banomyong: Chatthip Nartsupha’s Interview with Senior Statesman Pridi Banomyong on 10 April 1982] (Project on Pridi Banomyong and Thai Society, 1983) 5–6. 86 Quoted in Wissanu Krea-ngam, กฎหมายรัฐธรรมนูญ [Constitutional Law] (Nittibanakan, 1982) 21. 87 Wan Waithayakon, ‘งานบัญญัติศัพท์ของพลตรี พระเจ้าวรวงศ์เธอ พระองค์เจ้าวรรณไวทยากร’ [‘The creation of vocabulary by Prince Wan’] in Wan Waithayakon Foundation (n 84) 35. 88 Wan Waithayakon, ‘ความคิดเห็นบางประการเกี่ยวกับเรื่อง “รัฐธรรมนูญ”’ [‘A Few Thoughts about the Topic “Constitution”’] in กฎหมายกับรัฐธรรมนูญ [The Law and the Constitution] (Bangkok School of Law, 1933) 5–6.

From ‘Royal Octroy’ to the King’s Granted Rattathammanun  73 broadcast over radio, he explained that the word to refer to the Constitution should be dignified precisely to convey the idea that the Constitution was a sacred object/text: Rattathammanun refers to the rules governing the powers and missions of the State [with] ‘State’ refer[ring] to the administration of the territory. This is a word derived from the expression ‘rule of procedure in the administration of the territory’. To shorten and dignify the expression, in accordance with the sacred character of [its object], the word Rattathammanun is the translation of the word [Constitution] from Western languages. It can be found in the preamble of the second Constitution in the following terms: so that the Kingdom of Siam has a system of administration in accordance with the principles of contemporary civilised countries.89

In conformity with the idea of Prince Wan, the second Constitution was called rattathammanun, mixing traditional and Western conceptions of the law. The choice of words should be taken seriously, for it revealed a deep tension between tradition and change. For instance, should the words used to designate laws and decrees remain identical or reflect the change in sovereignty? This was crucial, for instance, in the case of phrarachakamnot, ‘royal decree’, a form of legislation passed without parliamentary approval. In the ancient system, it referred to the King’s discretionary power to issue regulations, as explained by Pridi in his Handbook. In the new administration, it was to bear the signature of the Prime Minister as well, but the category nonetheless seemed to alarm members of the Legislative Assembly, who asked for guarantees that this would not give the King special emergency powers: [We have] drafted [this article] to facilitate the work of the administration; so that it becomes possible to pass laws. The word phrarachakamnot in this article refers to the law promulgated by the People’s Committee and the King without prior vote of the Assembly … and also, these dispositions exist in the constitutions of foreign countries.90

Discussion on the concept of sovereignty also mobilised conflicting views between traditional and Western theories of kingship. The discussion on the concept of sovereignty was mostly informed by the doctrine of the elected king. Constitution-drafters argued that, as the King was already chosen by the people through the practice of the election, people’s sovereignty was royal sovereignty,91 unlike in Western countries, where the King formerly ruled by divine right before a Constitution was imposed upon him.92 Sovereignty, translated by a new 89 Wan Waithayakon, ‘Constitution’, Lecture delivered on radio on 3 October 1933, quoted in Noranit (n 71) 4. 90 President of the Committee, Session 39/2475, 27 November 1932, House of Representatives, reproduced in Noranit Settabutr (ed), เอกสารการพิจารณาร่างรัฐธรรมนูญ 10 ธันวาคม 2475 (โดยสภาผู้แทนราษฎรชุดแรก) [Documents Related to the Examination of the Draft 10 December 1932 Constitution (by the First Assembly of People’s Representatives)] (Thammasat University Press, 1999) 145. 91 ibid 11–17. 92 ibid.

74  Legal Positivism and Buddhist Kingship word (amnatipatai), formed from a Pali suffix, was said not to belong to but to ‘emanate from the people’ and to be ‘exercised by the king in accordance with the dispositions of this Constitution’.93 Phraya Manopakorn Nititada explained the reasons of this change before the Assembly, using a reference to so-called ‘ancient traditions’: In reality, the first part of the article [on sovereignty] is simply a reaffirmation of our ancient traditions. Indeed, if we open ancient books, it is said in the very name of the King that he has been elected; in the coronation ceremony, there are brahmins and high royal civil servants who give the crown jewels, representing the fact that the King ascends the throne at the invitation of the people and not by Heaven’s Will, what some foreign countries cannot understand.94

Likewise, according to Phraya Sriwisanwacha, one of the key drafters of the 1932 Constitution: When we say that sovereignty comes from the people, it means that the King ascends the throne upon invitation by the people, what is in conformity with our old precept which stated in the name of the king that he had been elected; the coronation ceremony comprised brahmins and royal servants who offered jewels of the crown; what meant that our tradition did not consider that the King ascends the throne according to his will like what would happen in the UK at the time of the Stuarts. At this time, the King would come down from heaven and use a power he had received from heaven to reign. Our country, since ever, never used this principle.95

The reasoning for this could be found in the first constitutional law handbook per se published in Siam, the Explanation of the Siamese Constitution in a Comparative Perspective,96 authored by the Oxford-educated Luang Chakpanisrisilvisuth, who offered an analysis and comparison of several constitutional texts, ranked in the following order: Russian (1918), Chinese (1928), Turkish (1924), Italian (1848), French (1875), American (1787), Japanese (1889) and British. The choice reflects the scope of constitutions that enjoyed high status or captured the interest of jurists in Siam at the time of the 1932 Revolution. Among the eight models, the author showed a particular interest in two constitutions: the Meiji Constitution and the ‘British constitution’, to which he dedicated most of the book. He even offered a full translation of the Meiji Constitution in the appendix. Drawing on a comparison with the Meiji Constitution, Luang Chakpani considered royal and popular sovereignty to be fully equivalent: To write in the Constitution that ‘the supreme power of the country belongs to c­ itizens’ (like us) or to write that ‘supreme power belongs to the King but that the King 93 Article 2 of the 1932 Constitution. 94 Session 34/2475, 16 November 1932, House of Representatives, reproduced in Noranit (n 90). 95 Phraya Sriwisanwacha, คำ�อธิบายร่างรัฐธรรมนูญแห่งราชอาณาจักรสยาม [Explanation of the draft Constitution of the kingdom of Siam] (Bangkok: Sahuthot, 1932) 1–2. 96 Chakpanisrisilvisuth (n 51). See also Nattapol Chaiching, ขอฝันใฝ่ในฝันอันเหลื่อเชื่อ [They Dreamed the Impossible Dream: The Counter-revolutionary Movement in Siam] (Samesky Books, 2013) 73.

From ‘Royal Octroy’ to the King’s Granted Rattathammanun  75 exercises it in accordance with the provisions of the Constitution’ (like in Japan): the result is the same.97

Although he hinted at royal sovereignty, he did not rely on traditional conceptions of kingship and the law to do so, but instead moulded his opinion in secularist, constitutionalist terms. Likewise, constitutional law handbooks published in the following years did away with the theory of elected kingship, the 10 Royal Virtues and the Chakravatin. In particular, the work of Prachert Aksornluksa, Duan Bunnag and Pairoj Chayanam in 1934 showed a complete detachment from traditional theories of law and kingship.98 One of the key questions framing their debate was rather whether the Constitution had been a contract between the King and the people or whether it was a ‘royal octroy’. In his treatise humbly entitled Constitutional Law, French-educated jurist Luang Prachert Aksornluksa, one of the first professors of constitutional law in Siam, opened his study by classifying constitutions based on their mode of constitutional genesis: the Constitution as the King’s octroy to the people, the Constitution as ‘pact’ between the King and the people, and finally the Constitution imposed by force following a revolution.99 In this he reproduced one of the most common means of classification of constitutions used by French jurists of the late nineteenth and early twentieth centuries, most notably by the jurist Albert de Lapradelle, whom he quoted at length. In their co-authored handbooks, Duan and Pairoj also focused on the categories of octroy, pact and revolution. Other modes of classification typically used in France were the form of the Constitution (written or customary) and modes of constitutional revision (flexible or rigid). On all of these ‘indicators’, Prachert, Duan and Pairoj were in agreement: the Siamese Constitution had been negotiated, written and rigid.100 Although to them, the 1932 Siamese Constitution was a pact between the King and the people, the category of royal octroy had been inserted in the 1932 constitutional preamble by its drafters who, apart from Pridi, had all studied in the UK and were senior jurists in the service of King Prajadhipok. In particular, Phraya Sriwisanwacha was attached to the maintenance of the conventions

97 Chakpanisrisilvisuth (n 51) 89. 98 Prachert Aksornluksa, กฎหมายรัฐธรรมนูญ คำ�สอน ภาค 1 ชั้นปริญญาตรี [Constitutional Law Class 1 First Semester Bachelor] (Thammasat, 1934); Duan Bunnag, Pairoj Chayanam, คําอธิบายกฎหมาย รัฐธรรมนูญ (รวมท้งั กฎหมายการเลือกต้งั ด้วย) ภาค 2 รัฐธรรมนูญสยาม [Handbook of Constitutional Law (Including Electoral Law), Volume 2: The Siamese Constitution], (Thammasat University Press, 1934); Duan Bunnag and Pairoj Chayanam, คําอธิบายกฎหมาย รัฐธรรมนูญ (รวมทั้งกฎหมายการเลือกตั้งด้วย) ภาค 1 หลักทั่วไปของกฎหมายรัฐธรรมนูญ [Handbook of Constitutional Law (Including Electoral Law) Volume 1: General Principles of Constitutional Law], (Thammasat University Press 1934). 99 He takes this tripartite classification from the early twentieth-century French constitutional jurist Albert de Lapradelle. See Albert de Lapradelle, Cours de Droit Constitutionnel (A Pedone, 1912) 101; Prachert Aksornluksa, ‘La Constitution Siamoise de 1932’ [‘The 1932 Siamese Constitution’] (thesis, University of Paris, 1933) 15. 100 Prachert (n 99) 8–10.

76  Legal Positivism and Buddhist Kingship or ‘customs’ inherited from absolute monarchy, as the constitutional draft he had submitted to Prajadhipok in early 1932 proves.101 The preamble to the 1932 Constitution ties tradition to constitutionalism and establishes, symbolically, the principle of the royal octroy buttressed by traditional doctrines on Buddhist kingship. It makes the monarchy the central figure and the merciful grantor of the Constitution. Drafted by King Prajadhipok himself,102 probably with the assistance of his legal advisors, it strongly resembles the preamble to the French Charter of 1814, which established the King as the source of the constitution: the Constitution was seen as being ‘royally granted’ (phrarachathan): The King, considering that the moment had come to graciously give to the royal servants and the people of His Majesty the possibility to participate in the development of the country, granted a Constitution to Siam according to his will on June 27 1932.103

The King was given all of his titles back and his full name occupied the entirety of the first page of the Constitution on 13 lines.104 The King’s name, added to the preamble of the Constitution, bore the titles of bodhisattva, mahasammata, Great Elected King, chakravatin, divine angel, reincarnation of Vishnu and dharmaraja. The preamble then delved into the ‘150 years of absolute monarchy under the principle of the 10 Virtues of a Righteous King’, and bestowed upon the King the duty ‘to preserve the country eternally’, which highlighted its Meiji inspiration.105 Against Pridi who would use the term ‘the king under the constitution’ (kasat tai rattathammanun), jurists close to Prajadhipok would use other terms. In the parliamentary debates of 1932, Phraya Manopakorn Nititada, President of

101 See ch 2. See also Nattapol (n 96) 72; 141–43. 102 According to Manopakorn, President of the Constitution-Drafting Committee, who emphasised it with pride during his speech in Parliament on 29 November 1932. See also Suphot Dantrakun, ประวัตริ ฐั ธรรมนูญ [Constitutional History] (Foundation for the Promotion of Social Sciences and Humanities, 2007) 23. 103 Preamble to the 1932 Constitution. 104 Here is the full name: ‘พระบาทสมเด็จพระปรมินทรมหาประชาธิปก มหันตเดชนดิลกรามาธิบดี เทพยปรียมหาราชรวิวงศ อสัมภินพงศพีระกษัตร บุรษุ รัตนราชนิกโรดม จาตุรนั ตษรมมหาจักรพรรดิราชสังกาศ อุภโตสุชาตสำ�ศุทธ เคราหณี จักรีบรมนาถ จุฬาลงกรณราชวรางกูร มหามกุฏวงศวีรสูรชิษฐรา ชธรรมทศพิธ อุตก์ ฤษฏนิบณ ุ อดุลยกฤษฎาภินรี ห์ าร บูรพาธิการสุสาธิต ธันยลักษณวิจติ รเสาภาคยสรรพางค์ มหาชโนตมางคมานทสนธิมตสมันตสมาคม บร มราชสมภาร ทิพยเทพาวตาร ไพศาลเกียรติคณ ุ อดุลยศักดิเดช สรรพเทเวศปริยานุรกั ษ มงคลลัคนเนมาหวัย สุโขทัยธรรมราชา อภิเนาวศิลปศึกษาเดชนาวุธ วิชยั ยุทธศาสดรโกศล วิมลนรรยพินติ สุจริตสมาจาร ภัทรภิชญานประดิภานสุนทร ประวรศาสโนปสดมภกมูลมุขมาตยวร นายกมหาเสนานี สราช นาวีพยูหโยธโพยมจรบรมเชษฐโสทรสมมต เอกราชยยศสธิคมบรมราชสมบัตินพปฏลเศวตฉัตราดิฉัตร ศรีรัตโนปลักษณมหาบรมราชาภิเษกาภิษิกต์ สรรพทศทิควิชติ เดโชไชย สกลมไหศวรยมหาสวามินทร มเหศวรมหิน ทรมหารามาธิราชวโรดม บรมนาถชาติอาชันยาศรัย พุทธาทิไตรรัตนศรณารักษ วิศษิ ฏศักตอัครนเรศวราธิบดี เมตตากรุณาศีตลหฤทัย อโนปไมยบุนยการสกลไพศาลมหารัษฎราธิบดินทร ปรมินทรธรรมิกมหาราชาธิราช บรมนาถบพิตร พระปกเกล้าเจ้าอยูห่ วั .’ 105 Article 1 of the Japanese Meiji Constitution stated: ‘The Empire of Japan shall be reigned over and governed by a line of Emperors unbroken for ages eternal.’ By contrast, the preamble to Siam’s First Constitution adopted a different, more humble form of language: ‘By the order of King Prajadhipok, following the demand by the People’s Committee that it be placed under the authority of the constitution for the good of the country, and following the acceptance by the king of the demands formulated by the People’s Committee, the following constitution is promulgated.’ Preamble to the interim 1932 Charter.

From ‘Royal Octroy’ to the King’s Granted Rattathammanun  77 the Constitution-Drafting Committee, referred to ‘Monarchy according to the constitution’ (rachatipatai tam rattathamanun) or preferably ‘limited monarchy’ (rachatipatai amnat chamkat).106 To him, the Constitution was granted by the King, who always retained sovereignty. Therefore, there was no need to have the King swear an oath of allegiance to uphold the Constitution. In addition, the King already swore an oath of allegiance on succeeding to the throne. As a member of the Constitution-Drafting Committee explained: ‘We know well that the King must swear an oath before the representatives of the Theravada gods, as well as Buddha, etc. Consequently, it is better [if the text] remains silent [on the issue of the royal oath to the Constitution].’107 The Assembly members voted 48 against 7 that the oath did not have to be enshrined in the Constitution as it was based on customary law.108 Pridi himself agreed: this was a convention.109 Traditional doctrines of kingship were not only mobilised to lend support to the pre-1932 status quo, they could also be invoked to justify constitutional innovations. To legitimise the introduction of parliamentary approval of royal succession, Phraya Manopakorn argued that it was in accordance with the tradition of the ‘elected king’.110 In fine, according to the 1932 Constitution-drafters, Siam did not need a constitution: unlike Western countries, the Siamese monarchy was already limited by its modus operandi, whether through election or through the practice of the 10 Virtues of a Righteous King. The Constitution transformed and secularised the traditional conceptions of kingship: as the Supreme Commander of the Armed Forces, the King was fulfilling the traditional function of chakravatin; as the patron of Buddhism, he was associated with his traditional role of bodhisattva; and as the sovereign exercising legislative, executive and judicial power in the name of the people, he was the embodiment of the ‘Great Elected King’. Most importantly, the King remained, albeit in a modernised and more symbolic form, the law-giver or, rather, the Constitution-giver.  The dharmaraja, mahasammata and chakravatin theories on royal power – what can be called ‘the three images of Buddhist Kingship’111 – were progressively secularised throughout the late nineteenth and early twentieth centuries, then

106 Session 34/2475, 16 November 1932, House of Representatives, reproduced in Noranit (n 90) 22. 107 Phraya Rachawangsan, Session 36/2475, 25 November 1932, House of Representatives, reproduced in Noranit (n 90) 48. 108 Session 36/2475, 25 November 1932, House of Representatives, reproduced in Noranit (n 90) 50. 109 Bandit Chanrochanakit, ชีวประวัติธรรมนูญการปกครองและรัฐธรรมนูญแห่งราชอาณาจักรไทย พ.ศ. 2475–2520 [A Biography of the Interim Constitution and the Constitutions of the Kingdom of Thailand 1932–1977] (Research Development Fund, 2007) 5. 110 Session 34/2475, 25 November 1932, House of Representatives, reproduced in Noranit (n 90) 23. 111 Khemthong Tonsakulrungruang, ‘Toward a New Buddhist Constitutionalism: Law and Religion in the Kingdom of Thailand’ (University of Bristol, 2019) 169–71.

78  Legal Positivism and Buddhist Kingship Westernised and articulated with legal and constitutional theories in the 1930s. The Siamese term for dharma, based on the Pali root, was used to Buddhicise the Western borrowings so as to ‘indigenise’ them. The nineteenth-century European model of limited monarchy, relying on the idea of the royally granted Constitution, was imported and hybridised with the doctrine of the elected King and the Hindu-Buddhist conceptions of law and kingship. All references to the dharma, the thammasat or the rajasat had been seemingly removed from the law and the doctrines of kingship, but in fact, they had been re-invested in a new sacred object: the Constitution. The fiction of the Constitution as a royal octroy as enshrined in the preamble to the 1932 Constitution represents the achievement and legal materialisation of this doctrinal process.

4 From the Sacred Monarchy to the Sacred Constitution

I

n the mid-nineteenth century, the Siamese monarchy was described by European missionaries as fully ‘despotic’ – a marker of backwardness and justification for the imposition of extra-territorial treaties (also called ‘unequal treaties’) on Siam by European powers, on the model used in China, Turkey and later Japan.1 In order to be accepted in the club of civilised nations, Siamese kings needed to relinquish despotism and embrace parliamentarism, on the model of Britain, then the ‘world’s model of democracy’2 and the leading colonial power in Asia. However, successive Siamese kings, if they progressively came to terms with the idea of a Constitution, were little inclined to act in a manner that would let parliamentarism flourish in Siam. I.  ROYAL DESPOTISM, THEOCRACY AND SACRED LAW

As French missionary Jean-Baptiste Pallegoix wrote, there was, at the time of King Mongkut, ‘despotism in all the force of the term’: The government of Siam is despotism in all the force of the term; the king is feared and respected as a god; nobody dares to look him in the face; the court officials, when they come to the royal audience, stay prostrated on their knees and elbows; when His Majesty goes somewhere, everybody crawls down to the ground, and those who would not do it would risk to have their eyes put out by the archers preceding His Majesty.3

1 See Turan Kayaoglu, Legal Imperialism: Sovereignty and Extraterritoriality in Japan, the Ottoman Empire, and China (Cambridge University Press, 2010); Teemu Ruskola, Legal Orientalism: China, the United States, and Modern Law (Harvard University Press, 2013). 2 Vichitvong Na Pombhejara, Pridi Banomyong and the Making of Thailand’s Modern History (Siriyod Printing, 1982) 41. 3 Jean-Baptiste Pallegoix, Description du royaume Thai ou Siam: comprenant la topographie, histoire naturelle, moeurs et coutumes, législation, commerce, industrie, langue, littérature, religion, annales des Thaï et précis historique de la mission [Description of the Thai Kingdom or Siam, including its topography, natural history,manners and customs, legislation, commerce, industry, language, literature, religion, annals, and historical description of the mission] (Mission de Siam, 1854) 259. For an English translation, see Jean Baptiste Pallegoix and Walter EJ Tips, Description of the Thai Kingdom or Siam, Thailand under King Mongkut (White Lotus Press, 1999).

80  From the Sacred Monarchy to the Sacred Constitution Such practices are embodiments of the theory of the King-devaraja derived from the Hindu Code of Manu and codified in the Palace Law of the Three Seals Code, which, Pallegoix insisted, had force of law in Siam in the mid-nineteenth century. He described the King’s power as not only ‘despotic’ but also absolute’.4 In fact, Siamese despotism was far from being absolute. At least two major weaknesses crippled the stability and power of the monarchy. First, traditional conceptions of kingship still limited, to a certain extent, the King’s law-making ability over the territory. Second, there was a highly problematic lack of a succession mechanism, resulting in great instability. Finally, European powers emerged as external threats to the Siamese monarchy. Internally, the first weakness was the King’s constrained legislative and executive power. Surely, his power was very broad: he issued ‘great royal commands’ (phraboromrachaongkan) which had the same status as a god’s command. But at the same time, according to the Hindu dharmasat, the King could only be an interpreter of the law, not a legislator. His work of interpretation, as compiled in the rajasat, was thus understood as explanations of the sacred, eternal law based on concrete cases of implementation, but not as acts of will of the monarch. His role was merely to apply the dharma, not to create new rules. That is why each rule codified in the Three Seals Code started with a preamble rooting it in the phrathammasat: ‘The King, having considered the Thammasat, promulgates the following.’ Surely, the reliance on the phrathammasat was a façade to conceal legislative activity while giving it legitimacy,5 but it nevertheless constrained, to some extent, kings in terms of the scope of the laws they could issue. Whether the kings of Ayutthaya issued their decisions based on their will or based on what they believed was the universal immutable truth as codified in the thammasat, in any case they produced decisions that were later to be included in legislation. The theory of the King-upholder of the thammasat had direct practical consequences: at the beginning of each new reign, the King would either invalidate or confirm the decisions of his predecessor. He would order the High Royal Court, composed of brahmins, to either validate and codify or repudiate and drop the decisions.6 The former would be included in the rajasat, while the latter would disappear from the legal order. In theory, this meant that if the edict of the King was not in conformity with the phrathammasat, then it was void. ‘Royal edicts have no permanence. They become necessarily void at [the King’s] death.’7 Likewise, most of the individual edicts of the King, such

4 Pallegoix (n 3) 269–70. 5 Andrew Huxley (ed), Thai Law, Buddhist Law: Essays on the Legal History of Thailand, Laos, and Burma (White Orchid Press, 1996) 117. 6 Robert Lingat, ‘La conception du droit dans l’Indochine hîniayâniste’ [‘The Conception of Law in Hinayana Indochina’] (1951) 44 Bulletin de l’Ecole française d’Extrême-Orient 163, 185. 7 ibid 183. According to Chris Baker and Pasuk Phongpaichit, responding to Robert Lingat, there is no trace of an edict that would have been annulled for breach of conformity with the Thammasat:

Royal Despotism, Theocracy and Sacred Law  81 as those relating to the granting of commerce concessions, would lapse at the time of his death, unless his successor decided to keep them, not to mention the fact that the new King had to re-appoint the royal servants appointed in the preceding reign. In other words, the monarchy remained under-institutionalised and precarious, endangering its stability. Each new reign was a new beginning. Discontinuity was the rule. The second internal weakness lay in the lack of institutionalised ­mechanism of succession. The lack of rules governing the royal succession, which had resulted in frequent coups and assassinations throughout the Ayutthaya period until the mid-nineteenth century, was testament to the weakness of Siamese royal despotism. It seems paradoxical that the sacred character of kingship did nothing to prevent usurpations and assassination plots; but it was especially in order to deal with the instability caused by infrequent usurpations that kings had increasingly relied on the doctrine of devaraja throughout the Ayutthaya period,8 albeit with minimal success. Another means of preventing coups/assassinations and reducing the state of generalised suspicion in which the kings of Ayutthaya lived in relation to the members of their families had been the designation of an uparat, a ‘second king’, chosen at the discretion of the King to assist him in royal matters, and to eventually act as a presumptive heir – once again, this attempt at ensuring a predictable and smooth royal succession met with minimal success.9 The uparat could be either a brother or a son – in fact, there was no precise rule on this.10 The Three Seals Code was also of no help in clarifying the matter. The Palace Law did not include a rule of succession, and the laws on hierarchies were inconsistent in placing the King’s brother or son highest in the hierarchy after the King. In its rankings of individuals in the hierarchy of sakdina, the King had an ‘unlimited’ value, then came sometimes the brother and sometimes the eldest son of the queen. Likewise, nothing in the law prevented the heir from being a son of a royal concubine. Not only was the hierarchy in the Three Seals Code unclear, but, at the religious-doctrinal level expressed in the phrathammasat, many competing principles applied: the law of karma, the principle of the Great Elected King and the principle of lineage to the Buddha, or royal blood.

Chris Baker and Pasuk Phongpaichit, The Palace Law of Ayutthaya and the Thammasat (Cornell University Press, 2016) 29. 8 Stanley Jeyaraja Tambiah, World Conqueror and World Renouncer: A Study of Buddhism and Polity in Thailand against a Historical Background (Cambridge University Press, 1976) 482. 9 Very few uparats managed to succeed to the throne. In the Chakri dynasty, only the uparat chosen by Rama I managed to become King. His son, Rama II, executed his own nephew (son of Taksin and a daughter of Rama I), fearing he might become a contender for the throne. See Nuntana Kapilakanchana, ‘การวิเคราะห์ในเชิงประวัติศาสตร์เรื่องบทบาทของวังหน้าสมัยรัตนโกสินทร์: พ.ศ. 2325–428’ [‘Historical Analysis of the Roles of the Second Kings during the Bangkok Period: 1782–1885’] (1996) 17 Kasetsat Journal of Social Sciences 27. 10 Pridi Kasemsap and Kittisak Prokati, นิติปรัชญา [Philosophy of Law] (Thammasat University Press, 2017) 140.

82  From the Sacred Monarchy to the Sacred Constitution Although they should in theory converge towards one single heir, the most virtuous, with the best blood and best karma, in practice, competing candidates emerged all the time and given the entrenched practice of polygamy, there were, at each succession, plenty of candidates for the throne. All in all, this state of uncertainty worked against the royal consolidation of power that only stability and legal codification could provide. These internal weaknesses of the monarchy were denounced by Europeans, who pointed to the absence of a clear rule (even an informal one) regarding succession matters and to the institution of uparat, making the ‘second king’, who was granted his own military and palace (called the ‘front palace’ or wang na), an actual competitor to the throne.11 Rama III’s accession in 1824 epitomised this state of affairs. Prince Nangklao, son of Rama II, was not born of a royal mother, unlike his half-brother Mongkut. To the stupefaction of Europeans, it is however Nangklao who became King.12 Upon his half-brother’s accession to the throne, Mongkut, who became a monk a few days earlier, eventually decided to stay there until the King’s death, probably to protect himself against possible assassination attempts and the multiple dangers associated with royal politics. During his time as a monk, Mongkut developed an interest in European science, religion and administration. He was taught French and Latin by the French Catholic priest Bishop Pallegoix and English by an American Protestant missionary, Dan Beach Bradley,13 who also created the first printing press in Siam.14 In an important incident which occurred in 1849, Bradley was given a copy of the Three Seals Code,15 which he planned to print and sell throughout the kingdom. Infuriated by the news of the Three Seals Code being ‘leaked’ to the populace, Rama III issued a Royal Command prohibiting the printing; he also confiscated the volumes that had already been produced. Law was not supposed to be accessible, known or interpreted by anyone else than the King

11 However, Pallegoix noted, rather naively, that second kings managed to maintain ‘harmonious’ relations with kings. Pallegoix (n 3) 289. 12 According to Chula Chakrabongse, Westerners held the ‘mistaken belief that because he was the son of a minor wife, Prince Chesda [Nangklao/King Rama III] was illegitimate’; Chula Chakrabongse, Lords of Life: The Paternal Monarchy of Bangkok, 1782–1932, with the Earlier and More Recent History of Thailand (Alvin Redman, 1960) 143; William L Bradley, ‘The Accession of King Mongkut’ (1969) 57 Journal of the Siam Society 149. 13 Robert Bruce, ‘King Mongkut of Siam and His Treaty with Britain’ (1969) 9 Journal of the Hong Kong Branch of the Royal Asiatic Society 89. 14 Parkpume Vanichaka, ‘The Beginning of Liberalism in Thailand: Dan Beach Bradley and Bangkok Recorder’ (2015) 29 Journal of the Graduate School of Asia-Pacific Studies 21. 15 The copy was given to him by Mot Amattayakul, a noble who had himself hired a royal secretary to make a copy of the Three Seals Code kept at the royal court. Upon reading the Three Seals Code, he came to the conclusion that it should be known to the populace and that the operation of selling copies would be highly profitable. He was the one who contacted Dan Beach Bradley to that effect. See Khamthon Liengsachatham, ‘กรณีริบหนังสือกฎหมายในรัชกาลที  ๓’ [‘The Case of the Confiscation of Law Books during the Third Reign’] (1984) 9 Silapawattanatham 22; Yoneo Ishii, ‘The Thai Thammasat (with a Note on the Lao Thammasat)’ in MB Hooker (ed), The Laws of Southeast Asia Volume I: The Pre-modern Texts (Butterworths, 1986) 151–52.

Royal Despotism, Theocracy and Sacred Law  83 and his brahmins. Law was essentially conceived, in Tamara Loos’ words, as ‘the sacred legitimizer of the monarchy’.16 This type of incident could only reinforce the status of Siam as ‘uncivilised’ in the eyes of Europeans. They invoked the confidentiality of the law contained in the Three Seals Code, the legal profession’s lack of access to it, the inefficiency of the judicial process at large and the problematic nature of criminal procedure in particular (most notably its ‘barbarous’ punishments)17 as justifications for demanding rights of extra-territoriality. European powers refused to subject their own nationals present on Siamese territory to Siamese penal laws and to the Siamese judicial process, which they deemed ‘embryonic and chaotic’.18 Siamese law, however, was considered more developed than Chinese law. As John Bowring, the British envoy to Siam, recounted of his 1855 mission to Siam: The laws of a country are among the most prominent and practical evidences of its civilisation and advancement, and, on the whole, the Siamese must be deemed superior to the Chinese. ‘Will you not look into our laws?’ was an inquiry made of me by one of the Regents of Siam. I had objected to allowing British subjects to be rendered amenable to laws of whose character I was but little informed. I asked how many volumes I should be required to study? ‘About seventy’, he said. My answer may easily be anticipated. But who shall answer the question – In how many volumes must the laws of England be looked for?19

16 Tamara Loos, ‘Gender Adjudicated: Translating Modern Legal Subjects in Siam’ (thesis, Cornell University, 1999), 43; Thanapol Limapichart, ‘The Emergence of the Siamese Public Sphere: Colonial Modernity, Print Culture and the Practice of Criticism (1860s–1910s)’ (2009) 17 South East Asia Research 361, 371. 17 In his influential treatise on Siam, John Bowring observed that: ‘There is a provision that all the provincial judges shall have a copy of the laws, and that the King shall read a portion of them every day; which is probably as much practically in force, as the enactment that “all lawsuits shall be terminated in three days”: such days are frequently prolonged to years … The action of the judiciary is tolerably prompt and despotic … there is a universal venality of the judges, and [that] litigated cases end generally in the ruin of both the contending parties … legal reasons for excluding witnesses are so many in Siam that they would appear seriously to interfere with the collection of evidence … Some offences are visited by very barbarous punishments … All rights in a country whose government is absolutely despotic are, of course, held on sufferance.’ John Bowring, The Kingdom and People of Siam: With a Narrative of the Mission to That Country in 1855 (Cambridge University Press, 2013) 174–87. 18 Georges Padoux, Le Code Pénal Siamois [The Siamese Penal Code] (Imprimerie nationale, 1908) 21–22. Siamese penal law ignored the presumption of innocence, carrying a presumption of guilt which did not need to be supported by the corroboration of several testimonies. Any person behaving suspiciously could be tried for a crime called nilamphonchon. The accused were subjected to torture and judicial ordeals. The 1805 Code also practised collective civil and criminal responsibility, especially for neighbours and bystanders. The penal sentence, which could involve severe corporal punishment, was also not defined clearly by judges, who merely pronounced whether the punishment should be severe or not. As a result, people sent to serve a prison term often languished in jail until their death. See Robert Lingat, ‘La preuve dans l’ancien droit siamois’ [‘The Proof in Ancient Siamese Law’] (1964) XVIII Recueil de la Société Jean Bodin 398; Robert Lingat, ‘Les ordalies au Siam’ [‘Judicial Ordeals in Siam’] (1949) 3(15) Education 17 ; Robert Lingat, ‘La responsabilité collective au Siam’ [‘Collective Responsibility in Siam’] (1936) 15 Revue historique de droit français et étranger 523. 19 Bowring (n 17) 173.

84  From the Sacred Monarchy to the Sacred Constitution That year, John Bowring imposed the first treaty of extra-territoriality on King Mongkut.20 Modelled on the Nanking Treaty signed with China following the First Opium War,21 it lifted Siamese jurisdiction over British subjects, allowed Christian missionaries to practise their religion and build churches in Siam, and regulated trade, including the opium trade, in favour of British interests.22 It would be followed by many others with other Western nations.23 The partial loss of sovereignty suffered by Siam prompted Mongkut and his successors to react by engaging in a wide array of legal and political reforms. II.  ROYAL REFORMS: THE WESTERNISATION OF LAW AND KINGSHIP

Mongkut endeavoured to move away from the traditions interpreted as m ­ arkers of cultural backwardness and in particular to distance himself from the devaraja and bodhisattva beliefs, which both established the sacredness of the King, either as an avatar of a Hindu god or as a Buddha-to-be. At the time of the death of Rama III, Mongkut, who had spent his 27 years as a monk studying both Buddhism and European science, religion and administration, was crowned King. In 1851, his coronation ceremony displayed a shift towards both ‘Buddhicisation’ and Westernisation. Departing from the Siamese tradition, he made the actual coronation the pinnacle of the ceremony, following the European model, whereas previously it had been the royal bath or aphisek that granted royal power to the new King.24 He also invited Buddhist monks to recite sermons. His coronation ceremony ended with a royal procession around the capital city, which symbolised the power seizure of the King over both the kingdom and the universe, as a chakravatin, a Universal Sovereign.25

20 Nicholas Tarling, ‘The Mission of Sir John Bowring to Siam’ (1962) 50 Journal of the Siam Society 91. See also Bruce (n 13). 21 See GF Bartle, ‘Sir John Bowring and the Chinese and Siamese Commercial Treaties’ (1962) 44 Bulletin of the John Rylands Library 286. 22 The Treaty of Friendship and Commerce between Siam and Great Britain was signed in Bangkok on 18 April 1855. Article 2 stated: ‘Any disputes arising between Siamese and British subjects shall be heard and determined by the [British] Consul in conjunction with the proper Siamese officers; and criminal offenses will be punished, in the case of English offenders, by the Consul, according to English laws, and in the case of Siamese offenders by their own laws, through the Siamese authorities. But the Consul shall not interfere in any matters referring solely to Siamese, neither will the Siamese authorities interfere in questions which only concern the subjects of Her Britannic Majesty.’ 23 Siam signed extraterritorial treaties with France and the US in 1856, Denmark in 1858, Portugal in 1859, the Netherlands in 1860, Prussia in 1862, Norway, Sweden, Belgium and Italy in 1868, Austria-Hungary in 1869 and Spain in 1870. See Francis Bowes Sayre, ‘The Passing of Extraterritoriality in Siam’ (1928) 22 American Journal of International Law 70. 24 Siriporn Dabphet, ‘The Coronation Ritual and Thai Kingship since the Mid-Nineteenth Century’ (thesis, National University of Singapore, 2009) 18–19. 25 HG Quaritch Wales, Siamese State Ceremonies: Their History and Function (Bernard Quaritch Ltd, 1931) 82.

Royal Reforms: The Westernisation of Law and Kingship  85 During his coronation, he was granted his royal titles by the brahmins following the Hindu-Buddhist traditions. Yet he was the first Chakri King who chose not to bear the bodhisattva status in his official title; nevertheless, he kept the ‘Great Elected’ title, a reference more compatible with Western ideas of social contract and ‘popular kingship’.26 This double movement of Buddhicisation and Westernisation, which departed from the traditional brahmanical Siamese ways, was to be the very mark of Mongkut’s reign. He engaged in a notable effort of de-brahmanisation, blaming practices considered by Western powers to be barbaric and despotic on the foreign Hindu influence derived from the Khmer. Instead, he proposed returning to a purer form of traditional Siamese kingship.27 In order to do so, Mongkut notably relied on an ancient piece of legislation set in stone that he had discovered in Sukhothai Province and deciphered himself while he was still a monk. Following the publication of the first study on the stele by a committee of scholars in 1857,28 the stele was named the ‘Ramkhamhaeng stone inscription’ and was identified as dating from the thirteenth century. It showed how estranged the Sukhothai Kingdom was from the devaraja conception of monarchy. Instead, it seemed that the Sukhothai Kingdom had adopted a patriarchal conception of monarchy while relying on the Thammasat, probably in an oral pre-codified form. The stele depicted Ramkhamhaeng as a paternalistic figure. People were referred to as ‘children’ (luk chao luk khun) and King Ramkamhaeng as ‘father’ (pho). The stele also embedded Ramkamhaeng in the dharmaraja tradition (‘Khun Phra Ram Khamhaeng sought to be ruler and lord unto all the Thai; to be preceptor and instructor to teach all the Thai to know the true dharma’).29 It described a golden age built on stable and just rules protected by a king as the fountain of justice. According to the epigraph, there was a bell at the entrance of the Palace. When people had disputes, they could strike the bell and the King, seated on the ‘throne of justice’ (manansilapatra), would listen to their grievances and provide justice to his subjects: In the opening of the gate over there he [King Ramkamhaeng] has hung a bell. If anybody in the country has a grievance which sickens his belly and gripes his heart which he wants his ruler and lord to know, it’s easy, he goes and strikes the bell which the king has hung there. King Ram Khamhaeng, the ruler of the kingdom hears the call, he comes and questions the person, examines the case and decides it justly for him, so the people of Sukhothai praise him.30

26 Patrick Jory, Thailand’s Theory of Monarchy: The Vessantara Jataka and the Idea of the Perfect Man (State University of New York Press, 2016) 118. 27 Tambiah (n 8) 226. 28 Additional results were published in 1863, 1884, 1898 and 1909. See Cornelius Beach Bradley, ‘The Oldest Known Writing in Siamese, the Inscription of Phra Ram Khamhaeng of Sukhothai, 1293 AD’ (1909) 6 Journal of the Siam Society 1, 4. 29 Sawaeng Bunchalemphiwat, ประวัติศาสต์รกฎหมายไทย [Thai Legal History] (Winyuchon, 2000) 68. 30 Translation by Barend J Terwiel in The Ram Khamhaeng Inscription: The Fake That Did Not Come True (Ostasien Verlag, 2010) 98.

86  From the Sacred Monarchy to the Sacred Constitution Mongkut made use of the stele not only to prove the ancient character and development of Siamese civilisation in the thirteenth century and to distance Siamese royal rule from ‘barbaric’ and foreign devaraja rule during the Ayutthaya period, but also to act as a model for mid-nineteenth-century governance. He immediately reinstated some of the institutions of direct kingship as mentioned in the stele, notably the practice of petitioning the King. He ordered a hook and a rope to be placed at the entrance of the Palace so that people could attach their written grievances there. He also encouraged people to use this right, even rewarding them with money for doing so.31 The introduction of the practice resonated with the Western conception of the monarchy establishing the King as the fountain of justice of the kingdom.32 Meanwhile, Mongkut actively legislated against many of the practices associated with the King-deravaja doctrine. In 1857, he abolished the prohibition of watching royal processions33 and permitted subjects to refer to the King by his name.34 In 1858, he created a Royal Gazette to publish laws upon their promulgation, breaking with the tradition of the secrecy of the law. In 1861, Dan Beach Bradley could proceed with the printing and selling of the Three Seals Code, Rama III’s Royal Command prohibiting it having lapsed. In total, Mongkut ­promulgated more than 400 modernisation laws35 to erase traces of Hinduism and ‘­backwardness’ from the kingdom.36 Nevertheless, he also issued decrees ­maintaining the use of royal vocabulary and prohibited personal descriptions of the King.37 In addition, the de-brahmanisation was only partial. The great brahman-Buddhist rites, reflecting the various symbolic functions of the King (devaraja, chakravatin and bodhisattva) as well as the Siamese Hindu-Buddhist cosmogony, were still in operation in accordance with the Three Seals Code.38 Emulating the West, Mongkut nonetheless created new secular royal ceremonies. He borrowed the Western idea of ‘anniversary/birthday celebration’ to institute the celebration of the King’s birthday, the anniversary of the King’s coronation, as well as the ‘anniversary’ of Buddha’s various life stages (birth, enlightenment and death).39 In this process, he mobilised Hindu-Buddhist traditional concepts, imagery and symbols that he mixed with Western elements.

31 Attachak Sattayanurak, ‘Intellectual Origins of Strong Kingship (Part 2)’ (2001) 89 Journal of the Siam Society 12, 15. 32 Maurizio Peleggi, Thailand: The Worldly Kingdom (Reaktion, 2007) 92. 33 Quaritch Wales (n 25) 35–39; Tambiah (n 9) 226. 34 Kullada Kesboonchoo Mead, The Rise and Decline of Thai Absolutism (RoutledgeCurzon, 2004) 44. 35 Sawaeng (n 29) 149. 36 Alexander B Griswold, King Mongkut of Siam (Asia Society, 1961) 29; Fred Warren Riggs, Thailand: The Modernization of a Bureaucratic Polity (East-West Center Press, 1966) 99. 37 Chris Baker and Pasuk Phongpaichit, A History of Thailand, 3rd edn (Cambridge University Press, 2014) 49. 38 Articles 167 to 196 of the Palace Law cover the royal ceremonies month by month. Article 156 gives an annual overview of royal ceremonies; Baker and Pasuk (n 7) 70. 39 Riggs (n 36) 105; Quaritch Wales (n 25) 316.

Royal Reforms: The Westernisation of Law and Kingship  87 Mongkut also tackled the succession issue. He created the rank of chaofa, or royal prince, which he bestowed upon his son Chulalongkorn. Yet on his deathbed in 1868, the succession remained unclear. When his close adviser and Palace strongman, Sri Suriyawong, announced to the dying King that the nobles had chosen his son Chulalongkorn, Mongkut replied ‘My son is so young; it is not fair to place him in such a situation of danger’, hinting at the fact that the issue of usurpation and assassination plots were still very much on the agenda in royal politics in the late nineteenth century.40 In any case, Sri Suriyawong argued that Chulalongkorn should become King, as he had been identified as the rightful heir by Western countries: It is our belief that no other successor to the throne except His Royal Highness will be recognised in Europe. We therefore think that, for the security of the State and for the peace and prosperity of the people, Prince Chulalongkorn should be proclaimed King after your demise.41

Following Mongkut’s death, Chulalongkorn, then aged 15, succeeded as King, while Sri Suriyawong assumed the regency for five years. Chulalongkorn was crowned, but was not yet given the power to issue great royal commands. When he reached the age of 21, he was crowned King in a second Hindu-Buddhist ceremony convoking the gods Vishnu and Rama, which finally established his power to issue royal commands. He later used this power to the maximum, accelerating the ‘de-Hinduisation’ process initiated by his father. He furthered the process of the Westernisation of law and kingship, notably through a reform of penal law. In order to do so, he proceeded in two steps: first, he hired foreign advisors to draft legal codes for Siam; and, second, he sent a first generation of royal princes abroad, with the aim of eventually being able to replace foreign advisors with Siamese people who had been trained in the West. A number of his sons went to Europe, mostly to Britain, to study law. Chulalongkorn had been impressed by the common law as applied in other territories in British South and Southeast Asia (India, Burma, the Malay Peninsula and Singapore).42 In addition, Chulalongkorn had, like his father, a strong interest in all things British – he had been educated by a British preceptor, Anna Leonowens,43 and had been raised in an environment where ‘showing off’ mastery of the English language was highly praised.44 By contrast, during his reign, no prince was ever sent to France, the only republic in Europe at the time. 40 Abbot Low Moffat, Mongkut, the King of Siam (Cornell University Press, 2019) 176; also quoted in Riggs (n 36) 45. 41 Riggs (n 36) 46. 42 See Kannika Sattraprung, A True Hero: King Chulalongkorn of Siam’s Visit to Singapore and Java in 1871 (Chulalongkorn University Press, 2004). 43 See her memoir, first published in 1870: Anna Leonowens, The English Governess at the Siamese Court: Being Recollections of Six Years in the Royal Palace at Bangkok (Applewood Books, 2009). 44 Bruce (n 13) 98. See also Thongchai Winichakul, ‘The Quest for “Siwilai”: A Geographical Discourse of Civilizational Thinking in the Late Nineteenth and Early Twentieth-Century Siam’ (2000) 59 Journal of Asian Studies 528, 532; Baron de Lapomarede, ‘The Setting of the Siamese Revolution’ (1934) 7(3) Pacific Affairs 251.

88  From the Sacred Monarchy to the Sacred Constitution In 1873, Chulalongkorn abolished the practice of prostration, following Japan, China, Vietnam and India,45 and in the following year, he created a Council of State and a Privy Council based on the French and British models respectively, with the mission to advise the King on administrative matters.46 He also decided to resolve the issue of the succession. This was precipitated by the events of 1874–75, a crisis that erupted between him and his uparat, Prince Bovorn Wichaichan, who was found to have conspired against him.47 In 1886, after the death of Wichaichan, Chulalongkorn abolished the title of uparat and replaced it with a ‘crown prince’ modelled precisely on its British equivalent. Later, a Thai term was found to translate ‘crown prince’: somdeth phrabororom (orasathirat siam makut rachakuman). To justify suppressing the uparat, Chulalongkorn referred to the ‘confusion’ and the misunderstandings it had caused in the relations with foreign nations.48 In fact, the invocation of the need to Westernise was at least partly a pretext in order to get rid of an institution that threatened him personally. Chulalongkorn appointed his elder son, Prince Vajirunhis, as Crown Prince and housed him in a ‘Windsor Palace’. Meanwhile, Chulalongkorn maintained a steady pace of administrative and judicial reforms with the help of a Belgian jurist, Gustave Rolin-Jaequemyns, an appointed advisor to the government. In 1892, he presided over a complete overhaul of the administrative system, re-organising it into functional ministries and breaking away from the traditional Siamese administration based on geographical montons or mandalas.49 He ordered the creation of a Ministry of Justice in 1892, which supervised the departments of the prosecutor, of corrections and of legislation.50 In spite of these reforms, Western nations continued to enjoy the privilege of extra-territoriality. In 1893, a violent conflict with the French broke out. Several high-profile trials, including that of a young Thai officer named Phra Yot, ensued, giving rise to international mixed tribunals comprising Western and Thai judges.51

45 ประกาศเปลี่ยนธรรมเนียมใหม่ [Decree on New Practices], 12th moon of the 12th month, 1873. 46 Baker and Pasuk (n 7) 51; David Engel, Law and Kingship during the Reign of King Chulalongkorn (University of Michigan Press, 1975) 33–42. 47 Even though the appointment of the uparat was at the discretion of the King, in this case, it appeared as if the title of uparat had been inherited. Bovorn Wichaichan was indeed the son of the former uparat, Prince Pinklao, Mongkut’s brother. This seemed to turn the uparat into an autonomous institution and an hereditary office, in competition with the King. During the 1874–75 crisis, the uparat fled to seek protection in the British consulate. See Kullada (n 34) 61–64. 48 Pridi and Kittisak (n 10) 158; David K Wyatt, Thailand: A Short History, 2nd edn (Yale University Press, 2003) 224. 49 Stanley Jeyaraja Tambiah, ‘The Galactic Polity in Southeast Asia’ (2013) 3 HAU: Journal of Ethnographic Theory 503. See also Akin Rabibhadana, The Organization of Thai Society in the Early Bangkok Period, 1782–1873 (Cornell University Press, 1969). 50 The King notably authorised tribunals to determine the length of prison sentences as part of their judgment; Sawaeng (n 29) 144. See, generally, Walter F Vella, The Impact of the West on Government in Thailand (University of California Press, 1955). 51 Sam Yotmu Angkhwang, Full Report, with Documentary Appendices, of the Phra Yot Trial before the Special Court at Bangkok (Hardpress, 2013). On the 1893 conflict, see Patrick Tuck, The French Wolf and the Siamese Lamb: The French Threat to Siamese Independence, 1858–1907 (White Lotus Press, 1995).

Royal Reforms: The Westernisation of Law and Kingship  89 This prompted a new set of reforms. In 1895, Chulalongkorn replaced the Council of State and the Privy Council with a ‘Legislative Council’ (rattamontrisapha). He also moved quickly to reform criminal procedure, banning the use of torture in 1896. In 1897, he set up a Law School, to be headed by his son, Prince Raphi, freshly returned from Oxford, England.52 He also engaged in the secularisation of laws, in particular the laws regarding the majesty of the King. Following his return from a trip to Germany,53 he published a decree inspired by the lèse-majesté laws in Prussia.54 The 1900 Decree on Royal Defamation55 launched the process of legal codification. As part of this process, advocates of the common law were pitted against the defenders of civil law – a conflict itself embedded within a French-British imperial competition for influence over the Siamese legal modernisation process, including for control over the Law School curriculum.56 In the end, as Siamese elites needed a legal code that could be shown to Europeans as proof of Siam’s ‘civilised’ status,57 the civil tradition, successfully adopted by Japan, seemed more valuable. The new Penal Code was finally promulgated in 1908 after a 10-year internal struggle between the ‘pro-common law’ princes (Prince Phichit and Prince Raphi) and the ‘pro-civil law’ princes (such as Prince Damrong). The final result was drafted by the French jurists René Guyon and Georges Padoux, and was published simultaneously in English, French, and Thai;58 it was described as ‘the product of Japanese, French, Siamese and English influences

52 Nikorn Tassaro, พระเจ้าบรมวงศ์เธอ พระองค์เจ้ารพีพัฒนศักดิ์ กรมหลวงราชบุรีดิเรกฤทธิ:์ พระบิดาแห่งกฎหมายไทย [Prince Raphi, Father of Thai Law] (Nami Books, 2006). 53 David Streckfuss, ‘The Intricacies of Lèse-Majesté: A Comparative Study of Imperial Germany and modern Thailand’ in Soren Ivarsson and Lotte Isager (eds), Saying the Unsayable: Monarchy and Democracy in Thailand (NIAS, 2010) 124. 54 Wilhelm I was King of Prussia and German Emperor from 1861/1871 until 1888. The lèsemajesté laws which protected him had a very expansive scope, but the penalties for breaking them were relatively light. They were the object of commentaries in the legal reviews of the time. See, for example, ‘More Lèse-Majesté’ (1902) American Law Review 36, 271. 55 Article 4 of the 1900 Decree on Defamation stated: ‘Whoever defames [minpramat] the King or a royal person, whether provincial prince or the son of the King, by words uttered or written under any form in public or in reunion, shall be imprisoned for no more than three years or pay a fine of 1,500 Thai Baht or both.’ This wording bears a striking resemblance to Article 75 of the Prussian Penal Code of 1851. 56 Wanwisa Srikrajib, ‘L’Apport français à la réforme juridique thaïe : Du temps de la colonisation à l’ère de la mondialisation’ [‘The French Contribution to Thai Legal Reform: From the Times of Colonisation to the Times of Globalisation’] (thesis, Silpakorn University, 2003) 25–26; Chalanthorn Kidthang, ‘Georges Padoux : Le Code Pénal du Royaume du Siam (1908) et la Société Thaïe’ [‘Georges Padoux: The Penal Code of Siam (1908) and Thai Society’] (Thesis, Silpakorn University, 2004) 4. See, generally, Chanchai Sewengsak, อิทธิพลของฝรั่งเศสในการปฎิรูปกฎหมายไทย [The French Influence on Thai Legal Reform] (Winyuchon, 2015). 57 MB Hooker, A Concise Legal History of South-East Asia (Clarendon Press, 1978) 183. 58 See Georges Padoux, Code pénal du Royaume de Siam, version française avec une introduction et des notes [The Penal Code of the Siamese Kingdom, French Version with an Introduction and Remarks] (Imprimerie Nationale, 1909); René Guyon, L’oeuvre de codification au Siam [The Work of Codification in Siam] (Imprimerie Nationale, 1919).

90  From the Sacred Monarchy to the Sacred Constitution combined’,59 a type of ‘Indian Code, which does not correspond to continental legal codes but is British law in a codified form’.60 ‘Whispering’ in the presence of the King and improperly using the royal vocabulary were no longer listed as crimes, but they had been replaced by the Western concept of lèse-majesté. Articles 98 and 100 of the new Penal Code indeed transposed the 1900 Decree on Royal Defamation, providing harsher penalties for the crime of lèse-majesté, with jail sentences of up to seven years.61 The Westernised and secularised new version of the law considerably expanded the scope of the protection offered to the King’s majesty. As Ammatho Phra-inthapricha, the first jurist to have introduced the Roman term ‘­lèse-majesté’ in order to refer to the Thai legal dispositions protecting the King’s reputation, stated in his commentary of the Penal Code published in 1908, the crime of lèse-majesté (min phraborom dechanuphap) differed from that of defamation (min pramat), in that ‘the crime of lèse-majesté exceeds other crimes’.62 Besides Article 98 and 100, Article 104, located in title 2 of the 1908 Penal Code concerning the crime of high treason, included ‘defamation towards the government’ in its definition of lèse-majesté.63 The lèse-majesté law was not enough: as students returning from the West started to ask for a parliament and a Constitution, King Chulalongkorn also took steps to draft empowering legislation giving him the means to quell a rebellion or revolution. He assigned to his French legal advisor Georges Padoux the task of drafting a martial law. Composed of eight articles and heavily drawing inspiration from the French law on state of siege of 9 August 1849,64 it was promulgated in 1907. The law transferred executive power from the civilian authorities to the military authorities, the former being subordinated to the latter,65 and gave jurisdiction to military tribunals.66 Like its French model, martial law was to be declared by the military in the event of war or insurrection,

59 Tokichi Masao, ‘New Penal Code of Siam’ (1908) 18 Yale Law Journal 85, 99. 60 Georges Padoux, as quoted in Phraya Mahosodsripipat, การตรวจชําระและการร่างประมวลกฎหมายในกรุงสยาม [The Verification and Drafting of Laws in Siam] (Great Swing Ceremony, 1929) 11; Chalanthorn (n 56) 59. 61 Article 98 of the 1908 Penal Code stated: ‘Whoever defames [thanong ong at] or threatens [sadeng khwam-akhatamat-rai] the King, the Queen, the Heir to the Throne, or the Regent while performing duties toward the King, will be punished by imprisonment not exceeding seven years or a fine not exceeding 5,000 baht, or both.’ 62 Phra-inthapricha, คำ�อธิบายลักษณะอาญา [Handbook of Criminal Law] (Sophanaphiphatanakan, 1908) 525; David Streckfuss, Truth on Trial in Thailand: Defamation, Treason, and Lèse-Majesté (Routledge, 2010) 92. 63 Article 104 of the 1908 Penal Code, stated: ‘Whoever, by any means, [acts] with the intention to induce the following effects: weaken loyalty toward the king, [or] defame (khwamdumin) the king, the government, or the administration, will be punished with imprisonment not exceeding three years and a fine not exceeding 1,000 baht.’ 64 Preamble to the กฎอัยการศึก รศ 126 [1907 Martial Law]. 65 ibid art 6. 66 ibid art 7.

Royal Reforms: The Westernisation of Law and Kingship  91 and the military had to immediately inform the government, namely the King, thereof.67 In the same year that the martial law was adopted, the Legislative Council ceased to convene and Chulalongkorn held more powers than ever.68 Three years later, Chulalongkorn passed away and his son, Oxford-educated ‘Crown Prince’ Vajiravudh, succeeded him. Just two years after accession, Vajiravudh faced an attempted r­evolution directed against him. The rebellion, inspired by the revolutionary events in China, failed, as the plot was uncovered and the plotters were arrested. As reported in the newspapers of the time, the abortive rebellion had planned to install a republic with Prince Raphi as President of Siam.69 Perhaps as a response to this event, Vajiravudh actively encouraged anti-Chinese sentiments to flourish in Siam,70 while holding up ‘the Japanese as an example to the Thai, calling attention to their veneration of their emperor’.71 Two years later, probably bolstered by the attempted overthrow, Vajiravudh promulgated a new version of the martial law.72 The new version now also empowered the King to declare martial law, even in the absence of war or internal trouble. Once declared, the military could take over civilian authorities and martial courts acquire jurisdiction. However, the Siamese version did not copy the last part of the French 1849 law, according to which the military could ‘ban publications and meetings that it considers of a nature to excite or maintain disorder’.73 Other laws were to be drafted precisely to that effect, enriching the corpus of lèse-majesté laws. Towards the end of his reign, in 1922, Vajiravudh issued a decree on books, documents and journals. Article 5 introduced criminal liability for lèse-majesté for owners, editors, or writers of journals, imposing ‘a jail sentence not exceeding five years’.74 Vajiravudh did not focus his law-making efforts only on the sophistication of repressive tools such as lèse-majesté and martial law. Following in the footsteps of his predecessors, he as a ‘Fountain of Justice’ also continued the ‘revival’ of the traditional practice of judicial appeals to the King in the form of royal petitions. He codified it by issuing a decree on royal petitions in 1914, which

67 ibid art 4. 68 Engel (n 46) 53. 69 Eiji Murashima, ‘The Origin of Modern Official State Ideology in Thailand’ (1988) 19 Journal of Southeast Asian Studies 80, 93. See also Rien Srichan and Net Phoonwiwat, กบฏ ร.ศ.130 : การปฏิวัติครั้งแรกของไทย [The 1912 Rebellion: The First Thai Revolution] (Sripanya, 2019); Nattapol Chaiching, ‘สยามบน “ทางสองแพร่ง” : ๑ ศตวรรษของความพยายามปฏิวัติ ร.ศ. ๑๓๐’ [‘Siam at a Crossroads: One Century after the Attempted 1912 Revolution’] (2012) 33(4) Silapawattanatham 76. 70 In 1914, Vajiravudh published, under a pseudonym and in a leading newspaper, an article referring to the Chinese as ‘the Jews of the East’. See Wasana Wongsurawat, ‘Beyond Jews of the Orient: A New Interpretation of the Problematic Relationship between the Thai State and its Ethnic Chinese Community’ (2016) 24 Positions: asia critique 555. 71 Vella (n 50) 353. 72 พระราชบัญญัติกฎอัยการศึก พระพุทธศักราช ๒๔๕๗ [1914 Martial Law]. 73 Article 9(4), Loi sur l’état de siège [1849 Law on the State of Siege]. 74 พระราชบัญญัติว่าด้วยสมุดเอกสารหละหนังสือพิมพ์ พระพุทธศักราช 2465 [1922 Royal Act on Books, Documents and Journals].

92  From the Sacred Monarchy to the Sacred Constitution detailed the procedure of presenting petitions to the King, a legacy of Mongkut’s reconstructed ‘bell’ at the entrance of the Palace.75 This overall process of Buddhicised Westernisation was most obvious in the choice of royal titles. On the one hand, Vajiravudh amplified the break with traditional conceptions of kingship by relinquishing the word ‘anekchonnikorn’ or ‘Great-Elected’ in his title. On the other hand, following the European practice, he decided to number kings using a common name; he chose Rama as the name of kings, based on the main character of the Hindu tale Ramayana (the Ramakien in its Siamese version). He inaugurated the practice by presenting himself as ‘Rama VI’ to Europeans. Also, he borrowed from the British court the practice of using an ancient throne to emphasise royal continuity – perhaps based on his experience attending, as his father’s representative, the 1902 coronation of King Edward VII in Britain. Like Mongkut and Chulalongkorn before him, he decided to root his reign in continuity with that of King Ramkhamhaeng, the great King of Sukhothai, and used King Ramkhamhaeng’s old throne.76 Likewise, in his British-style Westminster miniature ‘democracy’, he, as ‘Mister Ram of Bangkok’, professed ‘Thammathipatai’ or ‘dharmacracy’ sermons to ‘residents’ in a Buddhist temple of the same name. Rama VI did not have a son, nor did he appoint a crown prince. For this reason, at the end of his reign in 1924, as he anticipated a major succession crisis, he promulgated the first succession law of Siam, which was appended to the Palace Law.77 The 1924 Palace Law on Royal Succession was composed of 13 articles, dealing with the modes of appointment of the crown prince, of the regent and of accession to the throne in the event that the King had not designated a successor. For the first time in Siamese history, the law clearly stated its observance of the rule of male primogeniture, in spite of the King’s deep emulation towards the British model, which allowed women to succeed. The brothers of the King no longer had any claim to the throne, except in the event that the King died before producing a son.78 With its emphasis on the dynastic principle, the law was a clear breach of the principle of the King as the Great Elected. Nonetheless, Articles 10 and 11 seemed to maintain some requirement of at least tacit approval by the royal entourage and perhaps by the people of the royal succession: in particular, Article 11 listed the many personality characteristics that were deemed incompatible with the office of king, such as madness, a criminal record, incapacity to act as the protector of Buddhism, marriage to a foreigner, loss of the title of crown prince and exclusion from the line of succession. The law was implemented for

75 พระราชกฤษฎีกาวางระเบียบทูลเกล้าถวายฎีกา พระพุทธศักราช 2457 [1914 Royal Decree on Petition to the King]. 76 Siriporn (n 24) 46. 77 กฎมณเฑียรบาลว่าด้วยการสืบราชสันตติวงศ์ พระพุทธศักราช ๒๔๖๗ [1924 Palace Law on Royal Succession]. 78 In art 9, the law created a hierarchy between princes and lay out the order of succession in as detailed a manner as possible. It clearly established that there was no filiation through the mother. See

Royal Reforms: The Westernisation of Law and Kingship  93 the first time in 1925 at the time of Vajiravudh’s death. As he had no male heir, his younger brother, Prajadhipok, who had been educated in the military both in Britain and in France, succeeded him. Throughout his reign, Prajadhipok confessed his confusion regarding the law of succession. To him, the problem of polygamy complicated the whole process. Indeed, if the King did not designate his successor, the throne passed to one of his sons, depending on the rank of the mother. But the rank of the mother – queen or concubine – could be modified at any time at the discretion of the King. Therefore, according to this law, several sons of the King could claim the throne. Then, among the sons, a form of ‘election’ would take place. King Prajadhipok declared: ‘This [the tension between the two principles, election and blood], according to me, paves the way for many complications.’79 In 1926, in his letter to his advisor Francis B Sayre, he stated: [Regarding] the Constitution: The Kings of Siam are supposed to be elected by the people. In former days a Ceremony of election was performed. At the death of the King, a Council consisting of Royal Princes, Ministers of State and High Dignitaries of the Church was held. The Senior Prince or Minister then proposes that such and such a Prince should be elevated to the Throne and asks if anybody has any objection. There is generally no answer to this question, but sometimes an answer in the affirmative is given by saluting with the hands or an inclination of the head. The King is then formally proclaimed, and the words ‘elected by the people’ are added to his titles. This custom has been continued until the Fifth Reign.80

Prajadhipok then proceeded to ask Sayre his thoughts on a constitutional method of royal succession that would reconcile the dynastic principle with the traditional theory of elected kingship. Yet, in spite of his discomfort with the law on succession, Prajadhipok did not revise it during his reign. He continued to deepen the works of his predecessors by focusing on lèse-majesté instead. In 1927, in order to respond to elite fears concerning the rise of republicanism and communism, he promulgated a new decree amending Article 104 of the Penal Code as follows:81 The teaching of political and economic theories aiming to create a resentment and defamation toward the king or social classes is a crime subject to imprisonment not exceeding 10 years, or a fine not exceeding 5,000 THB, or both.82

Wissanu Krea-ngam, กฎมณเฑียรบาลในระบบกฎหมายไทย [The Palace Law in the Thai Legal Order] (Charoen, 2010). 79 King Prajadhipok’s Institute, แผนพัฒนาการเมืองไปสู่การปกครองระบอบประชาธิปไตย ตามแนว พระราชดำ�ริของพระบาท สมเด็จพระปกเกล้าเจ้าอยู่หัว (พ.ศ.2469–2475) [Plan of Political Development Aiming towards Democratic Administration According to the Ideas of Prajadhipok] (KPI, 2002) 168. 80 Benjamin A Batson, Siam’s Political Future: Documents from the End of the Absolute Monarchy (Southeast Asia Program, Department of Asian Studies, Cornell University, 1974) 13. 81 พระราชบัญญัติสมุด เอกสาร และหนังสือพิมพ์ พ.ศ. 2470 [1927 Royal Act on Documents and Journals]. 82 Article 104 of the 1908 Penal Code (revised in 1927).

94  From the Sacred Monarchy to the Sacred Constitution Thus, a legal arsenal, drawn from the experience of the European monarchies, stabilised, centralised and sacralised royal power, while neutralising threats to its exercise. In 1925, Prajadhipok founded the Supreme Council of the State (aphiratthamontri sapha) as the King’s advisory council, five members of which were senior princes. Then, almost all of his older brother Vajiravudh’s ministers were replaced by members of the royal family. In 1927, the King appointed a commission tasked with studying the possibility of creating a representative organ. Finally, he decided against a parliament and opted for the (re-)creation of a Privy Council (khammakan ongkamontri) composed of 40 trusted men, notably former ministers and members of the royal family.83 In the same year, the Supreme Court issued one of the first cases of administrative law: it ruled that the procedure of the royal petition should not be abused, and specified that petitions to the King had to be based on true facts, effectively limiting the only means offered to the Siamese to voice any grievance.84 III.  ROYAL VETOES AND AMNESTIES VERSUS THE SACRED CONSTITUTION

When on 24 June 1932, the People’s Party imposed a Constitution on King Prajadhipok, its members publicly explained their motives as follows: When the King succeeded his elder brother, the people hoped he would govern with moderation. But these hopes were deceived. The King still reigns above the law as he did in the past … Dear people, it is time to understand that our country belongs to the people; not to the King, as we were misled into believing … The People’s Party has no desire to steal the throne. Consequently, we invite the king to keep his title. But he must be placed under the Constitution, and could do nothing without the consent of the assembly of representatives of the people. The People’s Party has already informed the king and is waiting for a response. If the king refuses or if he does not reply within the set timeframe, for the selfish reason that he would see his power diminished, we will consider this act as an act of treason; it will then be necessary for the country to adopt a democratic form of government.85

Here, the ‘democratic form of government’ referred to a parliamentary republic. The People’s Party made this clear in the following sentence: ‘A democratic form of government means that the Head of State shall be a commoner elected by parliament for a limited mandate.’86 This is certainly what Pridi Banomyong



83 Wissanu

Krea-ngam, กฎหมายรัฐธรรมนูญ [Constitutional Law] (Nittibanakan, 1982) 254. [Supreme Court Decision 567/2471], 1927. 85 ประกาศคณะราษฎร ฉบับที  ๑ [People’s Committee First Announcement], 24 June 1932. 86 ibid. 84 คำ�พิพากษาศาลฎีกาที  ๕๖๗/๒๔๗๑

Royal Vetoes and Amnesties versus the Sacred Constitution  95 had learned in French constitutional law handbooks detailing a typology of political systems. Pridi also asked Prajadhipok for an amnesty: What the People’s Party did was in accordance with our preferences, and proceeded from good intentions regarding the nation and the people – we have committed no bad action and did not even have bad intentions, whatsoever. We ask you to promulgate the following royal decree: Article 1 – This royal decree is called ‘decree of amnesty for the change of regime in the Buddhist year 2475’; Article 2 – The decree enters into force from the day of the royal signature; Article 3 – Every action whatsoever, committed by anybody in the People’s Party, if it constitutes a violation of the law, will not be considered illegal.87

Prajadhipok accepted to return to Bangkok as a constitutional monarch. He replied: I have received the letter in which you invite me to return to Bangkok as a constitutional monarch. In the name of peace, to spare a useless bloodbath, to avoid confusion and damages for the country, and moreover, because I have already considered making that change myself, I am ready to cooperate to the implementation of a Constitution under the authority of which I am disposed to serve.88

The King signed the amnesty immediately, but delayed his signature of the Constitution by a few days, adding the word ‘temporary’ to the document, and requesting that a Constitution-Drafting Committee be set up to replace the revolutionary charter with a more conservative text. Thailand’s Second Constitution was passed in December 1932, drawing on both the Meiji and Westminster models. As a result, the 1932 Constitution was ambiguous: it could be read in a Meiji sense or in a Westminster sense. These various readings proved critical when it came to the interpretation of the royal sanction, the royal veto and royal emergency powers. The King and the President of the Constitution-Drafting Committee, Prime Minister Manopakorn adopted a Prussian reading of the Meiji-inspired Constitution. First, the King read his power to appoint ‘type-2’ Members of Parliament as his own discretionary power, and Manopakorn agreed with this understanding.89 Second, he considered his veto to be absolute, and used it as such many times, requesting the withdrawal of bills to which he did not give his royal sanction. He vetoed three bills that directly threatened his power: a bill allowing judges to pronounce the death penalty – he

87 Suphot Dantrakun, ประวัติรัฐธรรมนูญ [Constitutional History] (Social Sciences Foundation, 2007) 17. 88 พระราชหัตถเลขาตอบคณะราษฏร [King Prajadhipok’s Telegram to the People’s Party], 24 June 1932, quoted in Charnvit Kasetsiri and Thamrongsak Petchlertanan, 2475, การปฏิวัติสยาม [1932: The Siamese Revolution] (Foundation for the Promotion of Social Sciences and Humanities Textbook Projects, 2000) 144. 89 Nattapol Chaiching, ขอฝั นใฝ ่ในฝั น อันเหลื่อเชื่อ [They Dreamed the Impossible Dream: The Counterrevolutionary Movement in Siam] (Samesky Books, 2013) 35, 142–43.

96  From the Sacred Monarchy to the Sacred Constitution argued he needed to remain the ‘Lord of Life and Death of [his subjects]’ (chao chiwit); a bill separating the State-funded Crown budget from the King’s personal wealth; and a bill implementing a tax on successions, which would have made him liable to pay taxes – both bills seen as attacks against the King’s status as ‘Lord of the Land’ (chao phaendin).90 Third, the King interpreted his emergency powers as allowing him to suspend the Constitution. In April 1933, he invoked emergency powers to dissolve Parliament and suspend parts of the Constitution sine die. The Act, countersigned by the Prime Minister, was not issued on the basis of the phrarachakamnot of Article 52, but was in fact a phrarachakrisdika (royal decree) mentioning in its motives that it was a decision of the King himself, which was justified by the ‘­emergency’ of preserving the country from ‘disaster’ following the presentation by Pridi of a ­communist-inspired economic plan.91 King Prajadhipok only suspended parts of the Constitution rather than abolishing it. Before the events of 1933, he had promised to protect the Constitution and to never give his royal sanction to an unconstitutional act; if such an unconstitutional act would be forwarded to him for signature, he would rather abdicate than affix his name to it.92 However, although the Parliament had been dissolved, the King continued to promulgate laws countersigned by the now irresponsible Prime Minister, notably the anti-communist law of 1933,93 which was issued the day after the coup. Unsurprisingly, the King also granted Manopakorn an amnesty for the unlawful dissolution of parliament – the amnesty was countersigned by no one other than Manopakorn himself. Article 3 stated: ‘All acts of any person whatsoever, whether a soldier from the Army or the Marine, or a civilian, who could have violated a law whatsoever, will not be considered as illegal.’94 In June 1933, Pahon Phonphayuhasena, one of the earliest members of the People’s Party, staged a counter-coup against Manopakorn, and reconvened Parliament, which subsequently voted him in as Prime Minister. A few days later, considering his duty accomplished, he tendered his resignation to Prajadhipok, but the latter refused it, and Pahon had to continue as premier,95 only to be met a few months later with an attempted royalist overthrow. One of the stated aims 90 ibid 34–35. 91 The decree dissolving Parliament and nominating a new government on 1 April 1933 was introduced by the words ‘According to Royal Will’ (doi thi song phrarachadamrihenwa) (โดยที ทรงพระราชดำ�ริเห็นว่า). Most legislative acts are introduced by another formula referring to the prime minister. This means that the act itself refers to a decision made by the King, not the prime minister. See พระะราชกฤษฎีกาให้ปิดประชุมสภาผู้แทนราษฎรและตั้งคณะรัฐมนตรีชุดใหม่ พ.ศ. 2476 [1933 Royal Decree to Close the Parliamentary Session and Appoint a New Government]. 92 According to Pridi’s testimony, in Pridi Banomyong, ปรีดีกับสังคมไทย [Pridi and Thai Society] (Thammasat, 1983) 440, also quoted in Thamrongsak Petleut-anan, ‘ข้ออ้าง’ การปฏิวัต-ิ รัฐประหาร กบฎในการเมืองไทยปัจจุบัน: บทวิเคราะห์และเอกสาร [Pretexts of Revolutions, Coups d’Etat and Rebellions in Contemporary Thailand: Analysis and Documents] (Thammasat, 2007) 23. 93 พระราชบัญญัติว่าด้วยคอมมิวนิสต์ 2476 [1933 Royal Act on Communism]. 94 Article 3 of the 1933 Amnesty Law, 24 June. 95 Vichitvong (n 2) 75.

Royal Vetoes and Amnesties versus the Sacred Constitution  97 of the October 1933 Boworadet Rebellion was to give the King, inter alia, the prerogative to appoint ‘type-2’ members at his discretion.96 Blood was shed, but the rebels were quickly defeated. Alarmed, the People’s Party issued a law of ‘defence of the Constitution’ mimicking the lèse-majesté law.97 It provided for the creation of a special committee to adjudicate cases and hand down jail sentences ranging from three to 20 years for ‘all acts directed against the Constitution or aiming to erode the confidence of the people in the constitutional system’.98 A law against ‘defamation of the Constitution’ also came close to being adopted,99 while the lèse-majesté law protecting the King fell temporarily into oblivion. During this chaotic year, King Prajadhipok was also the target of a defamation lawsuit. Thawatt Rithidet, the Secretary-General of the Workers’ Association of the Tramway Society of Bangkok, claimed that a document signed by Prajadhipok wrongly accused him of organising a strike movement not to further workers’ interests, but for personal gain (to create a trade union, appoint himself Secretary-General and thus obtain a salary).100 The government presented this case to the Assembly of Representatives, which decided that neither the tribunals nor the Assembly itself were competent to deal with a trial launched against the person of the King. The lawsuit was never considered. However, it was fully agreed that Thawatt had exercised his rights and that he had not committed an act of lèse-majesté. The next year, Article 104(1) of the Penal Code was revised so as to place the common good above the reputation of the King: the appreciation of ‘good faith’ came to moderate the character of the lèse-majesté law.101 It must be noted that during this time, religious discourse increasingly permeated the ways in which constitutionalism was understood: during the June 1933 counter-coup, Pahon suspended some of the provisions of the Constitution, claiming it was doing so in order to protect the ‘sacred Constitution’ (saksith) from outright abolition.102 To members of the People’s 96 On the Boworadet rebellion, see Nattapol Chaiching, กบฏบวรเดช: เบื้องแรกปฏิปักษ์ปฏิวัติสยาม 2475 [The Boworadet Rebellion: The First Counter-revolution] (Matichon, 2016). 97 ‘พระราชบัญญัติจัดการป้องกันรักษารัฐธรรมนูญ พศ 2476’ [Law on the Defence of the Constitution], 12 November 1933. 98 ibid art 3. 99 Puli Fuwongcharoen, ‘Long Live the Rattathammanun’ (2018) 52 Modern Asian Studies 619, 630. 100 Somsak Jiemteerasakul, ‘กรณี ถวัติ ฤทธิเดช ฟ้อง พระปกเกล้า’ [‘The Case of Thawat Rithidet Lawsuit against Prajadhipok’] (2004) 26 Silapawattanatham 101. 101 The revised Article 104 stated: ‘Whoever commits the following actions as words, uttered, written, or printed or any other means (1) defamation against the King or the government or the administration … This person shall be liable to imprisonment not exceeding seven years and a fine not exceeding 2,000 baht. But if this speech, writings, or printed documents are in conformity with the Constitution, are made for public good, or are the expression of opinions expressed in good faith or harmless remarks, they will not be considered as a violation of the law.’ 102 Suthachai Yimprasert, สายธารประวัติศาสตร์ประชาธิปไตยไทย [A View of the History of Thai Democracy] (Democracy Foundation, 2008) 33–34; Bandit Chanrochanakit, ชีวประวัติธรรมนูญการปกครองและรัฐธรรมนูญแห่ง ราชอาณาจักรไทย พศ 2475–2520 [A Biography of the Interim Constitution and the Constitutions of the Kingdom of Thailand 1932–1977] (Research Development Fund, 2007) 13.

98  From the Sacred Monarchy to the Sacred Constitution Party, the Constitution ought indeed to become sacred. They worked hard to displace the King as the locus of sacredness, encouraging everything that would establish the supremacy of the Constitution, rather than the King’s supremacy. From 1934 onwards, under the leadership of Pridi as Minister of the Interior, they established a cult of the Constitution. An ‘Association for the Constitution’ (samakhom khana rattathammanun), presided over by Pridi, was set up, with branches all over the country. ‘Statues’ of the Constitution – a golden ‘samutthai’, a folded book used for Buddhist scriptures, on a twotier golden tray used for royal items – were sent to every provincial hall.103 Celebrations and marches were organised in honour of the Constitution, mimicking royal ceremonies. In 1934, the date of 10 December became a national holiday. On that day, young people would go on romantic dates at popular ‘Constitution festivals’ and compete in the beauty contest of ‘Miss Constitutions’.104 Symbolically, constitutional supremacy was replacing royal supremacy, even while the former drew its legitimacy from the latter and borrowed its modes of legitimation, most notably Buddhism. Meanwhile, the King had been d ­ iscredited by the allegation of having supported the counter-revolutionary Boworadet Rebellion.105 He travelled to the UK, officially for an eye operation. In October 1934, he sent a telegram to the government from the UK, in which he issued an ultimatum to the People’s Party: the government should revise the Constitution or he would abdicate the throne.106 An intense correspondence between the King and the People’s Party ensued for several months, in which both sides gave their competing interpretations of the Constitution and dissonant understandings of the role of a constitutional monarch. Prajadhipok argued that he had been misled into believing that the Constitution would establish a British system, but it turned out that the People’s Party was more interested in following the one-party state model.107 At times, he also expressed, somewhat

103 The use of the samutthai aimed to ‘give a sense of mystique (khlang) to the Constitution’. It was the idea of King Prajadhipok himself. Meanwhile, Pridi supervised the design of the replicas of the Constitution. Luang Wichit Wattakan also played an important role in making the Constitution into a sacred object; see Puli (n 99) 625. 104 The beauty contest was the central element of the 10 December celebrations; see Pridi Hongsathon, ‘มองงานฉลอง รัฐธรรมนูญในแง่การเมืองวัฒนธรรมหลังการปฎิวัตฺิ 2475’ [‘Looking at the Cultural Aspects of the Celebrations of the Constitution after the 1932 Revolution’] (2013) 16 Journal of the Thammasat Archives 122. 105 During the rebellion, the King learned of the news while he was in his summer palace in Hua Hin. He escaped with the Queen towards the Malaysian frontier after sending a simple telegram expressing his regret at the violence. According to Nattapol, he had also planned to execute members of the People’s Party on 24 June 1933. Nattapol (n 96) 21–22. 106 House of Representatives, พระบาทสมเด็จพระปรมินทรมหาประชาธิปก พระปกเกล้าอยูห่ ัวทรงสละราชสมบัติ [Prajadhipok Abdicates] (Office of the House of Representatives, 1993) 1. 107 ibid 34.

Royal Vetoes and Amnesties versus the Sacred Constitution  99 contradictorily, his refusal to be ‘like a British monarch’, a mere ‘tool’ in the hands of the government.108 Prajadhipok’s most pressing demands concerned the royal veto and the appointment of ‘type-2’ Members of Parliament. He wished to make it more difficult for the Assembly to overturn the royal veto by changing the voting threshold from a simple majority to a qualified three-quarters majority. Another possibility would be to call for a referendum (a ‘plebiscite’, in his words) on the issue. Alternatively, he suggested that in the event that he opposed a bill, the parliament should be immediately dissolved and that the act of dissolution need not be countersigned by the prime minister or any minister at all.109 This proposal was categorically refused. Prime Minister Pahon stated: ‘The automatic dissolution of parliament following the King’s opposition on a draft cannot exist in a democratic constitutional system.’110 On the appointment of ‘type-2’ Members of Parliament, Prajadhipok requested to make it clear that it was his royal prerogative, not the government’s, as had been initially agreed with Manopakorn during the drafting of the Constitution.111 Obviously, Prajadhipok’s interpretation of the Constitution was not in line with the practices of the British monarchy at the time. When the government did not reply favourably to his requests, arguing that revising the Constitution would erode the ‘sacredness’ of the supreme norm, he wrote back: ‘The Constitution should not be sacred, it should be revisable. It is not right to venerate it with scented candles as you do, venerating the Constitution is a joke!’112 King Prajadhipok abdicated on 2 March 1935 without naming a successor,113 resulting in a long regency period. In accordance with the 1924 Law on Succession, the People’s Party invited Prajadhipok’s nephew, Ananda Mahidol,

108 ibid 19–20. In his various telegrams, letters, messages, ‘notes verbales’ and audiences granted to the representatives of the government sent to Britain to negotiate with him, Prajadhipok made so many demands that members of the government asked him to provide them with a unique, authoritative document summarising his demands in the form of a list of individual items. In his third statement, dated 26 December 1934, he roughly summarised his demands as follows: ongoing trials against royal servants in relation to the Boworadet rebellion should be suspended, political prisoners should be forgiven, the government should compensate those expelled because of their pro-monarchy political allegiances; the People’s Party should, by written statement, promise that the budget of the Palace will not be reduced, that the Royal Military Guard will be maintained and re-armed, and that the monarchy will be respected; the Law on the Defence of the Constitution should be immediately repealed, a new Law on Royal Petition giving the King true decision-making power should be urgently drafted and adopted during the current parliamentary session; the royal veto should be made harder to overcome, and ‘type-2’ Members of Parliament should be chosen by the King; they should be royal servants, not members of the People’s Party; the wealth of the monarchy should not be divided into a personal Privy Purse and a State-owned Crown Property as in Britain. See House of Representatives (n 106) 34–41. 109 ibid 37–38. See also Suphot (n 87) 36. 110 House of Representatives (n 106) 70. 111 ibid 66. 112 ibid 68. 113 พระราชหัตถเลขาสละราชสมบัติ พระบาทสมเด็จพระปกเกล้าเจ้าอยู่หัว [Telegram of Abdication of King Rama VII], 2 March 1935. Reproduced in House of Representatives (n 106) 137–41.

100  From the Sacred Monarchy to the Sacred Constitution to succeed to the throne. This choice allowed the People’s Party to govern free from royal interference, given the young age of the King and the fact that he lived in Switzerland.114 During that regency, the legal codification process reached its completion stage. By 1935, Siam had modern codes for all major branches of law as well as a court system organised nationally in three degrees of jurisdictions, policed by the Supreme Court.115 Siam had completed the entire process of legal reform, including the codification and administration of justice, which was required in order to resist the British and the French colonial powers, and also successfully adopted a functional constitutional system. The colonial powers, including the ‘newcomer’ Japan, renounced their right of extra-territoriality and Siam regained its full sovereignty.116 The Law on the Defence of the Constitution was no longer needed: the newly elected Prime Minister Phibun Songkhram abrogated it in 1938. The Democracy Monument, celebrating the Constitution and the People’s Party, was inaugurated the following year. New festivities were organised on National Day (24 June), which was renamed ‘the day of the King’s octroy of the Constitution’.117 In 1946, while Pridi was Prime Minister, the Constitution was revised to suppress the appointed ‘type-2’ Members of Parliament and institute a fully elected Senate instead: the victory of the People’s Party over Prajadhipok was fully achieved. The revised Constitution was promulgated in May 1946 in a great ceremony imbued with Buddhist symbolism, in which Pridi, then ‘at the zenith of political power’,118 knelt down to present the Constitution, on its golden tray, to King Ananda for signature. Just a few days earlier, in his speech before Parliament, Pridi expressed his deep gratitude to Prajadhipok, who, he asserted, deserved all the credit for having graciously granted democracy, in the form of a constitutional system, to the Siamese people.119 It might seem paradoxical that Pridi, who had fought for the recognition of parliamentary sovereignty at the expense of royal sovereignty, relied so much on the idea of the ‘royally granted Constitution’, but it must be recalled that at the time, the idea of a Constitution was unknown to most Siamese people; therefore, rooting the Constitution’s

114 Noranit Settabutr, รัฐธรรมนูญกับการเมืองไทย [The Constitution and Thai Politics] (Thammasat, 2007) 130; Vella (n 50) 366. 115 The Penal Code (1908, revised in 1927), the Civil and Commercial Code (1925), the Civil Procedure Code (1934), the Criminal Procedure Code (1934) and the Law on Reform of the Administration of Justice (1934). See Vichitvong (n 2) 117. 116 In 1920, the US signed a treaty with Siam abolishing extra-territoriality. Siam signed a number of similar treaties with other nations in the following years: Japan and Germany (1923), France (1924), the UK (1925), the Netherlands, Spain, Denmark and Sweden (1925), and Italy and Belgium (1926). By 1939, Siam had regained its legal sovereignty after 83 years of extra-territoriality. See Vichitvong (n 2) 118–19. 117 Somsak Jiemteerasakul, ‘ประวัติศาสตร์วันชาติไทย: จาก 24 มิถุนาถึง 5 ธันวา’ [‘History of the Thai National Day: From 24 June to 5 December’] (2004) 2 Samesky Journal 95. 118 Vichitvong (n 2) 189. 119 Chris Baker and Pasuk Pongpaichit provided a translation of the speech in Pridi Banomyong, Pridi by Pridi: Selected Writings on Life, Politics, and Economy (Silkworm Books, 2000) 231–3.

Royal Vetoes and Amnesties versus the Sacred Constitution  101 legitimacy in its ‘sacredness’ derived from its association with the Buddhist King was probably the best option in terms of mobilising people in its defence. In any case, the years between Prajadhipok’s abdication and the advent of the fully elected Parliament were ‘undoubtedly the most hopeful years in the Thai constitutional experiment’.120  The three reigns of Mongkut, Chulalongkorn and Vajiravudh secured the monarchy’s rule through laws inspired by the European monarchies. Succession rules secured the dynasty, the martial law empowered the King and the lèse-majesté laws made him sacred. The reforms transformed Thai law from a law based on dharma to a modern Western law founded upon the State. This break with the past allowed Siamese kings to progressively consolidate the absolute monarchy. Mongkut had initiated the double movement towards both Westernisation and Buddhicisation of law under the guise of a return to a romanticised idea of traditional Siamese kingship in Sukhothai, a process furthered by both Chulalongkorn and Vajiravudh, and re-appropriated by the People’s Party at the expense of Prajadhipok from 1932 onwards. Then, Buddhism and Western modernity were again jointly mobilised to found the legitimacy of the 1932 Constitution and invest it as a substitute King when Prajadhipok abdicated. The void left by the disappearance of the figure of the King was filled with the cult of the Constitution, which was popularly framed as sacred, being a ‘King’s octroy’ (rattathammanun phrarachathan).



120 Vella

(n 50) 366.

102

Part II

Importing the State of Emergency

104

5 Thailand’s Cold War Constitutions Constitutions for the Military

I

n the post-Second World War context, Southeast Asia became one of the epicentres of the Cold War. In the name of the fight against communism, constitutionalism as a political ideal was sidelined, to be replaced with martial law, in the form of US-backed military dictatorship. Dictatorship was invoked as the best instrument to foster stability for development and facilitate repression against the communist threat. In that context, successive ­coup-makers lost interest in the Westminster model of parliamentary government and developed some keen leaning towards the French (and American) presidential systems. I.  THE 1947–1949 CONSTITUTIONS: THE ROYALIST RESTORATION AND THE REJECTION OF THE BRITISH MODEL

After the Second World War, Thailand’s People’s Party was as split as ever: the military faction, headed by Phibun Songkhram, was discredited for having collaborated with the Japanese while the civilian faction, led by Pridi Banomyong, had sided with the Allies. In 1945, Pridi (who had become King Ananda’s regent in 1941), appointed Seni Pramot, a respected jurist from the royalist faction who had organised a resistance movement against the Japanese, to succeed Phibun as head of the government. Under Seni’s leadership, Parliament immediately passed a law punishing those who had sided with the Japanese. The law on war crimes1 satisfied the British, who had requested that Phibun be tried as a

1 พระราชบัญญัติอาชาญกรสงคราม พ.ศ. 2488 [1945 Law on War Crimes], 8 October 1945. The law comprised 12 articles. Article 3 made declaring war on allied forces a war crime subject to the death penalty. Article 4 provided for the creation of an investigative committee tasked with initiating judicial proceedings, which would come under the exclusive jurisdiction of the Supreme Court, as the court of first and last resort. See Totsiri Phunnuon (ed), คำ�ให้การต่อศาลอาชญากรสงคราม เอกสารประวัติศาสตร์ [Testimonials before the War Crimes Court, Historical Documents] (Pridi Banomyong Foundation, 2002).

106  Thailand’s Cold War Constitutions war criminal.2 But the Supreme Court ruled that the law was unconstitutional and ordered the release of all prisoners detained under the law.3 Parliament was highly dissatisfied with the Court’s ruling, which it considered to be a usurpation of its exclusive competence to interpret the Constitution.4 The day after the ruling, Pridi became Prime Minister, and supervised the completion of his constitutional project, the ‘end of the tutelage period’ established by the 1932 Constitution, through the enactment of the 1946 Constitution. Its drafting happened in Parliament, in accordance with the procedures laid out in the 1932 Constitution. It was promulgated triumphantly on 9 May 1946 – a fully parliamentary system was established, with two elected chambers and a figurehead monarchy. Parliament’s exclusive competence to interpret the Constitution was reaffirmed.5 The sudden and mysterious death of King Ananda Mahidol in June 1946,6 exactly one month after Pridi’s triumph, was used as a pretext to abolish the Constitution and push him out of Thailand’s political scene – Pridi was accused of being the ‘mastermind’ behind the regicide and an arrest warrant was issued against him. Elections were held in August and he lost his premiership to Thawan Thamrongnawasawat, a military officer from the Navy. A year later, on 8 November 1947, General Phin Choonhavan seized power in a coup and declared Pridi’s Constitution null and void. It was the first time in the constitutional history of Thailand that a Constitution was abolished in its entirety. In their statements, those involved in the coup invoked the need to safeguard ‘the Nation, the Religion and the Monarchy’, as well as to come back to the ‘true’ Constitution of the country7 – namely, the 1932 Constitution, which they saw 2 The British considered that Thailand had played a major role in the Japanese expansion in Southeast Asia. They requested that Phibun be extradited and tried at Nuremberg or Tokyo for war crimes. The British also proposed the establishment of a military tribunal under Allied control in Bangkok. They requested a downsizing of the Thai military. In contrast to the British, the US pleaded for leniency. See Frank C Darling, ‘British and American Influence in Post-War Thailand’ (1963) 4 Journal of Southeast Asian history 97. 3 คำ�พิพากษาคดีอาชญาการสงครามที  1/2489 [1946 Supreme Court Ruling on War Crimes], 23 March 1946. 4 Parliament appointed a committee of jurists to look into the matter. The Committee, which notably included the lawyers Phraya Thepwithun and Chao Phraya Srithammathibet, stated that ruling 1/2489 of the Supreme Court was not in conformity with the Constitution, as the 1932 Constitution in art 62 gave Parliament exclusive and definitive competence to interpret the Constitution. See Bowornsak Uwanno, คำ�อธิบายวิชากฎหมายรัฐธรรมนูญ [Constitutional Law Handbook] (Office of the Formation of the Lawyers’ Council, 2010) 162; and Wissanu Krea-ngam, กฎหมายรัฐธรรมนูญ [Constitutional Law] (Nittibanakan, 1982) 201. 5 Article 86 of 1946 Constitution. 6 On 9 June 1946, Ananda Mahidol was found dead in the Royal Palace. Several international commissions of enquiry were appointed, but the circumstances of his death were never fully explained. See Rayne Kruger, The Devil Discuss (Carnell, 1964); Paul Handley, The King Never Smiles (Yale University Press, 2014) and Andrew McGregor Marshall, A Kingdom in Crisis (Zed Books, 2014). 7 Bandit Chanrochanakit, ชีวประวัติธรรมนูญการปกครองและรัฐธรรมนูญแห่งราชอาณาจักรไทย พศ 2475–2520 [A Biography of the Interim Constitution and the Constitutions of the Kingdom of Thailand 1932–1977] (Research Development Fund, 2007) 48; Thak Chaloemtiarana (ed.), Thai Politics: Extracts and Documents (Social Science Association of Thailand, 1978) 503.

The 1947–1949 Constitutions  107 as having been corrupted by its parliamentary version, the ‘incorrect and bad’ 1946 Constitution.8 The day after the coup, the coup-makers proclaimed an interim Constitution, later dubbed the ‘Constitution under the jar’ (rattathammanun tai tum) because its official drafter, the military leader Kat Katsongkhram, had hidden it under a water jar while preparing the coup.9 Secretly drafted with the help of several influential royalist jurists, such as the Oxford-trained lawyer Seni Pramot and the then-President of the Supreme Court, Latpli Thammaprakan,10 the text inaugurated a monarchic renovation based on the rejection of the Westminster model and the creation of a sui generis model of monarchy. The constitutional design was highly original and sophisticated. It relied on the transfer of prime ministerial countersigning power to institutions directly appointed by the King, namely the Senate and the Privy Council. The 1947 Constitution resuscitated Chulalongkorn’s Privy Council under a new name, the khana aphirattamontri.11 It maintained the institution of the Senate established by Pridi’s 1946 Constitution, but made it fully appointed by the King instead.12 Both Houses of Parliament had the same number of members13 and equal legislative powers,14 but the term in office of senators was much longer than the term of members of the lower house,15 while it was the president of the Senate who acted as the president of Parliament.16 As the prime minister was responsible to the King,17 the regime was monarchic: this clearly set the 1947 Constitution apart from the constitutional monarchy model established in 1946. Yet overall, the constitutional design of the 1947 text still borrowed the forms of constitutional monarchy, as if the drafters had sought to conceal their project of royal renovation by strategically leaving in many constitutional ambiguities. Notably, the absolute royal veto power was not written as such in the text, but was concealed under the veil of a suspensive veto: ‘If the king does not approve a

8 In his personal note entitled ‘Causes of the November 8, 1947 Coup d’Etat’, Kat Katsongkhram listed 38 reasons for his seizure of power. He listed ‘the incorrect and bad 1946 Constitution’ as reason no 2; see Thak (n 7) 551. 9 ibid 52. 10 Suchin Tantikul, รัฐประหาร พ.ศ.2490 [The 1947 Military Coup] (Matichon 2014) 112. Thanet Aphornsuvan, ‘The United States and the Coming of the Coup of 1947 in Siam’ (1987) 75 Journal of the Siam Society 187, 195; Mookda Aneklapakij, ‘รัฐธรรมนูญและสถาบันการเมือง : ศึกษารัฐธรรมนูญแห่งราชอาณาจัก รไทยพุทธศักราช 2492’ [‘Constitutions and Political Institutions: A Study of the 1949 Constitution of the Kingdom of Thailand’] (thesis, Chulalongkorn University, 1999) 29. 11 Article 18 of the 1947 interim Constitution. 12 ibid art 6. 13 ibid art 33. 14 ibid arts 4, 30, 64, 77. 15 Members of the lower house were elected for a four-year term (ibid art 39), while members of the Senate were appointed for a six-year term (ibid art 34). 16 ibid art 71. 17 ibid arts 78 and 79.

108  Thailand’s Cold War Constitutions draft bill, he shall send it back to parliament within a month, and the parliament will deliberate again; if parliament reaffirms the draft bill, then the prime minister shall forward it once again to the King for promulgation.’18 The last part of the sentence was not normative enough to command the King to promulgate a law re-affirmed by Parliament, unlike the words used in the 1946 Constitution which forced him to do so.19 Also, in order to re-affirm a law, a parliamentary majority of both houses was needed, when the Senate was directly appointed by the King. The devil was in the detail. Likewise, the procedure of countersignature of royal acts by the prime minister was still a key principle in the Constitution, although in practice, it could not function as a limitation on royal power: the countersigning authority, the prime minister, was discretionarily appointed and revocable by the King himself. It was not written so straightforwardly in the text; instead, the Constitution stated that the appointment of the prime minister was subject to countersignature by the President of the Privy Council20 – but the President of the Privy Council was himself appointed and dismissed at the discretion of the King.21 In other words, the entire procedure of countersignature was nullified, even though the formal process was retained. The monarchical regime still espoused a level of parliamentarism. The prime minister was responsible before the bicameral Parliament composed of the House of Representatives and the royally appointed Senate.22 Thus, the prime minister, as per the 1947 Constitution, was doubly responsible, both before Parliament and before the King who had appointed him: the system was that of a nineteenth-century European-style dualist monarchy. This technique maintained a king who was politically irresponsible but still yielded enormous political power as the holder of ultimate veto power. For instance, it was forbidden for any government to change the policies of its predecessor, except by special authorisation of the King.23 The King also regained the upper hand in the appointment of the regent.24 In addition, the Constitution restored the King’s emergency powers25 and gave him two extremely powerful powers: the power to issue royal decrees (phrarachakrisdika)26 and to declare martial law (kot ayakanseuk).27 Here, in a significant move, the military drafters

18 ibid art 30. 19 The wording of art 21 of the 1946 Constitution left much less margin of action to the King: ‘If Parliament re-affirms the bill, the prime minister shall once more submit it to the King. If the King fails to append his signature within fifteen days, the prime minister shall forthwith publish the Act in the Government Gazette and promulgate it as law.’ 20 Article 74 of the 1947 interim Constitution. 21 ibid art 15. 22 ibid arts 78 and 79. 23 ibid art 77. 24 Only the King’s Privy Councillors could be designated and act as regents; ibid art 10. 25 ibid art 80. 26 ibid art 86 subject to countersign. 27 ibid art 82 subject to countersign.

The 1947–1949 Constitutions  109 had dispossessed themselves of the martial law prerogative to offer it, as some sort of oath of loyalty, to the King instead. As there was no acting king, the 1947 Constitution was signed by the regent, Prince Rangsit, and was countersigned by the head of the military, Phibun Songkhram. It gave satisfaction to Phibun in that it expressly prohibited the setting up of special courts28 and the promulgation of penal laws with retroactive effect.29 The 1947 Constitution was perhaps not a temporary document from the outset, as its first version made no mention of the drafting of another, ‘permanent’ Constitution, not even in the transitory provisions. A constitutional revision, approved by the Senate in January 1948,30 provided for the selection by the Parliament of a Constitution-Drafting Assembly.31 Elections for the House of Representatives were held in January 1948, and the newly formed Parliament in turn selected 40 people to sit in the Constitution-Drafting Assembly, among them several prominent jurists from the royalist faction, such as Phraya Srithammathibet, Phraya Sriwisanwacha and Luang Prakopnittisan.32 A new generation of promising jurists, represented by Seni Pramot and Yut Saeng-Uthai, also joined the Assembly.33 The questions that were discussed over the course of the Constitutiondrafting process, which lasted from early July to late December 1948, increasingly focused on the theme of royal prerogatives. These ranged from asking whether the monarchy should be maintained or discarded altogether, to discussing the extent of the King’s role in comparison to the British monarch. In their first sessions in July 1948, the Constitution-drafters first addressed the question of the limits to their own power. Were they bound by the ­political choices made by the perpetrators of the 1947 coup in the latter’s interim Constitution? In particular, did they have competence to challenge core identity matters such as the monarchical nature of the regime? For Yut Saeng-Uthai, Secretary-General to the Constitution-Drafting Assembly, there was no such competence, as the permanent Constitution they were drafting was juridically subordinate to the interim Constitution of the perpetrators of the 1947 coup. To him, there were three characteristics of the Thai State that, forming the ‘core’ of the Thai Constitution, could not be modified by the Assembly: the unitary form of the State, the ‘democratic’ separation of powers between the legislative, executive and judiciary powers, and, finally, the monarchy. The President of the Constitution-Drafting Assembly, Sri Thammatibeth,

28 ibid art 28. 29 ibid art 90. 30 The 1947 interim Constitution was revised three times: in December 1947, January 1948 and August 1948. See Bandit (n 7) 54. 31 Article 95 of the 1947 interim Constitution (revised 1948). 32 For a list of the members of the Constitution-Drafting Assembly, see Bandit (n 7) 210–11. 33 Phraya Srithammathibet, Phraya Sriwisanwacha, Luang Prakopnittisan, Seni Pramot and Yut Saeng-Uthai were among the nine members of the Assembly specifically in charge of writing the preliminary draft. See Mookda (n 10) 57.

110  Thailand’s Cold War Constitutions also could not fathom which competence the Assembly could claim in order to decide on the form that the regime should take. In any case, he put the competence question to a vote, the result of which was an affirmation of competence.34 Therefore, and quite astonishingly, the Constitution-drafting Assembly members proceeded to vote on core identity matters such as the name of the country, the form of the State, and the nature of the regime. On the name change, they voted for keeping the name ‘Thailand’; on the form of the State, they expressed their will to keep the unitary system; and on the regime type, they unanimously voted in favour of a monarchy.35 They then moved on to reflect on the type of monarchy that the Constitution should establish: either absolute or limited. They almost unanimously agreed on the need to reinforce royal prerogatives without re-establishing absolute monarchy: they proposed that the King be endowed with ‘reserve powers’ as in Britain, to be used in times of crisis.36 They nevertheless voiced their strong rejection of the British model of a ceremonial monarch: We all agree that we need to have a Head of State. In the United Kingdom, they have the following saying ‘The King is but a bird in the golden cage’. We would not like this British saying to apply to us! We have decided to have a true Head of State, what means we have authorised the King to take really care of the happiness of its citizens. Our citizens do not know their duty; only 70 or 80% of the people go to vote. We cannot vote for them, so why not have some form of protection through a person … and who better than the King [can fulfil that duty]?37

In order to increase the King’s power, Constitution-drafters proposed to elaborate further on the 1947 interim Constitution and rely on two key institutions – the Senate and the Privy Council, bodies that the King should ‘choose and appoint himself’ to serve as his ‘representatives’.38 They would perform the function of exercising power in the name of the King, while preserving his royal status as being ‘above politics’. Through these organs, the King would be able to exert vetoes without using his own veto power directly, and thus would avoid the risk of becoming enmeshed in politics. In particular, the Senate was envisioned as the organ protecting the King’s inviolability as well as his irresponsibility, which in turn would safeguard the King from having to abdicate prematurely: When Rama VII used his veto, he abdicated, what is very unfortunate. If we had had a second chamber, which would have examined everything, there would not have been 34 รายงานการประชุมสภาร่างรัฐธรรมนูญ [Minutes of the Constitution-Drafting Assembly], 4th session, 19 July 1948, 126–209. 35 Minutes of the Constitution-Drafting Assembly, 5th session, 21 July 1948, 232. 36 Phien Rachathamnitheth, Minutes of the Constitution-Drafting Assembly, 17th session, 16 August 1948, 314–15. 37 Luang Prakopnittisan, Minutes of the Constitution-Drafting Assembly, 13th session, 9 August 1948, 136. 38 Khunkongrit Seuksakon, Minutes of the Constitution-Drafting Assembly, 13th session, 9 August 1948, 120.

The 1947–1949 Constitutions  111 such consequences on the King, and for that reason, I propose to the Assembly to deliberate on the fact that we should have two chambers.39

In addition, through the Senate, the King would be able to exercise the p ­ opular sovereignty vested in his person: ‘[Having] a King’s Senate is a way to give the King the possibility to exercise the rights of citizen in their place.’40 The Senate had, like the Privy Council, the primary function to ensure continuity between the absolute monarchy and the constitutional monarchy. In the 1948 Constitution-drafting minutes, the role of the Senate as a shelter for royalists and high officials from the absolute monarchy era as well as for the perpetrators of the 1947 coup is clearly stated. One of the latter group, General Kan Chamnonphumiwet, declared: We seized power not to keep it. After the coup, the parliament or the members of the Democrat Party can administer the country without having to involve us. We allow them to work in full independence; there will be the appointment of a Senate in place of the former Senate, appointment based on experience in the service of the State at the highest level, knowledge of the country since the times of the absolute monarchy – those who have been ministers or high civil servants under the absolute monarchy will be senators.41

The mode of recruitment in the Senate was the subject of much discussion. Three options were initially considered: election by universal suffrage, appointment by the King or a mixed system.42 At no time was it proposed that the Senate be chosen or appointed on the advice of the government. The military even proposed that a third chamber appointed by the military be set up alongside the Senate, but to no avail.43 In the end, it was decided that the Senate should be royally appointed. The discussion on the Privy Council was short and the principle of its ex officio role as a regency council, together with its increased membership from three to five, was easily accepted. The resulting 1949 ‘permanent’ Constitution enshrined these two institutions as the key pillars of the renovated monarchical rule, endowing the King with the means to be a ruling monarch while posing as a parliamentary monarch. As in 1947, this engineering relied on the granting of the countersignature ‘powers’ to the institution of the Senate and the Privy Council. At first glance, the 1949 constitutional design was that of a constitutional monarchy: acts of the King

39 Suwit Phanseth, Minutes of the Constitution-Drafting Assembly, 13th session, 9 August 1948, 118. 40 Prakponittisan, Minutes of the Constitution-Drafting Assembly, 13th session, 9 August 1948, 138. 41 Kan Chamnonphumiwet, Minutes of the Constitution-Drafting Assembly, 16th session, 13 August 1948, 245; also quoted in Korn Kanchanapath, ‘สภาที สองในประวัติศาสตร์รัฐธรรมนูญไทย’ [‘The Second Chamber in Thai Constitutional History’] (Master’s thesis, Public Law, Thammasat, 2013) 69. 42 Korn (n 41) 80. 43 Bandit (n 7) 67.

112  Thailand’s Cold War Constitutions were countersigned by the prime minister,44 with the exception of the royal act of appointment of the prime minister, which was subject to the countersignature of the president of Parliament.45 But this distinctive parliamentary feature – Parliament’s role in appointing the prime minister – was in fact a mirage, as the president of Parliament was the president of the fully appointed Senate.46 Appointment of senators was made by Royal Command (phraboromrachaongkan) subject to the countersignature of the president of the Privy Council,47 who was himself appointed by the King subject to countersignature by the ‘president of parliament’, namely the president of the Senate himself!48 This technique of cross-nominations and the iterative reference to the ‘President of Parliament’ aimed to introduce an illusion of separation of powers. In reality, the King controlled executive power through a prime minister and ministers of his own choosing. He also controlled the legislative procedure through the Senate, the central piece in the constitutional project of royal renovation. Through the Senate, he also controlled constitutional interpretation. Indeed, the 1949 text re-introduced the Constitutional Tribunal of the 1946 Constitution, but made the president of the Senate its ex officio president and transformed it from the parliamentary committee it had been in 1946 into a body mainly composed of high-ranking officials from the judiciary.49 The Senate played a key role in the procedure of the royal veto, as it could not be overcome without its approval.50 Nevertheless, within the legislative process, the Senate had fewer powers than the House of Representatives: it did not possess any legislative initiative51 and only had a suspensive veto.52 In its relations with the executive power, if the president of the Senate countersigned the appointment of the prime minister, the responsibility of the prime minister was only before the lower house: the Senate could not file a motion of no confidence against the prime minister. Nor did the Senate vote in a no-confidence debate against the government, although the House of Representatives organised a vote of no confidence following the advice of the president of the Senate.53 The King’s Privy Council, renamed ongkamontri, saw its membership expanded: whereas in 1947, it could not have more than five members,54 in 1949, this number grew to nine.55 The role of the Privy Council was also progressively



44 Article

160 of the 1949 Constitution. art 140. 46 ibid art 74. 47 ibid art 82. 48 ibid art 14. 49 ibid arts 168–72. 50 ibid art 77. 51 ibid art 121. 52 ibid art 124. 53 ibid art 131. 54 Article 13 of the 1947 interim Constitution. 55 Article 13 of the 1949 Constitution. 45 ibid

The 1947–1949 Constitutions  113 expanded. The president of the Privy Council would be given the regency in the interim and could choose the regent if the King had not done so.56 At other times, the choice of the regent was made by the King, subject to the countersignature of the ‘president of Parliament’ – the president of the Senate.57 The Privy Council also acquired power over the royal succession, being put in charge of proposing the name of a successor to Parliament for royal proclamation.58 Therefore, through the Privy Council, both the issues of the regency and the royal succession were now in the hands of the monarch. In the 1949 Constitution, the King also acquired discretionary power – subject to the countersignature of the president of the Privy Council – to order the holding of a referendum on constitutional revisions.59 Critically, the King also regained his 1932-era emergency powers.60 The 1949 Constitution enshrined all the constitutional reforms so ardently desired by Prajadhipok before his abdication in 1935.61 The 1949 Constitution was key in Thai constitutional history: it made the Senate and the Privy Council into institutional allies of the monarchy, and established their presidents as the ‘guardians’ of the monarchical regime through the powers of countersignature they were endowed with. In Article 2, it also stated for the first time that ‘Thailand has a democratic system. It has a King as Head [of State]’,62 a provision that would have a very important legacy. It also stated for the first time that ‘the King cannot be accused or prosecuted by any means whatsoever’,63 while making the King not only the Supreme Commander (chomtap), a honorary title granted to him in 1932, but also the Chief of the armed forces (phubanchakan), an executive title putting him directly in charge of the entire military.64 The Constitution stated that the military could be ordered to mobilise only by Royal Command,65 while the King retained the 1947-acquired ‘prerogative’ (phrarachaamnat) to declare martial law. The twist to this arch-royalist Constitution is that there was no monarch in Thailand at the time of its drafting – the Constitution would give soldiers free rein to use the renovated royal prerogatives for themselves. The draft Constitution was submitted to both Houses of Parliament in January 1949. During the two weeks of discussion on the text, elected members of the lower house attempted, timidly, to raise concerns against the inflated

56 The choice still had to be approved by Parliament; ibid arts 20 and 21. 57 ibid art 19. 58 ibid art 25. 59 ibid art 174. 60 ibid art 150. 61 This point has notably been made by Supamit Pitipat, ‘The Evolution of the Thai Monarchy in the Constitutional Period, 1932–Present’ (thesis, American University 1990) 58. However, the Constitution prohibited royal servants from being appointed to the Senate, whereas Prajadhipok had envisioned the Senate as a house for senior royal servants. 62 ibid art 2. 63 ibid art 6. 64 ibid art 11. 65 ibid art 60.

114  Thailand’s Cold War Constitutions role of the monarchy. For instance, one representative argued: ‘It seems to me that the enterprise of rewriting the constitution aims to give allies to the King, notably the Privy Council and the Senate.’66 Other representatives accused the Constitution-Drafting Assembly of having drafted a ‘misleading’ text disguising royal sovereignty as popular sovereignty: ‘Article 3 states that sovereignty comes from the people; but this provision is a lie’; ‘to reflect the reality, it should be rewritten with reference to the King’.67 As in 1932, criticism raised in the lower house was simply unheard by the more experienced, more educated drafters of the Constitution.68 In any case, Members of Parliament were not allowed to suggest amendments: they could either accept the draft Constitution or reject it en bloc.69 It was adopted by a large majority.70 The Constitution was signed and countersigned on 23 March 1949 by two prominent jurists of the absolute monarchy era, Phraya Manawarachasewi and Phraya Srithammathibet, the former as Privy Councillor-Regent for the signature and the latter as President of the Senate-Parliament for the countersignature.71 Phibun, to whom those involved in the 1947 coup had offered the post of prime minister (after he was freshly relieved of the prospect of a death sentence as a war criminal) was displeased with the royalist Constitution and sought to abolish it. He managed to do so in late 1951 in what was referred to as the ‘Silent radio coup’.72 This coup coincided with the return of the new King, Bhumibol Adulyadej, aged 24, to the kingdom. Phibun attempted to reinstate the 1932 Constitution – meaning that the Senate and the Privy Council would disappear – but Bhumibol, in one of his first actions as monarch, vetoed the text submitted to him.73 To satisfy the Palace, a compromise Constitution, the 1952 Constitution,

66 Quoted in Thanapol Eawsakul, ‘องคมนตรีกับการเปลี่ยนผ่านสู่ระบอบไม่ประชาธิปไตย’ [‘The King’s Privy Council and the Advent of the Non-democratic System’] [2015] Samesky Journal 2, 9. 67 รายงานการประชุมรัฐสภา พิจารณาร่างรัฐธรรมนูญ พ.ศ. 2492 [Minutes of the Joint Parliamentary Session on the Draft 1949 Constitution], 13th Session, 14 January 1949] 90–110. Also quoted in Somchai Preechasilapakun, นี ่ ค ื อ ปณิ ธ านทีห่ าญมุ ่ ง : ถกเถี ย งว่ า ด้ ว ยสถาบั น พระมหากษั ต ริ ย ์ ใ นองค์ ก รจั ด ท ํ า รั ฐ ธรรมนู ญ ของไทย ตั้ง แต่  พ.ศ . 2475–2550 [This is a Brave Resolution: Discussion of the Monarchy in Constitution-Making Bodies, 1932–2007] (Samesky Books, 2018) 50. 68 For a summary of the discussions of the 1949 Constitution in Parliament, see Somchai (n 67) (on popular/royal sovereignty at 47–60, on royal inviolability at 114–30, on the royal veto at 150–64, on the royal succession at 189–98, on the King’s Privy Council at 226–38 and on the King as head of the military at 269–78). 69 Bandit (n 7) 59. 70 Somchai (n 67) 321. 71 The 1949 Constitution bore the signature of the five members of the Privy Council acting as the Regency Council, namely Prince Rangsit, Alongkot, Prince Dhani Nivat, Phraya Manawarachasewi and Aduldetchacharan. 72 Thak Chaloemtiarana, Thailand: The Politics of Despotic Paternalism (Cornell University Press, 2019) 51–52. 73 Nattapol Chaiching, ‘พระบารมีปกเกล้าฯ ใต้เงาอินทรี แผนสงครามจิตวิทยาอเมริกัน กับการสร้างสถาบันกษัตริย์ ให้เป็น “สัญลักษ ณ์” แห่งชาติ’ [Royal Barami under the Shining Shadow: The American Psychological Warfare and the Building of the Institution of the Monarchy as a “Symbol” of the Nation]’ (2011) 2 Samesky Journal 95.

The 1959, 1968 and 1972 Constitutions  115 was promulgated instead, which blended together the texts of 1932 and 1949,74 maintaining the Privy Council but replacing the Senate with the ‘type 2 – ie appointed – members of parliament’. Yet it still significantly reduced the extent of royal power, ending the responsibility of the prime minister before the King by re-introducing the countersignature of the prime minister on all royal acts,75 with the exception of the appointment of the prime minister, which was to be countersigned by the president of the House of Representatives.76 Under the 1952 Constitution, elections were held in February 1957. Results indicated strong popular support for Phibun, but Sarit Thanarat, a military officer who had taken part in the 1947 coup, seized power in September that year. Phibun went into exile in Japan and new elections were held in December, which diversified the composition of Parliament. As a consequence, Sarit grew increasingly ill at ease with parliamentary politics and in October 1958 staged a second coup and abolished the 1952 Constitution. For three months, he did not bother to promulgate another text, ruling by decrees and displaying nothing but contempt for the ‘farang’ (foreign, Western) idea of constitutionalism.77 Finally, he promulgated an interim Constitution in January 1959, which would remain in force for about a decade. II.  THE 1959, 1968 AND 1972 CONSTITUTIONS: MILITARY DICTATORSHIP AND THE GAULLIST INSPIRATION

The 1959 interim Constitution was a short document containing 20 articles and a two-paragraph preamble. An innovation of the 1959 Constitution was to state clearly that the regime was monarchical: the Prime Minister and the Council of Ministers were appointed ‘discretionarily’ by the King (phrarachaathayasai),78 who had the ‘royal prerogative’ (phrarachaamnat) to dismiss them at his will,79 this time no longer concealing the dualist monarchy under the guise of a monist parliamentary system acceptable to the West. Sarit did not trouble himself much about what foreigners would think, nor did he need to appear ‘civilised’ like his predecessors Phibun and Pridi. What mattered was consolidating the alliance and trust between the military and the monarchy. Maintaining the ninemember Privy Council appointed at the discretion of the King,80 the 1959 interim 74 The 8 March 1952 Constitution re-uses 41 articles from the 1932 Constitution, including the provision according to which half of the parliamentarians are elected (arts 11–15). The Constitution also builds on the 1949 Constitution, of which it reproduces 60 articles. 75 Article 98 of the 1952 Constitution. 76 ibid art 81. 77 For an overview of the party’s ‘revolutionary’ edicts, see Tōru Yano, ‘Some Characteristics of Political Leadership in Thailand: Sarit Thanarat’s “Revolutionary Party Edicts”’ (1972) 10 Developing Economies 233. 78 Article 4 of the 1959 interim Constitution. 79 ibid art 15. 80 ibid art 4.

116  Thailand’s Cold War Constitutions Constitution provided for a royally appointed prime minister, an a­ ppointment countersigned by the president of a Constitution-Drafting Assembly also doubling as a legislative assembly.81 The countersignature was maintained as a process, although it had no substance at all as all institutions were appointed by the 1958 coup leaders. The Sarit Constitution as a whole was subject to royal sanction: the King kept the constitutional veto power he had acquired in 1947.82 An innovation of the 1959 interim Constitution lay in a curious article affirming that the government was exercising ‘executive and judicial power’ ‘in the name of the King’ (nai phraphoromapitai).83 Symbolically, this meant that the military was putting itself under royal patronage, acting ‘in the name of the King’. However, the 1959 interim Constitution fell short of making the King the Chief of the Armed Forces as in 1949. More pragmatically, the text granted full powers to the prime minister. Article 17 read: During the period of application of the Constitution, the prime minister has, through a decision of the Cabinet, the authority to order or to take any measure to suppress any conduct likely to cause insecurity in the kingdom or to the throne, or to disrupt peace. These orders will be considered legal. Once they have been pronounced, the prime minister must inform parliament.84

Article 17 of the 1959 Constitution found its inspiration in Article 16 of the 1958 Constitution of France, which was notorious for the sweeping powers it gave to the President of the Republic in the event of an emergency. It is no secret that Sarit was much impressed by the birth of the Fifth Republic and by the persona of President de Gaulle, himself the author of a coup-Constitution sequence in 1958.85 Sarit had ordered the translation of the 1958 Constitution into Thai, and asked a prominent jurist, Phraya Antakariniphon, to adapt Article 16 of the French Constitution for Thailand.86 In terms similar to those of De Gaulle, Sarit lambasted Thailand’s 1946 Constitution, which he compared to France’s 1946 Constitution, as conducive to governmental instability and ineffective governance87 – to put it simply, both Constitutions were considered too parliamentary. To change this, it was necessary to deepen the separation of powers between the executive and the legislature by barring members of the government

81 ibid arts 8 and 14. 82 ibid art 10. 83 ibid art 5. 84 ibid art 7. 85 See Eugénie Mérieau, ‘French Authoritarian Constitutionalism and its Legacy’ in Günter Frankenberg and Helena Alviar Garcia (eds), Authoritarian Constitutionalism: Comparative Analysis and Critique (Edward Elgar, 2019). 86 Bandit (n 7) 102. See also Somphop Hotrakit, ‘พระยาอรรถการีนิพนธ์ ผู้ร่างธรรมนูญการปกครองราชอาณาจักร พ.ศ 2502 และมาตรา 17’ [‘Phraya Antakariniphon, the Drafter or the 1959 Interim Constitution and its Article 17’], in อนุสรณ์ในงานพระราชทานเพลิงศพพระยาอรรถการีนิพนธ์ [Cremation Volume of Phraya Antakariniphon] (Office of the Prime Minister, 1983). 87 Frank Darling, ‘Modern Politics in Thailand’ (1962) 24 Review of Politics 163, 171–72; Frank Darling, ‘Marshal Sarit and Absolutist Rule in Thailand’ (1960) 33 Pacific Affairs 347, 350.

The 1959, 1968 and 1972 Constitutions  117 from holding a seat in the Assembly,88 based on the model of the 1958 French Constitution, making every minister individually responsible to the prime minister and the King,89 and removing the need for the prime minister to pass the test of a confidence vote in the Assembly. Another innovation allowed the prime minister/head of the junta to create norms by invoking vaguely defined ‘constitutional customs’. In practice, within the framework of the 1959 Constitution, this had little effect, as the prime minister would use his full powers as granted by Article 17. Yet Article 20 would have a long legacy: When no provision of this constitution is applicable to a specific situation, it shall be decided in accordance with the custom of the administration of Thailand in the democratic system (phrapheni kanpokkhrong prathet thai nai rabob phrachatipatai). If there is a problem in the implementation of the preceding paragraph within the parliament or the government, it belongs to parliament to make a decision thereof.90

The reference to the ‘democratic system’ was odd. Indeed, the 1959 interim Constitution did not define Thailand as a ‘democratic system’ whose ‘Head [of State]’ was the King, based on the model of its predecessor, but only as a ‘Kingdom’ whose ‘Head of State’ is also ‘Head of the Military’.91 This wording contrasted starkly with that used in the 1949 Constitution, which referred to democracy as the source of legitimacy. Here, the military rooted its own legitimacy not in its relation to the people, but in its subordination to the King. By its zealous use of royal vocabulary, the interim Constitution also showcased more deference to the King than the arch-royalist previous constitutions had done before: it used, inter alia, the prefix phra (sacred, monk) to enrich pramuk (head (of State), chief).92 Sarit was dismissive of the constitutional project at large, which he considered to be alien to Thai culture. Yet the 240-member Constitution-Drafting Assembly appointed under the 1959 interim Constitution was the acting Parliament, and he kept it in place until his death in 1963. The Constitution-drafting process had started in 1961 with the appointment of a drafting committee heavily dominated by the military, most notably Thanom Kittikachorn and Thawan Damrongnawasawat, along with established royalist jurists such as Phraya Sriwisanwacha and the younger, rising jurist Sanya Thammasak, both trained in the UK. The committee continued its work after the death of Sarit under the prime ministership of his aide, Thanom Kittikachorn. In 1968, after many

88 Article 14 of the 1959 interim Constitution. 89 ibid art 15. 90 Article 20 of the 1959 interim Constitution. 91 ibid art 2: ‘Thailand is a one and indivisible Kingdom. The King is the Head of State and Head of the Military.’ 92 In art 2 of the 1959 interim Constitution, royal vocabulary is reinforced by the use of the พระ in front of ประมุข and ทรง in front of เป็น as follows: พระมหากษัตริย์ ทรงเป็นพระประมุข และ ดำ�รงตำ�แห่นงจอมทัพไทย.

118  Thailand’s Cold War Constitutions delays, the Constitution which had been promised a decade earlier was finally promulgated ‘with splendid ceremonial pomp’ by the King.93 In total, the ­constitutional process had taken nine years. The 1968 Constitution was more parliamentary than what might have been expected based on the list of its drafters. It maintained the legacy of the royalist renovation of 1947–49 mixed with the military legacy of 1959. The King was still the highest of the three powers and the holder of sovereignty. He could order the holding of a referendum on any constitutional revision project.94 Beyond the power to call for a referendum, the King also kept his regular veto power regarding ordinary legislation, which could be overcome by a vote of a joint sitting of the two chambers (including the Senators appointed by the King)95 by the qualified two-thirds majority.96 On matters relating to the regency, the 1968 Constitution reproduced the provisions of the 1949 Constitution.97 More importantly, the King gained legislative power. Royal commands (phrarachaongkan) would be promulgated as laws (phrarachabanyat) in the event of an emergency.98 Here can be seen the blending of the royalist version of emergency powers as mandated by the 1932 Constitution and those granted to the military by the 1959 interim Constitution. Ironically, the growing parliamentarism of the 1968 Constitution led to an expansion of the power of the Senate, a key pillar of the monarchical regime. The Senate indeed made a massive power grab in the 1968 Constitution. In addition to the powers it had acquired in 1949, it also gained the power to initiate legislation,99 to propose a motion for a vote of no confidence against a minister individually or the Cabinet collectively.100 The royally appointed president of the Senate remained the next in seniority after the monarch and the head of the military. As President of Parliament,101 this person was the key countersignature authority in constitutional matters, such as the appointment of the prime minister or the calling of a national referendum on the Constitution.102 He also presided over the Constitutional Council, which was composed of the presidents

93 Clark D Neher, ‘Constitutionalism and Elections in Thailand’ (1970) 43 Pacific Affairs 240, 241. According to Frank Darling, the ‘colorful ceremony’ included ‘a proclamation by the King and the sound of temple gongs, conch shells, and a twenty-one gun salute’; see Frank Darling, ‘Thailand : De-escalation and Uncertainty’ (1969) 9 Asian Survey 115, 117. 94 Article 170 of the 1968 Constitution. 95 ibid art. 78. 96 ibid art 75. 97 Articles 18–20 of the 1968 Constitution. 98 ibid art 176. 99 ibid art 117. 100 ibid art 128. 101 ibid art 72. 102 Article 170 of the 1968 Constitution is taken verbatim from the 1949 Constitution, with the notable exception of the provision on countersignature. which is now given to the president of Parliament.

The 1959, 1968 and 1972 Constitutions  119 of the Senate, the House of Representatives, and the Supreme Court, along with other members of the judiciary and lawyers.103 The parliamentary features of the 1968 Constitution were also mitigated by the principle of a stricter separation of powers between the legislature and the executive: the preamble stated that ‘in order to provide governmental stability, it was necessary to further separate the legislature from the Cabinet, so it was agreed to prohibit members of the government from holding a seat in the assembly’.104 The prime minister did not need to be an elected Member of Parliament, nor did he need to pass the test of a vote of confidence in Parliament before assuming his duties. This tilted the Thai system away from Westminster and towards a ‘semi-presidential’ system, directly in line with Sarit’s revolutionary 1959 Constitution.105 Elections were held in 1969 under the new Constitution, and Thanom could return as ‘elected’ Prime Minister, thanks to the senators who had been appointed by Thanom prior to the election.106 However, the elections had produced a parliament with some voices that were critical of the military government. Taking his cue from his former mentor Sarit, Thanom launched a self-coup in 1971, dissolved Parliament and abolished the 1968 Constitution less than three years after its promulgation. Thanom did not hasten to promulgate an interim charter. For about a year, he ruled only by decrees, before eventually promulgating a new Constitution on 15 December 1972. The 1972 interim Constitution was a modified version of Sarit’s 1959 text. A short document of 23 articles, it provided for a single assembly of 299 members appointed by the King.107 Based on the model of Sarit’s Constitution, Article 17 stated: During the period of application of this charter, the Prime Minister has, by the resolution of the Cabinet, the authority to order or to take any measure to suppress any conduct likely to cause insecurity in the kingdom or the throne, to threaten peace, public order, public morality, national propriety, or public salubrity. These orders, pronounced before or after the promulgation of this Constitution, on the territory or outside the national territory, shall be deemed legal. Once they have been pronounced, the prime minister will inform parliament.108

The scope of application of Article 17 was thus considerably broadened: threats were more numerous and immunity was no longer limited by time and space

103 Articles 164–68 of the 1968 Constitution. 104 ibid, preamble. The principle found its application in art 140 of the 1968 Constitution. 105 This principle as enshrined in the 1968 Constitution was often misconstrued as being ‘completely new in Thai constitutional history’; see, for instance, Frank C Darling and Ann Darling, Thailand: The Modern Kingdom (Donald Moore for Asia Pacific Press, 1971) 94. However, it was directly and willingly reproduced from Sarit’s 1959 Constitution. See Somphop Hotrakit, ปาฐกถาเรื่องหลักการใหม่ ๆ ในรัฐธรรมนูญแห่งราชอาณาจากรไทย [Speech on the New Principles in the Thai Constitution] (Department of Public Relations, 1968). 106 See, generally, David Morell, ‘Power and Parliament in Thailand: The Futile Challenge, 1968–1971’ (thesis, Princeton University, 1974). 107 Article 6 of the 1972 Constitution. 108 ibid art 17.

120  Thailand’s Cold War Constitutions considerations.109 The definition of ‘public order’, resonating strongly with the French definition of the term, was also more all-encompassing. Meanwhile, Article 20 on constitutional customs was reproduced verbatim.110 The 1972 Constitution innovated with the inclusion of an amnesty for the 1971 coupmakers, as well as constitutional provisions legalising the coup, measures which would have a long legacy.111 Meanwhile, the King’s legislative power was raised to unprecedented heights: the Constitution enshrined his ‘prerogative’ (phrachaamnat) to issue decrees (phrarachakrisdika), provided they did not violate any laws.112 Thus, by relying on Articles 17 and 20 (as well as on amnesties for coup leaders and constitutional provisions legalising coups), the 1959 Constitution and its subsequent incarnations, namely the 1968 and 1972 Constitutions added a militaristic layer to the monarchical layer of Thai constitutionalism. Also, drawing on the 1959 Constitution, the 1972 interim Constitution drew legitimacy from its temporary character, by providing from the outset for the implementation of a Constitution-drafting committee, to be appointed (and supervised) by the Council of Ministers.113 The Council of Ministers appointed a Constitution-drafting committee headed by yet another military man, Praphas Charusathien, who announced he would need three years to draft a new text.114 But this timeline was upset by an outbreak of mass protests in Bangkok, calling for an end to military rule and democratic reforms. At the time, the committee had only drafted the first part of the Constitution dealing with the rights and duties of Thai citizens. III.  THE 1974–1991 CONSTITUTIONS: THE US INFLUENCE ON MILITARY DICTATORSHIP UNDER ROYAL COMMAND?

The mass protests of 14 October 1973 led to the resignation of the military government and the appointment of Sanya Thammasak, one of the drafters of the 1968 Constitution, as Prime Minister by Royal Command.115 Protesters demanded a new Constitution and rejected the constitutional process as established by the 1972 interim Constitution, which they called illegitimate.

109 Noranit Settabutr, รัฐธรรมนูญกับการเมืองไทย [The Constitution and Thai Politics] (Thammasat University Press, 2007) 181. 110 Article 22 of the 1972 Constitution. 111 Wissanu Krea-ngam and Bowornsak Uwanno, ธรรมนูญการปกครองราชอาณาจักร พุทธศักราช 2520 [The 1977 Constitution] (Chulalongkorn University, 1977) 180. 112 ibid art 16. 113 Article 10 of the 1972 Constitution. 114 Bandit (n 7) 123. The committee supervised by Praphat included many notable academics such as Pairoj Chayanam, Kramol Thongthammachat, Amon Raksasat, Kasem Sirisampan and Amorn Chantarasomboon. A list of members can be found in ibid 227. 115 ประกาศแต่งตั้งนายกรัฐมนตรี [Royal Command Appointing the Prime Minister], 14 October 1973. The royal command was countersigned by Thawi Rengkham, the Vice-President of the National Legislative Assembly.

The 1974–1991 Constitutions  121 Sanya abided by these demands and appointed an 18-member committee headed by his Minister of Justice, Prakop Hutasingh.116 The Constitution-drafting process started anew. According to the new drafters, the models to be used were the 1949 and the 1968 Constitutions. Yet if there was a new Constitution-drafting committee, there was no new parliament. Protesters claimed that the old Members of Parliament lacked the authority to scrutinise the new constitutional draft and called for their resignations.117 The King proposed the convening of a ‘National Convention’ (samacha haeng chat) of 2,347 members to elect a new set of Members of Parliament, while the older batch, appointed by Thanom, resigned en masse. The King dissolved the National Legislative Assembly118 and directly appointed the members of the Convention by Royal Command.119 The National Convention was headed by Prince Wan Waithayakon, with Phraya Manawarachasewi as Deputy President. In December 1973, the National Convention selected the 299 new members of the National Legislative Assembly (sapha nitibanyat haeng chat). Finally, a new Constitution-drafting committee was formed, which comprised an eclectic mix of progressive voices, such as Thammasat University Rector Puey Ungpakorn, and traditional jurists such as Supreme Court judge Thanin Kraivichien – both belonged to the same generation and were graduates of the London School of Economics.120 The Constitution-Drafting Committee pondered upon proposals to move away from the British model of parliamentary system by incorporating elements drawn from the US presidential model, in particular regarding the separation of powers between the executive branch and the legislature.121 The resulting text embraced progressive values, bearing the influences of the various activist groups that had pushed for it. It stressed (in a very long and comprehensive preamble) Thailand’s attachment to democracy and it enshrined various new rights, including provisions on land reform,122 social security123 and

116 Members also included many prominent academics and intellectuals such as Kukrit Pramot, Chai-Anan Samudavanija and Amorn Chantarasomboon. The five-member subcommittee to draft the text included Amorn and Somphop. A list of members of the Constitution-drafting committee and the various subcommittees can be found in Bandit (n 7) 228–230. 117 On the 1974 Constitution-drafting process, see Somchat Ropkit, ‘การร่างรัฐธรรมนูญ พ.ศ. 2517’ [‘The Drafting of the 1974 Constitution’] (thesis, Chulalongkorn University, 1980). 118 พระราชกฤษฎีกายุบสภานิติบัญญัติแห่งชาติ พ.ศ. 2516 [1973 Royal Decree Dissolving the National Legislative Assembly], 16 December 1973. The Royal Decree was countersigned by Sanya Thammasak, the appointed Prime Minister. 119 ประกาศแต่งตั้งสมาชิกสภานิติบัญญัติแห่งชาติ [Royal Command Appointing the Members of the National Legislative Assembly], 23 December 1973. The Royal Command was countersigned by Sanya Thammasak, the appointed Prime Minister. 120 A list of the members of the Constitution-Drafting Committee and the various subcommittees appointed by the National Legislative Assembly can be found in Bandit (n 7) 231–32. 121 Likhit Thiravekin, ‘The Relevance of the US Constitution to Thai Politics’ in Wiriya So Chinnawano and Chaichana Inqavata (eds), US Constitution: Thai Perspectives (Chulalongkorn University Press, 1990) 61. 122 Article 81 of the 1974 Constitution. 123 ibid art 89.

122  Thailand’s Cold War Constitutions gender equality.124 However, as pointed out vehemently by Pridi Banomyong in his critique of the draft, it did not guarantee freedom to hold any political or economic opinion.125 It was finally decided to stick to parliamentarism, by codifying some of the conventions associated with it: a crucial provision mandated the prime minister to be an elected Member of Parliament and to appoint at least half of his ministers from among the elected Members of Parliament,126 while another made the President of the lower house the president of Parliament.127 It also strove to get rid of the practice of military coups altogether by including a provision prohibiting amnesties for coup-makers.128 Yet the 1974 Constitution was a highly royalist one in nature. As an observer remarked, ‘the key figure in the new Constitution is the King’.129 The Senate was fully appointed by the King, subject to the countersignature of the president of the King’s Privy Council,130 whose membership grew from nine to 15.131 The 1974 Constitution also made a change to the rules on the royal succession, adding a few words on the possibility of having a princess succeed to the throne.132 On matters relating to the regency, the 1974 Constitution reproduced the 1949 Constitution and gave the King full control over it.133 In the discussions, members of the Constitution-Drafting Committee raised the question of ‘royal customary powers in times of crisis’: should these be constitutionalised or not? Finally, it was decided to leave them as customs in order to give greater flexibility and discretion to the King.134 The draft preamble to the 1974 Constitution logically reaffirmed the myth of King Prajadhipok’s ‘octroy’ of democracy to the Siamese people in 1932. The King could of course order the holding of a referendum on any ordinary legislation135 or constitutional revision.136 During the Constitution-drafting process, there were proposals to make the King the Chief of the Armed Forces on the model of the 1949 Constitution, but this proposal was dropped.137 To compensate for this, the 1974 Constitution added protection of the monarchy to the duties of the military, whereas in the previous constitutions, the role of the

124 ibid art 43. 125 Pridi Banomyong, ปรีดี พนมยงค์วิจารณ์ร่างรัฐธรรมนูญ 2517 [Pridi Banomyong Criticises the Draft 1974 Constitution] (Maharat, 1974) 7. 126 Article 188 of the 1974 Constitution. 127 ibid art 96. 128 ibid art 4. 129 RH Hickling, ‘The Thai Constitution of 1974’ (1976) 6 Hong Kong Law Journal 100, 102. 130 The Senate consisted of 100 members chosen (luak) and appointed (tengtang) by the King from among qualified individuals with knowledge and expertise. See art 107 of the 1974 Constitution. 131 ibid art 14. 132 ibid art 23. 133 ibid arts 21–22. 134 Thanin Kraivichien, พระมหากษัตริย์ไทย [The Thai Monarchy] (Ministry of Education, 1976) 29. 135 Article 94 of the 1974 Constitution. 136 ibid art 220. 137 Thanin (n 134) 26.

The 1974–1991 Constitutions  123 armed forces had been limited to the protection of national independence.138 Thus, in spite of its parliamentary character, the 1974 Constitution consolidated the monarchy–military alliance. Surprisingly, the draft was approved almost unanimously in Parliament in October 1974, with 280 votes in favour compared to six against.139 Progressive forces in Parliament approved of the royally appointed Senate, of the military’s role in domestic affairs in the name of safeguarding the monarchy, and of the constitutionalisation of the myth of the origin of democracy as a royal gift. Like in 1932 and 1949, the draft had passed its three readings smoothly, before being presented to the King for promulgation. On 7 October, the King signed the draft into law. However, he seized this opportunity to express his dismay at the involvement of the monarchy in the appointment of senators, a role he considered to contravene the principle of ‘the King above politics’; he further explained that he agreed to affix his royal signature to the Constitution, provided it would be revised in due course.140 In other words, he urged the members of the legislature to amend the text as soon as possible. Following the King’s request, the 1974 Constitution was amended three days later – three days after its ­promulgation – to remove the direct royal appointment of senators, by making the prime minister, rather than the president of the Privy Council, the countersigning authority.141 The resulting text was widely referred to as the ‘Joint King-People Constitution’ (rattathamanun chabap rachaphrachasamasai)142 – as a Constitution which had literally been granted by the King through the direct royal appointment of both the prime minister, called ‘the royally granted prime minister’ (nayok phrarachatan), and of the legislature, called ‘the royally granted parliament’ (sapha phrarachatan). Elections were held in January 1975, and soon Seni Pramot was able to form a government. He was only able to stay in power for one or two months, having failed to obtain the confidence of the House of Representatives. He was succeeded by his brother Kukrit for a year, who decided to dissolve the Lower House in January of the following year. Elections once again returned a majority for Seni who was sworn in as Prime Minister. Six months later, ‘leftist’ students were massacred on the premises of Thammasat University. The military seized this event as a pretext for a coup and General Sangad Chaloryu overthrew Seni’s government.143 The military abolished the 1974 Constitution, with the notable 138 Article 70 of the 1974 Constitution. 139 รายงานการประชุมสภานิติบัญญัติแห่งชาติ [Minutes of the National Legislative Assembly], 73rd Session, 5 October 1974. 140 รายงานสภานิติบัญญัติแห่งชาติทำ�หน้าทีรัฐสภา [Minutes of the National Legislative Assembly Acting as Parliament], 1st session, 10 October 1974, 1–2. See also Jeffrey Race, ‘Thailand in 1974: A New Constitution’ (1975) 15(2) Asian Survey 157. 141 Article 107 of the revised 1974 Constitution. 142 Kobkua Suwannathat-Pian, ‘The Monarchy and Constitutional Change since 1972’ in Duncan McCargo (ed), Reforming Thai Politics (Nias, 1981) 58. 143 See JLS Girling, ‘Thailand: The Coup and its Implications’ (1977) 50 Pacific Affairs 387. On the wider context, see Ben Anderson, ‘Withdrawal Symptoms: Social and Cultural Aspects of the

124  Thailand’s Cold War Constitutions exception of the sections dealing with the monarchy which remained in force,144 declared martial law and, in a ‘surprise’ move,145 invited Thanin Kraivichien, drafter of the 1974 Constitution and a Supreme Court judge, to become Prime Minister. He assumed the post in October 1976 and enacted the 1976 interim Constitution while launching the drafting of a new permanent Constitution with the appointment of a drafting committee headed by the president of the Supreme Court. According to his plan, democracy was to be restored gradually after 12 years of transition.146 The interim Constitution of 1976 was modelled on the interim Constitution of 1959. Yet in spite of its brevity, a typical feature of interim constitutions (29 articles), it bore the name ‘Constitution’ and not ‘interim Constitution’, as those involved in the coup needed to make it clear that their document superseded the 1974 text. This was important as the 1974 Constitution prohibited amnesties for those behind coups and the 1976 Constitution included an amnesty for the acts of such individuals and an immunity for the acts of the junta.147 It provided for a bicameral legislature composed of an appointed Senate and an elected Assembly, whose elections were to take place 12 years after the entry into force of the Constitution. It included one single elusive provision on rights and liberties, which stated that these were granted ‘in accordance with the law’.148 It maintained the King’s emergency powers and the power to promulgate decrees, provided they were compatible with the current laws.149 The Constitution also laid the framework for a form of dual Constitution by introducing a ‘National Policy Council’ composed of military men,150 based on which, following Thanin’s own metaphor comparing the government to an oyster and the military to its shell, Thanin’s government was labelled the ‘shell government’ (ratthaban hoy).151

October 6 Coup’ (1977) 9 Bulletin of Concerned Asian Scholars 13; Marian Mallet, ‘Causes and Consequences of the October’ 76 Coup’ (1978) 8 Journal of Contemporary Asia 80. See also Don Luce, ‘Thailand: How the US Engineered a Coup’ (1976) 35 Win 10. 144 Thomas Marks, ‘The Thai Monarchy under Siege’ (1978) 2 Asia Quarterly 109, 121. 145 Frank Darling, ‘Thailand in 1976: Another Defeat for Constitutional Democracy’ (1977) 17 Asian Survey 116, 128. 146 The 12-year transition period would unfold as follows: in the first four years, there would be a unicameral, fully appointed legislature; in the following four years, there would be a bicameral legislature with an appointed Senate and an elected House of Representatives, both having equal powers; in the third four-year period, the power of the appointed Senate would be reduced; and finally, in the last stage of transition, the Senate would be abolished. See Montri Chenvidyakarn, ‘One Year of Civilian Authoritarian Rule in Thailand: The Rise and Fall of the Tanin Government’ (1978) 1978 Southeast Asian Affairs 267, 273. 147 Article 29 of the 1976 interim Constitution. 148 ibid art 8. 149 ibid arts 19 and 20. 150 ibid art 18. 151 Kamol Somvichian, ‘“The Oyster and the Shell”: Thai Bureaucrats in Politics’ (1978) 18 Asian Survey 829, 832. See also Clark D Neher, ‘Political Succession in Thailand’ (1992) 32 Asian Survey 585, 586.

The 1974–1991 Constitutions  125 In practice, the relationship between the Cabinet and the National Policy Council was uneasy. Many young officials in particular grew dissatisfied with the way in which political reform was to be implemented. The 12-year period of ‘democratic development’ seemed unreasonably long. Thanin was forced out of office in 1977, only one year after his instalment in government, following a TV announcement by Sangad Chaloryu, the very military leader who had put him in that position. US-trained General Kriangsak Chamanan, then-Supreme Commander and official leader of the coup, brushed aside the military’s function to act as a shell for a civilian oyster-government – ‘the military protects the Nation, the Religion, and the Monarchy’, he said, not the government.152 Immediately upon seizing power, the junta promulgated an interim Constitution and appointed a 35-member Constitution-drafting committee to write a permanent Constitution, composed of many prominent intellectuals, notably Kukrit Pramot, Seni’s younger brother. The 1977 interim Constitution promised an election to be held in 1978. In the meantime, it provided for a 400-member appointed Legislative Assembly where active duty civil servants could be appointed, as well as a ‘Revolutionary Assembly’ (sapha patiwat), along with a council mandated to monitor the implementation of ‘State Policies’ (nayobai haeng rat). This Council was designed as a tutelary institution, having a veto power over all decisions of the Cabinet – the President of the Council on State Policies could, for instance, recommend (tawai kham naenam) that the King should dismiss the prime minister.153 The 1959 textbook elements of authoritarianism were not lacking either: the article on constitutional customs, interestingly, vested the authority to interpret and make decisions in times of crisis in the (appointed) Legislative Assembly,154 while the article on emergency powers empowered the prime minister.155 The 1977 Constitution lasted about a year before being replaced by the 1978 text. The 1978 Constitution-drafters had, without much enthusiasm,156 resolved to draft a Constitution along the lines of a slightly modified British style of parliamentary system, with an appointed upper house and an elected lower house, but each having equal powers. The appointed Senate would be able to initiate legislation, but also, most importantly, to propose the name of a prime minister and to participate in a vote of no confidence against the government. As Kramol Thongthammachat puts it, ‘if the military officers [in Parliament] wanted to change the government, they, in the capacity of senators, could constitutionally

152 Kamol (n 151) 837. 153 ibid art 22. 154 ibid art 30. 155 ibid art 27. 156 Sombat Chantonvong and Montri Chenvidyakan, ‘Constitutional Rule and the Institutionalization of Leadership and Security in Thailand’ in Stephen Chee (ed), Leadership and Securitization in Southeast Asia (ISEAS Publishing, 1991) 156.

126  Thailand’s Cold War Constitutions do so with no need to resort to yet another coup’.157 The text reproduced the Gaullist-inspired 1968 prohibition that members of the government be Members of Parliament.158 Logically, the 1974 requirement that the prime minister be a Member of Parliament was suppressed, opening the door to the appointment of a military general as prime minister and hinting at military plans for continued political dominance.159 Still, the draft was too liberal for some of the military and the royalist establishment, who demanded that the president of the Senate should be made president of Parliament and should be in charge of countersigning the royal order of appointment of the prime minister. Such demands were acceded to.160 As a result, any prime minister had to obtain military support, leading contemporary observers to argue that the 1978 Constitution ‘had no soul’.161 De facto, the ‘soulless’ 1978 Constitution created a parliamentary system under military tutelage. It also made a few modifications to the title on the monarchy: notably, the King’s appointment of a regent now required parliamentary approval.162 The Constitution had been drafted and promulgated within a short period of six months – a period which witnessed renewed calls for a directly elected prime minister and an even stricter separation of powers between the executive and the legislative branches, but to no avail.163 Elections were held in April 1979 on the same day as senators were appointed by the head of the junta, Kriangsak Chamanan. Predictably, the Senators appointed by Kriangsak proposed Kriangsak as Prime Minister, a proposal that the fragmented lower house was in no position to object to: the leader of the coup was ‘elected’ in Parliament following the coup. Yet political support for Kriangsak was very fragile and rested almost entirely on the appointed Senate. Faced with economic difficulties and challenges from within the Army, Kriangsak unexpectedly resigned in early 1980 and was replaced by the then Army Chief and Minister of Defence, General Prem Tinsulanond. Prem was known to be a devoted royalist, very close to the King. Nevertheless, about half of the members of his government – or rather, ‘His Majesty’s government’, as he liked to say, were elected Members of Parliament, which gave a signal that he wished to adhere to at least some sense of parliamentarism.164 Although Prem was challenged by two near-successful coup attempts led by a faction of the military known as the ‘Young Turks’,165 he managed to stay in power for eight years, a remarkable achievement that only Phibun 157 Kramol Tongdhamachart, ‘Thailand’s 1978 Constitution and its Implications’ (1979) 1(2) Contemporary Southeast Asia 135. 158 Article 150 of the 1978 Constitution. 159 Frank Darling, ‘Thailand: Transitional Military Rule?’ (1978) 75 Current History 208, 209. 160 Articles 75 and 146 of the 1978 Constitution. 161 Sombat and Montri (n 156) 144. 162 Articles 16–18 of the 1978 Constitution. 163 Kramol Tongdhamachart, ‘The Influence of the US Constitution’ in Kenneth Thompson (ed), The US and the Constitutions of Asia (University Press of America, 1988) 57–58. 164 Frank Darling, ‘Thailand in the 1980s’ (1980) 79 Current History 185, 186. 165 Chayanan Samutavanich, The Thai Young Turks (Institute of Southeast Asian Studies, 1982).

The 1974–1991 Constitutions  127 and Thanom had managed before him. Following elections in 1988, he was in turn succeeded by the civilian and elected Member of Parliament Chatichai Choonhavan, who was able to remain Prime Minister for two years before falling victim to Thailand’s tenth military coup since 1932. Invoking Chatichai’s corruption and denouncing the ‘dictatorship of the Parliament’,166 the military, headed by General Suchinda Krapayoon, seized power, abolished the 1978 Constitution and promulgated an interim Constitution, while promising both another permanent Constitution and elections in accordance with the by-then well-established pattern of coup-Constitution. The 1991 interim Constitution was promulgated in June. It virtually reproduced the 1959 Constitution, with both its iconic ‘Article 17’ on emergency powers167 and ‘Article 20’ on ‘the use of constitutional customs’.168 It established, along with the National Peace-Keeping Council (NPKC) of the junta members, a national legislative assembly mandated with the supervision of a new Constitution-drafting process. Once appointed by the military, the National Legislative Assembly moved to appoint a 20-member drafting committee. Meanwhile, the military, following a well-rehearsed course of events, called on a respected civilian, Anand Panyarachun, to take the post of Prime Minister in order to deflect criticism that it had seized power for self-interested purposes. Relying mainly on the 1978 Constitution for inspiration,169 the drafting committee took about four months to draft a text for consideration by the Assembly. Like its predecessors, the major political question of constitutional design centred on the appointed Senate and whether to grant it the same weight in political matters as the lower house. Finally, it was decided to maintain a strong Senate involved in the votes of confidence/no confidence in the prime minister. The first draft was submitted in August 1991, but triggered massive protests. Specifically, protesters’ discontent focused on the lack of a provision specifying the requirement that the Prime Minister be an elected Member of Parliament. They feared that Suchinda, the then-head of the junta, would be able to transition from this role to the position of ‘elected’ prime minister and that the whole process had no other function than to legitimise the military’s rule. To re-assure the crowds, Suchinda promised that in the unlikely event that he would be called upon to become prime minister, he would decline the offer. Other points of contention included the role of the Senate, as well as the lack of provisions on incompatibility between active military duty and parliament, Senate or Cabinet membership. A few amendments were made and the King

166 Thamrongsak Petchlertanan, ‘ข้ออ้าง’ การปฏิวัต-ิ รัฐประหารในการเมืองไทยสมัยใหม่ [Reasons Invoked for Coups in Modern Thailand] (Foundation for the Promotion of Social Sciences and Humanities Textbooks Project, 2018) 178. 167 Article 27 of the 1991 interim Constitution. 168 ibid art 30. 169 Ted L McDorman, ‘The 1991 Constitution of Thailand’ (1995) 3 Washington International Law Journal 257, 275.

128  Thailand’s Cold War Constitutions called on the people to accept the Constitution as it was, raising the possibility that it could be amended later on.170 The 1991 ‘permanent’ Constitution was adopted almost unanimously in December,171 exhibiting continuity rather than change: parliamentary features coexisted with monarchic and militarist elements inherited from previous constitutions. Two important innovations must however be taken notice of. First, the 1991 Constitution added ‘with the King as Head of State’ to all mentions of ‘Thai system of democracy’,172 as if the monarchic (and perhaps also militarist) tendencies of past Thai constitutional practices defined a specifically Thai sort of democracy that should be upheld by law. In fact, upholding ‘the system of democracy with the King as Head of State’ and preventing the erosion of people’s faith therein became, respectively, the duty of the Thai people and the mission of the Thai State.173 Second, the 1991 Constitution innovated by giving a ‘constitutional council’ the power to control the constitutionality of laws. This tribunal, composed of the presidents of both houses, the President of the Supreme Court and the Prosecutor-General, together with six other members selected by Parliament,174 had exclusive jurisdiction over constitutional interpretation, particularly in times of crisis. Article 207 of the 1991 Constitution stated that: In case the government, the parliament, the Senate, the House of Representatives, decide that a problem requires an interpretation of the Constitution, then the prime minister, the president of parliament, of the Senate, of the House of Representatives, submit the case to the Constitutional Council to issue a ruling on the matter.

Meanwhile, the text represented the apex of the power of the King’s Privy Council, as the number of Privy Councillors grew from 15 to 19.175 In line with the trend observable between 1947 and 1991, the King’s Privy Council also increased its role in the process of designating the regent176 as well as the King’s successor,177 and parliamentary approval was no longer required.178 Elections were scheduled for March 1992. These returned another fragmented, pro-military parliament ready to support Suchinda Kraprayoon as Prime Minister, in a move reminiscent of the 1971–72 and 1977–78 processes. Although the manoeuvre was by any account constitutional – according to the

170 Paul M Handley, The King Never Smiles: A Biography of Thailand’s Bhumibol Adulyadej (Yale University Press, 2006) 345. 171 บันทึกการประชุมสภานิติบัญญัติแห่งชาติ [Minutes of the National Legislative Assembly], 44th Session, 7 December 1991. Members of the legislature voted 262:7 to approve the draft. 172 Article 2 of the 1991 permanent Constitution. 173 ibid arts 50 and 70. 174 ibid art 100. 175 ibid art 10. 176 ibid art 17. 177 ibid art 21. 178 ibid arts 26–28.

The 1974–1991 Constitutions  129 Constitution, the prime minister was not required to be an elected Member of Parliament as long as he enjoyed the confidence of Parliament – this blatant betrayal of earlier promises prompted thousands to take to the streets, calling on Suchinda to resign and asking for another, more democratic and military-proof Constitution. As protests escalated into violent confrontations, the King intervened and appointed Anand Panyarachun as Prime Minister. During Anand’s second term in office, a popular civil society movement grew, requesting political reform (patirup kan muang). In June 1992, the Constitution was revised to address the main grievances: first, the prime minister had to be elected from among the members of the House of Representatives; second, the power of the elected House of Representatives was rebalanced in relation to that of the entirely appointed Senate; third, the presidency of Parliament was transferred from the president of the Senate to the president of the House of Representatives; and, finally, a mechanism of ‘questions to the government’ was introduced.179 Following these changes, parliamentarism would secure significant gains against the military model of governance.  Since the foundational 1947 coup, Thai constitutions have built, layer upon layer, a unique combination of authoritarian yet somewhat parliamentary constitutionalism by relying on a powerful appointed Senate. The 1947–49 Constitutions laid the groundwork for monarchic parliamentarism, giving the monarch his legislative and executive chambers, the Senate and the Privy Council, respectively, as well as emergency powers to act with discretion in times of crisis, creating in the meantime a de facto dualist parliamentary system in which the prime minister is responsible both to the King and Parliament. The 1959–68 Constitutions established the military use of interim constitutions, turning martial law into constitutional rule, and establishing a system of military tutelage of Thai parliamentary politics. Finally, the 1974 Constitution added a liberal, rights-based layer to Thai constitutionalism. From these three layers can be identified three key pillars of Thai constitutions which have gained in strength over the years following successive constitutions: the royally appointed Senate, the royally appointed Privy Council, and emergency provisions relying on ‘customs’. Throughout this period, as the monarchy regained his sacredness and inviolability, the sacred and inviolable character of the Constitution that the People’s Party had worked so hard to establish was progressively eroded. As constitutions were suspended and abolished, continuously redrafted and amended, paradoxically, the establishment of formal mechanisms of supremacy of the Constitution, most notably constitutional review, underwent fast developments and a linear progress: some new aspiration towards constitutionalism was in the making. 179 Noranit (n 109) 240; Khian Thirawit, Thailand in Crisis: A Study of the Political Turmoil of May 1992 (Chulalongkorn University Press, 1997) 73.

6 Revolutionary Legality and Buddhist Kingship Theorising the King’s Extra-Constitutional Powers in Times of Crisis

T

he post-Second World War global context was marked by the circulation of doctrines of emergency rule trumping constitutionalism in the name of the fight against communism and the search for stability. As parliamentarism was discredited for being too ‘weak’, disorderly and a ‘foreign’ import alien to Thai culture, the staging of coups became acceptable. Legal positivism, through the import of the doctrine of revolutionary legality, aided in this endeavour. Yet royalist jurists increasingly looked to Buddhist natural law theories, the historical school of jurisprudence and various doctrines related to the British monarch to construct a theory of the King’s extra-constitutional powers in times of crisis. This set of doctrines aimed to put the military back in its place – namely, under the King – even in times of full-fledged military dictatorship. I.  FROM KELSEN’S REVOLUTIONARY LEGALITY TO THAI-STYLE DEMOCRACY

Thai law had been understood in positivist terms since the work of Prince Raphi, who strictly adhered to John Austin’s doctrine of ‘Law as the command of the Sovereign’, a doctrine he taught at the Law School of the Ministry of Justice and wrote about in his seminal ‘Lecture on Law’.1 On this basis, the Kelsen-inspired doctrine of revolutionary legality would be easy to transplant and hybridise

1 Raphi Phatthanasak, เลคเชอร์กฎหมาย [Lecture on Law] (Sobhon Bhibanakorn Publishing House, 1925) 1.

From Kelsen’s Revolutionary Legality to Thai-Style Democracy  131 with the Buddhist idea according to which each power seizure can be legitimate because it proceeds from karma. The theory of revolutionary legality, presented by the Austrian jurist Hans Kelsen in his 1945 groundbreaking English-language book General Theory of Law and State,2 was imported into Thai constitutional thought to justify the legality of military coups. The first trace of such import, albeit implicit, can be found in the work of Yut Saeng-Uthai, undoubtedly the most influential jurist of the 1950s and one of the first lawyers to have been educated in Germany.3 Early manifestations of his doctrinal commitments can be found in his speeches given during his time as Secretary-General to the 1948–49 ConstitutionDrafting Committee. There he drew a sharp distinction between the core of the Constitution (the monarchy) and the other, peripheral components of the Constitution (the form of the Parliament, the courts etc). According to him, the 1949 Constitution-drafting assembly members held no ‘absolute’ constituent power, as they had been appointed pursuant to the 1947 interim Constitution. What they held was derived constituent power: the original constituent power lay with the 1947 coup-makers who had abolished the previous constitutional order and established a new one with the promulgation of the 1947 interim Constitution. Although Yut did not name the theories of original and constituent power directly, he spoke of the ‘continental doctrine’ regarding the difference between the ‘powers to create and to revise the constitution’ which he contrasted to the ‘English doctrine’, in which such a distinction did not exist.4 Therefore, according to Yut, only the revolutionaries (the authors of a coup) possessed the ‘absolute’ constituent power empowering them to interfere with the core of the Thai Constitution: members of the Constitution-drafting bodies appointed or elected in accordance with an interim Constitution did not have such competence. As a result, the 1949 Constitution-drafters could not transform the country from a monarchy into a republic.5 Here is a trace of 2 Hans Kelsen, General Theory of Law and State (Harvard University Press, 1961 [1945]). This book, which was first published in 1945, articulates in English Kelsen’s various theories published in the 1930s in German. The theory of revolutionary legality is discussed on pages 118–19: ‘[The principle of legitimacy] fails to hold in the case of a revolution, this word understood in the most general sense, so that it also covers the so-called coup d’Etat … It is never the constitution merely but also the entire legal order that is changed by a revolution. This shows that all norms of the old order have been deprived of their validity by revolution and not according to the principle of legitimacy. And they have been so deprived not only de facto but also de jure. No jurist would maintain that even after a successful revolution the old constitution and the laws based thereupon remain in force, on the ground that they have not been nullified in a manner anticipated by the old order itself. Every jurist will presume that the old order – to which no political reality any longer corresponds – has ceased to be valid, and that all norms, which are valid within the new order, receive their validity exclusively from the new constitution.’ 3 Watchalawalee Kumboonreung, ‘พหุลักษณ์ของ หยุด แสงอุทัย’ [‘The Plural Identity of Yut Saeng-Uthai]’ (2018) 11 CMU Journal of Law and Social Sciences 55, 59. 4 Yut Saeng-Uthai, รายงานประชุมสภาร่างรัฐธรรมนูญ [Constitution-Drafting Assembly Minutes], 4th session, 19 July 1948, 253. 5 Yut Saeng-Uthai, รายงานประชุมสภาร่างรัฐธรรมนูญ [Constitution-Drafting Assembly Minutes], 5th session, 21 July 1948, 208.

132  Revolutionary Legality and Buddhist Kingship Carl Schmitt’s theses, of whom Yut Saeng-Uthai was a fervent admirer: the heart of the Constitution, the Verfassung, can only be modified by a revolutionary sovereign, in contrast to other constitutional provisions, the Verfassungsgesetzte.6 Thus, Yut’s authoritative contribution to Thai constitutional doctrine would have a long legacy on constitutional practices, in that the Constitution-drafting body appointed in accordance with an interim Constitution would only have a derived constituent power, subject to both procedural and substantive limits defined by the interim Constitution. The real holder of constituent power would be the author of a successful coup – and the Constitution issued by him would be valid by the very fact of its popular acceptance. In 1952 and 1953, the Supreme Court confirmed this interpretation in two separate cases. In the first case, a military officer, Net Kemayothin, was prosecuted for an attempted coup fomented between March and October 1948 against the government of Phibun Songkhram, who himself had come to power following a coup in 1947: The overthrow by force of the former government followed by the appointment of a new government might be illegal at first until it acquires the support and respect of people. When the government exists de facto, this means that the people support and respect it. Those who attempt to overthrow the government are then violating article 102 of the Penal Code.7

In the second case, in 1953, the Supreme Court maintained a similar jurisprudence: Based on a consideration of the facts, in 1947 the authors of the coup successfully seized power. In this type of government, the military junta has the power to adjust, revise, abolish or promulgate laws in accordance with the revolutionary system. In the opposite case, interior peace could not be maintained. Consequently, the 1947 interim Constitution is valid.8

In his commentary of the latter case, Yut found himself in agreement with the Supreme Court. According to him, the Constitution established pursuant to the 1947 coup was perfectly valid based on the theory of revolutionary legality: The Supreme Court ruling is a good illustration of the consideration of whether or not the Court of Justice must accept the effect of the Revolution or Successful Coup and if its authors hold effective State power … the revolution of the coup, at first violates the law. Whenever the authors of the successful coup or revolution are sovereign and hold the State’s supreme power then they are in a position to give a new

6 Carl Schmitt, Constitutional Theory (Duke University Press, 2008 [1928]) 78–79. Yut Saeng-Uthai had been a student at the Berlin university where Carl Schmitt taught. See David Streckfuss, Truth on Trial in Thailand: Defamation, Treason, and Lèse-Majesté (Routledge, 2010) 352. 7 คำ�พิพากษาศาลฎีกา 1153–1154/2495 [Supreme Court Decision 1153–1154/2495], 1952, also quoted in Somchai Preechasilapakun, ‘ปัญหาทางกฎหมาย บางประการเกี่ยวกับการปฏิวัต’ิ [‘Some Legal Problems Regarding the Revolution’] (thesis, Thammasat University, 1996) 97. 8 คำ�พิพากษาศาลฎีกา 45/2496 [Supreme Court Decision 45/2496], 1953. See the discussion in Somchai (n 7) 98; and Jaran Kosananan, ปรัชญากฎหมายไทย [Thai Legal Philosophy] (Ramkamhaeng University, 2006 [1995]) 103.

From Kelsen’s Revolutionary Legality to Thai-Style Democracy  133 constitution and abrogate the old laws, promulgate new laws according to their will. In this case it appears that once the coup succeeded, then the authors of the coup promulgated the 1947 interim Constitution. [Therefore], this interim Constitution is a valid constitution.9

In the same commentary, Yut also justified the 1947 coup as being like the 1918 revolution in Germany: the end of a legal system and the start of a new one. He argued that if the coup was at first illegal, as soon as a new legal system was created, the government resulting from the coup became the legal authority to promulgate laws. It is difficult not to read into Yut Saeng Uthai’s words the influence of Hans Kelsen’s definition of a revolution as something that occurs whenever the legal order of a community is nullified and replaced by a new order in an illegitimate way (that is, in a way not prescribed by the first order itself) but becomes legal, regardless of how it came into being, from the point of view of the new constitutional order. Yut backed up his argument by a free translation of an unreferenced ruling by the German ‘Supreme Court’ on the 1918 revolution making this very argument to validate the 1918 revolution.10 Yut’s import of the theory of revolutionary legality became authoritative a few years later. In his 1957 handbook on the general principles of constitutional law,11 Yut added the coup d’etat as one of the sources of a constitution and the coup-makers as one of the authorities with power to ‘grant’ a constitution. In line with the Thai tradition of starting constitutional law handbooks by establishing a typology of ‘sources of the Constitution’ or constitutional origins, he wrote that there are two ways for a constitution to be created: first, ‘a unilateral decision of the ruler to grant a constitution to the ruled’; and, second, ‘an agreement (ko toklong) whereby the ruler gives a constitution’.12 In scenario 1, the constitution born out of the unilateral decision of the ruler to grant a constitution can be created by those involved in coups or revolutionaries who successfully seized power in the State and gave the people a constitution.13 Thereby, Yut disrupted the established Thai tradition (itself an import of French constitutional doctrine) of identifying three sources of constitutional origins (unilateral octroy from the King in the form of a ‘charter’, a contract between the King and the people in the form of a ‘pact’, or imposition from

9 Yut Saeng-Uthai, หมายเหตุท้ายคำ�พิพากษาศาลฎีกา 45/2496 [Commentary on the Supreme Court Decision 45/2496] 1953, reproduced in Prakop Hutasing (ed), คำ�พิพากษาฎีกาประจำ�พุทธศักราช 2496 [Supreme Court Rulings of the Year 1953] (Lawyer’s Council, 1953) 209–21. 10 ibid 210. It should be noted that the 1918 German revolution abolished the monarchy in order to install the Weimar Republic, whereas the 1947 coup restored a sui generis form of monarchism. See also Somchai Preechasilapakun, ‘การปรองดองกับอํานาจนิยมของนักนิติศาสตร์ไทยกระแสหลัก’ [‘The Adjustment to Authoritarianism of Jurists from the Dominant School’] [2011] Samesky Journal 139, 146. 11 Yut Saeng-Uthai, รัฐธรรมนูญแห่งราชอาณาจักรไทยและรัฐธรรมนูญทั่วไป [The Thai Constitution and General Constitutional Law] (Thammasat University, 1957). 12 ibid 197. Also quoted in Watchalawalee (n 3) 78. 13 Yut (n 11) 198.

134  Revolutionary Legality and Buddhist Kingship the people upon the King as part of a revolution) by merging the first and third categories, and establishing the military as the authority in charge of granting the Constitution in lieu of the King.14 He thus operated the synthesis between the pro-royalist legal doctrine of ‘constitutional octroy’ and the pro-military legal doctrine of ‘revolutionary legality’ to the benefit of the military. His 1957 handbook stated further that a Constitution was valid no matter how it had come into being, whether through an elected constitution-drafting assembly or through any other means – including, presumably, a revolution or coup.15 In another book published two years later, Yut further developed the theory of revolutionary legality as follows: A revolution is a change of government through force. A revolution is always a violation of the law but if it is done with success so that the revolutionaries hold State sovereignty, what was in violation of the law becomes legal because those who have successfully conducted the revolution can grant a new constitution and constitutionally establish various institutions such as the Head of State, the Legislative Assembly, new courts. It depends on the wishes of the coup-makers [to decide] whether they will abolish the previous constitution in its entirety or just in some parts. It also depends on the wishes of the coup-makers [to decide] how much of the previous legislation they will abrogate or keep. If they do no abrogate the law in place before the revolution, the law will remain in force because it must be considered as State law, the same State as before the revolution.16

Although Yut rarely referenced either Schmitt or Kelsen – nor did he give any references to the court rulings he would quote – the ideas of both thinkers are pervasive throughout his work. By the late 1950s, he had laid the foundations for a very promising doctrine of revolutionary sovereignty/revolutionary legality which would be used repeatedly in each subsequent coup and would even make its way into revolutionary announcements by those responsible for coups, court rulings on the legality of coups and preambles of post-coup interim Constitutions. From the late 1950s onwards, post-coup interim constitutions inevitably referred first to the ‘fait accompli’ doctrine, whereby a successful coup is one in which the perpetrators of the coup have securely seized power; followed by the theory of revolutionary legality, whereby the coup cannot be unconstitutional as it is in fact a ‘revolution’ and as the old, ‘pre-revolutionary’ constitutional order has ceased to exist. Although Yut seemed to have elaborated the doctrine to suit 14 It must be noted that in his 1952 textbook on constitutional law, he still distinguished these three sources of constitutional origins and referred explicitly to the ‘King’/‘Head of State’ – rather than the ‘ruler’ or the ‘sovereign’ – as the authority ‘granting’ the Constitution. See Yut Saeng-Uthai, คำ�อธิบายรัฐธรรมนูญ พุทธศักราช 2475–95 [Handbook on the 1932–1952 Constitutions] (Thammasat University, 1952) 38–39. 15 Yut (n 11) 204–06. 16 Yut Saeng-Uthai, คําถาม-คําตอบ รัฐธรรมนูญแห่งราชอาณาจักรไทย : พร้อมท้ังคําแปลเป็นภาษาอังกฤษธรรมนูญการปกครอง ราชอาณาจักร 2502 [Questions and Answers Regarding the Constitution of the Kingdom of Thailand: Together with an English Translation of the 1959 Interim Constitution] (Santisuk, 1959) 7–8.

From Kelsen’s Revolutionary Legality to Thai-Style Democracy  135 the needs of Phibun Songkhram, his teachings were followed to the letter by Sarit Thanarat, who overthrew Phibun. Sarit’s junta named itself a ‘revolutionary council’ (khana patiwat) and immediately abolished the 1952 Constitution upon seizing power, claiming its legitimacy from the success of the coup. Sarit’s 1959 interim Constitution opened with the following words: ‘Owing to the fact that the revolutionary council has seized power with success on 20 October 1958 … and has abolished the 1932 Constitution as revised in 1952, for the purpose of granting a [new] Constitution … the following dispositions shall be promulgated as the 1959 interim Constitution.’17 In the meantime, Sarit discarded constitutionalism as a foreign transplant altogether. As he put it retrospectively, the aim of the ‘revolution’ was precisely to achieve this: The revolution of October 20, 1958 abolished democratic ideas borrowed from the West in order to build a democratic system that would be appropriate to the special characteristics and realities of the Thai. It will build a democracy, a Thai way of democracy.18

Sarit referred here to a political model of ‘Thai-style democracy’, which rejected democracy and constitutionalism as foreign. Sarit’s Thai-style democracy displaced the basis for legitimacy traditionally attributed to the monarch – ‘paternalistic rule’ – in order to use it for its own ends: a ‘despotic paternalism’.19 Thai-style democracy found its legitimacy in the concept of ‘Thai-ness’, a concept opposing Thai culture to the West.20 It justified military dictatorship as a Thai form of government, in contrast to liberal democracy and constitutionalism, both of which were products of the West.21 In 1962, the Supreme Court reaffirmed the theory of revolutionary legality and ruled that Sarit’s 1958 coup was constitutional.22 Sarit did not work much with Yut, who had relinquished much of his role as a government legal advisor, although he still held the key position of SecretaryGeneral of the Council of State. In 1968, he published a detailed critique of the 1968 Constitution, with regard not so much to the provisions empowering the military, but rather to those empowering the King. In his lecture, relying extensively on the doctrine of ‘the King can do no wrong’, he made the point that the King should have no power at all. He started his exposé by presenting the three possible rationales of the doctrine of ‘the King can do no wrong’: irresponsibility

17 Preamble to the 1959 Interim Constitution. 18 Radio broadcast, 17 August 1965, quoted in Thak Chaloemtiarana, Thailand: The Politics of Despotic Paternalism (Cornell University Press, 2019) 101. 19 ibid. 20 Thai-ness was a concept developed by Kukrit Pramot during the 1950s. See Saichon Sattayanurak. คึกฤทธิ์กับประดิษฐ์กรรม ‘ความเป็นไทย’ [Kukrit and the Crafting of ‘Thainess’] (Matichon, 2007). 21 Kevin Hewison and Kengkij Kitirianglarp, ‘The Royalist Struggle for Thailand’s Politics’ in Soren Ivarsson and Lotte Isager (eds) Saying the Unsayable: Monarchy and Democracy in Thailand (NIAS, 2010) 187. 22 คำ�พิพากษาศาลฎีกา 1662/2505 [Supreme Court Decision 1662/2505], 1962.

136  Revolutionary Legality and Buddhist Kingship (related to parliamentarism), inviolability (inherited from absolute monarchy) and infallibility (related to the sovereignty of the people embodied by the King). In order for the King to be in a sacred and inviolable position, there is the principle according to which the ‘King can do no wrong’ [in English in the text]. The reason for the existence of such principle is still debated. For some, the King can do nothing himself, he acts on the advice of the Council of Ministers (or according to the dispositions of the constitution on the advice of the President of the Parliament for some exceptions) and the ministers countersign royal orders; these are those who countersign royal acts and who have advised the King to act as he did who are responsible in place of the King. To others, the principle existed before the emergence of a parliamentary regime and the principle that the King can do no wrong comes from the fact that his acts are Acts of State and, as the State is above the people and as no tribunal can judge the State (except the World Court), the King can do no wrong. Besides this, there is always an opinion according to which the principle that the king can do no wrong comes from the fact that the acts of the King in accordance with the constitution reflect the intentions of the people, the holders of sovereignty, and consequently, the King can do no wrong.23

Yut gave pre-eminence to the parliamentary interpretation and insisted on the issue of political responsibility: ‘Regarding the Constitution of Thailand, we should consider that the King can do no wrong because there exists a countersignature and people countersigning royal acts are constitutionally responsible in place of the King.’24 He stated clearly that the King truly had no autonomous power; he could not request a draft bill to be amended according to his wish, nor could he suggest that Parliament should pass a specific bill. Only this interpretation of royal power (or, rather, of the lack thereof) would ensure that the Thai monarchy could endure in the democratic age like the British monarchy did.25 This was in line with the standard legal positivist understanding at the time: the King had no powers other than those written in the Constitution, and only those powers written as discretionary were so – the rest was ‘with the advice and consent’ of a responsible minister. Thus, Yut’s legal scholarship tended to reduce the Thai King to a pure figurehead monarch. Yut’s theories on revolutionary legality and constituent power focused on the military, not the King: after a coup, it was the military, not the King, which had unlimited constituent power; it was the military, not the King, which established a new constitutional order by ‘granting’ a new Constitution. In fact, he even added that the coup-makers, having the unlimited constituent power to grant a Constitution, could do anything they wanted, as they were the ones deciding on all issues of constitutional design, including on the Head of State

23 Yut Saeng-Uthai, คำ�อธิบายรัฐธรรมนูญแห่งราชาอาณาจักรไทย พ.ศ. 2511 และธรรมนูญการปกครองราชาอาณาจักรไทย พ.ศ. 2515 [Explanation of the 1968 Constitution and 1972 Interim Constitutions Regarding the Monarchy] (Winyuchon, 2008) 16. 24 ibid. 25 ibid 17.

From Bagehot’s Powers to Thai Constitutional Customs  137 (and, consequently, on royal powers).26 Yut’s theories were soon criticised for justifying military coups. In fact, not only did they justify military coups and empower the military, but they did so at the expense of the monarchy. They justified military dictatorship while denying the King the exercise of any power, including those rooted in traditional Buddhist doctrines of kingship. This type of criticism is best summarised in the words of the prominent intellectual Sulak Sivaraksa: [In this system where revolutionary legality/sovereignty is accepted], the winner becomes God, the loser a beggar. This is the principle the Supreme Court abides by. It is the German School model which considers that whoever seizes power has legitimate power to govern. It is a principle not even recognized by the Brahmins. This is very important. German jurists have been introduced to exercise a wide influence in Thailand especially during the times dominated by the figure of Phibun Songkhram. This Mr [presumably Yut Saeng-Uthai] is a Doctor of Laws from Germany and these people come [back] to cause chaos in the country because they do not understand the ancient Thai Legal Science [thai nittisat]: they do not understand our ancient dharma principles … they interpret the dharma with foreign models.27

The foreign models rejected here are presumably the Schmitt-Kelsen, ‘German’ doctrines of revolutionary sovereignty/revolutionary legality and the parliamentary practices of monarchy from the UK, as professed by Yut.28 As a response, royalist jurists would seek to devise a Thai, indigenous constitutional doctrine specifically suited to expand the Thai King’s prerogatives. II.  FROM BAGEHOT’S THREE CONVENTIONAL POWERS OF THE MONARCH TO THE INVENTION OF THAI CONSTITUTIONAL CUSTOMS

As a reaction against the legal positivist school of jurisprudence represented by Yut, an historical school of jurisprudence was formed under the leadership of Seni Pramot, perhaps the most influential jurist of the 1960s. Seni, a prominent drafter of the 1947 and 1949 Constitutions, was known for his sincere royalism as well as his interest in British doctrines and models, including the idea of a ‘customary’ Constitution and the practices, real or fantasised, associated with it. The Oxford-educated jurist notably introduced into Thailand AV Dicey’s

26 Yut (n 16) 7–8. These ideas were subsequently published in Yut Saeng-Uthai, คำ�บรรยายกฎหมายรัฐธรรมนูญ [Lecture on Constitutional Law] (Thammasat University, 1972 [1968]) 14–15. Also quoted in Kittisak Prokati, การปฏิรูประบบกฎหมายไทยภายใต้อิทธิพลยุโรป [Legal Reform under the European Influence] (Winyuchon, 2013) 211. 27 Sulak Sivaraksa, quoted in Jaran (n 8) 426. 28 On Yut’s opinions regarding the need to make the powers of the Thai monarch align with those of the British monarch, see Chutimon Jamchurus, ‘แนวความคิดของหยุด แสงอุทัย เกี่ยวกับสถานะและพระราชอานาจ ของพระมหากษัตริยต์ามรัฐธรรมนูญ’ [‘Yut Saeng-Uthai’s Constitutional Concepts of the Monarchy and the Royal Prerogative’] (thesis, Thammasat University, 2019).

138  Revolutionary Legality and Buddhist Kingship interpretation of the maxim ‘the King can do no wrong’ as absolute personal inviolability (‘if the King one day takes a gun and kills one of his ministers, it is the Prime Minister who must take responsibility, not the Monarch’).29 Against this background, Seni strove to rewrite Thai constitutional history as a succession of historical milestone documents layered on top of one another on the model of the British ‘historical constitution’ – these documents being understood as codifying pre-existing practices rather than creating them anew. To do so, Seni relied on a lecture given by Prince Dhani to the Siam Society a few months before the 1947 coup entitled ‘The Old Siamese Conception of the Monarchy’.30 In this lecture, Prince Dhani portrayed the Sukhothai Kingdom as a peaceful and harmonious society ruled by a Constitution, the Thammasat, within the framework of an elected and benevolent kingship. ‘The Thammasat’, Dhani wrote, was ‘the Inspired Lore, the work supposedly of a superior agency, a Constitution in fact which was not to be tempered with even by the highest in the Land.’31 However, it was not the Thammasat, but the King’s virtue, that accounted for the peace and order of the Sukhothai Kingdom. As Baker and Phongpaichit put it, ‘Prince Dhani also slated constitutions as “a pure foreign conception”, with no place in Thai tradition because the king’s inherent morality and wisdom were the true source of law’.32 Seni agreed with Prince Dhani that the King’s inherent morality and wisdom was the true source of Thai law, and that the Thammasat was a Constitution, but according to him, it was not the first one. In a series of speeches and writings published from 1965 onwards,33 Seni argued that the first Thai Constitution was King Ramkhamhaeng’s inscription from the thirteenth century, which was just like the English Magna Carta. He wrote: ‘The British consider that the Magna Carta is their first constitution.

29 Seni Pramot, รายงานประชุมราชสภาพิจารณาร่างรัฐธรรมนูญฉบับ พ. ศ. 2492 [Minutes of the Parliamentary Meeting on the Examination of the Draft 1949 Constitution], 15th session, 17 January 1949, 214–15. Also quoted in Somchai Preechasilapakun, นีค่ อื ปณิธานทีห่ าญมุง่  : ข้อถกเถียงว่าด้วยสถาบันพระมหากษัตริยใ์ นองค์กรจัดทาํ รัฐธรรมนูญของไทย ตัง้ แต่ พ.ศ.2475–2550 [This is a Brave Resolution: Discussion of the Monarchy in Constitution-Making Bodies, 1932–2007] (Samesky Books, 2018) 120. 30 Dhani Nivat, ‘The Old Siamese Conception of the Monarchy’ (1947) 36 Journal of the Siam Society 91. 31 ibid 98. According to Prince Dhani, this Constitution prescribed a certain course of action upon the King: his legislative power was limited to matters dealt with in the Thammasat, while his conduct towards his subjects was constrained by the 10 Virtues of a Righteous King, and he was elected, if not by the people, by a council of the Lords of the Realm. The King was a Lord of Life (chao chiwit) and was a Lord of Lands (chao phaendin), which meant that he had legitimate claims to have a power of life and death over his subjects, and to be the owner of the entire kingdom. 32 Chris Baker and Pasuk Phongpaichit, A History of Thailand (Cambridge University Press, 2005) 175. 33 Seni Pramot’s seminal speech was pronounced on 15 December 1965 at the Narat School. He gave the same speech in February 1966 before the military, published under the title ‘ศิลาจารึกพ่อขุนรามคาแห่ง’ [‘King Ramkhamhaeng’s Stele’] in ปาฐกถาทางการเมืองและปัญหาสังคมบางเรื่อง [A Few Political Speeches and Social Problems] (Bangkok, 1966) 61–165. An abridged English translation can be found in Seni Pramot, ‘Stone Inscriptions of Father King Ramkamhaeng: First Constitution of Thailand’ in Pinit Ratanakul and U Kyaw Than (eds), Development, Modernization and Tradition in Southeast Asia: Lessons from Thailand (Mahidol University, 1990) 21–48.

From Bagehot’s Powers to Thai Constitutional Customs  139 I do not see why we could not consider the Ramkhamhaeng’s stele as the first Thai Constitution.’34 He argued that even though it did not contain a catalogue of rights or mechanisms of constitutional sanction, the Ramkamhaeng stele still was an operating social contract between the King and the ruled.35 Seni went further by adding that the Ramkhamhaeng stele was superior to the Magna Carta. He provided the following supporting evidence: the stele was written in Siamese, a vernacular language accessible to all, unlike the Magna Carta, which was written in Latin; it forbade taxation, unlike Magna Carta; and it organised collective ownership of land, on the principle of the first occupier, unlike Magna Carta, which enshrined the lord’s ownership of land.36 Ayutthaya also had its own Constitution, according to Seni: the Palace Law.37 He pointed to Article 123 of the Palace Law (‘If the King is angry at anyone and calls for the royal sword, officials must not present him with the sword; anyone who does so is condemned to death’) as proof that the Palace Law was a means for the King to limit his own power and hence was a Constitution, even judged by modern standards.38 He identified in the pre-modern law on crimes against the King the ‘Siamese habeas corpus’.39 Finally, not only were both Sukhothai and Ayutthaya constitutional kingdoms, but they were also democracies: ‘In Sukhothai 700 years ago, our ancestors practiced democracy.’40 The democracy argument was supported by the Buddhist principle of anekchonnikon or elected monarch. Seni’s reading of Prince Dhani became the seminal understanding of traditional Siamese law on kingship and a mandatory introduction to Thai constitutional law in handbooks published after 1965. It became the standard account of the evolution of Thai kingship throughout the Sukhothai, Ayutthaya, and Bangkok periods. In each period, the King had specific prerogatives, powers and ways to govern. The most durable of these prerogatives were those rooted in the doctrine of the Righteous King or dharmaraja: these were immutable. In one of the first booklets specifically dedicated to the monarchy, prominent

34 Indeed, according to Seni, the inscription provided vital principles and norms concerning the name of the country, the form of the State, the mode of taxation, the delimitation of the territory and how justice was to be administered, as well as sanctions in the event that rules were violated. The form of the State was provided in the following sentence: ‘King Ramkhamhaeng owns a very large territory that goes to the East until Pichit and Pitsanulok, to the South until Khamphaeng Phet, Nakhorn Sawan, Suphanburi, Ratchaburi, Petchaburi and Nakhon Sri Thammarat.’ The source of power or the legitimacy principle was given as follows: ‘My dad is dead, I have gained the country in its entirety.’ The respect of the rule was given as follows: ‘Free men in the country of Sukhothai observe [these rules].’ See Seni (n 33) 86. 35 ibid 88–91. See also Nakharin Mektrairat, ‘คำ�อธิบำ�ยของปัญญำ�ชนฝ่ายที่สนับสนุนกับฝ่ายที่ต่อต้านการปฏิวัติสยำ�ม 2475’ [‘Explanation of Intellectuals Supporting the Counter-revolution in 1932’] (2004) King Prajadhipok’s Institute Journal 1, 21. 36 See also Wissanu Krea-ngam, กฎหมายรัฐธรรมนูญ [Constitutional Law] (Nittibanyankan, 1982) 181. 37 Seni Pramot, กฎหมายสมัยอยุธยา [Laws of Ayutthaya] (Winyuchon, 2016 [1963]) 161. 38 ibid 165. 39 ibid 157. 40 ibid 165.

140  Revolutionary Legality and Buddhist Kingship royalist jurist Phraya Sriwisanwacha published a lecture on the Thai monarchy41 in which he asserted that the customary powers of the King derived from being a dharmaraja, although not codified or enshrined into the post-1932 Constitutions, were retained by the monarch, in spite of the fact that the system had now changed to a ‘monarchy under the Constitution’ (rachatipatai tai rattathammanun).42 Thai-style democracy was being redefined as a re-invented Buddhist kingship, in which the King was the ‘father’ of his subjects. Democracy was thus understood as depending on the King’s Buddhist virtues: the 10 Virtues of a Righteous King and the 12 additional virtues of a Chakravatin.43 The King’s Buddhist virtues were recast as some form of royal ‘customs’ inherited from times immemorial – or, at least, from Sukhothai. However, legal positivism was not entirely abandoned; instead, it was re-appropriated by the historical school of constitutional jurisprudence. That is how Prince Raphi, the father of legal positivism but also a strong advocate of having uncodified ‘customs’ as a primary source of law in the Thai legal order (against what appeared to be traditional practice in a civil law system), was recast as ‘the father of Thai law’.44 Yet, the difficulty in reconciling the historical school’s emphasis on ‘customs’ with the positivist school of jurisprudence’s understanding of Thailand as a civil law country soon arose in practice, most notably during the discussions on how to proceed to revise the 1972 interim Constitution.45 The interim Constitution did not provide a mechanism of constitutional revision, but included an article on ‘Thai democratic customs’ (phrapheni kan pokkrong thai nai rabop phrachaptipatai), which had first appeared in the 1959 Constitution.46 As the interim Constitution was silent on the matter of constitutional revision, could a ‘Thai custom’ be invoked to revise the Constitution? After all, Article 22 specifically mandated that ‘customs’ be applied in the event that there was no constitutional article applicable to a specific situation. Several jurists disagreed with the proposal to rely on Article 22 to revise the Constitution, arguing that there was something fundamentally wrong with this very article. It had been copied 41 Phraya Sriwisanwancha, ‘พระมหากษัตริย์ในประเทศไทย’ [‘The Monarchy in Thailand’], speech at the American Club, 9 February 1954, reproduced in งานพระราชทานเพลิงศพ หม่อมเจ้านิกรเทวัญ เทวกุล [Cremation Volume of Nikonthewan Thewakul] (NA, 1977) 1–24. 42 ibid 23–24. 43 Kukrit Pramot, สถาบันพระมหากษัตริย์ [The Thai Monarchy] (Srinakharin University, 1973 [1965]) 41–42. 44 This movement manifested itself in the building of a honorific statue in front of the Office of the Judiciary in 1963, the establishment of a Prince Raphi Day in 1964 and the publication of influential laudatory articles thereafter. See, for instance, Lawyer’s Council, ‘พระเจ้าบรมวงศ์เธอ กรมหลวงราชบุรีดิเรกฤทธิ์ พระบิดาแห่งกฎหมายไทย’ [‘Prince Raphi, the Father of Thai Law’] (1968) 3 Journal of the Lawyer’s Council 477; Somchai Preechasilapakun, ความยอกย้อนในประวัติศาสตร์ของบิดาแห่งกฎหมายไทย [Complexities in the History of the Father of Thai Law] (Winyuchon, 2003) 12. 45 Bandit Chanrochanakit, ชีวประวัติธรรมนูญการปกครองและรัฐธรรมนูญแห่งราชอาณาจักรไทย พ.ศ. 2475–2520 [Constitutional History of Thailand 1932–1977] (Research Development Fund, 2007) 129–31. 46 Article 22 of the 1972 interim Constitution states: ‘Whenever no provision under this Constitution is applicable to any case, it shall be decided in accordance with Thai democratic customs.’ This reproduced art 20 of the 1959 interim Constitution.

From Bagehot’s Powers to Thai Constitutional Customs  141 from elements of private law (Article 4 of the Civil and Commercial Procedure Code) and in that regard should not have been part of the Constitution at all. In a civil law country, the reliance on customs was only acceptable in the domain of commercial law and not in that of constitutional law. Notably, Somphop Hotrakit argued that on that basis, the article on ‘customs’ could not be invoked to revise the Constitution and the National Legislative Assembly voted by a large majority against the proposal.47 However, it is on a different notion of ‘customary practice’ that another process of constitutional revision was finally launched, leading to a full process of constitutional replacement. This was achieved by relying on the concept of ‘rachaprachasamasai’. According to this doctrine, the King and the people rule jointly, and have done so since times immemorial: the 1932 Constitution had codified such ‘joint rule’ in a written document, but had not fundamentally altered the pre-existing King-people ‘Thai system of democracy’. This rachaprachasamasai or ‘joint rule’ doctrine was devised from an expression formulated by the King himself in a 1957 speech.48 However, its first recorded occurrence in the wider public debate was in December 1971 in the newspaper Siam Rath, in which Seni’s brother Kukrit defined it as a mode of governance according to which ‘the Monarchy and the people govern together’. In such a system, ‘the Monarchy has more prerogatives to govern than in a democracy’.49 Rachaphrachasamasai was actually a transformation of the old doctrine of anekchonnikon samosonsammut, according to which the King and the people are one united body, a complementarity between the ‘Heaven’ and the ‘Earth’. On television and in the print media, prominent intellectuals, including the jurist Kasem Sirisampan,50 debated on the subject of this mode of governance, which they could see as more desirable and more ‘Thai’ than the Western models, either parliamentary or presidential.51 In 1973, Kukrit also re-published an influential book in which the supposed election of the King featured prominently.52 In a later version of this book,53 he stated

47 รายงานประชุมสภานิตบิ ญ ั ญัติ ครัง้ ที่ 30/2517 [Minutes of the Legislative Assembly], 30th session, 9 May 1974, 735. For another discussion on invoking art 22 to launch a process of constitutional revision, see รายงานประชุมสภานิตบิ ญ ั ญัติ ครัง้ ที่ 33/2517 [Minutes of the Legislative Assembly], 35th session, 17 May 1974. 48 Saichon Sattayanurak, ‘อุดมการณ์ชาตินิยมกับการเคลื่อนไหวทางการเมืองของชนชั้นกลางไทย’ [‘Nationalism and the Intellectual Movement of Thai Middle Classes’] 2 (2014) Humanities Journal 35, 49. 49 ‘According to the mode of governance of rachaphrachasamasai, the Monarchy and the people govern together. The Monarchy has more prerogative to govern than in a democracy and the people also have more power to govern than in the past experience of Thai Democracy. The Monarchy and the People in such a system are not dangers to one another. They love each other and help each other always. If the Monarchy and the People unite to govern the country together, and help each other out, as has always been the case, I have the hope that our land will turn into the land of peace and development in all dimensions according to the wishes of the people’ Kukrit Pramot, ‘คอลัมน์คึฤทธิ์ [Kukrit’s Column].’ Siam Rath, 11 December 1971. 50 Saichon (n 48) 50. 51 Saneh Chamrik and Kasem Sirisampan, ‘รายการสนทนา ‘การเมืองไทย’’ [‘Talk-Show on Thai Politics’] (1972) 1 Thammasat Journal 35. 52 Kukrit Pramot, สถาบันพระมหากษัตริย์ [The Thai Monarchy] (Srinakharin University, 1973 [1965]). 53 Kukrit Pramot, ลักษณะไทย [Thai Characteristics] (Thaiwattanapanich, 1982).

142  Revolutionary Legality and Buddhist Kingship that according to tradition, the King of Thailand was chosen by the people and therefore had a ‘popular mandate’.54 This coincided with a revival of the doctrine of ‘constitutional octroy’, according to which the Constitution was said to have been benevolently ‘octroyed’ by the King. King Prajadhipok became the ‘father of Thai democracy’ and the memory of the 1932 Revolution was erased, together with Pridi’s role in drafting Siam’s first ever Constitution.55 The implication of the ‘constitutional octroy’ doctrine was that the King became the source of the Thai constitutional order at large – in other words, the holder of original constituent power. It implied that the King ‘pre-existed’ the law and the Constitution, and that royal customs derived from pre-1932 royal practices existed independently of the Constitution of the day. This context partly explains why, when students staged mass protests against the military rule of Thanom Kittikachorn on 14 October 1973, calling themselves ‘the ones demanding a Constitution’, they turned to the King, asking him to ‘grant’ them a new Constitution in order to ‘re-establish’ democracy in the kingdom.56 The King did as he was requested: he granted the ‘rachaphrachasamasai’ 1974 Constitution after having ‘granted’ both a prime minister and a legislature by Royal Command. Alongside this series of events, the preamble to the 1974 Constitution rooted the legitimacy of the Constitution in King Bhumibol’s octroy, itself in continuity with King Prajadhipok’s constitutional octroy in 1932: King Prajadhipok granted the Constitution of Siam to the Siamese people on 10 December 1932 – this established democracy in Siam, in accordance with the royal wish to grant royal power to the Siamese people in its entirety, not to a person or a group in particular; [a democracy] in which the Head of State exercises sovereignty of the people in accordance with the provisions of the Constitution.57

This part of the preamble referred explicitly to the abdication telegram of King Prajadhipok of March 1935 in which he had denounced Pridi and the members of the People’s Party as wanting dictatorial powers for their own use. The preamble also mentioned for the first time that the aim of enacting legislation was for ‘justice’ and the attainment of the ‘Rule of Law’ (nittitham). This wording can be seen as a veiled attack on Yut’s legal positivism: Yut referred to the ‘Legal State’ (nittirat), a translation of the German Rechtsstaat, rather than the ‘Rule of Law’ (nittitham), a translation of the English term.58 54 ibid 31. 55 Thongchai Winichakul, ประชาธิปไตยทีม่ ีกษัตริย์อยู่เหนือการเมือง: ว่าด้วยประวัติศาสตร์การเมืองไทยสมัยใหม่ [Democracy with the Monarchy above Politics: On the History of Contemporary Thai Politics] (Samesky Books, 2013) 95–96. 56 Thak (n 18) 230. 57 Preamble to the 1974 Constitution. 58 Yut (n 23) 33. Yut had earlier used the word ‘netittham’ (not ‘nittitham’) for ‘Rule of Law’, but this appears to have been an exceptional use of a term other than ‘nittirat’. See Yut Saeng-Uthai, ‘วัฒนธรรมทางเนติธรรมกับรัฐสภา’ [‘The Culture of the Rule of Law and the Parliament’] (1953) 4 Journal of the Parliament 115.

From Bagehot’s Powers to Thai Constitutional Customs  143 Attacks on legal positivism also came in the form of a call for jurists to think in terms of justice rather than focus on the strict letter of the law. Legal positivism was increasingly seen as the cause of the regular pattern of coupsconstitutions, latter dubbed the ‘vicious cycle of Thai politics’ (wongchon ubat).59 In 1975, the French-educated jurist and ‘father of public law’ Amorn Chantarasomboon, arguably the most influential jurist of the 1970s, published an authoritative volume, officially in honour of Prince Raphi. Entitled Law and Justice in Society, its main intervention was to urge the Thai legal profession to move away from legal positivism and be guided by the ideal of (natural) justice instead.60 In the various chapters, he touched on the subjects of ethics, conflicts between dharma and the law, and the waywardness of jurists, signalling a deeprooted feeling of inadequacy between the existing doctrine of legal positivism and the needs of Thai society.61 In a chapter entitled ‘The Role of Jurists in Establishing Principles for a Just Society’, Amorn lambasted the influence of legal positivism on the work of legal scholars, practitioners, judges and law professors. He proposed that the curriculum be revised to include teachings about ethics and morals. With this publication, he became the unofficial leader of a movement against legal positivism. Alongside him, prominent intellectuals called for a revamp of the Thai school of dharma and a return to the teachings of the ‘Thammasat’. The law school curriculum at Thammasat University was revised accordingly and two new subjects were added to the undergraduate degree in law: philosophy of law and ‘the work of lawyer’, a course on equity and Buddhist ethics.62 As part of this new beginning, King Bhumibol gave the following speech to law students on 6 November 1975: ‘What is the most important in the upholding of justice in the Land and which will build good lawyers is courage in the legal practice, courage to practice according to equity [thiengtham] following both the law [kotmai] and ethics [silatham].’63 59 It is difficult to trace the origin of the term in Thai. It probably appeared in the late 1970s. In English, it first appeared in Chai-Anan Samudavanija, The Thai Young Turks (Institute of Southeast Asian Studies, 1982) 1. 60 Amorn Chantarasomboon, กฎหมายกับความเป็นธรรมในสังคม [Law and Justice in Society] (Winyuchon, 2015 [1973]). 61 The various chapters include ‘นักนิติศาสตร์กับนักกฎหมาย’ [‘Jurists and Lawyers’], ‘บทบาทของนักกฎหมายในการ วางกฎเกณฑ์เพื่อความเป็นธรรมแก่สังคม’ [‘The Role of Jurists in Establishing Principles for a Just Society’] and ‘นักนิติศาสตร์หลงทางหรือ’ [Have Thai Jurists Lost Their Way?’]; ibid 7–71. 62 Kittisak Prokati, ‘กฎหมายไทย: จากมิติวัฒนธรรม’ [‘Thai Law: From a Cultural Perspective’] in National Cultural Office of Thailand (ed), เอกสารประกอบการสัมมนาระดับชาติเรื่อง ‘วิกฤติการณ์ทางสังคมไทย’ วันที่ 20–22 เมษายน พ.ศ. 2538 ณ ศูนย์วัฒนธรรมแห่งประเทศไทย [Documents for the National Seminar on ‘The Crisis of Thai Society’ Held on 20–22 April 1995 at the National Cultural Center] (National Cultural Office of Thailand, 1995). Jitti Tingsaphat’s handbook for the course, The Work of the Lawyer, has been re-published 15 times since its first publication in 1974; Jitti Tingsaphat, หลักวิชาชิพนักกฎหมาย [The Work of the Lawyer] (Thammasat University Press, 2015 [1974]). 63 Bhumibol Adulyadej, ‘พระบรมราโชวาทในพิธีพระราชทานประกาศนียบัตรแก่ผู้สำ�เร็จการศึกษาของสำ�นักอบรมศึกษากฎหมายแห่งเนติ บัณฑิตยสภา’ [‘Royal Message on the Occasion of the Graduation Ceremony of the Lawyer’s Council’], 6 November 1975, reproduced in King Prajadhipok’s Institute, พระราชาผู้ทรงธรรม: ประมวลพระบรมราโชวาทแล ะพระราชดำ�รัสด้านการเมืองการปกครอง [The Righteous King: Collection of Royal Messages and Speeches on Politics and Administration] (King Prajadhipok’s Institute, 2017) 119–20.

144  Revolutionary Legality and Buddhist Kingship Within that context, legal scholars from the historical school were dutybound to provide a constitutionally sound interpretation of the King’s interventions in 1973–74, which included the forced resignation of Prime Minister Thanom Kittikachorn, the discretionary appointment of Sanya Thammasak to replace him, the dissolution of Parliament, the discretionary appointment of a National Convention and the appointment of the Legislative Assembly, as well as the request for constitutional revision after promulgation of the 1974 Constitution. Instead of theorising the royal actions as being part of the indigenous doctrine of ‘rachaphrachasamasai’, legal scholars turned to the nineteenth-century British journalist Walter Bagehot’s famous words on the King’s conventional ‘right to be consulted, to encourage and to warn’, and argued these were precisely the powers exercised by the King in 1973–74. Yut’s earlier parliamentary interpretation of the conventional powers of the monarch as defined by Bagehot’s formula and of the King’s irresponsibility as defined by ‘the King can do no wrong’ doctrine was being completely marginalised. Now, the King could do no wrong not because he was politically irresponsible, but because he embodied the people’s sovereignty – as such, he became infallible – while his right to be consulted, to encourage and to warn was expanded markedly to include the right to act extra-constitutionally, provided that his actions could be considered to reflect ‘people’s will’. A landmark book in this regard is The Thai Monarchy in the Democratic System, published in 1976 by Thanin Kraivichien, then royally-appointed Premier and former judge at the Supreme Court.64 In this book, the legal principle according to which the King ‘can do no wrong’ and is ‘above politics’ took on new meanings associated with the supraconstitutional status of the King. He was no longer ‘under the Constitution’ (tai rattathammanun), but was rather ‘above politics’ (nuea kanmuang).65 Thanin wrote: The King is above politics … the King is sacred and inviolable. This democratic principle comes from the legal principle according to which ‘the King can do no wrong’. Hence, no one can accuse or prosecute the King by any means whatsoever.66

According to Thanin, the principle according to which the King is sacred and inviolable was the key principle of the Thai ‘Rule of Law’.67 He explicitly distinguished two sources of law in the Thai legal system: positive law (kotmai) and customary law (phrapheni). The former gave the King the power

64 Thanin Kraivichien, พระมหากษัตริย์ไทยในระบอบประชาธิปไตย [The Thai Monarchy in the Democratic System] (Ministry of Education, 1976). This short book was published by the Ministry of Education during Thanin’s prime ministership and was used as a handbook in schools as well as in universities. In his preface (at xv), Thanin thanks Vicha Mahakun and Bowornsak Uwanno. 65 Thongchai (n 55) 91. 66 Thanin (n 64) 28. 67 ibid.

From Bagehot’s Powers to Thai Constitutional Customs  145 to exercise sovereignty in the executive, legislative and judicial domains through the Cabinet, the Parliament and the judiciary, as well as to grant royal pardons and receive petitions from the people, while the latter allowed him to act extra-constitutionally by using his reserve customary powers inherited from pre-modern times. Thanin called these customary powers ‘royal legal customs’ (nittirachaphrapheni)68 and defined them as deriving from the notions of ‘royal duty’ (rachatham), the 10 Virtues of a Righteous King (totsapitrachatham) and the King’s election (anekchonnikon samosonsommut).69 As an example of the use of such ‘royal legal custom’, he referred to the King’s royal octroy of a Constitution, as in King Prajadhipok’s ‘granting’ of a Constitution to his subjects in 1932.70 In this short book, Thanin’s crucial contribution was to formulate a new theory for the outdated ‘Thai-style democracy’: he renamed it ‘the Democratic System with the King as Head of State’ (prachatipatai seung mi phramahakasat pen pramuk).71 The concept of a Thai-style democracy was redefined to rely on the person of the King: the institution of the military became its subordinate guardian. According to Thanin’s definition of this new term, Thailand had always been ruled by some form of democratic monarchy (or a monarchic democracy): democracy and monarchy were synonymous and essential qualities of Thailand’s indigenous form of rule. More pragmatically, Thanin’s doctrinal construction placed emphasis on the King’s extra-constitutional, uncodified, customary ‘crisis powers’. Thanin dedicated a whole section on the King’s role in times of crisis: ‘the prerogatives that the Constitution formally grants to the King are just a fraction [of the King’s true prerogatives]: when the country enters into a crisis, the King can no longer rely on the Constitution at all. He must rely on His wisdom [phrapricha]’.72 He explained that in forcing the resignation of Thanom and appointing Sanya following the events of October 1973, the King had exercised his prerogative to warn and to advise, respectively – this, in fact, was not only a prerogative, but a duty. This influential doctrine would act as a synthesis between the pro-military theory of revolutionary legality and the pro-royalist theory of constitutional octroy by paving the way for the theory of ‘shared sovereignty’ between the King and the people. This time, the synthesis would be achieved to the benefit of the King.

68 ibid 23, 30–32. 69 ibid 32–37. 70 Among the 10 Virtues of a Righteous King, the first kingly virtue is that of giving (than), such as ‘granting Constitutions’; ibid 33. 71 ibid 52. Thanin had used the expression many times before on television and in various speeches and addresses, so much so that the expression came to be associated with him. See Montri Chenvidyakarn, ‘One Year of Civilian Authoritarian Rule in Thailand: The Rise and Fall of the Tanin Government’ [1978] Southeast Asian Affairs 267, 268. 72 Thanin (n 64) 58.

146  Revolutionary Legality and Buddhist Kingship III.  REVOLUTIONARY LEGALITY REVISED: THE DOCTRINE OF SHARED SOVEREIGNTY BETWEEN THE KING, THE MILITARY AND THE PEOPLE

Thanin’s legal theory established the King as commander of the military, and linked this title to the royal prerogative of declaring and revoking martial law: In military terms, the term monarchy (phramahakasat) means ‘great warrior’. This is because in ancient times, the King was the one leading in the battlefield, fighting courageously against the enemy … the legacy has continued until today, and that is why the King is the Chief of the Armed Forces according to the Constitution … the title of general (chompon) is the highest in the military hierarchy, it is true, but the King has an even higher status, which is Chief of the Armed Forces. It is not a military rank, but it is a title for the monarchy specially, which is based on royal constitutional customs (nittirachaphrapheni) since ancient times … that is why this Constitution gives the King the title of Chief of the Armed Forces and the power to declare and revoke Martial Law.73

Thanin’s doctrinal construction was as follows: being the Chief of the Armed Forces, the King was, during coups or when there was no Constitution during times of military dictatorship, fully sovereign:74 In case of crisis … even if there is a Constitution in force, one can consider that the Constitution is nothing but words because sovereignty needed to enforce the Constitution is lacking and it is uncertain in whose hands sovereignty resides … after the Reform Council [the junta] has seized power, it exercises the sovereignty and during that time it must be considered that the country remains a democracy which has the King as Head of State as before. This is confirmed by the statement of the British government recognising the Reform Council due to the King remaining the Head of State as before.75

This made sense insofar as if the King’s sovereignty pre-existed the law, his sovereignty remained intact in times of lawlessness. Likewise, if royal customs pre-existed the Constitution, they remained in force independently of the existence of a Constitution. However, according to Thanin, the King’s sovereignty did not imply political responsibility. Even during times of martial law and military rule, ‘the coup group is solely politically responsible in legislative, executive and judicial matters’.76 As the Thai King exhibited exceptional qualities and virtues, Thai-style democracy did not require a Constitution nor elections; it was based on the virtues of the King and the love it inspired in his subjects. In the words of Thanin, ‘the reason why the status of the Monarchy was never changed in any epoch no matter how many times the Constitution was abrogated is because this



73 ibid

26. 26–28. 75 ibid 28–29. 76 ibid. 74 ibid

Revolutionary Legality Revised: The Doctrine of Shared Sovereignty  147 institution has ultimate stability and has inherent perfection so that there is no need to alter it’.77 After 1976, a new generation of jurists emerged who were ready to walk in the footsteps of Thanin. Perhaps fascinated by the political career Thanin owed to the King thanks to his royalist scholarship, Wissanu Krea-ngam and Bowornsak Uwanno, who were both professionally close to Thanin,78 built on the latter’s scholarship to further hybridise the theory of revolutionary legality with the doctrine of constitutional customs/constitutional octroy. Wissanu trained at Berkeley in the US and Bowornsak in Paris, graduating with a dissertation on ‘British constitutional conventions’.79 They both worked to ‘normalise’ coups by including a discussion of the legal status of coups as well as amnesties for coups in their respective constitutional law handbooks. In a first article on the legal status of the Thai monarch published in 1977 in the Law Journal,80 they referred to the ‘system of Democracy with the King as Head of State’81 as based on ‘customs’, Bagehot’s three conventional powers, the ‘King can do no wrong’ doctrine and the King’s status as the Supreme Commander of the Army.82 In a handbook also published in 1977,83 (in which they clearly identified themselves as belonging to Seni’s and Thanin’s historical school by quoting them on almost every page), Wissanu and Bowornsak clearly recognised ‘customs’ as an important source of constitutional law. Notably, they identified the King’s sacredness and inviolability, as well as the King’s ‘prerogative powers’ as being ‘customs in the Thai Democratic System’ (phrapheni kanpokkrong nai rabop prachatipatai).84 Moreover, they devoted five pages to a discussion of the place of the junta’s ‘orders’ (khamsang) and ‘announcements’ (prakat) in the Thai constitutional order. While stating that junta orders had a standing in the Constitution, they ended with the following conclusion that returned to Kelsen’s revolutionary legality: ‘When General Sangad Chaloryu, the head of the Revolutionary Council, seized power with success, he became sovereign. When the head of the Revolutionary Council asked for the royal assent, it was in fact a way for the junta to return sovereignty to the people’.85 By linking revolutionary legality with the theory according to which the King is the representative of the people, Wissanu and Bowornsak’s argument was a first step towards returning in a somewhat convoluted manner to royal sovereignty. 77 ibid 30. 78 The three of them taught law at Chulalongkorn University. Notably, Bowornsak was Thanin’s research assistant for the book on the Thai monarchy. See ibid xv. 79 Bowornsak Uwanno, ‘Les Conventions de la constitution en Grande-Bretagne’ [‘The Conventions of the Constitution in Great Britain’] (thesis, Paris-Nanterre University, 1982). 80 Wissanu Krea-ngam and Bowornsak Uwanno, ‘พระราชฐานะของพระมหากษัตริ์ตามธรรมนูญการปกครองราชอาณาจักร’ [‘The Status of the King in the Interim Constitution’] (1977) 3 Law Journal 148. 81 ibid 162. 82 ibid 154–55. 83 Wissanu Krea-ngam and Bowornsak Uwanno, ธรรมนูญการปกครองราชอาณาจักร พุทธศักราช 2520 [The 1977 Constitution] (Chulalongkorn University, 1977). 84 ibid 63. 85 ibid 184.

148  Revolutionary Legality and Buddhist Kingship A second handbook, published by Wissanu alone in 1980, soon became the most authoritative public law handbook of the period.86 In this book he reflected on the legal status of the military junta’s ‘orders’ and ‘announcements’ in the Thai hierarchy of norms; he affirmed that they were either of constitutional, legal or administrative value depending on the issuing authority. In any case, they were fully integrated into the Thai constitutional order. In order to be repealed, they needed to follow the lengthy process prescribed by the Constitution, depending on their constitutional, legal or administrative status.87 In other words, acts of the military junta were just as lawful as acts passed by an elected Parliament, and remained valid regardless of which constitutional regime was in place. This argument was straightforwardly adopted by the Supreme Court in 1980: When the authors of a coup succeed in seizing power, they gain the right to govern the country. The orders and decrees that they issue are considered as having force of law and enter into the legal order in the same way as laws voted by parliament … The complainant asserts that when a new constitution is promulgated, orders and announcements of the revolutionary committee are immediately abrogated because they constitute a usurpation of sovereignty. The Supreme Court considers that the authors of a coup have the right to promulgate orders and announcements once they have seized power with success. The new Constitution of the Kingdom of Thailand was promulgated as the orders and announcements of the authors of the coup had not been revoked. Thus, such orders and announcements have force of law.88

The Supreme Court confirmed the argument three years later in another major decision.89 The question of whether acts of the junta were legal or illegal was fully settled. However, technical disagreements persisted. For instance, the French-educated jurist Somkit Lertpaithoon challenged Wissanu’s approach in 1993 by writing that the legal status of the junta’s orders and announcements had to be appreciated not in the light of the issuing authority, but in the light of their content. For instance, a junta order abrogating the Constitution had a status equal to that of the Constitution, while a junta order amending a financial law had a status equivalent to a financial law.90 Within that context, a handful of jurists described the Thai theory of sovereignty as a ‘blemish’ in Thai constitutional doctrine. In 1989, Adul Wichiencharoen, a prominent scholar and drafter of the 1978 Constitution,91 86 Wissanu Krea-ngam, กฎหมายรัฐธรรมนูญ [Constitutional Law] (Nittibanyankan, 1980). 87 ibid 755. 88 คำ�พิพากษาศาลฎีกา 1234/2523 [Supreme Court Ruling 1234/2523], 1980. 89 คำ�พิพากษาศาลฎีกา 2376/2526 [Supreme Court Ruling 2376/2526], 1983, quoted in Phuttipong Manissorn, ‘การใช้กำ�ลังทหารล้มล้างรัฐธรรมนูญ: ศึกษาสถานะและผลทางกฎหมายของการยึดอำ�นาจ 19 กันยายน 2549’ [‘Military Coups against the Constitution: Specific Study on the Legal Status and Effect of the 19 September 2006 Coup’] (thesis, Thammasat University, 2013) 19. 90 Somkit Lertpaithoon, ‘การปรับปรุงประกาศของคณะปฏิวัติ’ [‘Modifying the Announcements of the Revolutionary Council’] (1993) 1 Raphisan 45, also quoted in Somchai (n 7) 148. 91 Athon Khuravon, ‘การร่างรัฐธรรมนูญ 2521 กับการพัฒนาประชาธิปไตยในประเทศไทย’ [‘The Drafting of the 1978 Constitution and the Development of Democracy in Thailand’] (thesis, Chulalongkorn University, 1989) 35.

Revolutionary Legality Revised: The Doctrine of Shared Sovereignty  149 published a long piece which captured the legal thinking of the time, blending together legal positivism, the historical and natural law schools of thought putting the King at the apex of the legal system and giving the military some legal privilege derived from their subordinate but dignified position vis-a-vis the King.92 Moving on to legal doctrine proper, Adul reflected on the legal status of the power to issue ‘Royal Commands’ (phraboromrachaongkan), which is the most emblematic attribute of the King’s sovereignty. Adul distinguished between the sovereignty in law (nittinai) and in fact (phrutinai): in law, the King was sovereign, but in fact, the people were, as the King was the representative of the people. Sovereignty, he argued, was transferrable like an object: the King ‘wears’ sovereignty after the coronation ceremony which transfers sovereignty to him, the military ‘wears’ sovereignty after a successful coup.93 Sovereignty returns to the King/people whenever the King signs the military’s Constitution.94 Building on these foundations, Bowornsak developed the doctrine of ‘shared sovereignty’, according to which the King and the people hold joint sovereign power – a doctrine reminiscent of the ‘rachaprachasamasai’ theory: In the Thai democratic system, sovereignty is held by the King and the people. It thus differs from other countries in which the people are the only bearer of sovereignty. There are two reasons for this. The first reason relates to customs: the Thai Monarchy is identified with the Thai people and this has become a tradition. The second relates to law: since times immemorial, sovereignty has belonged to the King. When the People’s Party changed the system of government, the King, who held sovereignty, granted a Constitution to the people. The King accepted to be placed under the authority of the Constitution but still held sovereign power in the name of the people. [Therefore], whenever a coup abolishes the Constitution, one must consider that the power given to the people through the Constitution comes back to the Monarch, who was the Sovereign before 24 June 1932.95

Thus, according to Bowornsak, whenever a coup occurs, as people’s ‘share’ of sovereignty is confiscated by the coup leaders, ‘full’ sovereignty is returned to the King, but whenever the King signs the post-coup interim Constitution, sovereignty becomes once again ‘shared’ between the King and the people. In 92 Like his predecessors before him, he retraced the history of constitutionalism starting with Sukhothai, King Ramkamhaeng and the Thammasat, before moving on to Ayutthaya and Rattanakosin, noting how benevolent and constrained by the Thammasat Siamese Kings had been. His conclusion did not deviate from those of this predecessors: there was a royal ‘democracy’ and royal ‘election’ during pre-1932 times, and even a royal ‘Rule of Law’ and a royal concern for ‘human rights’. Chulalongkorn had planned to give a Constitution to his subjects, as had Vajiravudh and Prajadhipok: they were all prevented from accomplishing their desired plan by some of their advisors. See Adul Wichiencharoen, ‘รอยด่างในทฤษฎีรัฏฐาธิปัตย์ของไทย’ [‘A Blemish in the Thai Theory of Sovereignty’] (1989) 4 Thammasat Journal 6, 10. 93 ibid 10. 94 Wissanu Krea-ngam, ‘ความรู้ทั่วไปเกี่ยวกับกฎหมายรัฐธรรมนูญ’ [‘General Principles of Constitutional Law’] in เอกสารการสอนชุดกฎหมายมหาชน [Documents for the Teaching of Public Law] (Sukhothai Thammarirat University, 1988) 119–20. 95 Bowornsak Uwanno, กฎหมายมหาชน เล่ม 2: การแบ่งแยกกฎหมายมหาชน-เอกชน และพัฒนาการกฎหมายมหาชนในประเทศไทย [Public Law Vol 2: The Separation of Public Law and Private Law and the Development of Public Law in Thailand] (Chulalongkorn, 2007 [1994]) 143.

150  Revolutionary Legality and Buddhist Kingship other words, the coup leaders never gain sovereignty: they seize the half held by the people and grant it back to the King. To Bowornsak, the 1932 Revolution was not a revolution in the Kelsenian sense: the People’s Party never gained revolutionary sovereignty, as sovereignty always remained in the hands of the King. Before 1932, Prajadhipok had ‘full’ sovereignty, and after 1932, when he willingly limited his own power through the octroy of the 1932 Constitution, sovereignty became ‘shared with the people’. This, according to Bowornsak, explains why the People’s Party asked the King for an amnesty immediately after seizing power: they knew that they could not claim to be protected under the principle of revolutionary legality; they knew they were breaking the law.96 In the preface to the first edition of his landmark constitutional law handbook published in 1994, Bowornsak stated: In constitutional law, we teach according to foreign principles that when a Head of State is a monarch, he cannot do anything except endorse acts forwarded to him by the government. According to the British practice, ‘the King can do no wrong’, what makes the British monarch a mere symbol of the nation. In Thailand, the monarch is not only a symbol but also ‘the center of the nation’. The King plays a crucial role as crisis-solver. Therefore, royal power as enshrined in our law is different [from royal power according to British conventions] because the Thai monarch means a lot more than the British monarch.97

This preface can be read as an impassionate reply to Yut’s decades-long attempts to make the Thai monarchy converge towards the British monarchy. By affirming the King’s unique role in political crisis/military coups, Bowornsak seems to articulate, without stating it explicitly, a theory of royally sanctioned revolutionary legality, in which coups are ‘legalised’ whenever they bear the King’s signature. In the meantime, the 1991 ‘permanent’ Constitution, drafted with the help of Wissanu (and Adul),98 had enshrined Thanin’s ‘Democracy with the King as Head of State’ for the first time: Thai-style democracy, with its theory of the King’s extra-constitutional ‘crisis’ powers, and with its toleration for military coups as long as the King’s position as source and apex of the constitutional order remained unchallenged, now had full constitutional status. The Constitution expressly mentioned the Thai people’s duty to ‘safeguard the system of democracy with the King as Head of State’.99  Throughout the second half of the twentieth century, Thai jurists have attempted to theorise and transform the Thai practice of military rule. In the first phase, 96 ibid 234–35. 97 ibid, preface to the 1994 edition. 98 The 20-member Constitution-Drafting Committee also included other prominent jurists such as Meechai Ruchupan and Somphop Hotrakit. See รายงานประชุมสภานิติบัญญัติแห่งชาติ [Minutes of the National Legislative Assembly], 2nd Session, 4 April 1991, 92. 99 Article 50 of the ‘permanent’ 1991 Constitution.

Revolutionary Legality Revised: The Doctrine of Shared Sovereignty  151 the legal positivist school empowered the military at the expense of the King, but during the second phase, the historical school rewrote Thai constitutional history to make the King the historical source of Thai laws and constitutionalism. As a result, the monarchy regained the upper hand by acquiring constituent power even above the constituent power of military junta. Indeed, if coups were made legal according to the doctrine of revolutionary legality, this doctrinal construction was superseded by the argument stating that a coup was a ‘fait accompli’ (and therefore legal) only once the King had given his assent to it. In parallel, constitutional jurists also initiated a return of natural law legal thinking through the vehicle of British constitutional concepts hybridised with a militarised version of Buddhist ideologies of kingship: the Buddhist King’s position as Chief of the Armed Forces, as representative of the people and as holder of conventional ‘crisis powers’ allowed him to act extra-constitutionally in the name of natural justice.

7 From Military Dictatorship to Military Dictatorship under (Sacred) Royal Command

A

t the end of the Second World War, the Siamese monarchy was a very weak political institution. Its revival was supported by the two international powers competing for influence over Siam – the US and the UK – which saw the Buddhist monarch as a potential bulwark against communism and a promise of stable friendly relations. The death of King Ananda, who was found dead in his bedchamber with a bullet in his forehead and a pistol in his hand in June 1946, and the subsequent accession to the throne of his younger brother Bhumibol, would propel the Thai monarchy back into the arena of domestic politics. From 1950 onwards, the newly crowned King would use his power of royal sanction (including the power to deny royal sanction, namely the royal veto) to assert his ascendency over the military and Parliament. Ultimately, the appointed King’s Privy Council would develop into a powerful political institution overseeing the military. I.  THE MONARCHY AGAINST THE MILITARY: PRACTICES OF ROYAL CONSTITUTIONAL VETO

On 9 May 1946, Ananda presided over the promulgation of the 1946 Constitution in a royal ceremony held in the Ananda Throne Hall. The event was modelled on Prajadhipok’s 1932 ‘Granting the Constitution’ ceremony: to the King seated on his throne, Pridi humbly presented the new Constitution in the form of a golden samutthai placed on top of a phanwenfa; Ananda signed it into law and Pridi countersigned it.1 The 1946 Constitution made the King a pure figurehead monarch, denying him any discretion: he could neither appoint members of the Senate nor have a Privy Council; he had no prerogative to declare martial

1 See Nongyao Karnchanari (ed), พระมหากษัตริย์ในพระบรมราชจักรีวงศ์กับประชาชน [The Chakri Monarchs and the Thai People: A Special Relationship] (Rungruangrat, 1982) 88; Nicholas Grossman (ed), Chronicle of Thailand: Headline News since 1946 (Bangkok Post, 2009) 22.

Practices of Royal Constitutional Veto  153 law, did not possess a true royal veto and could not even choose his own regent freely2 – in addition, members of the royal family were banned from being involved in politics. It is difficult to know what the position of the monarchy was with regard to the 1946 Constitution. However, the actions of the young monarch Ananda during the period of one month between the Constitution’s promulgation and his death tend to suggest that he did not intend to become a purely ceremonial monarch. The first occasion on which the young King asserted his power was in the choice of the regent who would represent him during his absence from the kingdom: against Pridi’s wishes, Ananda chose his uncle Prince Rangsit, a former political prisoner recently freed as part of a general amnesty, and the most powerful royal in the kingdom.3 Pridi reluctantly agreed to the King’s choice as he was planning to step down anyway, having fulfilled his mission to give Thailand a democratic Constitution. However, on 8 June 1946, King Ananda refused Pridi’s resignation as Prime Minister.4 Ananda was found dead the next morning; in the evening, his brother Bhumibol was proclaimed King by Parliament. In between these events, the palace issued an official statement declaring that the King had accidentally killed himself, thereby excluding both the possibilities of suicide and assassination.5 However, soon the entire kingdom was filled with rumours that the King’s death was a planned murder. As a response, Pridi set up a committee of inquiry made up of established jurists to look into the matter; a young and promising lawyer, Sanya Thammasak, served as Secretary-General.6 In October 1946, the commission ruled out the possibility of an accidental death, but did not give any further explanation. Immediately, Pridi was accused of being the mastermind behind what was now referred to as a regicide. He resigned, but he still controlled Parliament through his close ally, Thamrong Nawasawat, who was

2 Article 10 of the 1946 Constitution stated that the regent was appointed by the King and approved by Parliament. 3 Prince Rangsit had been sentenced to death in 1939 for conspiracy to overthrow the government by the direct order of Phibun; following the threat of Ananda’s abdication, his sentence was commuted later that year to a 20-year jail term. See Paul Handley, The King Never Smiles: A Biography of Thailand’s Bhumibol Adulyadej (Yale University Press, 2006) 60. On Pridi and Ananda’s meeting to discuss the appointment of the regent, see Rayne Kruger, The Devil’s Discus: An Enquiry into the Death of Ananda, King of Siam (Cassell, 1964) 90. 4 Vichitvong Na Pombhejara, Pridi Banomyong and the Making of Thailand’s Modern History (Siriyod Printing, 1982) 232. 5 The following statement, issued from the Royal Household Bureau, was broadcast over the radio in the evening: ‘At about nine a shot was heard in the Palace by the royal pages attached to the Royal Bedchamber who immediately rushed in to investigate. They saw the King lying dead on His bed with blood over His body. They therefore reported to the Princess Mother and then proceeded to attend the royal remains. An examination thereof was made by the DirectorGenerals of the Police Department and the Department of Medical Sciences, as the result of which it is concluded that the King must have played with his pistol as he was fond of doing, resulting in an accident.’ Kruger (n 3) 98–99. 6 ประกาศตั้งคณะกรรมการสอบสวนกรณีสวรรคต [Announcement of the Appointment of a Commission of Inquiry into the Case of the Royal Death], 25 June 1946.

154  Military Dictatorship under (Sacred) Royal Command now Prime Minister. On 8 November 1947, General Phin Choonhavan7 came to power following a coup, invoking the lack of progress in the investigation into the regicide.8 Even though there was no new evidence to support the murder theory, the junta declared in one of its first announcements that there was no doubt that the King had been murdered and asked anyone with information to come forward.9 The coup, which was staged to get rid of Pridi for good, was a success: Pridi fled the country on the night of the coup. The 1947 coup included, for the first time ever in Thai history, the outright abolition of the Constitution. The palace had given at least tacit approval of the coup in advance, as the royal family was informed of the plans for it a few months before its execution.10 As King Bhumibol was in Switzerland finishing his studies, the junta forwarded its draft interim Constitution to the Regency Council for signature, and Rangsit signed immediately.11 The coup perpetrators promulgated the Constitution, using the argument of the King’s approval to secure international recognition for the coup.12 This was facilitated by the fact that in late November 1947, the young King Bhumibol sent a telegram to Phibun Songkhram expressing the ‘hope’ he placed in this coup.13 In any case, this foundational course of actions revealed how important it was for the junta to have its coup ‘validated’ by the King’s representative. Yet in their statement justifying the legality of their actions, the coup perpetrators relied on the theory of revolutionary legality, introduced by Yut Saeng-Uthai, rather than on the King’s endorsement. In one of their press releases, they argued that: A change of government takes place after each coup. Initially, a rebellion attempt is a violation of the Constitution and of existing laws, but these can then be abolished 7 The four chief planners of the coup were Phao Siyanon, Kat Katsongkhram, Kan Chamnongphumiwet and Sawat Sawatikiat. See Thak Chaloemtiarana, Thailand: The Politics of Despotic Paternalism (Cornell University Press, 2019) 28–29. 8 Personal notes of Lt General Kat Katsongkhram, reproduced in Thak Chaloemtiarana (ed), Thai Politics 1932–1957: Extracts and Document (Social Science Association of Thailand, 1978) 552. 9 Announcement no 18 of the Thailand Military Headquarters, 15 November 1947, reproduced in ibid 550. 10 Nattapol Chaiching, ‘The Monarchy and the Royalist Movement in Modern Thai Politics, 1932–1957’ in Soren Ivarsson and Lotte Isager (eds) Saying the Unsayable: Monarchy and Democracy in Thailand (NIAS, 2010) 166. Nattapol’s thesis is corroborated by the then British ambassador, who stated that the coup was ‘a right-wing movement supported by the Royal family’, as quoted in Kobkua Suwannathat-Pian, Thailand’s Durable Premier: Phibun through Three Decades, 1932–1957 (Oxford University Press, 1995) 23. 11 The Council was then a two-person body, composed of Prince Rangsit, son of Chulalongkorn, and Phraya Manawarachasewi, the chief royal jurist. Phraya Manawarachasewi was not home and so his signature could not be obtained. According to Kobkua, Rangsit signed the interim Constitution ‘at gunpoint’ – elsewhere, Kobkua credits Phibun for ‘obtaining the approval of the Council of Regency for the coup as well as the Regent’s signature for the new constitution’. See Kobkua (n 10) 22, 39. 12 Nithini Thongthae, ‘สถาบันพระมหากษัตริย์กับกระบวนการสร้างรัฐธรรมนูญจารีตประเพณีว่าด้วยการรัฐประหาร’ [‘The Royal Institution and the Mechanism of Construction of Constitutional Custom Regarding Coups’] [2012] Journal of Social Sciences and Law 46, 57; Nakharin Mektrairat, พระผู้ปกเกล้าฯ ประชาธิปไตย: 60 ปีสิริราชสมบัติกับ การเมืองการปกครองไทย [The Democracy-Giver: 60 Years of Reign with Thai Politics and Administration in Thailand] (Thammasat University Press, 2006) 41. 13 พระหัตถเลขาถึงจอมพล ป พิบูลสงคราม [Royal Telegram to Field Marshal Phibun Songkhram], 25 November 1947, reproduced in Wor Chor Prasangsit, ปฏิวัตริ ัฐประหารและกบฏจลาจลในสมัยประชาธิปไตยแห่ง

Practices of Royal Constitutional Veto  155 through a coup which, when it succeeds, becomes sovereign. Moreover, [the holders of sovereign power] have the authority to promulgate a new Constitution and new laws. Thus, their actions against the former Constitution and the former laws are not considered as violations. An old Constitution can be abolished after a coup, and a new Constitution can be promulgated. The members of the government who are appointed in accordance with the former Constitution must leave their position, and the submission of letters of resignation is not required.14

The doctrine of revolutionary legality alone would not be enough to secure the coup perpetrators. As such, they promulgated an additional royally sanctioned amnesty law giving them immunity from criminal prosecution as well as protecting their legal acts from judicial review. The four-article ‘Law of Amnesty for the Authors of the 1947 Coup’ stated: All acts of any person whatsoever, before the promulgation of the law, related to the staging of the coup to abolish the 1946 constitution of the Kingdom of Thailand and promulgate the interim 1947 Constitution, if they are in violation of any law whatsoever, will see their authors freed from responsibility; all acts, including orders and decrees promulgated on the occasion of the coup will be considered as legal in all their respects.15

The following year, the coup perpetrators invited Phibun, who had retired to his house in the countryside following his trial and imprisonment for war crimes, to become Prime Minister, which he accepted. He immediately asked the King to return to the kingdom to give legitimacy to his new government, which the young King agreed to on condition that the investigation into his older brother’s death, King Ananda, should take a new direction: he wanted a trial for murder to be held.16 Phibun agreed, and in September 1948, three men were put on trial for Ananda’s ‘regicide’.17 The three men were the two royal pages guarding the royal bedchamber on 9 June 1946 as well as Ananda’s former private secretary, who had been chosen and appointed by Pridi. As the trial opened, the King did not return immediately to the kingdom. Since becoming King, he had switched from studying engineering to studying law and would return only after his graduation. Prince Rangsit’s regency continued, and under his regency, Phibun grew increasingly dissatisfied with

ประเทศไทย [Revolutionary Coups and Rebellious Riots in Democratic Thailand] (Ratphakdi, 1949) 245–48. Also quoted in Somchai Preechasilapakun, Dynamics and Institutionalization of Coups in the Thai Constitution (Institute of Developing Economies, Japan External Trade Organization, 2013) 30. 14 Announcement No 15 of the Thailand Military Headquarters, 13 November 1947, reproduced in Thak (n 8) 549. 15 พระราชบัญญัติ นิรโทษกรรมแก่ผู้กระทำ�รัฐประหาร พ.ศ. 2490 [1947 Amnesty Law], art 3. 16 Somsak Jiemteerasakul, ‘ในหลวงทรงปฏิเสธคำ�กราบบังคมทูลเชิญเสด็จกลับประเทศไทย จนกว่าคดีสวรรคตจะเสร็จสิ้น (2491)’ [‘The King Refuses to Return to Thailand until the Case of the Death [of King Ananda] is Closed (1948)]’ (27 January 2008), http://somsakwork.blogspot.com/2008/01/2491_27.html. 17 On the investigation, prosecution and trial, see Kruger (n 3); Suphot Dantrakun, ข้อเท็จจริงเกี่ยวกับกรณีสวรรคต [Facts about the Royal Death Case] (Social Science Association, 2001).

156  Military Dictatorship under (Sacred) Royal Command the 1947 Constitution and even more so with the 1949 Constitution. He could not govern as he pleased: his power of countersignature of royal acts was subject to many exceptions. In particular, in accordance with the Constitution, the Senate was entirely appointed by the King, as was the King’s Privy Council, whose influence was growing. Moreover, the regent himself, Prince Rangsit, was, in his opinion, extending his influence too far.18 In addition, in June 1949, the King appointed four members of the Privy Council, including Prince Dhani, who was made President, and Phraya Manawarachasewi, King Prajadhipok’s former royal adviser.19 In 1950, the Council welcomed a new member, which made the Privy Council into a five-member body, the limit set by the 1949 Constitution.20 Besides the Privy Council, the dignitaries of the absolute monarchy also found themselves a position in the appointed Senate. Appointments to the Senate had taken place in accordance with the interim 1947 Constitution, which had removed the ban on members of the royal family being involved in politics, resulting in the return to politics of many members of the royal family and the King’s loyalist bureaucrats.21 In addition, the King had regained access to the wealth of the Crown: both the Crown Property Bureau and the Privy Purse, which had been under the control of the government since 1932, were now managed by the King’s appointees.22 This environment was perfect to organise the return of the new King to the kingdom. In late March 1950, Bhumibol returned to Thailand to participate in three ceremonies: the cremation of his brother Ananda, the wedding to his Queen, whom he had met in Europe, and his own coronation as Rama IX. The three events were held within a little over a month and attracted massive attention within the entire kingdom. In particular, the ‘sacred coronation ceremony’, which was held over three days from 5 to 8 May 1950, was broadcast live on television. It followed elaborate Hindu-Buddhist rituals while incorporating Western elements: a Brahmin priest presented the King with the nine-tier umbrella, the symbol of sovereignty whose possession empowered him to issue Royal Commands, and other items of royal regalia, such as the golden sacred crown. Fully crowned, the King appeared on the balcony of his palace to wave at the cheering crowds. In his extremely short accession speech, he made no reference to the upholding of the Constitution or democracy. Instead, he cryptically

18 Nattapol (n 10) 168; Kevin Hewison, ‘The Monarchy and Succession’ in Pavin Chachavalpongpun (ed), Routledge Handbook of Contemporary Thailand (Routledge, 2019) 119. 19 The two other members were Adul Aduldejaras, and Prince Alongkot. See King’s Privy Council, พระบาทสมเด็จพระเจ้าอยู่หัวกับคณะองคมนตรี [The King and the King’s Privy Council] (King’s Privy Council, 2012) 29–38. 20 General Momchao Natkatmongkol Kittiyakorn. See ibid 39. 21 A small minority of those appointed to the Senate were from the 1947 coup group: eight out of 100. The 92 others were close to the palace. See Handley (n 3) 89. 22 พระราชบัญญัติจัดระเบียบทรัพย์สิน ฝ่ายพระมหากษัตริย์ (ฉบับที  ๓) พ.ศ. ๒๔๙๑ [1948 Act on the Regulation of the Wealth of the Crown (Third Amendment)], 1948.

Practices of Royal Constitutional Veto  157 swore to rule ‘in accordance with the dharma, for the happiness of the Thai people’.23 A few days later, Bhumibol testified at Ananda’s murder trial, confirming to the judges what they wanted to hear: that relations between his brother and Pridi had been tense and particularly uneasy when it came to crucial appointments such as those of the King’s regent – and of the King’s private secretary, who, as one of the accused and as Pridi’s friend, could only, if found guilty, incriminate the latter.24 Bhumibol returned to Switzerland not long afterwards to finish his studies, re-appointing his uncle Rangsit as regent. In September 1951, in an unexpected turn of events, Ananda’s private secretary was acquitted of the King’s murder, while one of the royal bedchamber pages was sentenced to death:25 as the regicide case drew to a close, the King’s definitive return to Thailand was becoming imminent. Phibun and the others involved in the 1947 coup feared that, upon his return, the young King would be making use of the huge powers he had been granted under the 1949 Constitution.26 In Phibun’s view, the King’s representatives, including the Regent, Privy Council members and senators, already had far too much power, and the prospect of having the King return under the present circumstances prompted him to act quickly.27 Phibun needed to abolish the Constitution and re-establish the text of the 1932 Constitution instead, which provided neither for a Privy Council nor for a (royally appointed) Senate, and included a ban on members of the royal family being involved in politics. To buttress his attempt to reinstate the permanent 1932 Constitution, he purposively invoked the principle of constitutional supremacy and the sacredness of the 1932 Constitution, which, according to him, had never been abolished.28 The coup was carried out in late November 1951, while the King was en route to Thailand by boat, exactly two days before his planned arrival, so that he would be presented with a fait accompli on his stepping foot on Thai soil.29 Phibun first asked Prince Dhani, who was then the sole remaining regent, to grant royal sanction to his re-instatement of the 1932 Constitution, but the Prince-Regent refused to do so.30 So, once the King arrived in Thailand, the Constitution was presented to him for signature, but to no avail; yet, when, at the same time, he was presented with the amnesty law for ‘those who re-established the 1932 23 ‘Coronation of King Rama IX’, Bangkok Post, 5 May 1950, reproduced in Grossman (n 1) 49. 24 ‘King Testifies in Brother’s Murder Trial’, Bangkok Post, 16 May 1950, reproduced in Grossman (n 1) 51. 25 ‘Late King’s Attendant Found Guilty’, Bangkok Post, 27 September 1951, reproduced in Grossman (n 1) 58. 26 Thak (n 7) 53–54. 27 ibid. 28 Bandit Chanrochanakit, ชีวประวัติธรรมนูญการปกครองและรัฐธรรมนูญแห่งราชอาณาจักรไทย พ.ศ. 2475–2520 [Constitutional History of Siam 1932–1977] (Research Development Fund, 2007) 79. 29 The coup took place on 29 November; the King arrived on 2 December. See ‘Military Seizes Control in “Silent Coup”’, Bangkok Post, 29 November 1951; and ‘King Bhumibol Returns to a Tense Capital’, Bangkok Post, 2 December 1951, both reproduced in Grossman (n 1) 59. 30 Suttachai Yimprasert, แผนชิงชาติไทย [Thai National Plan] (Chonniyom, 2015) 247.

158  Military Dictatorship under (Sacred) Royal Command Constitution’, he signed it.31 Phibun then decided to make do without the royal signature on the act of re-promulgation of the 1932 Constitution, arguing that he was sovereign anyway, and declared the 1932 Constitution to have force of law. However, in fact, both the Privy Council and the Senate, almost entirely peopled by members of the royal family and palace associates, continued functioning according to the 1949 Constitution – the reinstated 1932 Constitution, not bearing the King’s signature, remained unenforced. In January 1952, the King requested in a telegram to Phibun that the 1932 Constitution be modified and, notably, that the royally appointed Senate and Privy Council both be resurrected – and that the ban on members of the royal family being involved in politics be repealed.32 Phibun promised to comply with these demands, while the King himself worked on drafting an updated preamble.33 The new text was finally promulgated in March 1952, with the official name being ‘the 1932 Constitution as revised in 1952’. In other words, if Phibun managed to have the 1932 Constitution theoretically as the country’s Constitution for a few months, from December 1951 to March 1952 without royal approval, the Constitution’s validity without royal sanction was so contested that Phibun had to renegotiate a new text directly with the King. Eventually, on 8 March, Bhumibol presided over his first royal ceremony of ‘granting’ a Constitution, which marked the association between him and constitutionalism, based on the precedent set by Prajadhipok in 1932 and followed by Ananda in 1946. The new text not only reinstated the Privy Council, but also raised the limit on the number of privy councillors from five to seven. In April 1952 the King appointed three new councillors, making the Privy Council a seven-member body: the royalist jurists Phraya Srithammathibet and Phraya Srivisanwacha joined Manawarachasewi, who shared similar views.34 Thus, the composition of the Privy Council in 1952 was dominated by jurists from the absolute monarchy who had participated in the drafts of the monarchical constitutions under Rama VII as well as those of 1947 and 1949. The King himself raised his profile as a lawyer during that time: in January 1952, he had sat in various courtrooms as a judge and was even recognised as a member of the legal profession in a ceremony organised by the Ministry of Justice.35 This coincided with new developments in the regicide trial: in December 1953, the Court of Appeal overturned the acquittal of two of the three defendants and sentenced them all to death.

31 ‘พระราชบัญญัติ นิรโทษกรรมแก่ผู้ทได้ ี  นำ�รัฐธรรมนูญแห่งราชอาณาจักรไทย พุทธศักราช 2475’ [‘Amnesty Law for Those Who Re-established the 1932 Constitution’], 31 December 1951. 32 ‘บันทึกพระราชวิจารณ์เรื่องร่างรัฐธรรมนูญแห่งราชอาณาจักรไทย แก้ไขเพิ่มเติม 2495’ [‘Note on the Royal Comment on the Revised Constitution of 1952’], 17 January 1952, quoted in Yut Saeng-Uthai, คำ�อธิบายรัฐธรรมนูญ พุทธศักราช 2475–2495 [Analysis of the 1932 to 1952 Constitutions] (Chusin, 1952) 258. 33 ibid. 34 ประกาศแต่งตัง้ องคมนตรี วันที่ 8 เมษายน พ.ศ. 2495 [1952 Act of Appointment of the Privy Council], 8 April 1952. 35 ‘King Hears Court Cases, Pardons Thonburi Thief’, Bangkok Post, 26 January 1952, reproduced in Grossman (n 1) 61.

Practices of Royal Constitutional Veto  159 After the sentence was confirmed a year later by the Supreme Court, the three men filed a petition for the King’s pardon, but in vain; the sentence was carried out in February 1955.36 The execution brought temporary closure to the regicide case, but did not improve relations between Phibun, who supported pardoning the men, and the King. The King’s difficult relationship with Phibun was often described as a ‘personality clash’37 stemming from the latter’s alleged ‘aspiration to become a second king’.38 In a 1956 speech to the military, the King declared: ‘The military should not overstep its duty, it should not get involved in politics. This erodes people’s trust in the institution of the military.’39 This was widely interpreted in the press as being a criticism of Phibun, who declared, in an interview given the next day, ‘in accordance with the law, military officers can be involved in politics as appointed members of the Senate’.40 In what was interpreted as a response to the controversy, Yut Saeng-Uthai, Phibun’s ‘legal hand’,41 issued lectures on the monarchy and constitutional law on public radio, in which he argued that the King ought not to comment on anything political without doing so through a minister.42 He went further and explained what a ‘Westminster-type’ interpretation of the role of the King was: that the King ought not to intervene in politics at all. He was adamant that, based on the standard established by the British system, the practice of ‘constitutional monarchy’ meant that the King’s political involvement could only be channelled through the King giving advice to ministers during royal audiences and that this advice should at all costs remain secret. He added that sovereign immunity as captured by the ‘King can do no wrong’ maxim was to be interpreted in the secular terms of parliamentary responsibility and not as the King being immune to criticism. Following the broadcast of the shows and the publication of part of Yut’s lectures in various newspapers, accusations of lèse-majesté were levelled against him.43 In the end, the cases were dismissed, but this signalled how discussion about the monarchy, even in academic terms and in good faith, was now a potential target of lèse-majesté accusations. This expansion of the scope

36 Kruger (n 3) 190. 37 Kobkua (n 10) 75. 38 ibid 100. 39 พระราชดำ�รัสวันกองทัพบก [Royal Speech to the Royal Thai Army], 15 January 1956, reproduced in ประม วลพระบรมราโชวาทและพระราชดำ�รัส ของพระบาทสมเด็จพระเจ้าอยู่หัว พุทธศักราช 2498–2545 [Collection of Royal Messages and Speeches of the King (1955–2002)] (Government Pension Fund of Thailand, 2007) 29. 40 Somsak Jiemteerasakul, ‘กรณี หยุด แสงอุทัย ถูกกล่าวหาว่าหมิ่นพระบรมเดชานุภาพ ๒๔๙๙’ [‘The Case of Yut Saeng Uthai’s Lèse-Majesté Accusation in 1956’], Somsak’s Blog, 13 September 2006, http://somsakwork. blogspot.com/2006/09/blog-post_1973.html. 41 Watchalawalee Kumboonreung, ‘พหุลักษณ์ของ หยุด แสงอุทัย’ [‘The Plural Identity of Yut Saeng-Uthai’] (2018) 11 CMU Journal of Law and Social Sciences 55. 42 David Streckfuss, Truth on Trial in Thailand: Defamation, Treason, and Lèse-Majesté (Routledge, 2010) 189–90. 43 Somsak Jiemteerasakul, ประวัติศาสตร์ที่เพิ่งสร้าง: รวมบทความเกีย่ วกับกรณี 14 ตุลา และ 6 ตุลา [The History That was Just Built] (6 Tula Press, 2001) 34–35.

160  Military Dictatorship under (Sacred) Royal Command of lèse-majesté was made easier by the promulgation of the new Penal Code in September 1956. This included an article, located in the section on crimes against the safety of the State, which suppressed exoneration clauses such as good faith in cases of lèse-majesté and substantially modified the content of the law by adding the new offence of ‘insult’ (dumin) to ‘­defamation’ and ‘threat’: Article 112: Whoever defames [minpramat], insults [dumin], or threatens [sadeng khwamakatamatrai] the King, the Queen, the Heir to the Throne, or the Regent will be punished by imprisonment not exceeding seven years.44

Notably, the King’s growing dissatisfaction with Phibun also correlated with the latter’s shy embrace of liberal democracy from 1955 onwards, which translated into the first ever law on political parties, the establishment of a Hyde Park Corner in Sanam Luang and the holding of general elections in February 1957, which returned Phibun to power.45 Two developments strained the relationship even further. First, Phibun reportedly decided to re-open the investigation into the death of King Ananda with ‘fresh evidence’ – that fresh evidence would in all likelihood clear the name of Pridi, allowing him to come back to Thailand and eventually to politics.46 Second, in May 1957, a few months after the King had undergone his 15-day ordination as a monk, Phibun presided over the organisation of a majestic ceremony in honour of the 2,500th anniversary of Buddhism, attended by Buddhist organisations all over the world. In a show of discontent at what could be construed as an usurpation of royal power, the King boycotted the event. So did Sarit Thanarat, who was then Phibun’s Army Chief and his Minister of Defence.47 In September 1957, fearing that Sarit might conspire to overthrow him, Phibun dismissed him as Minister of Defence.48 He also attempted to sack him from his post of Army Chief, but the King vetoed the order of dismissal.49 On 16 September, the King summoned Phibun to the palace and urged him to resign immediately or face a military coup.50 Later that day, Sarit overthrew him in a military coup. When the power seizure occurred, the King’s response was very different from what it had been with regard to Phibun’s 1951 ‘silent coup’; in fact, the King’s actions were instrumental in granting legitimacy to Sarit’s coup against Phibun, ultimately leading to its success.

44 ibid 103. 45 Barend Terwiel, Field Marshal Plaek Phibun Songkhram (University of Queensland Press, 1980) 27. 46 Somsak Jiemteerasakul, ‘50 ปีการประหารชีวิต 17 กุมภาพันธ์ 2498’ [‘50 Years since the Capital Execution of 17 February 1955]’ [2005] Samesky Journal 64. 47 ‘2,500 Years of Buddhist Era; King and Queen Absent from Week-Long Celebrations’, Bangkok Post, 12 May 1957, reproduced in Grossmann (n 1) 92. 48 ประกาศรัฐมนตรีลาออกและแต่งตั้งรัฐมนตรี [Announcement of Ministerial Resignation and Ministerial Appointment], 12 September 1957. 49 Nattapol (n 10) 171. 50 Handley (n 3) 138; Kobkua (n 10) 30.

Royally Sanctioned Military Coups and Amnesty Laws for Coup-Makers   161 II.  THE MONARCHY ON TOP OF THE MILITARY: ROYALLY SANCTIONED MILITARY COUPS AND AMNESTY LAWS FOR COUP-MAKERS

On the night of the coup, the King issued the following Royal Command, which was broadcast on radio: ‘The government of Phibun Songkhram no longer enjoys the trust of the people, as seen in the fact that he cannot ensure the peace and order of the country. A military junta [khana tahan] led by General Sarit Thanarat has seized power and acts as the defender of the capital city. I urge the people to stay calm and all officials to obey the orders of General Sarit Thanarat from now on.’51 The Royal Command was a unilateral act, bearing no signature other than the King’s. This Royal Command was immediately followed by another Royal Command promulgating martial law over the entire kingdom – this Royal Command was, this time, countersigned by Sarit, in his ad-hoc status of ‘Defender of the Capital’:52 he was now de facto endowed with powers of countersignature of Royal Commands. Sarit had not abolished the 1952 Constitution at this point in time, which, theoretically, was still valid. Upon seizing power, Sarit displayed the Royal Command as the legitimation of his right to seize power. As he said to the press: ‘I am the defender of the capital and can give orders in accordance with the law because it is the Royal Command.’ He also said that he ‘had the original copy of the royal appointment in his safe and could produce it to satisfy the press of the legal authenticity of his powers’.53 The next day, the King granted Sarit a royal audience, signalling royal support for the coup.54 This was crucial for both the domestic and international recognition of Sarit’s legitimacy to hold power – it was also widely reported to diplomatic circles that the monarchy ‘had been consulted at every step since the original coup’ and that the royal approval had been given ‘without duress’.55 The King signed the much-sought-after amnesty law for Sarit without delay.56 This broadened the scope of the previous amnesty laws by including ‘all acts committed before or after the coup’ in a ‘direct or indirect manner’: the acts in question were not only legal, but also ‘legal in the implementation of all their components’.57 These signs of royal support were used as the main means to legitimise Sarit’s power. Sarit almost immediately went abroad to the US and left one of the junta leaders, Thanom Kittikachorn, in charge back home. He returned a year later to stage a ‘self-coup’ in October 1958, which now embraced the much more 51 ประกาศพระบรมราชโองการตั้งผู้รักษาพระนครฝ่ายทหาร [Royal Command Appointing a Military Defender of the Capital], 16 September 1957. 52 ประกาศพระบรมราชโองการให้ใช้กฎอัยการศึกทั่วราชอาณาจักร [Royal Command to Use Martial Law over the Entire Kingdom], 16 September 1957. 53 Thak (n 7) 82. 54 Somchai (n 13) 13. 55 Kobkua (n 10) 30. 56 พระราชบัญญัตินิรโทษกรรมแก่ผู้กระทําการยึดอํานาจการบริหารราชการแผ่นดนเมื่อวันที่ 16 กันยายน พ.ศ. 2500 พ.ศ. 2500 [1957 Amnesty Law for Those Who Seized Power on 16 September 1957], 26 September 1957. 57 Article 3 of the 1957 Amnesty Law.

162  Military Dictatorship under (Sacred) Royal Command ambitious aim of ‘revolution’ tied to the goal of constitutional glory and renewal. This ‘self-coup’ entailed the abolition of the 1952 Constitution and the suppression of the Parliament, which, to his great dismay, had continued to function after the 1957 coup. For more than three months, the country was left without a Constitution. During that time, Sarit governed by ‘revolutionary acts’,58 rejecting the idea according to which the supreme power should derive its legitimacy from a constitutional text; royal support was enough. One of the revolutionary decrees he issued (Decree 17) broadened the scope of lèse-majesté and empowered the military to act more swiftly against it.59 This decree would be used to seize and ban books criticising the official version of the ‘regicide’ case60 and to silence any public discussions of Ananda’s death, especially those suggesting that it might have been the outcome of a fatal ‘accident’ involving not only Ananda but also Bhumibol.61 To provide further proof of his devotion to the King, Sarit sent him a message assuring him that the Constitution whose drafting he was to supervise as part of his ‘revolution’ would preserve the monarchy: In this revolution, certain institutions must be changed. However, one institution that the Revolutionary Council will never allow to be altered is the institution of the monarchy representing the nation as a whole. The Revolutionary Council will stand firm in preserving this system, and we have promised the people in various proclamations regarding this point. I would like to give your majesty personal assurances that the new constitution will preserve this particular feature.62

A new interim Constitution was eventually promulgated by the King on 28 January 1959, as well as an amnesty law for Sarit’s second coup.63 As the first Prime Minister not to have been educated abroad, Sarit aimed to indigenise Thai understandings of constitutionalism by relying on the figure of the King. In his speech given on 10 December 1960 (the Constitution Day), he emphasised the need to return to indigenous understandings of the Thai

58 Bandit counts 57 of them; see Bandit (n 28) 98. 59 The decree stated that the revolutionary committee had the power to prohibit, seize or destroy any written article and to order the revocation of the licence of the printer, the editor or the owner of any articles discussing the King or that were defamatory towards the Queen, the heir or the regent. ประกาศคณะปฏิวัติฉบับที  17 [Announcement of the Revolutionary Group No 17], 17 October 1958. See also Streckfuss (n 42) 104. 60 Kruger’s book (n 3), which argued that the three men executed in 1955, as well as Pridi, were innocent, for the young King had in fact committed suicide, was banned immediately after its publication in 1964. 61 See, for instance, the 1960 case of Kosai Mungjaroen, who was found guilty of lèse-majesté for having said that the death of King Ananda involved his younger brother Bhumibol. He was sentenced to three years in jail, which was reduced to two years due to his confession. See Streckfuss (n 42) 191. 62 Sarit Thanarat, ‘หนังสือทูลเกล้ารายงานแด่พระบาทสมเด็จพระเจ้าอยู่หัวภูมิพลอดุลยเดช’ [‘Letter to King Bhumibol’], 20 October 1958, as translated and reproduced in Thak (n 7) 97. 63 พระราชบัญญัตินิรโทษกรรมแก่ผู้กระทำ�การปฎิวัติเมือ่วันที  20 ตุลาคม 2501 พศ 2502 [1958 Amnesty Law for the Perpetrators of the 20 October 1958 Revolution], 31 March 1959.

Royally Sanctioned Military Coups and Amnesty Laws for Coup-Makers   163 State, which was considered to have been corrupted by the 1932 Revolution.64 He worked hard to draw legitimacy from the King and to suppress the legacy of the 1932 Revolution. In 1960, he abolished the 24 June celebrations, which had taken place since 1938 to celebrate the 1932 Revolution, and decreed that 5 December, the King’s birthday, was to become the new national day.65 Sarit also resurrected the royal barge processions and the Kathin ceremony, which had not been held since 1932, to re-affirm the King’s preeminent role as upholder of Buddhism.66 Following the death of Sarit in December 1963, Thanom once again took over. Under Thanom – who adhered to Sarit’s political philosophy of rejection of the ‘Western import’ of constitutionalism – the King’s constitutional role continued to grow exponentially: besides his role in presiding over the Constitution Day ceremonies on 10 December each year, he also became increasingly involved in Constitution-drafting matters. The Constitution-drafting process that had been set in motion by Sarit involved close consultations with the King, as would be mentioned in the preamble to the resulting text.67 Finally, the promulgation of the 1968 Constitution was once again the occasion for the King to showcase his symbolic role as father of the Constitution. The ceremony of promulgation, televised from the Ananda Throne Hall, opened with the reading of the long 1968 preamble glorifying the King; the Constitution, in the form of a samutthai, was then brought to the King, seated on his throne, on a golden tray. The event, held on 20 June 1968, seemed to bring closure to a decade of constitution-drafting and to re-­establish ­constitutionalism as legitimate in the kingdom, under the guidance of the King. Elections were announced and it seemed that Thailand was embarking on a new path, free from military coups – but dominated by the figure of the King. The 1968 Constitution was somewhat liberal and could be interpreted as creating a constitutional monarchy, yet practices were not aligning with a liberal interpretation. Royal audiences with the King were bragged about and used for political purposes to impose any Cabinet decision as being ‘the King’s will’; the practice of ‘acting on the advice of government’ was turned on its head and was used by politicians to claim they were acting ‘on the advice of the King’. According to Yut, reflecting on the practice of the 1968 Constitution, the conventional powers of the King to be consulted were misunderstood: In Thailand, there is this erroneous conception according to which if we say that the King does not do anything by himself, it is an act honouring the King. Very often, the members of the government claim that they have acted on the advice of the King 64 Sarit Thanarat, ‘คำ�ปราศรัยในวันรัฐธรรมนูญ และวันสิทธิมนุษยชน’ [‘Speech on Constitution and Human Rights Day’], 10 December 1960, quoted in Thak (n 7) 101. 65 Somsak Jiemteerasakul, ‘ประวัติศาสตร์วันชาติไทย: จาก 24 มิถุนาถึง 5 ธันวา’ [‘History of the Thai National Day: From 24 June to 5 December’] (2004) 2 Samesky Journal 95; Chris Baker and Pasuk Phongpaichit, A History of Thailand (Cambridge University Press, 2014) 176. 66 ‘Barge Procession Revived’, Bangkok Post, 15 November 1959, reproduced in Grossman (n 1) 106. 67 Preamble to the 1968 Constitution.

164  Military Dictatorship under (Sacred) Royal Command to refer to eminently political decisions … In reality, this [to act on the advice of the King] should stay secret and the ministers should assume the responsibility of such acts. To claim in public that the King acts politically out of his own will, that he advises [the ministers] to act like this or that, is not compatible with the democratic system … Our loyalty towards royalty should be expressed according to a just understanding [of the exposed doctrine] so that our institution can be maintained in a durable and stable and eternal way like in the United Kingdom.68

Indeed, at the time, royal audiences came to become one of the core loci of political developments, together with meetings of the Privy Council. Yut had suggested that the Privy Council was an obsolete institution that should gradually fade away, following the British model; however, the Privy Council’s political role was in fact expanding, and convergence with British practices was not on the horizon at all. In spite of the King’s displayed commitment to act as the guardian of the 1968 Constitution, he did not prevent its abolition by Thanom in a ‘self-coup’ modelled on Sarit’s 1958 ‘revolution’ – the Constitution was abrogated, the Parliament was dissolved and a new government was announced. Like in 1958, the only institution that continued functioning was the King’s Privy Council. The signal sent by the palace on 17 November 1971 was quite ambiguous: a mere two hours after the coup was announced on radio, the King granted an audience to Thanom and as Thanom pledged to ‘safeguard the institution of the monarchy’, the King gave him his blessing.69 Yet there was no Royal Command appointing him ‘defender of the capital’ or any equivalent title giving him powers to countersign royal acts. There was also no amnesty law for Thanom.70 This signalled that a coup was a risky adventure for those who did not secure preliminary royal approval, as they would be, in the absence of an amnesty law, at the mercy of the courts for illegal seizure of power. In any case, Thanom relied on the a posteriori royal approval of the coup to secure its legitimacy; he appeared on television with what he claimed was a letter of support from the King displayed next to him on a golden tray.71 Thanom governed without a Constitution for more than a year, ruling by revolutionary orders only, without the King’s signature: hundreds of revolutionary orders were enacted bearing the name of Thanom alone. This attracted criticism from the public and concern within the diplomatic community; perhaps it also

68 Yut Saeng-Uthai, คำ�อธิบายรัฐธรรมนูญแห่งราชอาญาจักรไทยพุทธศกราช 2511 และ ธรรมนูญการปกครองราชอาญาจักร พุทธศักราช 2515, ว่าด้วยพระมหากษัตริย์ [Explanation of the 1968 Constitution and the Interim 1972 Constitution Regarding the Monarchy] (Winyuchon, 2008) 96–97. 69 Thamrongsak Petchlertanan, ‘บทบาททางการเมืองของจอมพลถนอม กิตติขจร พ.ศ. 2506–2516’ [‘The Political Role of Marshal Thanom Kittikachorn, 1963–1973]’ (thesis, Chulalongkorn University, 2007) 510. 70 According to Thak, the lack of an amnesty law for Thanom was interpreted at the time as an indication of the King’s ‘displeasure’ either with the coup itself or with the way in which the coup had been carried out; Thak (n 7) 208. 71 Ben Anderson, ‘Withdrawal Symptoms: Social and Cultural Aspects of the October 6 Coup’ (1977) 9 Bulletin of Concerned Asian Scholars 13, 29. See also Handley (n 3) 206.

Royally Sanctioned Military Coups and Amnesty Laws for Coup-Makers   165 angered the King, who in various venues spoke of the necessity to have ‘real democracy’.72 The first open conflict between the King and Thanom emerged over the question of the independence of the judiciary. In early 1970, the government attempted to introduce a bill placing the Judicial Committee, which was responsible for appointments and promotions within the judiciary, directly under the responsibility of the Ministry of Justice. This move was met with opposition from students, constitutional law scholars and members of the lower house freshly elected under the 1968 Constitution. The King made a few speeches against the draft and the government withdrew it, stating it could not maintain the proposal in the face of royal disapproval. This illustrates the power of the royal speech, which in fact signals the use of royal veto powers in the event that the bill would be submitted to the King for signature. In this case, as in others, royal veto powers were not in fact used, as the bill was withdrawn.73 The lack of an amnesty law giving immunity to the perpetrators of the 1971 coup left the door open for court proceedings to be initiated against Thanom for illegal seizure of power in accordance with Article 113 of the Penal Code – and, indeed, members of Parliament seized the opportunity and filed a case before the Criminal Court in March 1972. Although the case was dismissed and the complainants were ultimately jailed by the junta for periods up to 10 years,74 this demonstrated that the King’s power of royal sanction was a true and effective pillar of the process of staging coups – law was instrumental in their enactment and the royal sanction was their best shield. Following pressure from the King to have an interim Constitution by the time of the ceremony of his only son Vajiralongkorn’s investiture as Crown Prince,75 Thanom finally agreed to enact an interim Constitution: this was done on 15 December 1972, about 10 days before the ceremony. Its preamble now stated that the coup had been staged to ‘safeguard the monarchy’, while Thanom, to protect himself, had skilfully enshrined an immunity clause for himself directly into the text of the interim Constitution. In Article 21, the 1972 interim Constitution stated that: All acts of the revolutionary committee or the decrees of the chief of the revolutionary committee promulgated between 18 November 1971 and the day this Constitution was promulgated, in whatever form, with whatever legal, administrative, and judicial

72 See King Prajadhipok’s Institute, พระราชผู้ทรงธรรม ประมวลพระบรมราชโอวาทและพระราชดำ�รัสด้านการเมืองการปกครอง [The Righteous King: Collected Royal Messages and Speeches about Politics and Administration] (King Prajadhipok’s Institute, 2016) 91–98. 73 Thamrongsak (n 69) 483, 552. 74 The applicants were three former members of Parliament: Uthai Pimjaichon, Boonkerd Hiranyakam and Anan Pakpraphai. Uthai was sentenced to 10 years in jail and the other two to seven years. คำ�สั่งหัวหน้าคณะปฏิวัติ 36/2515 [Order of the Revolutionary Council No 36], 22 June 1972. See Thamrongsak (n 69) 553. 75 ประกาศสถาปนาสมเด็จพระบรมโอรสาธิราชสยามมกุฎราชกุมาร [Announcement of Establishment of His Royal Highness the Prince as Crown Prince], 28 December 1972. See also Thamrongsak (n 69) 534.

166  Military Dictatorship under (Sacred) Royal Command effects, shall be deemed legal, including for actions implemented in application of acts and decrees.76

Thereafter, amnesties gained constitutional status and coup leaders full immunity. From that time onwards, the practice of the coup–constitutional abolition sequence started to become institutionalised. This involved three steps: first, the King granting an audience to the coup perpetrators; second, the King signing the interim Constitution, inclusive of an amnesty clause for coup leaders, into law; and, third, the King signing the Royal Command appointing the Head of the Military as Prime Minister in accordance with the interim Constitution. These post-coup steps increased the ascendancy of the King vis-a-vis the military – the King was always in a position to veto each one of them, either conclusively or by delaying his royal sanction. By 1972, if the military claimed it was above (parliamentary) politics, the monarchy had in fact managed to put itself above both the military and Parliament, as the post-1972 events would further demonstrate. III.  THE MONARCHY ABOVE THE MILITARY: DIRECT ROYAL INTERVENTIONS AGAINST MILITARY JUNTAS

In 1973, students organised mass protests calling for the adoption of a ‘permanent’ Constitution, the resignation of the military government of Thanom and his deputy Prime Minister, Praphas Charusathien, and the ‘return of power to the King’. They argued that the coup had been an attack on the King’s power.77 On 14 October, security forces shot at the protesters, killing about 100 and causing thousands of injuries.78 Students then marched to the Dusit Palace, which opened its doors to them, allowing them to find refuge there. The King and members of the royal family came to meet them, as the students knelt down in the Palace Gardens, facing the ground, along the walkway taken by the royal family to tour the garden. Meanwhile, Thanom ordered the three army chiefs to crack down on the protesters, but they refused, stating that they would only ‘act

76 Article 21 of the 1971 Constitution. 77 Thamrongsak (n 69) 551. It all started with the arrest of Ramkhamhaeng students for voicing strong criticism of the military in their journal. The students were immediately expelled from their university on the order of the government. Mass protests ensued, calling for their re-integration within the university, as well as the resignation of Sakdi Phasuknirand, the University President, and the drafting of a new Constitution within six months. The Federation of Thai Students announced that it was drafting its own Constitution. Sakdi resigned, but the protests continued and spread to other universities, most notably Thammasat. A few students who participated in the drafting of the Constitution were arrested and the student protests grew. On 13 October, approximately 400,000 students protested in the streets of Bangkok around the Democracy Monument, the biggest protest ever in Thai history. 78 See, generally, Prajak Kongkiratti, และแล้วความเคลื่อนไหวก็ปรากฏ [And the Movement Appeared] (Samesky Books, 2013).

Direct Royal Interventions against Military Juntas  167 under a Royal Command to do so’.79 In the evening, King Bhumibol made the following announcement on television: Today is a day of great sorrow in the history of our Thai nation. During the last 6–7 days (…) hundreds of Thai people like you and I have lost their lives. I ask that all parties stop violence and come to the realisation that this is necessary so that the nation can come back to normalcy. In order to end violence, Thanom Kittikachorn gave his resignation from the post of prime minister this evening. I have thus appointed Sanya Thammasak prime minister. I ask all parties to unite in giving their support to the new government.80

Through this announcement, the King appointed his privy councillor Sanya Thammasak, a former Supreme Court President whose political career had been launched following his role in the commission of inquiry on Ananda’s death, as Prime Minister.81 In a royal audience, the King advised the military leaders to go abroad for some time to allow things to cool off, before eventually returning to the country.82 Following the royal audience, Thanom, Narong and Praphas, who were together called ‘the three tyrants’ by the protesters, resigned and left the country. The King then handpicked members for a new national convention by Royal Command,83 which was tasked with electing among its members a constituent assembly to draft a new Constitution.84 A few days later, all members of Parliament resigned – or, rather, the King issued a decree of dissolution of Parliament that forced them to do so.85 The Constitution that was approved in 1974 featured a high level of monarchism patterned on the 1949 Constitution. As a result, the long preamble described the King as the soul and spirit of the nation, while the discretionarily appointed privy councillors, whose number increased dramatically to 15, were now in charge of appointing senators. After the King urged Parliament to revise the Constitution to remove the Privy Council’s power of countersignature over royal acts of appointment of senators,86 the Constitution was amended accordingly, and the King proceeded 79 Nithini (n 12) 62; Nakharin (n 12) 162–63. 80 พระราชดํารัสในโอกาสที นายสัญญา ธรรมศักดิ์ ประธานองคมนตรี และ พลเอก เปรม ติณสูลานนท์ องคมนตรี นําพลเอก สุจินดา คราประยูร และพลตรี จําลอง ศรีเมือง เข้าเฝ้ า ทูลละอองธุลพี ระบาท ณ พระตําหนักจิตรลดารโหฐาวันพุธที ๒๐ พฤษภาคม ๒๕๓๕ เวลา ๒๑.๓๐ น. [Royal Speech on the Occasion When Sanya Thammasak, President of the Privy Council, and Prem Tinsulanond, Member of the Privy Council, Led General Suchinda Krapyoon and Major General Chamlong Srimuang to a Royal Audience on 20 May 1992 at 9.30 pm], 20 May 1992, reproduced in King Prajadhipok’s Institute (n 72) 239–42. 81 ประกาศแต่งตั้งนายกรัฐมนตรี [Announcement of the Appointment of a Prime Minister], 14 October 1973. The ‘announcement’ bore the countersignature of the vice-president of the National Legislative Assembly. 82 Thamrongsak (n 69) 562. 83 ประกาศพระบรมราชโองการแต่งตั้งสมัชชาแห่งชาติ [Royal Command of Appointment of a National Convention], 10 December 1973. 84 Dominic Faulder and Nicholas Grossman (eds), King Bhumibol Adulyadej: A Life’s Work (Editions Didier Millet, 2012) 131. 85 พระราชกฤษฎีกายุบสภา [Royal Decree of Dissolution of Parliament], 16 December 1973. 86 รายงานสภานิติบัญญัติแห่งชาติทำ�หน้าทีรัฐสภา [Minutes of the National Legislative Assembly acting as Parliament], 1st session, 10 October 1974, 1–2.

168  Military Dictatorship under (Sacred) Royal Command to make several crucial appointments to his Privy Council, in charge of reviewing and advising the King on all legislative, executive and judicial acts that were presented to him for his signature. In February 1975, as Seni Pramot replaced Sanya as Prime Minister, Sanya immediately returned to the Privy Council, together with prominent members of the judiciary (such as Prakop Hutasingh) and of the military (such as Attasith Sittisungthorn). The pattern was emerging of a Privy Council built on the military and the judiciary. If they were officially retired members of their respective professions, some of them were nevertheless also simultaneously directly involved in political matters. In March 1975, the King appointed two of his acting privy councillors, Sanya and Prakop, to the nine-member Constitutional Tribunal in charge of reviewing the constitutionality of laws.87 Reflecting on his role during the 1973–74 crisis, the King said: The institution of the Monarchy can fully get involved in politics (len kan muang) when there is a genuine vacuum of power like what happened on 14 October but once it has gone down to manage the vacuum, the institution of the Monarchy must rush to climb back to being above politics – so that it remains ready to go down again to help (long ma chuey).88

The second major royal intervention occurred two years later in 1976. In August 1976, Thanom returned from exile, which caused an uproar among students, who protested in large numbers against his return. In a symbolic and strategic move, Thanom became a monk upon his entry into Thailand and settled in the Bovornvives Temple, in the heart of the old Bangkok, where the King had undergone his own ordination. In September, the King visited the temple, which was interpreted as a sign of royal support for the former dictator. Protesters gathered in Sanam Luang near the temple in protest, while the ultra-right-wing militias, the red gaurs (krathing daeng) patrolled in its vicinity. In early October, Thammasat University students performed a play in which a man, allegedly resembling Vajiralongkorn, was being hanged.89 Ultra-royalist militias took offence at the theatrical production; the militias assaulted the students. Using this pretext, on the morning of 6 October, security forces and paramilitary groups attacked Thammasat University. Following the massacre,90 the military seized power to ‘preserve the monarchy from defamation’.91 87 ประกาศแต่งตั้งตุลาการรัฐธรรมนูญ [Announcement of Appointment of the Justices of the Constitutional Tribunal], 26 March 1975. 88 พระราชดําารัสของพระบาทสมเด็จพระเจ้าอยู่หัวฯทรงตรัสกับ ม.ร.ว.ทองน้อย ทองใหญ่ [Royal Speech Delivered to Thongnoi Thongyai], quoted in Nakharin (n 12) 165; Nithini (n 12) 63. 89 In fact, the play recounted earlier incidents when two people were found dead, lying next to a tree in the province of Nakhon Pathom. Pictures of the scene were reproduced in the Bangkok Post and the Dao Siam newspapers. 90 They carried out beatings, hangings, rapes and immolations on the bodies of the students. Other students were also arrested. See Thongchai Winichakul, Moments of Silence: The Unforgetting of the October 6, 1976, Massacre in Bangkok (University of Hawaii Press, 2020). 91 แถลงการณ์ของคณะปฏิรูปการณ์ปกครองแผ่นดิน [Press Release of the Council for National Reform], 6 October 1976: ‘A group of people has defamed the prince, which amounts to an offence to the heart of the entire Thai nation, an intention to harm the monarchy.’

Direct Royal Interventions against Military Juntas  169 The King immediately signed the Royal Command appointing Thanin Kraivichien, a judge at the Supreme Court and the future author of a law handbook dedicated to justifying the King’s royal interventions in 1973–74 as being fully constitutional (as being the ‘customary’ exercise of royal ‘crisis powers’). In fact, Thanin was, like Sanya and perhaps even more so, the King’s direct choice. A few months before the coup, Sangad Chaloryu, the head of the 1976 junta, had been granted a royal audience to inform the King about the preparations for the coup: the King had ‘advised’ him to name Thanin as Prime Minister, suggesting that he might otherwise not ‘validate’ his planned coup. In the words of Sangad’s confidant: Mister Sangad [author of the October 1976 coup] told me that during the month of February 1976, the King ordered to meet him … when Mister Sangad was in the royal audience … he told me that he wanted to obtain, from the mouth of the King, the blessing for the army’s plan [the coup], but the King did not give a precise order, he just ordered [him] to think by himself. Sangad concluded that, because the King had not given the order [to carry out a coup], it could not be done. Sangad said to the King that the army had no intention to hold on to power after the coup, and that he planned to install a civilian government instead. He asked [the King] about who could be an acceptable prime minister under these conditions, and he proposed about 15 names, notably Prakop Hutasing … but the King did not support any candidate. Sangad had thus not managed to obtain the name of a suitable prime minister. When quite some time had already passed, and he was preparing to leave, just before getting out, the King said that what mattered was to take advice from the jurist Thanin Kraivichien. Upon his return to Bangkok, Sangad told about the royal audience to the other members of the junta, and contacted Thanin to meet him.92

Following the coup, Sangad’s amnesty was enshrined directly in the Constitution, as had been the case in 1972 following Thanom’s coup.93 But unlike in 1972, the junta leaders decided to create an extra layer of protection by also drafting an additional amnesty law for themselves. The amnesty law was more comprehensive and detailed than the previous ones, extending to the authors of the coup but also those ‘acting on the orders’ of the latter.94 Ironically, the 1976 interim Constitution prohibited amnesties for coups in Article 4: ‘There shall not be any amnesty for those who overthrow the institution of the monarchy or the constitution.’95 This article is made even more ironic in retrospect: the military organised another ‘self-coup’ about a year after its promulgation to get rid of Thanin, who was considered to be too ‘arch-royalist’ even for them. Although the members of the junta, under the leadership of Kriangsak Chamanan, had overthrown his protégé, the King still signed them an amnesty law96 and the 92 Boonchana Attatakorn (บุณชนะ อัตถากร), quoted in Somsak (n 43) 161–62. 93 Article 29 of the 1976 Constitution. 94 พระราชบัญญัติ นิรโทษกรรมแก่ผู้กระทำ�การยึดอำ�นาจการปกครองประเทศ เมื่อวันที  6 ตุลาคม พ.ศ. 2519 [Amnesty Law for Authors of the 1976 Coup], 24 December 1976. 95 ibid art 4. 96 พระราชบัญญัติ นิรโทษกรรมแก่ผู้กระทำ�การยึดอำ�นาจการปกครองแผ่นดิน เมื่อวันที  20 ตุลาคม พ.ศ. 2520 [Amnesty Law for Perpetrators of the Power Seizure on 20 October 1977], 3 December 1977.

170  Military Dictatorship under (Sacred) Royal Command 1977 Constitution which gave it constitutional status.97 After all, their devotion to the monarchy was undeniable: almost immediately upon seizing power, the authors of the 1976 coup had enacted ‘Order 41’98 to increase the penalty for lèse-majesté to 15 years in jail; they had also amended the Penal Code accordingly.99 A few days after signing the 1977 Constitution into law, the King appointed Thanin to the Privy Council as a reward for his services. After the 1978 Constitution had been approved, other major royal interventions – or, rather, non-interventions – by the King mainly focused on securing General Prem Tinsulanond’s accession to the position of Prime Minister and deflecting coup attempts against him once this was achieved. Prem, a general, had long been closely associated with the King, and Kriangsak had unenthusiastically named him Army Chief and Minister of Defence in 1979. In 1980, the King summoned both Prem and Kriangsak for a royal audience in Chiang Mai; the next day, Kriangsak ‘unexpectedly’ resigned100 and Prem was sworn in as ‘His Majesty’s Prime Minister’. In what some described as a ‘royal coup’,101 Prem succeeded Kriangsak. In 1981 and 1985, there were two coup attempts against Prem. In neither case had royal approval been secured in advance of the coup: the King rejected the requests by those behind the coup attempts for a royal audience and he did not sign them an amnesty. The two attempts were carried out by young military officers, known as the Young Turks, who had Kriangsak’s backing. The first, called the ‘rebellion of the Young Turks’ (kabot young turks) or the ‘April Fool’s Rebellion’ (kabot mesa hawai), took place on 1 April 1981. Prem sought refuge in the royal palace before moving to Korat with the royal family; from there, the Queen broadcast a message on radio condemning the coup attempt against ‘the government of His Majesty led by Prem’.102 Without royal support, the Young Turks were not revolutionaries establishing a new legal system, but rebels breaking the law. Within two days, the coup attempt was squashed – the plotters surrendered and begged the King for mercy.103

97 Article 32 of the 1977 Constitution. 98 คำ�สัง่ ของคณะปฏิรปู การปกครองแผ่นดิน ฉบับที่ 41 [Order 41 of the National Reform Council], 21 October 1976. 99 Article 112 of the Penal Code: ‘Whoever defames [minpramat], insults [dumin], or threatens [sadeng khwam-akatamat-rai] the King, the Queen, the Heir to the Throne, or the Regent will be punished with imprisonment of between three and fifteen years.’ 100 Larry A Niksch, ‘Thailand in 1980: Confrontation with Vietnam and the Fall of Kriangsak’ (1981) 21 Asian Survey 223, 229. 101 Handley (n 3) 278. 102 Queen Sirikit, ลายฝีพระหัตถ์ [Handwritten Note], 2 April 1981, reproduced in Anonymous, เบื้องหลังวันวิกฤต [Behind the Day of Crisis] (PG Press, 1981) 37; also quoted in Hong Lysa, ‘Thailand in 1981: Reformulating the Polity from Within?’ [1982] Southeast Asian Affairs 339, 350. 103 On the April Fool’s coup, see Chai-Anan Samudavanija, The Thai Young Turks (Institute of Southeast Asian Studies, 1982) 54–55. See also ‘Prem Has Last Laugh as “April Fool’s Coup” is Squashed’, Bangkok Post, 1 April 1981; and ‘52 Coup Plotters Receive Amnesty, Apologise’, Bangkok Post, 5 May 1981, reproduced in Grossman (n 1) 240.

Direct Royal Interventions against Military Juntas  171 The second attempt, in 1985, called the Rebellion of 9 September (kabot kao kanya) or the Rebellion of the Military outside of Royal Service (kabot tahan nok rachakan), was launched by the same group, which had been dismissed following their first coup attempt. The coup followed the usual scenario: key politicians were taken hostage, and the junta took over radio stations to announce the abolition of the Constitution, the dissolution of Parliament and the appointment, by decree, of a new government. However, like in 1981, the authors of the 1985 coup were not granted a royal audience; the coup failed and the plotters were put on trial.104 The same year, the opposition attempted to file a motion of no confidence against Prem, but a joint session of Parliament later established that the move was unconstitutional.105 Prem finally resigned of his own free will in 1988. During his eight years in office, he had been a particularly zealous defender of the monarchy, not only of the King, but also of the Queen: he elevated both birthdays to the status of National Father’s and Mother’s Day, respectively. Under him, political developments were also marked by an intense crackdown on criticism of the monarchy, the banning of books and the arrest on lèse-majesté charges of politicians and academics critical of the monarchy or suspicious at the official version of the regicide case.106 Immediately upon resigning, Prem was rewarded by the King with an appointment to the King’s Privy Council. Three years later, the cycle of military coups started again after a relative period of ‘stable semi-democracy’. Chatichai Choonhavan, also a former member of the military, succeeded Prem in 1991. In February, Chatichai and his deputy Prime Minister, Arthit Kamlangek, who was also a general, boarded a plane to Chiang Mai for an audience with the King. In Bangkok, General Sunthorn Kongsompong used this opportunity to seize power. Suchinda Kraprayoon, the head of the junta, appointed Anand Panyarachun as Prime Minister, what, just like in the case of the appointment of Thanin in 1976, came as a surprise to all:107 like in 1976, the military had secured royal approval of the coup in advance108 and had probably, just like in 1976, been suggested the

104 Chai-Anan Samudavanija, Thailand: State-Building, Democracy, and Globalization (Institute of Public Policy Studies, 2002) 100. 105 รายงานการประชุมร่วมกันของรัฐสภา [Minutes of the Joint Session of Parliament], 1st session, 28 May 1985; quoted in Chai-Anan Samudavanija, ‘Democracy in Thailand: A Case of a Stable Semi-democratic Regime’ (1987) 150 World Affairs 39. 106 The anonymous The Nine Reigns of the Chakri Dynasty was banned in the early 1980s. It postulated the extinction of the dynasty after the ninth reign. See Raktham Rakthai, 9 รัชากาลแห่งราชวงศ์จักรี [The Nine Reigns of the Chakri Dynasty] (NA, 1983). Prominent cases of lèse-majesté include the arrest of Buddhist intellectual Sulak Srivilak in 1984 for declaring that the King should not be above criticism; politician Veera Musikaphong in 1988 for suggesting that the life of the royal family was easy and full of privileges; as well as student Rattana Uthaphan in 1988 for writing a letter to the King encouraging him to abdicate and enter politics. See Streckfuss (n 42) 192, 218–19. 107 Suchit Bunbongkarn, ‘Thailand in 1991: Coping with Military Guardianship’ (1992) 32 Asian Survey 131, 133; ‘Anand Surprise Pick for Premier’, Bangkok Post, 25 February 1991, reproduced in Grossman (n 1) 299. 108 Kevin Hewison, ‘The Monarchy and Democratisation’ in Political Change in Thailand: Democracy and Participation (Routledge, 1997) 70.

172  Military Dictatorship under (Sacred) Royal Command name of Anand as Prime Minister by the King himself. The junta was granted an audience immediately after the coup; the King signed the interim Constitution, which included an amnesty;109 the next day, Anand was formally appointed Prime Minister.110 The interim Constitution that resulted from the coup provided for the drafting of a permanent Constitution and the holding of elections towards the end of 1991. A committee, presided over by Meechai Ruchupan, was appointed to oversee the drafting of the text, in close consultations with the King.111 One of the popular demands was for a provision prohibiting the election of an ‘external’ prime minister (nayok khon nok), namely a person, like Sanya, Thanin, Prem or Anand, who was not an elected member of the House of Representatives. The constitution-drafting committee decided not to include this express prohibition in the text, which caused a major upset, as it was feared that Suchinda would return as premier after elections by pressuring Parliament, which by then had become a too-common pattern. Suchinda thought he could reassure the protesters by simply stating that he had no intention of seeking the position of prime minister.112 As Suchinda’s pledge did not seem to calm down the protesters, the King made a televised speech, calling on the Thai people to temporarily accept the text of the 1991 Constitution.113 He also urged Parliament to adopt the Constitution, in spite of its shortcomings, arguing that it could be amended later.114 The permanent Constitution was finally promulgated five days after the Royal Speech, on 9 December 1991, and elections were planned for March 1992. The military won the election and Parliament forwarded the name of Suchinda as Prime Minister to the King.115 Suchinda then resigned from the Army and accepted the position.116 Massive protests followed this move, calling for his resignation. These were brutally suppressed by the security forces in events that would later 109 Article 32 of the 1991 Constitution. An additional amnesty law was promulgated a few months later: ‘พระราชบัญญัตินิรโทษกรรมแก่ผู้กระทำ�การยึดและควบคุมอำ�นาจการปกครองแผ่นดินเมื่อ วันที  23 กุมภาพันธ์ พ.ศ. 2534’ [Amnesty Law for Perpetrators of the Power Seizure on 23 February 1991], 3 May 1991. 110 ประกาศแต่งตั้งนายกรัฐมนตรี [Announcement of Appointment of the Prime Minister], 2 March 1991. 111 Only one representative of the military was part of the committee, while the majority were the academics, mostly jurists and political scientists such as Wissanu Krea-ngam and Likhit Thiravekhin. See Noranit Settabutr, รัฐธรรมนูญกับการเมืองไทย [The Constitution and Thai Politics] (Thammasat University Press, 2007) 228. 112 Khien Theeravit, Thailand in Crisis: A Study of the Political Turmoil of May 1992 (Thailand Research Fund, 1997); Baker and Pasuk (n 65) 243–49. 113 พระราชดำ�รัส เนื่องในโอกาสวันเฉลิมพระชนมพรรษา ณ ศาลาดุสิดาลัย วันที  4 ธันวาคม 2534 [Royal Speech on the Occasion of the King’s Birthday Delivered on 4 December 1991 at Chitlada Palace], 4 December 1991. See ‘King Tells Protesters to Accept Constitution’, Bangkok Post, 4 December 1991, reproduced in Grossmann (n 1) 303. 114 ibid. 115 The election was won by the Samakkitham Party, which represented the 1991 coup leaders and gained 79 seats. The Samkkitham Party came to an agreement with four other parties to choose Suchinda as their premier. Together, they held 195 seats out of 360, or an absolute majority. The choice of senators was also heavily dominated by the military: out of 270 members, 147 (more than half) were soldiers. See Khien (n 112) 80–89. 116 He resigned from the Army to take the job of Prime Minister, signaling some embrace of the principle of civilian control of the military; but still, the government he appointed was dominated

Direct Royal Interventions against Military Juntas  173 become known as Black May (phrutsapha tamin).117 The King, having learnt the lessons of 1973, refrained from unilaterally dissolving Parliament118 and instead summoned Suchinda and the leader of the protesters, former Bangkok mayor Chamlong Srimuang, to a royal audience. The audience was televised and broadcast live as riots continued: Suchinda and Chamlong, kneeling on the floor, were scolded like children by the King. After the King’s intervention, the protesters dispersed, and five days later, Suchinda resigned. The King appointed Anand as Prime Minister by Royal Command in circumstances that remain disputed to this day – indeed, the ruling coalition had selected General Somboon Rahong as the new Prime Minister.119  Following Ananda’s death in June 1946, the 1947 and 1949 Constitutions inaugurated a durable institutional alliance between the monarchy and the military, built on collaborative appointments to the Senate and the Privy Council, and buttressed by revamped lèse-majesté laws. At a time when the King was a minor living abroad and the institution of the monarchy was itself very weak, the military had sought to establish itself as the ‘senior partner’ in this alliance. But upon the King’s return to Thailand, the monarchy progressively gained the upper hand by using the royal prerogatives enshrined in the Constitution. The King notably relied on his power of royal sanction to shield the military from the courts: by giving royal approval to coups, granting amnesties to juntas and permitting the revision and promulgation of new constitutions, the King progressively affirmed his supremacy in the constitutional order. Ananda’s death, in fact, had been instrumental in launching both the enterprise of royal renovation (including by overthrowing and sending into exile both of the authors of the 1932 Revolution, Pridi and Phibun) and the ‘vicious cycle of Thai politics’ (coup, abolition of the Constitution, promulgation of new constitutions under royal authority, followed by another coup). As a result of this dual process, the need for royal approval of coups in order for them to be successful and therefore ‘legal’ (according to the theory of revolutionary legality) was progressively normalised, routinised and institutionalised. The King became the senior partner in the alliance. by retired military generals. The Ministries of Defence, Finance and the Interior were ‘reserved’ for the entourage of Suchinda. See Noranit (n 111) 232. 117 From 17 to 20 May, the security forces shot the protesters; the official count for this is 50 deaths. See Khien (n 112) 38–59. 118 Prawet Wasi petitioned the King to request him to dissolve the House of Representatives. The King then asked by writing to the chiefs of the party of the coalition if they were in favour of such a dissolution. They replied they were not. ibid 48. 119 ประกาศแต่งตั้งนายกรัฐมนตรี [Announcement of Appointment of Prime Minister], 14 June 1992. The conditions of the appointment of Anand are still the subject of much controversy. In particular, it is still debated whether Artit Urairat, the President of Parliament, had forwarded the name of Anand to the King instead of that of Somboon, or if the King had chosen to appoint Anand as Prime Minister on his own initiative. In any case, the Act of Appointment was issued by the King and countersigned by Artit. See Khien (n 112) 84; Noranit (n 111) 242.

174

Part III

Importing Constitutional Justice

176

8 Thailand’s Post-Cold War Constitutions Constitutions for the Judiciary

T

he ‘new constitutionalism’1 was introduced in Thailand in the 1990s as a toolbox to fight corruption. It provided an opportune rationale for endowing the judiciary with wide-ranging powers of investigation, sanction and veto over elected politicians as part of a textbook process of democratic transition. Global discourses on the Rule of Law offered authoritative and timely solutions to the 1997 Asian Financial Crisis, which had forced Thailand to borrow from the International Monetary Fund and to come closer to institutions such as the World Bank. As an aspirational liberal democracy, Thailand looked up to emergent democracies like South Africa and South Korea, held up by the World Bank as ‘global models’ in the judicialised fight against corruption, and whose transformative constitutionalisms, embodied by powerful constitutional courts, had enabled both countries to move from authoritarianism to liberal democracy. However, Thailand’s version of the new constitutionalism would ultimately prevent parliamentarism from taking root in the kingdom. I.  THE 1997 CONSTITUTION: THE TRANSFORMATIVE ‘GLOBAL SOUTH’ CONSTITUTION

Following the events of ‘Black May’ in 1992, constitutional reform was on top of the public agenda.2 As a result, the 1991 ‘permanent’ Constitution underwent several major revisions, including amendments transferring the presidency of Parliament to the president of the House of Representatives at the expense of the president of the Senate,3 as well as requiring the prime minister to be an elected Member of Parliament.4 Eventually, in 1996, the Constitution was revised 1 Stephen Gill and A Claire Cutler (eds), New Constitutionalism and World Order (Cambridge University Press, 2014). 2 Noranit Settabutr, รัฐธรรมนูญกับการเมืองไทย [The Constitution and Thai Politics] (Thammasat, 2007) 283; Duncan McCargo, ‘Alternative Meanings of Political Reform in Contemporary Thailand’ (1998) 13 Copenhagen Journal of Asian Studies 5; Borwornsak Uwanno and Wayne D Burns, ‘The Thai Constitution of 1997: Sources and Process’ (1998) 32 University of British Columbia Law Review 227, 239. 3 Article 86, first amendment to the 1991 ‘permanent’ Constitution, 29 June 1992. 4 Article 159, fourth amendment to the 1991 ‘permanent’ Constitution, 10 September 1992.

178  Thailand’s Post-Cold War Constitutions to provide for the set-up of a Constitution-drafting assembly.5 The amendment was the result of almost two years of debate regarding whether or not politicians should be involved in the process. Some even suggested that the King should use his royal prerogative to launch the process of constitutional amendment, bypassing established procedures. In the end, Parliament selected one representative from each of the 76 provinces of Thailand together with an additional 23 experts in public law and administration6 to form a 99-member Constitution-drafting assembly: the assembly met in January 1997 to select from among themselves a 29-member drafting committee.7 Selected members included prominent jurists and politicians from an elite background sharing ‘liberal royalist’ values.8 The presidency was given to the UK-trained lawyer and former ‘royally granted’ prime minister Anand Panyarachun, while the French-trained Bowornsak Uwanno was appointed Secretary-General to the Constitution-Drafting Committee. The first project was finalised in May 1997 and was then submitted to public hearings, before being forwarded to the Constitution-drafting assembly for amendments.9 After an extensive second round of public hearings, the revised project was resubmitted in September to the Constitution-drafting assembly, which adopted the text by a large majority. The new charter, dubbed ‘the People’s Constitution’, enjoyed a high level of popular legitimacy in spite of the absence of a referendum.10 Finally, it was promulgated on 11 October 1997. The drafting process had been highly participatory yet top-down.11

5 Article 211, sixth amendment to the 1991 ‘permanent’ Constitution, 27 September 1996. 6 A total of 76 members were selected from the 76 provinces of Thailand from a list of 760 candidates. The 23 experts were distributed as follows: eight in public law, eight in political science and public administration, and seven in social sciences. They were chosen from a list proposed by university councils. For more details, see James Ockey, ‘Thailand: The Crafting of Democracy’ (1997) 1 Southeast Asian Affairs 301. 7 For a list of the 99 members of the Constitution-Drafting Assembly, see Noranit (n 2) 287–91. For a list of the 29 members of the Constitution-Drafting Committee, see Somchai Preechasilapakun, นีค่ อื ปณิธานทีห่ าญมุง่  : ข้อถกเถียงว่าด้วยสถาบันพระมหากษัตริยใ์ นองค์กรจัดทํารัฐธรรมนูญของไทย ตัง้ แต่ พ.ศ.2475–2550 [This is a Brave Resolution: Discussion of the Monarchy in Constitution-Making Bodies, 1932–2007] (Samesky Books, 2018). 8 Prominent members included Phongthep Thepkanchana, Komet Khwanmuang, Somkit Lertpaithoon, Khien Theeravit and Kanin Boonsuwan. See Michael K Connors, ‘Article of Faith: The Failure of Royal Liberalism in Thailand’ (2008) 38 Journal of Contemporary Asia 143. See also Ockey (n 6); Uwanno and Burns (n 2) 241. 9 First, public consultations were organised throughout the country from January to May 1997. From February to April, the Constitution-Drafting Committee finalised a first draft, which it submitted in May 1997 to the Constitution-Drafting Assembly. From May to June, the Assembly organised new public consultations, then examined the draft in July and adopted it in August. It was forwarded to the House of Representatives on 4 September 4 and was adopted on 27 September. See Khanin Boonsuwan, รัฐธรรมนูญฉบับประชาชน [The People’s Constitution] (Sukaphap Chai, 1997) 3–21. 10 According to art 211, Parliament was not empowered to amend the text; it could only adopt or reject it in its entirety. In the event that the Constitution was rejected by the legislature, the Constitution would have been put to a national referendum. See Noranit (n 2) 284–92; McCargo (n 2) 24. 11 Duncan McCargo, ‘Understanding Political Reform’ in Duncan McCargo (ed), Reforming Thai Politics (NIAS Press, 1998); Björn Dressel, ‘Thailand’s Elusive Quest for a Workable Constitution, 1997–2007’ (2009) 31 Contemporary Southeast Asia 296.

The 1997 Constitution  179 Thailand was replicating the South African experience, which had been promoted globally as a model of successful democratic transition through participatory constitution-making.12 The Constitution-Drafting Committee drafted a Constitution whose main concern was the fight against corruption. Its Secretary-General, Bowornsak Uwanno, had in the previous year authored an influential booklet devising solutions on how to design a corruption-proof Constitution13 and, from the very first sitting of the Constitution-Drafting Committee until the very last, he dominated the entire constitution-drafting process: as Decho Suwannanon, his fellow member of the Committee, stated, Bowornsak very much ‘drafted the Constitution from beginning to end’.14 He even set the Constitution-Drafting Committee working agenda and schedule so as to be best able to shield his anti-corruption mechanisms from the criticism of his co-drafters – by putting it last on the schedule, right before the deadline.15 According to Bowornsak, the 1997 Constitution aimed to transition Thailand from a system dominated by ‘money politics’ to a participatory democracy that did away with corruption. As Andrew Harding put it: ‘It [wa]s hard to imagine a more comprehensive attempt to change social facts by law.’16 The Constitution maintained its adherence to an ‘approximation of the Westminster style system of parliamentary government’,17 while intending to solve the problem of governmental instability by introducing mechanisms of ‘rationalised parliamentarism’ based on the French and German models: Members of Parliament had to step down from Parliament to become ministers (as in France) and votes of no confidence against the prime minister were made conditional on the proposing of a successor (as in Germany). According to Bowornsak, rationalised parliamentarism was a means of shackling Parliament to prevent a return to the ‘dictatorship of parliament’ that had plagued former parliamentary governments.18 However, Bowornsak’s concern 12 The South African Constitution-making process ran in parallel to the Thai Constitution-making process, from 1994 onwards. The South African Constitution relied on input from civil society at the drafting stage, but like the case in Thailand was not put to a referendum. One notable difference between the two processes concerns the Constitutional Court: in South Africa, it was tasked with reviewing the draft Constitution prior to its promulgation, a process called ‘certification’. The Court first struck down the draft, sending it back to the Assembly for revision. It was finally signed into law by President Nelson Mandela in December 1996 and came into effect in early 1997. 13 Bowornsak Uwanno, ระบบการตรวจสอบทุจริตของผูด้ �ำ รงตำ�แหน่งระดบับสูง [Mechanisms to Check Corruption of High Civil Servants and Politicians] (Committee for the Development of Democracy, 1995). 14 Decho Suwannanon, quoted in Noranit (n 2) 292. 15 Bowornsak Uwanno, oral comments made on the occasion of the King Prajadhipok’s Discussion on the project on National Reconciliation, King Prajadhipok’s Institute, March 2012. 16 Andrew Harding, ‘May There Be Virtue: New Asian Constitutionalism in Thailand’ (2001) 3 Australian Journal of Asian Law 236, 257. 17 Peter Leyland, ‘Thailand’s Constitutional Watchdogs: Dobermans, Bloodhounds or Lapdogs?’ (2007) 2 Journal of Comparative Law 151. 18 Bowornsak Uwanno, quoted in Office of the State Audit Commission, บทบาทขององค์กรตามรัฐธรรมนูญกับ การพัฒนาประเทศ [The Role of Constitutional Organs in the Development of the Country] (State Audit Commission, 2012) 9.

180  Thailand’s Post-Cold War Constitutions with governmental stability was overshadowed by his number one priority, anti-corruption, a theme which resonated strongly with the objectives and concerns of international organisations working in Thailand at the time, especially the UNDP and the World Bank.19 In line with global discourses on new ‘Asian’ constitutionalism that were prevalent at the time,20 themselves informed by the World Bank report on The State in a Changing World which promoted the setting-up of independent watchdog institutions to ‘monitor and punish’ corruption by emulating South Africa’s parliamentary ombudsmen and Hong Kong’s independent commission against corruption,21 the 1997 Constitution created seven independent constitutional organs tasked with both increasing public participation and fighting corruption, most notably the Electoral Commission,22 the National Counter-corruption Commission23 and the Ombudsmen,24 all three with powers of referral to the Constitutional Court.25 Individuals could petition the three independent constitutional organs directly on corruption allegations; these bodies would examine the case and would forward the petition to the Constitutional Court, which could then decide to dismiss politicians allegedly involved in acts of corruption. In fact, public participation was envisioned not as an end, but rather as a means to enhance the fight against corruption, against a general elite mistrust of Thai voters and politicians alike: the Constitution made voting compulsory26 to reduce the efficiency of

19 Michael K Connors, ‘Framing the “People’s Constitution”’ in Duncan McCargo (ed), Reforming Thai Politics (NIAS, 2002). Bidhya Bowornwathana, ‘Importing Governance into the Thai Polity: Competing Hybrids and Reform Consequences’ in Clay Wescott and Bidhya Bowornwathana (eds), Comparative Governance Reform in Asia: Democracy, Corruption, and Government Trust (Emerald, 2008) 5–20. 20 Andrew Harding, ‘New Asian Constitutionalism: Myth or Reality?’ in King Prajadhipok’s Institute, Constitution Reform: Comparative Perspectives (King Prajadhipok’s Institute, 2008) 25–49. 21 World Bank (ed), The State in a Changing World (Oxford University Press, 1997) 106–07. 22 Articles 136–48 provide for five election commissioners appointed by the King on the advice of the Senate for a non-renewable term. The Senate selects the five election commissioners from two lists of five candidates each: one compiled by a 10-member selection committee comprising political party representatives, university representatives, and presidents of the Constitutional and Administrative Court, and the other Supreme Court judges. 23 Articles 297–302 provide for nine anti-corruption commissioners appointed by the King on the advice of the Senate for a non-renewable nine-year term. The modes of selection of the Countercorruption Commission are as follows: lists of candidates are prepared by a 13-member committee comprising the President of the Supreme Court, four law faculty deans, four political science faculty deans and four political party representatives. 24 Article 196–98 provide for up to three Ombudsmen appointed by the King on the advice of the Senate for a non-renewable six-year term. 25 Articles 255–70 provide for 15 Constitutional Court judges appointed by the King on the advice of the Senate for a nine-year non-renewable term: seven career judges selected among themselves by the Supreme Court and the Supreme Administrative Court, and eight experts in law and political sciences selected by a selection committee comprising the president of the Supreme Court, four law faculty deans, four political science faculty deans and four political party representatives. 26 Article 68 of the 1997 Constitution.

The 1997 Constitution  181 vote-buying, included a provision making the possession of a bachelor’s degree a key eligibility requirement to stand for election27 and stated that referenda, if they were ever held, were not legally binding.28 By contrast, the powers of the constitutional watchdogs were, by many standards, ‘formidable’29 – so much so that they could be compared to ‘(constitutional) Dobermans’.30 Besides the State Audit Commission,31 the Election Commission, the National Countercorruption Commission and the Ombudsmen constituted the pillars of the anti-corruption framework. At the top of the anti-corruption framework sat the Constitutional Court, whose role was to supervise it. The 1997 Constitutional Court was designed as an overarching court with even more ‘formidable’ powers to dismiss elected politicians and dissolve political parties. Its design drew on the proposal formulated by German-trained jurist Kamonchai Rattanasakawong based on an academic examination of various continental European models: Italy, Germany, Austria and France.32 Kamonchai had suggested that Thailand should adopt a constitutional court composed of nine members chosen by Parliament from a list made by a political party-dominated selection committee. He recommended granting the court the competence to order the dissolution of political parties and to rule on the validity of elections. He also proposed that judges should publish their decisions, including personal dissenting opinions.33 He concluded his study by recommending that Thailand adopt a German-inspired constitutional court because: ‘The Constitutional Court of the Federal Republic of Germany is a success; its architecture, its procedure, and its role are accepted by all in Germany.’34 The proposal was well received (except among Supreme Court judges, who saw the creation of a constitutional court as an encroachment upon their prerogatives)35 and the Thai Constitutional Court was modelled on the German Bundesverfassungsgericht. Yet the number of justices and modes of nomination proposed by Kamonchai were rejected. Instead of being nominated

27 ibid art 107. The same eligibility requirement applied to senators (art 125), ministers (art 206) and members of the Election Commission (art 137). 28 ibid art 214. 29 Peter Leyland, ‘The Ombudsman Principle in Thailand’ (2007) 2 Journal of Comparative Law 1. 30 Leyland (n 17) 174. 31 Article 312 provides for a nine-member State Audit Commission presided over by an auditorgeneral appointed by the King on the advice of the Senate. Modes of selection are not provided in the Constitution. 32 Kamonchai Rattanasakawong, ศาลรัฐธรรมนูญและวิธพี จิ ารณาคดีรฐั ธรรมนูญ [The Constitutional Court and Constitutional Procedure] (Committee for the Development of Democracy, 1994). 33 ibid 8–9. 34 ibid 11–12. 35 The proposal to give the ex officio presidency of the Constitutional Court to the Supreme Court was popular with the Constitution-Drafting Assembly, but was rejected by the Constitution-Drafting Committee; รายงานการประชุมคณะกรรมาธิการพิจารณาร่างรัฐธรรมนูญ [Constitution-Drafting Review Committee Minutes], 24th session, 24 June 1997.

182  Thailand’s Post-Cold War Constitutions by political parties as in the German model, nomination to the Court would be heavily dependent on the judiciary. Instead of nine judges, there would be 15 of them: seven career judges selected by the judicial authorities and eight qualified persons (five in law and three in political science), chosen by a selection committee composed of academics, politicians and the President of the Supreme Court.36 This design reflected Constitution-drafters’ general mistrust of politicians and the desire to have an impartial and professional constitutional court rather than a political body. Constitution-drafters strongly rejected having a constitutional council à la française, and the adopted name of ‘Constitutional Court’ (san rattathammanun), which was chosen over that of ‘Constitutional Tribunal’ (tulakan rattathammanun) or ‘Constitutional Committee’ (khamakan rattathammanun), was to reflect its judicial character. The main objective of the Constitution-drafters was to have an activist and repressive court, whose practice was to contrast with that created by the 1991 Constitution, which had a more political character and composition.37 In the final draft of the 1997 Constitution, the Constitutional Court was clearly highlighted as a judicial institution, being included in Title 8 on Tribunals, along with the Administrative Court and the Courts of Justice. It had jurisdiction to review legislation (in abstracto and in concreto),38 including financial bills39 as well as emergency decrees,40 and to scrutinise qualifications of politicians41 as well as the activities of political parties.42 It was also a last-resort judge in electoral disputes and conflict of jurisdictions among independent constitutional organs.43 The Court could dismiss politicians for corruption44

36 Article 255 provided that the selection committee should include 15 members: the president of the Supreme Court, four deans of law faculties, four deans of political science faculties and four representatives of political parties in Parliament. The Senate nominated eight names from among a list of 16 names (arts 255 and 257). The number of judges varied tremendously throughout the process of Constitution-drafting. Likewise, the modes of selection and the composition of the Committee were the subject of considerable debate; at stake was the rather political or legal composition of the court membership and selection committee. See รายงานการประชุมคณะกรรมาธิการพิจารณาร่า งรัฐธรรมนูญ [Constitution-Drafting Review Committee Minutes], 24th session, 24 June 1997. See also Khanin (n 9) 42–44; and Montri Rupsuwan, เจตนารมณ์ของรัฐธรรมนูญ [The Spirit of the 1997 Constitution] (Winyuchon, 1999) 391. 37 The Constitutional Council established by the 1991 Constitution included only two members from the judicial profession. It was composed of the president of the Senate, the president of the Supreme Court and the Attorney-General, as well as six experts in law and political science selected by both houses. 38 Article 262 (review of draft legislation, review of organic acts); art 263 (review of draft assembly regulations); art 264 (in abstracto review of legislation in force); art 198 (in concreto review of legislation in force). 39 ibid art 180. 40 ibid art 219. 41 ibid art 96 (consideration of the qualifications of the members of the National Assembly); art 216 (consideration of the qualifications of ministers). 42 ibid art 47. 43 ibid art 266. 44 ibid art 295 (review of failure or concealment of assets before the National Anti-corruption Commission).

The 1997 Constitution  183 and pronounce the dissolution of a political party if it was found to have acted unconstitutionally.45 Constitutional review was now judicialised and, as such, judicial rules of procedure applied. Decisions of the Constitutional Court were ‘final and binding on all other organs of the constitution’. As part of the overall anti-corruption framework, the 1997 Constitution created two other judicial institutions: the Administrative Court46 and the Special Division for the Holders of Political Positions in the Supreme Court.47 The Administrative Court, the creation of which was resisted by the Supreme Court, drew inspiration from the French and German models.48 The Special Division of the Supreme Court was, according to its importer Bowornsak Uwanno, inspired by the French Cour de Justice de la République.49 It was tasked with adjudicating cases involving alleged corruption by politicians, based on petitions filed with the National Counter-corruption Commission. There was no appeal possible and a speedy procedure applied. The aim was to have a fast mechanism to judge politicians in order to dismiss them from office during their term. Once the case was pending before the Court, the accused was automatically disqualified from holding office.50 The anti-corruption framework thus comprised the Constitutional Court, the Administrative Court, the Special Division of the Supreme Court for Holders of Political Positions, the Electoral Commission, the National Countercorruption Commission and the Ombudsmen, an extremely comprehensive mix of specialised civil and common law institutions from various jurisdictions. In addition, the framework relied heavily on a powerful, hybrid Senate invested with quasi-judicial functions. Unlike its predecessor under the 1991 Constitution, it was fully elected: its 200 members were elected in a first-pastthe-post ballot.51 Envisaged as a ‘neutral expert’ body and ‘a house of wise men’ to counter the turbulent politics of the Lower House, members of the Senate were prohibited from political party membership and electoral campaigning. As Bowornsak puts it: ‘Efforts to de-link the Senate from party politics were undertaken to make the institution central in the fight against corruption.’52 45 ibid art 63. 46 ibid arts 276–80. See Peter Leyland, ‘Droit Administratif Thai Style: A Comparative Analysis of the Administrative Courts in Thailand’ (2006) 8 Australian Journal of Asian Law 122. 47 Article 272(2). 48 Piyabutr Saengkanokkul, ‘La Juridiction Administrative en Thaïlande : Génèse d’une Institution’ [‘The Administrative Jurisdiction in Thailand: Genesis of an Institution’] (thesis, Université Toulouse 1, 2011). 49 Oral comments made at King Prajadhipok’s Institute, June 2012. However, the Cour de Justice de la République is a political rather than a judicial court: its composition is dominated by parliamentarians (12 in total, six from each House of Parliament, even though it does include three career judges). As a result, the trials held at the Cour de Justice de la République are lengthy and lenient, most cases resulting in an acquittal. 50 Articles 309–11 (Criminal Proceedings against Persons Holding Political Positions). 51 ibid arts 121–35. 52 Borwornsak Uwanno, ‘Depoliticising Key Institutions for Combatting Corruption: The New Thai Constitution’ in Peter Larmour and Nick Wolanin (eds), Corruption and Anti-Corruption, 2nd edn (ANU Press, 2013) 183.

184  Thailand’s Post-Cold War Constitutions The apolitical character of the Senate could be seen as an approximation of the British House of Lords in some of its earlier incarnations. Yet the Thai ‘apolitical’ Senate had wide-ranging powers, especially of impeachment of the prime minister and elected parliamentarians, and of nominations of members of independent constitutional organs.53 If constitutional watchdogs were designed as Dobermans guarding against corruption, senators were to be wolves tearing apart corrupt officeholders.54 Impeachment in the Senate was provided for on the grounds of corruption and conflict of interests.55 Thus, to punish politicians who misbehaved,56 the 1997 Constitution offered at least three means – the US-style impeachment by the Senate, the French-style trial in a special court and the German-style dissolution of political parties by the Constitutional Court – but, unlike the models that Constitution-drafters had emulated, the grounds for activating such mechanisms were ordinary corruption rather than exceptional high treason, malfeasance in office or a real threat to the constitutional order. On top of this, the Constitution also provided for an advanced procedure of recall: 50,000 voters could file a petition to trigger an impeachment procedure in the Senate.57 As part of the imperative of ‘depoliticising’ State institutions, the 1997 Constitution-drafters elevated the constitutional status of ‘Democracy with the King as Head of State’ (DKHS), which was seen as the perfect antidote to ‘evil’ politics. It emphasised ethics, virtue, Buddhism and stability; it was ‘above politics’. Building on the 1991 permanent Constitution, the 1997 Constitution mentioned DKHS in several provisions. Yet, unlike its predecessors, it turned the phrase into something more than a declaratory or symbolic statement. Now subject to interpretation by the Constitutional Court, DKHS would start to produce legal effects. One of the first occurrences of DKHS, beyond the traditional Article 3 declaring Thailand a ‘System of Democracy with the King as Head of State’ could be found in Article 7, which read: Whenever no provision under this Constitution is applicable to any case, it shall be decided in accordance with the customs of Democracy with the King as Head of the State (phrapheni kanpokkhrong rabop phrachatipatai an mi phramahakasat song pen pramuk).

53 Article 303: ‘A person holding a position of Prime Minister, Minister, member of the House of Representatives, senator, President of the Supreme Court of Justice, President of the Constitutional Court, President of the Supreme Administrative Court or Prosecutor General, who is under the circumstance of unusual wealth indicative of the commission of corruption, malfeasance in office, malfeasance in judicial office or an intentional exercise of power contrary to the provisions of the Constitution or law, may be removed from office by the Senate.’ 54 Erik Martinez Kuhonta, ‘The Paradox of Thailand’s 1997 “People’s Constitution”: Be Careful What You Wish for’ (2008) 48 Asian Survey 373. 55 Articles 305–07 stated that the Senate could remove a person from office on grounds of corruption following a vote by three-fifths of its members in favour of doing so. 56 See the emphasis on punitive justice in Uwanno and Burns (n 2). 57 Article 304.

The 1997 Constitution  185 Article 7 bore close resemblance to its antecedent in the 1991 interim Constitution (‘Whenever no provision under this Constitution is applicable to any case, it shall be decided in accordance with the customs of Democracy’),58 but with the addition of the suffix ‘with the King as Head of State’. This marked the first constitutional enshrining of the idea that there were ‘customs’ specific to DKHS per se. In fact, this vague wording had been at the core of an intense debate in the early stages of the Constitution-drafting process. Its genesis takes us back to the discussion on the creation of the Constitutional Court in late June 1997.59 As part of the discussions on the Constitutional Court, members of the Constitution-Drafting Committee created an Article 264 that was drafted as follows: Whenever no provision under this Constitution is applicable to any case and where no specific organ is mandated to issue an opinion thereof or act in accordance with the custom of the system of Democracy with the King as Head of State, the Constitutional Court shall issue an opinion and decide.

According to Bowornsak, this provision would allow the Constitutional Court to ‘modernise’ the Constitution through its case law, based on the model of the US Supreme Court.60 The Constitutional Court would be able to clarify unwritten constitutional conventions, such as those regarding the dissolution of the legislature or the petition to the King.61 However, this proposal faced a strong backlash in the Constitution-Drafting Assembly; its (elected) members feared it would give too much power to the Constitutional Court.62 Within this context, Wisuth Pothithen, one of the members of the 1997 Constitution-Drafting Committee, proposed removing any reference to the Constitutional Court and to make it a general article.63 The proposal was welcomed and accepted following a brief discussion. As a result, the first paragraph of Article 264 was transferred to the first part of the Constitution concerning general dispositions and became Article 7.

58 Article 30 of the 1991 interim Constitution. 59 Eugénie Mérieau, ‘The Genesis of the Thai Constitutional Court According to the 1997 Constitution-Drafting Committee Minutes’ (Thammasat University Center for Excellence in Public Law and Good Governance, 2013). 60 รายงานการประชุมสภาร่างรัฐธรรมนูญ [Constitution-Drafting Assembly Minutes], 12th session, 8 May 1997. See also Mérieau (n 59) 271. 61 Mérieau (n 59) 272. 62 ibid 257. 63 He stated: ‘Would it be possible – it is an observation, a question – that article 264 on the Constitutional Court be suppressed, and that we create instead an article 6(2) which would read: “Whenever no provision in the constitution is applicable, it will be decided according to the custom”, as written in our former constitutions? If I remember correctly, it was not specifically in relation to the Constitutional Court, but rather a general article, a general disposition. We create an article 6(1) which will become article 7 of the Constitution. What do you think? Let us suppress article 264 completely.’ รายงานการประชุมคณะกรรมาธิการพิจารณาร่างรัฐธรรมนูญ [Constitution-Drafting Review Committee Minutes], 24th session, 24 June 1997.

186  Thailand’s Post-Cold War Constitutions Article 7 was placed right after an article guaranteeing the ‘supremacy of the Constitution’, a new addition in the 1997 Constitution.64 Article 6 provided that: ‘The Constitution is the supreme law of the State. The provisions of any law, rule or regulation, which are contrary to or inconsistent with this Constitution, shall be unenforceable.’ Therefore, as Article 7 now read like a typical common law addition of ‘custom’ being understood as a supplementary source of law in the event that primary sources of law were insufficient to settle a particular issue, based on the model of the Article 4 of the Thai Civil and Commercial Procedure Code, it potentially entered into tension with Article 6 on constitutional supremacy – the Constitution still being understood as the formal text of the Constitution. The second and third occurrences of the term were in Articles 47 and 63 of the Constitution, both of which dealt with the dissolution of a political party in the event that a party acted against the principle of DKHS. Article 47 read: ‘A person shall enjoy the liberty to unite and form a political party for the purpose of carrying out political activities in fulfilment of the political will of the people in accordance with DKHS as provided in this Constitution. The internal organisation, management and regulations of a political party shall be consistent with fundamental principles of DKHS.’ In its second and third paragraphs, Article 47 empowered the Constitutional Court to rule on the issue and strike down any unconstitutional regulation of a political party. It thus imported a form of ‘militant democracy’ into Thailand, resembling similar dispositions in the 1949 German Basic Law65 and the 1987 South Korean Constitution.66 Article 63, which contained the third occurrence of the term in the 1997 Constitution, even more closely emulated the German model of militant democracy: No person shall exercise the rights and liberties prescribed in the Constitution to overthrow DKHS under this Constitution or to acquire the power to rule the country by any means which is not in accordance with the modes provided in this Constitution. In the case where a person or a political party has committed the act under paragraph one, the person knowing of such act shall have the right to request the Prosecutor General to investigate its facts and submit a motion to the Constitutional Court for 64 A similar article formed part of the 1932 Constitution. 65 Article 21 of the German Basic Law reads: ‘1. Political parties shall participate in the formation of the political will of the people. They may be freely established. Their internal organisation must conform to democratic principles. They must publicly account for their assets and for the sources and use of their funds. 2. Parties that, by reason of their aims or the behaviour of their adherents, seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional. The Federal Constitutional Court shall rule on the question of unconstitutionality. 3. Details shall be regulated by federal laws.’ 66 Article 8 of the Korean Constitutional Court reads: ‘1. The establishment of political parties shall be free, and the plural party system shall be guaranteed; 2. Political parties shall be democratic in their objectives, organization and activities, and shall have the necessary organizational arrangements for the people to participate in the formation of the political will; 3. Political parties shall enjoy the protection of the State and may be provided with operational funds by the State as prescribed by law; 4. If the purposes or activities of a political party are contrary to the democratic basic order, the Government may bring action against it in the Constitution Court for its dissolution, and, the political party shall be dissolved in accordance with the decision of the Constitution Court.’

The 1997 Constitution  187 ordering cessation of such act without, however, prejudice to the institution of a criminal action against such person.67

In its following paragraphs, Article 63 empowered the Court to dissolve political parties that were considered a threat to the DKHS principle, drawing elements from Article 18 of the German Constitution, which permitted the Constitutional Court to prevent any individual from abusing his rights to anti-democratic ends,68 and Article 21, which empowered the Court to dissolve any anti-democratic party. Combined, these two redundant dispositions of the 1997 Thai Constitution made DKHS justiciable as an enforceable part of the Constitution. Meanwhile, it granted the Constitutional Court the role of interpreting what DKHS entailed. In fact, it paved the way for the Court to construct these meanings. The fourth and fifth occurrences aimed to police the behaviour of citizens and officials based on their loyalty towards the Crown. Article 66, part of the Title on the duties of the Thai people, read as follows: ‘Every person shall have a duty to uphold the Nation, Religion, the King and DKHS under this Constitution.’ The fifth occurrence introduced a mandatory oath to the King, the Constitution and DKHS for all Thai judges: ‘Before taking office, a judge shall make a solemn declaration before the King in the following words: “I, (name of the declarer) do solemnly declare that I will be loyal to His Majesty the King and will faithfully perform my duties in the name of the King without any partiality in the interest of justice, of the people and of the public order of the Kingdom. I will also uphold and observe DKHS, the Constitution of the Kingdom of Thailand and the law in every respect.”’69 In this sequencing, a hierarchy of norms appears: DKHS has primacy over the Constitution, which itself has supremacy over the law. Finally, a sixth major occurrence prevented any constitutional revision incompatible with DKHS: ‘A draft constitutional revision aiming to change DKHS or to change the form of the State is prohibited.’70 Once again, this provision empowered the Constitutional Court to determine what DKHS meant, on the basis of which it could strike down any constitutional revision. With this article, the Court acquired substantial review powers over constitutional amendment. Altogether, the Constitution mentioned DKHS 15 times, including in the preamble. The status of DKHS shifted from symbolic or expressive to justiciable as subject to interpretation by the newly created Constitutional Court. 67 Article 63 of the 1997 Constitution. 68 ibid art 18 (forfeiture of basic rights): ‘Whoever abuses the freedom of expression, in particular the freedom of the press (paragraph (1) of Article 5), the freedom of teaching (paragraph (3) of Article 5), the freedom of assembly (Article 8), the freedom of association (Article 9), the privacy of correspondence, posts and telecommunications (Article 10), the rights of property (Article 14) or the right of asylum (Article 16a) in order to combat the free democratic basic order shall forfeit these basic rights. This forfeiture and its extent shall be declared by the Federal Constitutional Court.’ 69 ibid art 252. 70 ibid art 313.

188  Thailand’s Post-Cold War Constitutions So, why did the Constitution-drafters empower the Court to such an extent, making it the interpreter of constitutional customs, granting it the power to dissolve political parties and to control constitutional amendment, in addition to more traditional powers of constitutional review of legislation – all in relation to DKHS? In constitutional monarchies, constitutional courts may have a function similar to those of kings and queens, as supreme arbiters of exceptional conflicts among constitutional organs; therefore, monarchies seldom have constitutional courts. Such an argument was raised during the 1997 Constitutiondrafting process. To this argument, the US-trained Kramol Thongthammachat, one of the Constitution-drafters, replied that the two institutions could in fact co-exist, citing the example of Belgium in support of this idea.71 Designing a juristocracy was in fact intended as a means to substitute for the anticipated void that would be left by the passing of King Bhumibol: the Constitutional Court was envisioned as a substitute King.72 Appointed by the King, the justices would rule in the very name of the King, as Bowornsak emphasised during the Constitution-drafting process.73 As Kobkua SuwannathatPian puts it, ‘it appears that the boundaries so set [by the 1997 Constitution, ie, the Constitutional Court] represent[ed] only a guarantee against the possibility of power abuse [by politicians] in the case the occupant of the throne turned out to be inexperienced, less self-disciplined, and perhaps not so dedicated to royal responsibilities and to the well-being of his people’.74 The dreaded royal death and subsequent succession did not occur under the 1997 Constitution, which saw Bhumibol’s reign flourish as much as electoral politics thrived. As early as 1998, several new political parties had formed to compete in the first election to be held under the 1997 Constitution, which was scheduled for 2001. In 1998, Thaksin Shinawatra, a former policeman-turned telecommunications billionaire, established a new party called ‘Thai Rak Thai’ (‘Thais Love Thais’). In 2001, he was elected Prime Minister. Immediately under an investigation undertaken against him for concealment of assets, he managed to escape dismissal from office on a technicality.75 He was re-elected in 2005 with an unprecedented near-absolute majority. By the end of 2005, he became embroiled in a financial scandal.76 Mass protests ensued that called for 71 รายงานการประชุมคณะกรรมาธิการพิจารณาร่างรัฐธรรมนูญ [Constitution-Drafting Review Committee Minutes], 9th session, 5 June 1997. 72 Eugénie Mérieau, ‘Thailand’s Deep State, Royal Power and the Constitutional Court (1997– 2015)’ (2016) 46 Journal of Contemporary Asia 445. 73 รายงานการประชุมคณะกรรมาธิการพิจารณาร่างรัฐธรรมนูญ [Constitution-Drafting Review Committee Minutes], 11th session, 9 June 1997. 74 Kobkua Suwannathat-Pian, ‘The Monarchy and Constitutional Change since 1972’ in McCargo (n 19) 61. 75 James Klein, ‘The Battle for Rule of Law in Thailand: The Role of the Constitutional Court’ in Amara Raksasataya and James Klein, The Constitutional Court of Thailand: The Provisions and the Working of the Court (Constitution for the People Society, supported by the Asia Foundation, 2003). 76 See Pasuk Phongpaichit, Thaksin: The Business of Politics in Thailand (Silkworm Books, 2004). See also Duncan McCargo and Ukrist Pathmanand, The Thaksinization of Thailand, vol 4 (NIAS Press, 2005).

The 2007 Constitution  189 his resignation.77 On 19 September 2006, the military seized power in a coup, and abolished the 1997 Constitution.78 It called itself the ‘Committee for the Democracy with the King as Head of State’. II.  THE 2007 CONSTITUTION: JURISTOCRACY UNDER US INSPIRATION?

Following the coup, the junta immediately dissolved the independent constitutional organs, including the Constitutional Court.79 On 1 October 2006, the junta enacted the 2006 interim charter. This document was short but to the point: in less than 40 articles, it granted an amnesty to junta leaders,80 made junta decrees and orders immune from judicial review,81 appointed an assembly called the National Legislative Assembly (NLA)82 and promised to set up a Constitution-drafting committee in charge of drafting a new, democratic, Constitution.83 It referred once again to the ‘constitutional customs of DKHS’, but gave the NLA the final word on it.84 In lieu of the dissolved Constitutional Court, the 2006 interim Constitution created a constitutional tribunal exclusively composed of career judges from both the civil and the administrative courts.85 The president of the Supreme Court was named president ex officio and the president of the Supreme Administrative Court vice-president.86 Some 10 days after the coup, the junta drastically expanded the powers of the Constitutional Tribunal. It enacted a Decree on penalties in case of electoral fraud providing for a five-year ban on politicians whose party had been

77 Kasian Tejapira, ‘Toppling Thaksin’ (2006) 39 New Left Review 5. 78 Michael K Connors and Kevin Hewison, ‘Introduction: Thailand and the “Good Coup”’ (2008) 38 Journal of Contemporary Asia 1; Thongchai Winichakul, ‘Toppling Democracy’ (2008) 38 Journal of Contemporary Asia 11. 79 ประกาศคณะปฏิรูปการปกครองในระบอบประชาธิปไตยอันมีพระมหากษัตริย์ทรงเป็นประมุข ฉบับที่ 3 [Announcement no 3 of the Committee for the Democracy with the King as Head of State], 20 September 2019. The Ombudsmen were spared. 80 Article 37 of the 2006 interim Constitution. 81 ibid art 36: ‘All announcements and orders of the Council for Democratic Reform or orders of the Leader of the Council for Democratic Reform issued as of 19 September B.E. 2549 (2006) until the date of promulgation of this Constitution, be they in any form or enforced in a legislative, executive, or judicial manner, shall continue to be in force. These announcements or orders, as well as any actions taken under them, whether before or after the promulgation of the Constitution, shall be deemed lawful and constitutional.’ 82 ibid art 5. 83 ibid art 19. 84 ibid art 38. 85 ibid art 35. 86 Panya Thanomrot, President of the Supreme Court, became ex officio President of the Constitutional Court. Akkharaton Chularatton, the President of the Supreme Administrative Court, became ex officio Vice-President. Other members included Mom Luang Krairik Kasemsan, Somchai Phongsatha, Nurak Mapranit, Kittisak Kittikhunpairot, Thanit Keswaphithak, Jaran Hatokham and Wichai Cheunchompoonoot.

190  Thailand’s Post-Cold War Constitutions dissolved by the Constitutional Tribunal.87 Political parties whose members had been convicted of electoral fraud were to be dissolved in accordance with the provisions of the 1997 Constitution, but the members of the executive board of the party were also to be banned from political activity for five years. The Decree stated in Article 3: If the Constitutional Court, or any other organ which acts as a Constitutional Court, orders the dissolution of a political party for acts prohibited by the 1998 Organic Law on political parties, the electoral rights of the members of the executive bureau of the Party will be revoked for five years, from the date of the dissolution order.

It is unclear which jurists drafted the Constitution on behalf of the junta. Sources indicate that the US-trained Council of State strongman jurist Meechai Ruchupan was a potential drafter.88 The 2006 interim Constitution provided for the establishment of a 100-member Constitution-Drafting Assembly appointed by the military.89 The political scientist Noranit Settabutr was appointed President. The Constitution-Drafting Assembly selected 25 members to be part of a Constitution-Drafting Committee, while 10 other members were appointed by the military. This included prominent jurists, notably the US-trained Thongthong Chandransu, the UK-trained Jaran Phakdithanakul and the Thailand-trained Vicha Mahakun. The latter two presided over the subcommittees on political institutions and courts respectively. The Frenchtrained jurist Somkit Lertpaithoon was made Secretary-General of the Constitution-Drafting Committee. The Constitution was drafted in eight months, from January to August, was defended in a handful of televised debates and finally was submitted to a referendum in August 2007, as the country was still under martial law. It was approved by a m ­ ajority of 58 per cent of those who voted, but turnout was relatively low at 60  per cent.90 During the campaign, the military had relied heavily on the popularity of the monarchy to prop up the legitimacy of the Constitution. In the northeast, a billboard read: ‘Love the King. Care about the King. Vote in the Referendum.’91

87 ประกาศคณะปฏิรูปการปกครองในระบอบประชาธิปไตยอันมีพระมหากษัตริย์ทรงเป็นประมุข ฉบับที่ 27 [Announcement No 27 of the ‘Committee for the Democracy with the King as Head of State], 3 October 2006. 88 Kevin Hewison, ‘Constitutions, Regimes and Power in Thailand’ (2007) 14 Democratization 928, 931. 89 The Constitutional Drafting Assembly consisted of 100 members, 28 from the public service sector, 27 from the private sector, 23 from the social sector and 22 from the academic sector; 10 were from the northern region, 68 from the central region, 12 from the eastern region and 10 from the southern region. 90 A major campaign of intimidation had been waged by the Army, especially in the north-east. See Duncan McCargo, ‘Thailand: State of Anxiety’ in Southeast Asian Affairs (ISEAS–Yusof Ishak Institute Singapore, 2008) 337. The military had also threatened that if the draft were not to be approved in the referendum, it would pick one of the pre-1997, less democratic Constitutions. See Dressel (n 11). 91 ibid 306.

The 2007 Constitution  191 Albeit stemming from a radically different Constitution-making process, the 2007 Constitution very closely resembled the 1997 Constitution. It further empowered the judiciary and in particular the Constitutional Court, whose composition was changed. The number of Constitutional Court justices was reduced from 15 in 1997 to nine in 2007.92 The 2007 version of the Court included more ­administrative judges and more political scientists than its 1997 version.93 Meanwhile, the selection committee now excluded representatives of political parties.94 The dominance of the judiciary over the selection process was now considerably reinforced. The Senate retained its instrumental role of confirmation of individual justices. Meanwhile, the role of the Constitutional Court was only marginally revised and adjusted. Notably, as the 2007 Constitution constitutionalised judicial immunity for coup leaders and their acts,95 the Constitutional Court became the guardian of the military’s impunity. The end result was dubbed the ‘judges’ charter’.96 It expanded the juristocratic design of the Constitution by increasing the powers of the judiciary in general and of the Constitutional Court in particular by giving them wide-ranging powers of nomination to high public office: the Constitutional Court now partly appointed the Senate, which became a half-appointed, halfelected 150-member body.97 The re-introduction of the appointed Senate was a major throwback to the past. The Senate Selection Committee comprised the presidents of the Constitutional Court, the Electoral Commission, the Ombudsmen, the National Anti-corruption Commission, the State Audit Commission, a judge from the Supreme Court and a judge from the Administrative Supreme Court.98 Besides the Senate, the Constitutional Court also gained power over the selection of the entire anti-corruption framework. It participated in the appointment process of the National Anti-corruption Commission, the Electoral Commission and the State Audit Commission. Thus, independent constitutional organs, the judiciary

92 Article 204 of the 2007 Constitution. 93 Two equilibria seem to have been adjusted between 1997 and 2007: first, the relative parity between the number of administrative judges and judges from the Court of Justice and, second, the exact equality between the number of experts in political science and law. 94 In 1997, the 13-member committee included four political party representatives; in 2007, the five-member committee included only the president of the Lower House and the leader of the opposition (art 206). 95 Articles 36 and 37 of the 2006 interim Constitutions became art 309 of the 2007 Constitution: ‘All acts recognized in the Constitution of the Kingdom of Thailand (Interim), B.E. 2549 (2006) as lawful and constitutional, including acts incidental thereto whether performed prior to or subsequent to the date of the promulgation of this Constitution, shall be deemed constitutional under this Constitution.’ 96 Chang Noi, ‘From the People’s Constitution to the Judges’ Constitution’, The Nation, 30 April 2007. 97 A total of 74 senators were appointed by a seven-member committee consisting mainly of members of the judiciary, and 76 were appointed in a first-past-the-post ballot in each province. See art 111 of the 2007 Constitution. 98 Article 113 of the 2007 Constitution.

192  Thailand’s Post-Cold War Constitutions and the Senate were to mutually appoint one another. As critics pointed out, this created a system of independence without accountability.99 The Constitutional Court gained new powers, such as the mandatory review of any organic act before promulgation100 and review of the treaty ratification procedure.101 In the 2007 Constitution, access to the Constitutional Court was also made easier. Ombudsmen could now petition the court suo moto.102 Meanwhile, moving away from the parliamentary model, the nature of the ombudsmen changed: they became independent from the legislative powers and were now appointed by the judiciary.103 Finally, the National Human Rights Commission gained the right to petition the Constitutional Court104; as well as ordinary citizens based on the Verfassungsbeschwerde or constitutional complaint model.105 More importantly, the Court gained the power not to only dissolve political parties but also to ban political party leaders from politics on the grounds, notably, of their ‘attempts to overthrow the Democracy with the King as Head of State’.106 The 2007 Constitution linked the Constitutional Court even more closely to the monarchy by maintaining and accentuating the pervasiveness of the DKHS concept throughout the Constitution. The 2007 Constitution maintained all provisions enshrining the judicial enforceability of DKHS. It reiterated the provisions on customary practices of DKHS and on the duties of the Thai people to uphold DKHS, which now formed part of a subheading on ‘the protection of the Constitution’. It added the term in various State policies, making the promotion of DKHS a key duty of the State and State agencies, including independent constitutional organs. All in all, the 2007 Constitution mentioned DKHS considerably more than its predecessor – nearly 20 times.107 Article 68, on the other hand, on ‘militant democracy’ and the dissolution of political parties whose members would engage in an ‘attempt to overthrow democracy with the King as Head of State’, was the subject of intense debate. In April 2007, a first draft of the Constitution was leaked to the public. In the draft Article 68, the last paragraph read: If there is a national crisis, or if a political situation in which it would be necessary [to act] there shall be a reunion of the following persons: the prime minister, the 99 Dressel (n 11) 318 ; Khemthong Tonsakulrungruang, ‘The Mistake of Independence’ (ASLI Conference, 2015). 100 Article 141 of the 2007 Constitution. 101 ibid art 190. 102 ibid art 245. 103 Ombudsmen are appointed by a seven-member selection committee: the president of the Supreme Court, the president of the Constitutional Court, the president of the Supreme Administrative Court, the president of the House of Representatives, the leader of the opposition, a Supreme Court judge and a Supreme Administrative Court judge (ibid art 243). 104 ibid art 257. 105 ibid art 212. 106 ibid art 237. Referring to art 68, it mandates party dissolution for ‘attempts to acquire power by unconstitutional means’ and ‘attempts to overthrow DKHS’, adding that electoral fraud is constitutive of an ‘attempt to acquire power by unconstitutional means’. 107 There were 17 occurrences in total, including three in the preamble.

The 2007 Constitution  193 president of the lower house, the president of the Senate, the leader of the opposition, the president of the Constitutional Court, the president of the Supreme Court, the president of the Supreme Administrative Court, and the presidents of the independent constitutional organs put in place by the Constitution, to examine possible ways out of the crisis.108

This draft was in fact modified from a previous version which read: ‘If there is a national crisis, the President of the Constitutional Court, the President of the Supreme Court and the President of the Supreme Administrative Court choose an interim government, which should be composed of personalities with experience in administration.’109 The subsequent discussions within the Committee modified the draft. In lieu of the statement that the ‘President of the Constitutional Court, the President of the Supreme Court and the President of the Supreme Administrative Court choose an interim government’, it was written that the ‘President of the Constitutional Court, President of the Supreme Court and President of the Supreme Administrative Court meet to consider solutions’. Finally, the Constitution-Drafting Committee members added political representatives to this ‘national crisis committee’. The paragraph met with strong opposition from the public and prominent lawyers, and the ConstitutionDrafting Committee eventually removed it from the final draft. Nevertheless, their intentions had been publicly exposed: the spirit of the 2007 Constitution was actually to entrench the Constitutional Court as a substitute King. The 2007 Constitution-drafters were driven by the urge to build a mechanism to prevent a potential crisis in the event of the succession of an unwise King to the throne. As they simultaneously had institutional interests to expand the powers of the Constitutional Court – being constitutional lawyers – and in the context of the global discourse on the Rule of Law glorifying courts, the Constitutional Court was the perfect institution to perform that role. The first drafts of the 2007 Constitution revealed that their aim was to give the Constitutional Court, in the event of a crisis, the power not only to dismiss a government, but also to appoint its replacement. During the first meeting of the Constitution-Drafting Committee on 22 January 2007, the Constitution-drafters stated in a working document ‘Do not let a dismissed government administer the country as interim government’ and ‘instead have a crisis committee composed of the presidents of the three courts, acting in the name of the King’.110 This showed a clear intention to substitute the King’s function of nominating governments in the event of a crisis with that of the Court. As Björn Dressel puts it: ‘The empowerment of non-accountable actors in the 2007 Constitution might be seen as a first step

108 Draft 2007 Constitution, Public Hearings Version, April 2007. 109 The proposal was initially made by Phairote Phromsan in March 2007. รายงานประชุมกรรมาธิการร่างรัฐธรรมนูญ 2550 [Minutes of the 2007 Constitution-Drafting Committee], 11th session, 19 March 2007. See Mérieau (n 59) 339. 110 รายงานดำ�เนินงานของคณะกรรมธิการยกร่างรัฐธรรมนูญสภาร่างรัฐธรรมนูญ [Progress Report by the ConstitutionDrafting Committee], Third Committee (Office of the Secretariat of the Constitution, 2007) 21.

194  Thailand’s Post-Cold War Constitutions in planning for what is for many unthinkable – the time after the revered King Bhumibol Adulyadej (Rama IX) is gone.’111 Under the 2007 Constitution, elections were held in December 2007 and July 2011. Both were won by pro-Thaksin candidates, Samak Sundaravej in 2008 and Yingluck Shinawatra in 2011 respectively. In between the two, opposition party leader Abhisit Vejjajiva became Prime Minister thanks to the intervention of the Constitutional Court and the support of the military, and governed the country from 2009 to 2011.112 Meanwhile, pro-Thaksin red shirts organised mass protests calling for elections and a new Constitution. They achieved the election of Yingluck, but no new Constitution.113 After three years in office, Yingluck faced her own mass protests staged by the ‘Committee for the Absolute Democracy with the King as Head of State’. In a repeat of the events of 2006, the military, invoking the need to solve the political crisis, declared martial law on 20 May 2014, suspended Parliament and forced Yingluck out of power on 22 May 2014.114 The junta, calling itself the ‘National Council for Peace and Order’ (NCPO), abolished its very own 2007 Constitution with the exception of the title on the monarchy. Notably, the junta also spared the Constitutional Court. III.  THE 2017 CONSTITUTION: JURISTOCRACY AND MILITARY DICTATORSHIP UNDER ROYAL COMMAND

A month later, on 22 July 2014, the junta’s leader Prayuth Chan-Ocha enacted the 2014 interim Constitution, a 48-article document drafted with the help of constitutional lawyer Wissanu Krea-ngam.115 The Constitution established several constitutional organs, including the National Reform Council (NRC), a 250-member body appointed by the Army to drive national reform,116 as well as a 220-member National Legislative Assembly (NLA) appointed by the junta to act as a unicameral legislature,117 and also gave itself and its acts immunity from prosecution and judicial review.118 The novelty here lay in the introduction of a provision (Article 44) which gave full legislative, executive and judicial power to the head of the military.119 In this respect, 111 Dressel (n 11) 319. 112 See, generally, Marc Askew (ed), Legitimacy Crisis in Thailand (Silkworm Books, 2010). See also Mérieau (n 72). 113 On the 2011 election and the red shirts, see Eugénie Mérieau (ed), The Politics of (No) Elections in Thailand (White Lotus Press, 2016); Eugénie Mérieau, Les Chemises Rouges de Thaïlande [The Red Shirts of Thailand] (IRASEC, 2013). 114 Claudio Sopranzetti, ‘Thailand’s Relapse: The Implications of the May 2014 Coup’ (2016) 75 Journal of Asian Studies 299. 115 Chookiat Panaspornprasit, ‘Thailand: The Historical and Indefinite Transitions’ (2017) 2017 Southeast Asian Affairs 353, 356. 116 Article 27 of the 2014 interim Constitution. 117 ibid arts 6–19. 118 ibid arts 47–48. 119 ibid art 44.

The 2017 Constitution  195 it contrasted with the 2006 interim Constitution and was instead reminiscent of the 1959 interim Constitution of Sarit Thanarat, which contained a similarly drafted Article (Article 17). Like its predecessors, the 2014 interim Constitution provided for the set-up of a Constitution-drafting committee. Bowornsak, the chief author of the 1997 Constitution, was named president of the 36-member body appointed jointly by the NRC, the NLA, the junta and the Cabinet. The Constitutiondrafting committee brought together members of the military and prominent legal academics, including the German-trained Banjerd Singkaneti. Most other prominent legal academics were appointed as law-makers by the military: in fact, rectors of the top nine universities in Thailand joined the NLA, including the French-trained public lawyer Somkit Lertpaithoon.120 The Committee finalised its work in April 2015. To the satisfaction of the military, the draft entrenched the 2014 interim Constitution’s immunity clauses in a very comprehensive manner (a 15-line paragraph).121 This first draft also satisfied the interests of the royalist jurists who, with regards to the safeguard of the monarchy, placed their trust in the Constitutional Court rather than in the military. Even more clearly than in the 1997 and 2007 Constitutions, this draft established the Constitutional Court as a constraint on the potential erratic exercise of royal prerogatives including unwise use of ‘customs of DKHS’ by the (future) King which would put the future of the monarchy in jeopardy. Article 7 of the April 2015 draft stated: Whenever no provision under this Constitution is applicable to any case, it shall be decided in accordance with the customs of DKHS. Whenever a question arises concerning an act or a decision related to paragraph 1 in the affairs of the House of Representatives, the Senate, the National Assembly, the Council of Ministers, the Supreme Court, the Supreme Administrative Court or any other constitutional organ, the said organ shall ask the Constitutional Court to decide.122

The draft faced intense criticism. A second project, finalised in August 2015, created, alongside the NRC, a ‘Strategic Committee for Reform and Reconciliation’ composed, inter alia, of the heads of the three branches of the military and the Police Chief,123 and mandated to supersede the government’s 120 Suluck Lamubol, ‘University Leaders Appointed to “Military Government”’ (University World News, 4 August 2014), https://www.universityworldnews.com/post.php?story=20140804112957727. 121 Article 315: ‘Any act, the legality and constitutionality of which has been recognized by the Constitution of the Kingdom of Thailand (Interim) B.E. 2557, including all acts related therewith committed whether before or after the date of promulgation of this Constitution, shall be deemed as constitutional under this Constitution.’ 122 Article 7 of the April 2015 draft. The remaining parts of the paragraph read: ‘but in the case of a request from the Supreme Court or the Supreme Administrative Court, it must be approved by the plenary session of the Supreme Court or the Supreme Administrative Court and must deal with a subject related to the adjudication of a case’. 123 Article 260 of the September 2015 draft. The Strategic Committee for Reform and Reconciliation included the prime minister, the supreme commander of the Army, the three Army chiefs and the Police chief, as well as former prime ministers and presidents of the Senate, of the House of Representatives and of the Supreme Court.

196  Thailand’s Post-Cold War Constitutions authority when this would be deemed necessary for the aims of ‘reform and reconciliation’.124 Infused with Buddhism, the draft also established a Title on ‘Good Political leaders’ to have good morals, virtue and loyalty towards the King125 – the Constitution-Drafting Committee had even included a ‘National Virtue Assembly’ to police electoral politics with local ‘virtue councils’ in each province – while maintaining a half-appointed Senate with wide-ranging legislative powers.126 In particular, the Senate could not only propose but could also pass legislation, including bills initiated by the NRC and the Strategic Committee. Last but not least, never had a Constitution so clearly forced allegiance towards DKHS. The first title of the Constitution was named: ‘Basic principles of DKHS’. Compared to the April draft, the new version of Article 7 expanded the Constitutional Court’s prerogative to decide in the event of a crisis according to the custom of DKHS – the former requirement that it concerned a specific constitutional organ was dropped. It is likely that this was too much DKHS, even for the King and the military. The project was rejected in September by the NRC in a vote by 135 to 105. The majority of military officers voted against it, suggesting that the NCPO had ordered the military to ‘kill’ the draft. As a result, both the NRC and the Constitution-Drafting Committee were dissolved. The head of the NCPO, Prayuth Chan-Ocha, appointed a new Constitutiondrafting committee composed of former members of the NRC under the chairmanship of ‘ultra-right conservative constitutional law expert’127 Meechai Ruchupan, a former drafter of the post-coup 1991 and 2006 interim charters, opponent of the 1997 Constitution and Council of State strongman.128 It comprised fewer high-profile jurists than its predecessors, such as the US-trained (in intellectual property law) Jade Donavanit. The third project was submitted in January 2016; it did away with the National Virtue Assembly as well as the local virtue councils, and also suppressed the highly controversial Strategic Committee. Article 7 was modified and moved towards the end of the constitutional text, to Article 207, within the Title on the Constitutional Court, and was linked with constitutional adjudication rather than political crisis: The rulings of the Constitutional Court must be in accordance with the text (tam tua akson) or aims (khwammungmai) of the Constitution. If no disposition is applicable to the case, it must be decided in accordance with the customs of DKHS.129

124 ibid art 261 draft. If the government did not comply with the recommendation of the Strategic Committee, the Strategic Committee could impose compliance. 125 Part 2, Title 1 of the September 2015 draft Constitution (‘Good political leaders and political institutions’). 126 ibid art 118. 127 ‘Meechai is well known as an ultra-right conservative constitutional law expert who has served many military junta governments in the past.’ Chookiat (n 115) 356. 128 Hewison (n 88) 931. 129 Article 207 of the January 2016 draft.

The 2017 Constitution  197 In the fourth project, dated March 2016, Article 7 was replaced by Article 5, which transferred the crisis powers established on the ground of the ‘customs of DKHS’ to the Constitutional Court: The Constitution is the Supreme Law of the State. The provisions of any law, rule or regulation which are contrary to or inconsistent with this Constitution shall be unenforceable. Whenever no provision under this Constitution is applicable to any case, it shall be decided in accordance with the customs of DKHS. When the circumstances mentioned in the preceding paragraph are met, the president of the Constitutional Court will convoke a meeting of the President of the House of Representatives, of the Opposition Leader, of the President of the Senate, of the Prime Minister, of the President of the Supreme Court, of the President of the Supreme Administrative Court, of the President of the Constitutional Court [sic] and presidents of independent constitutional organs to make a decision … A decision will be met at the majority of the votes … The decision is final and binding on the National Assembly, the Council of Ministers, the courts, the constitutional organs, and other State organs.130

Hence, not only could the Constitutional Court create the conditions of a constitutional crisis (dismissal of the prime minister, dissolution of the ruling party), but it was also empowered to determine whether or not there is no constitutional provision applicable to the situation. The Constitutional Court shall then convoke the presidents of the three courts to find a solution not provided by the Constitution, but in accordance with DKHS. Meanwhile, the Meechai Committee had added ‘transitional provisions’ making the Senate a 250-member body appointed by the military for a five-year term, with heads of the three branches of the military and the police as ex officio members.131 Thus, the draft empowered both the military and the judiciary at the expense of an elected legislature, mixing together constitutive elements of juristocracy and of military dictatorship. In the constitutional draft, some ‘fundamental principles’ were super-entrenched, subject to specific revision procedures: referendum,132 constitutional review133 and royal veto.134 The fundamental principles dealt first and foremost with the monarchy (notably the existence of a Privy Council), the composition of the two assemblies (notably an appointed Senate) but also the tribunals (notably the existence of a Constitutional Court) and the rules of constitutional revision themselves.135 Constitutional rigidity was thus ‘locked’ and the 130 Article 5 of March 2016 draft. 131 Article 269 of the March 2016 draft. The appointed Senate included six ex officio members as follows: the Permanent Secretary of Defence, the Supreme Commander in Chief, the Commander in Chief of the Royal Thai Army, the Commander in Chief of the Royal Thai Navy, the Commander in Chief of the Royal Thai Air Force and the Commissioner General of the Royal Thai Police. 132 ibid art 302. 133 ibid art 301. 134 ibid art 157. 135 ibid art 300.

198  Thailand’s Post-Cold War Constitutions key institutions of the monarchy became particularly super-entrenched. The 2016 draft also put in place a series of constitutional constraints on the revision of ‘fundamental principles’, including first and foremost DKHS. This enabled DKHS to be protected from constitutional change by a triple-constitutional veto: the people, through a referendum, the Constitutional Court, through the exercise of constitutional review, and the King, through royal sanction. In addition, the 2016 draft also subjected Article 7 to such constraints. A referendum was held on the draft Constitution in August 2016. Along with the constitutional draft, an additional question was put to a referendum, asking whether the (appointed) Senate could participate in the nomination of a prime minister in the event of the inability to do so in the Lower House.136 This would facilitate the selection of an ‘external prime minister’, possibly a high-ranking military officer, reconnecting with familiar past post-coup practices. In the weeks preceding the referendum, the junta prohibited any campaigning for a ‘no’ vote in the referendum; Thais were threatened with an even worse Constitution if they did not approve the draft and promised they would be rewarded with a quick election if they did. Both the constitutional draft and the question on the Senate’s participation in the prime ministerial election gained 60 per cent of votes in in the referendum – even though the Muslim-majority southern provinces, which were usually supportive of the military, rejected the draft due to its over-the-top militant Buddhism.137 The Constitution was forwarded to the King where it awaited the royal sanction. This day never came, as King Bhumibol passed away on 13 October 2016. The new King, Vajiralongkorn, who ascended the throne in December, was not willing to sign it in its present state and requested changes to be made to the draft. In particular, he wanted to drop the constitutional requirement that a regent be appointed whenever the King is abroad. This change to the regency requirement was approved on 13 January 2017 by the juntaappointed NLA in a unanimous vote.138 Vajiralongkorn also requested changes to Article 5 on the application of DKHS customs in the event of a crisis. A 10-member panel was appointed to make changes to Article 5. It seems likely that Vajiralongkorn wanted to recover royal crisis powers that the current constitutional draft had transferred away from him to the Constitutional Court.139 The Constitutional Court lost its decision-making and interpretation power over DKHS customs and Article 5 re-used the same indefinite wording as Article 7 of the 1997 Constitution. Finally, the King signed the new Constitution into law in April 2017. 136 พระราชบัญญัติ ว่าด้วยการออกเสียงประชามติร่างรัฐธรรมนูญ พ.ศ. 2559 [2016 Referendum Act], 22 April 2016. 137 Duncan McCargo, Saowanee T Alexander and Petra Desatova, ‘Ordering Peace: Thailand’s 2016 Constitutional Referendum’ (2016) 39 Contemporary Southeast Asia 65. 138 ‘Constitution Amended at King’s Request; Changing Royal Powers’, Prachatai, 13 January 2017. 139 Eugénie Mérieau, ‘Seeking More Power, Thailand’s New King is Moving the Country away from Being a Constitutional Monarchy’, The Conversation, 3 February 2017, https://theconversation. com/seeking-more-power-thailands-new-king-is-moving-the-country-away-from-being-a-constitutional-monarchy-71637.

The 2017 Constitution  199 In the 2017 Constitution, the ‘system of Democracy with the King as Head of State’ remained very prominent. It was mentioned 14 times, including in the preamble. Promoting DKHS was a duty of the Thai people,140 a duty of the State141 and an aim of political reform.142 The exercise of constitutional rights and liberties, including that of forming a political party, should be within the DKHS framework and should not be abused.143 DKHS remained an eternity clause that was unamendable: ‘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 shall be prohibited.’144 More interestingly, even Article 5 itself on the DKHS customs became an eternity clause,145 while provisions on the Constitutional Court, including the Court’s power to dissolve a political party based on it displaying too weak an inclination towards DKHS, became super-entrenched, any amendment being subject to a mandatory referendum in addition to the regular procedure.146 The Constitutional Court’s power to dissolve a political party and to ban its political leaders from politics was increased, although the spelling out of this power was removed from the text of the Constitution and was moved into the 2017 Political Party Act. Article 92 of the 2017 Political Party Act stated: When the Election Commission has evidence that one political party has committed one of the following acts, it shall refer the case to the Constitutional Court for dissolution of the political party: (1) Overthrowing Democracy with the King as Head of State or to gain power by unconstitutional means; (2) Acts deemed hostile to Democracy with the King as Head of State.

Like its predecessors, the 2017 Constitution tasked the Constitutional Court with engaging in a vigilant and ‘upstream’ policing of Parliament. This was a pre-emptive and strategic move by its drafters to avert a potential direct confrontation between the new King and the Parliament on the extent of the royal prerogative. Bowornsak declared that the Constitution-Drafting Committee’s focus was ‘to ensure that the constitutional monarchy functions according to international standards and fits the context of Thai society’.147  The 1997, 2007 and 2017 Constitutions incorporated elements of Westminster-style constitutional design, mitigated by French and German constitutional elements of rationalised parliamentarism, while creating a powerful Constitutional

140 Article

50(1) of the 2017 Constitution. art 78. 142 ibid art 257(3). 143 ibid arts 45 and 49. 144 ibid art 255. 145 ibid art 256. 146 ibid art 256(8). 147 Bowornsak Uwanno, oral remarks made on TV Channel 7, 1 September 2015. 141 ibid

200  Thailand’s Post-Cold War Constitutions Court sitting atop an array of appointed bodies, including the Senate. Together, these formed the basis of a particularly strong form of sophisticated juristocracy that was able to fully defeat any nascent parliamentarism. The anti-corruption framework, whereby the judiciary progressively acquired suo moto powers of self-referral and increased powers to suppress electoral politics altogether, switched functions: originally intended as a framework to suppress corruption, it became an array of bodies to police compliance with the DKHS. The constitutional developments of 1997–2017 seemed to have followed a rather linear evolution: the 1997 Constitution was fully democratic and liberal, the 2007 Constitution was semi-liberal and the 2017 Constitution semi-authoritarian. This gradation towards authoritarianism can be observed in the evolution of the changes of modes of nomination of the Senate: fully elected in 1997, half-appointed in 2007 and fully appointed in 2017 (for a transitional period of five years). The same gradation can be found with regard to DKHS. The provisions on the ‘customs of DKHS’ were first entrenched in 1997, were super-entrenched in 2007 and finally were protected by an eternity clause in 2017. The Constitutional Court, as the final arbiter on DKHS, was envisioned both as a substitute King and as the King’s guardian – but fell short of acquiring full extraconstitutional ‘crisis powers’.

9 The Rule of Law and Buddhist Kingship Turning the Constitutional Court into a Substitute King

F

rom the late 1980s onwards, global discourses of ‘new constitutionalism’, ‘good governance’ and the ‘Rule of Law’ appeared to the new generation of up-and-coming jurists (born in the 1950s) as well as the older generation (born in the 1930s) as the perfect solution to Thailand’s ‘dictatorship of parliament’ and the associated ‘ills’ of vote-buying, corruption and mismanagement. Trained in the West but eminently devoted to the Thai King and to the Buddhist faith, the new generation of jurists were signed up to the cause of ‘political reform’ upon their return to Thailand and worked to build a uniquely Thai model of monarchy moulded in the contemporary discourses of ‘new constitutionalism’, ‘good governance’ and the ‘Rule of Law’, while tapping into traditional doctrines of Buddhist kingship. As a reaction to the legal positivism of their predecessors, they rehabilitated the historical school of jurisprudence and principles of natural justice. They sought first and foremost to distance Thailand from its British model and to adopt a US-style rhetoric of judicial activism, but in the name of the King. I.  FROM THE REJECTION OF THE BRITISH PRACTICE OF THE ROYAL PREROGATIVE TO THE CREATION OF A CONSTITUTIONAL COURT RULING IN THE NAME OF THE KING

From the 1980s onwards, law handbooks devoted increasing attention to the study of the King’s powers. This movement can be traced back to the seminal joint work of Wissanu Krea-ngam and Bowornsak Uwanno, who in 1977 published a first article on the ‘status of the monarchy’, which provided a typical, descriptive, ‘positive law’ reading of the monarchy. It relied on Walter Bagehot’s analysis of the British Constitution: the right to warn, to advise and to encourage were the primary means through which the monarchy exercised

202  The Rule of Law and Buddhist Kingship ‘informal’ power.1 The shift towards more original doctrinal work occurred in a 1980 article published by Wissanu on ‘King Bhumibol Adulyadej’s Royal thinking about the Law’.2 Two years later, he published a law handbook which soon became the key Thai constitutional law handbook.3 In the same year, Bowornsak successfully defended his doctoral thesis on the topic of ‘British constitutional conventions’ in Paris.4 Following his return to Thailand, as a young assistant professor, he supervised a Master’s thesis by Thongthong Chandransu which aimed to compare the Thai system to its British model, entitled ‘the Royal Prerogative according to Constitutional Law’.5 More specifically, the thesis compared doctrines and practices of the Thai monarchy to those of the British monarchy, as ‘the theory of the constitutional monarchy [is] modelled after that of Great Britain’.6 It linked the concept of conventions/customs with immemorial Siamese traditions of Buddhist kingship.7 Thongthong’s work had both descriptive and normative dimensions. The descriptive argument can be summarised as follows: the Thai monarchy enjoys specific prerogatives as part of the ‘unwritten’ Thai Constitution, a result of centuries of sedimentation of royal practices embedded in Buddhist kingship. The normative argument suggested that in order to maintain the institution, these unwritten prerogatives should not be written down, but should instead be left uncodified.8 Thongthong’s initial contention was that the common comparison of the Thai King’s constitutional power with that of the Queen of England was the source of many problems in Thai constitutional doctrine – according to him, the British monarchy was the highly respected reference model of ‘Democracy with the King as Head of State’ (DKHS), but it was widely misunderstood.9 In particular, he wondered whether the Thai word ‘Phrarachaamnat’ was the equivalent to the British ‘royal prerogative’ or whether it was a different concept

1 Wissanu Krea-ngam and Bowornsak Uwanno, ‘พระราชฐานะของพระมหากษัตริยต์ ามธรรมนูญการปกครองราชอาณาจักร’ [‘The Status of the Monarchy According to the Constitution of the Kingdom’] (1977) 3 Law Journal of Chulalongkorn University 148. 2 Wissanu Krea-ngam, ‘แนวพระราชดำ�ริทางกฎหมายในพระบาทสมเด็จพระเจ้าอยู่หัว’ [‘King Bhumibol Adulyadej’s Royal Thinking about the Law’] (1980) 5 Law Journal of Chulalongkorn University 36. 3 Wissanu Krea-ngam, กฎหมายรัฐธรรมนูญ [Constitutional Law] (Nittibanakan, 1982). 4 Bowornsak Uwanno, ‘Les Conventions de la Constitution en Grande-Bretagne’ [‘Constitutional Conventions in the UK’] (Université Paris X, 1982). 5 Thongthong Chandransu, ‘พระราชอำ�นาจของพระมหากษัตริย์ในทางกฎหมายรัฐธรรมนูญ’ [‘Royal Prerogatives According to Constitutional Law’] (Chulalongkorn University, 1986). 6 ibid ง. 7 ‘The conventions of the monarchy as an institution in Thailand are as old as 1,000 years. Through time, the scope and extent of the royal prerogative has changed in response to changes in world situation’: ibid ค. 8 ibid ง-จ. It is also developed in the thesis that was subsequently published as a book (which is a slightly modified version of the thesis): Thongthong Chandransu, พระราชอำ�นาจของพระมหากษัตริย์ในทางกฎห มายรัฐธรรมนูญ [Royal Prerogatives according to Constitutional Law] (Chulalongkorn University Press, 1986) 16. The references below refer to the book, not the thesis. 9 ibid 19–20.

From the Royal Prerogative to the Constitutional Court Ruling   203 altogether.10 Interestingly, he observed that Phrarachaamnat involved royal discretion, whether or not the exercise of such discretion was subject to countersignature. In this, he stated that countersignature did not necessarily mean an absence of royal discretion. Likewise, although there was a written mention of Phrarachaamnat in the then-Thai Constitution, subject to countersignature, it did not exclude the existence of Phrarachaamnat based on customs (phrapheni) or conventions (thamniem) such as the right to grant pardons and to consider dika requests filed by Thai subjects, whose origin he affirmed lay in the ancient practices of the Sukhothai Kingdom.11 Building his theory on an historical account of the Thai monarchy, Thongthong saw the Privy Council established by King Prajadhipok in 1927 as being ‘very close’ to the British Parliament.12 He also affirmed, building on the work of Seni Pramot and Dhani Nivat, that the Thai monarchy had never been absolute, let alone at the time of its overthrow: first, royal power was limited by Buddhist principles regarding the exercise of power (totsaphit-­ rajadharma or the 10 Virtues of a Righteous King); second, it was limited by the Phrathammasat, ‘what Westerners call natural law’, as well as by the external treaties signed by Siam that limited the King’s power in judicial and tax matters, and finally it was subject to the self-restraint of the monarch himself.13 In addition, the Siamese King had never been deified, unlike in the West. According to Thongthong, Prajadhipok wished to take Siam on the path of convergence towards his model, the British monarchy, by limiting his own powers to the sole exercise of ‘warning’ and ‘advising’ the government,14 but the 1932 Revolution preventing him from achieving his goal of establishing a parliamentary democracy in the kingdom. Thongthong posited that the royal prerogative was exercised by the King in the three branches of government: the judiciary (mainly the granting of royal pardon (aphayathot));15 the executive (the appointment of the prime minister and ministers, and the conduct of external affairs); and the legislature (the appointment of the Senate, which he compares to the appointment of members of the House of Lords in the UK,16 the convoking and dissolution of Parliament, and the legislative veto, which he considered the most important legislative power of the King).17 According to him, the King had always

10 ibid 20. 11 Notwithstanding the definition of prerogative ‘built’ from the ‘love’ of Thai subjects; ibid 42. 12 ibid. 13 ibid 43. 14 For instance, the execution of royal projects as an exercise of the King’s power to advise; ibid 67–78. As a reminder, there is no royal ‘power to advise’ in Bagehot’s account; however, misquoting Bagehot by merging the ‘right to encourage’ and the ‘right to be consulted’ into a ‘right to advise’ was already common at the time that Thongthong was writing. 15 ibid 119. 16 ibid 67. 17 ibid 113.

204  The Rule of Law and Buddhist Kingship exercised his legislative veto informally (‘in a subtle manner’),18 but the executive veto – namely the denial of royal sanction on administrative acts, either phrarachakamnot or phrarachakrisdika – was exercised much more often.19 The ‘subtle’ exercise of the legislative veto and the ‘less subtle’ exercise of the executive veto became an unwritten convention. Thongthong quoted the established practice of having the government of the day send its draft bills, decrees and administrative acts to the Office of the King’s Secretary for consideration by each King’s Privy Councillor, which he identified as an unwritten constitutional convention.20 To Thongthong, there was no doubt that the King had the prerogative to appoint a prime minister at his own discretion, a prerogative that had already been exercised in appointing Sanya Thammasak in 1973. In support of his argument, he quoted the influential lawyer and 1968 Constitution-drafter Luang Prakopnittisan: ‘In the 29-year history of our parliamentary, democratic and constitutional system, none of our constitutions ever included a provision according to which the Monarchy appoints the Prime Minister or Ministers on the advice of the Parliament, Members of Parliament, or the Senate in any way. There is none of this at all.’21 Indeed, the only constraint on the power to appoint a prime minister lay in the mechanism of countersignature by the president of Parliament (usually the president of the royally appointed Senate). He also quoted jurist Yut Saeng-Uthai at length, according to whom the King was not, in principle, bound to follow the advice of the Council of Ministers.22 He then concluded that based on the Thai Constitution, both in its written and unwritten elements, the King retained broad discretionary powers. He stated: ‘On the outside, one could consider, and rightly so, that the Royal Prerogative has the same characteristic in Thailand than in the UK, but the historical evolution in conjunction with various other factors, has adjusted the ways in which the Thai monarchy operates. In detail, the practices are different from that of the model country.’23 In Thailand, ‘the Royal Prerogative is broad, and covers almost all branches of the State, especially the executive’.24 These views formed what could be called the ‘Chulalongkorn Faculty of Law’ understanding of the royal prerogative as empowering the King to act with full discretion if not expressly prohibited to do so by the Constitution, and to have the conventional power to ‘advise’ the government and other

18 ibid 117. 19 ibid 118. 20 ibid 114, 122. 21 ibid 98, quoting Luang Prakopnittisan in รายงานการประชุมร่วมของรัฐสภาเกีย่ วกับร่างรัฐธรรมนูญ 2511 [Minutes of the Joint Session of Parliament on the 1968 Constitution], 21 September 1968. 22 ibid 101, quoting Yut Saeng-Uthai, คำ�อธิบายธรรมนูญการปกครองราชอาณาจักรไทย พ.ศ. 2515 [Explanation of the 1972 Constitution] (Thammasat University 1973) 41–42. 23 ibid 123. 24 ibid.

From the Royal Prerogative to the Constitutional Court Ruling   205 political institutions (defined by Thongthong as ‘the most important [royal prerogative] power’).25 Thongthong’s thesis was successfully defended in 1986 before his supervisor, Bowornsak, and a committee headed by Wissanu.26 On its publication as a book, it became a major reference work in the field of Thai constitutional law. In the same fashion as what Dhani Nivat’s ‘Old conception of the monarchy’ had achieved for the renewal of doctrines of the Thai monarchy in the 1950s,27 Thongthong’s thesis constituted the first step towards the elaboration of a constitutional doctrine which would affirm the King’s discretionary powers in customary and conventional terms. In the same year as Thongthong’s defence, Chulalongkorn University granted an honorary law degree to King Bhumibol on the occasion of the fiftieth anniversary of his accession to the throne. This resulted in the publication in 1987 of a special issue of the Chulalongkorn Law Journal on the Thai monarchy and public law, with contributions from the most prominent scholars of the time, including former ‘royally granted’ Prime Minister Sanya Thammasak, as well as articles by two senior monks, including the Supreme Patriarch.28 Topics ranged from the 10 Virtues of a Righteous King (the Supreme Patriarch),29 the concept of dharmaraja (Chai-anan Samudavanija),30 the King’s use of the law for the purposes of justice (Meechai Ruchupan)31 and royal legal thinking (Wissanu Krea-ngam, a reprint of his earlier piece).32 These concepts and arguments soon spread beyond the Chulalongkorn Law School. In 1992, Amorn Chantarasomboon, a French-trained jurist and prominent ex-Secretary General of the Council of State, also took on the question of constitutional conventions and Phrarachaamnat, which he identified as a recent translation from the English ‘royal prerogative’ rather than as a historical Siamese concept. He argued that the Thai King held the discretionary power to dissolve Parliament, which was a much-needed prerogative in the times of the ‘dictatorship of Parliament’.33 Ditching the comparison with the British

25 Thongthong (n 5) ง. 26 The five-member committee included Prasith Kowilaikun, Chai-Anan Samudavanija, Winit Winitnaiphak, Wissanu Krea-ngam and Bowornsak Uwanno. Bowornsak, then a young assistant professor, was his thesis advisor. 27 Dhani Nivat, ‘The Old Siamese Conception of the Monarchy’ (1947) 36 Journal of the Siam Society 91. 28 The special issue does not have a specific title: (1987) 11(3) Law Journal of Chulalongkorn University, August–November 1987. 29 Somdeth Phra Sangkharatchao Khromluangwachirayanyong, ‘ทศพิธราชธรรม’ [‘Ten Royal Virtues’] (1987) 11 Law Journal of Chulalongkorn University 1. 30 Chai-Anan Samudavanija, ‘ความคิดทางการเมือง เรื่อง ธรรมราชาและทศพิธราชธรรม’ [‘Political Thoughts on Dharmaraja and the Ten Royal Virtues’] (1987) 11 Law Journal of Chulalongkorn University 11. 31 Meechai Ruchupan, ‘พระบาทสมเด็จพระเจ้าอยู่หัวกับการใช้กฎหมายเพื่อความยุติธรรม’ [‘The King and the Use of Law for Purposes of Justice’] (1987) 11 Law Journal of Chulalongkorn University 20. 32 Wissanu Krea-ngam, ‘แนวพระราชดำ�รีทางกฎหมายในพระบาทสมเด็จพระเจ้าอยู่หัว’ [‘Royal Thinking about the Law by King Bhumibol Adulyadej’] (1987) 11 Law Journal of Chulalongkorn University 36. 33 Amorn Chantarasomboon, ‘การยุบสภากับเผด็จการทางรัฐสภา’ [‘Dissolution of Parliament and the Dictatorship of Parliament’] (1991) 17 Political Science 1, reprinted in Amorn Chantarasomboon

206  The Rule of Law and Buddhist Kingship monarchy, he argued that the Thai parliamentary system was flawed by design, since the Thai King was no longer exercising his veto powers or was not exercising them enough. As a result, the Thai constitutional monarchy had moved from dualism to monism, resulting in an ‘absolute dictatorship of parliament’.34 In order to mitigate the ‘absolutism’ of Thai parliamentarism, he proposed adopting what he called, in English, ‘Constitutionalism’. In 1994, he wrote the article ‘Constitutionalism: The Solution for Thailand’, which had tremendous influence in Thai legal circles.35 In order to neutralise the dictatorship of Parliament and fill the void left by the obsolescence of the King’s veto, he called for the adoption of a powerful constitutional court. In the meantime, he was appointed, together with Bowornsak and Wissanu, to the ‘Committee for the Development of Democracy’, which was set up in 1994 to inform the 1997 Constitution-drafting process. In it, the three men would be able to turn this belief into a constitutional reality. The Committee for the Development of Democracy (CDD) was a council of 57 academics appointed by the president of Parliament. It commissioned academics to study foreign constitutions and formulate proposals for Thailand.36 The outcome of the process was the publication of 15 booklets, each addressing an essential issue for ‘political reform’.37 The booklets reflected a strong focus on the need to design judicial or quasi-judicial organs that were able to fight corruption and vote-buying.38 This concern was in line with the

(ed), ปฏิรูปการเมืองไทย: หลงทางหรือไร้จุดหมาย? [Political Reform: Did We Lose Our Way or is it an Impasse ?] (Duan Tula, 2014) 60. 34 Amorn Chantarasomboon, ‘การยุบสภากับเผด็จการทางรัฐภา’ [‘The Dissolution of Parliament and the Dictatorship of Parliament’] (New Na, 16–17 June 1992). 35 Amorn Chantarasomboon, ‘คอนสติติวชั่นแนลลิสม์’ [‘Constitutionalism’] and ‘ทางออกของประเทศไทย’ [‘Constitutionalism: The Solution for Thailand’] (1994) Law Journal 270, reprinted in Amorn (n 33) 107. 36 Prawet Wasi, ปฏิรูปการเมือง : ทางออกสำ�หรับประเทศไทย [Political Reform: The Way out for Thailand] (Mochaoban, 1995). Committee for the Development of Democracy, ข้อเสนอกรอบความคิดในการปฏิรูปการเมือง [Proposals to Reform Thai Politics] (Foundation for Supporting Research, 1995). 37 ‘1. Rights and Liberties’ by Vorapot Visarutpit; ‘2. Constitutional Court and Constitutional Procedure’ by Kamonchai Rattanasakawong’ ‘3. Anticorruption System’ by Bowornsak Uwanno; ‘4. ‘Independent Constitutional Organs’ by Vishnu Varunyou; ‘5. System to Check the Government’ by Surapon Nitikraiphot; ‘6. Electoral System That Reduces Vote-Buying and Allows Good People to Be Recruited’ by Phaitoon Boonwat; ‘7. Independent Organisations for the Organisation of Fair Elections’ by Phaitoon Boonwat; ‘8. Reform of the Political Party System by Boonsri Mewongukote; ‘9. Independence of the Parliament’s Office’ by Montri Rupsuwan; ‘10. Shape of the Council of Economic and Social Recommendation for the Project of the Constitution’ by Tiwa Ngeunyuang; ‘11. Form and Procedure of Constitutional Revision’ by Phoonsak Waisamruat; ‘12. Referendum System’ by Nonthawat Boromanan; ‘13. Organic Laws’ by Somkit Lertpaithoon; ‘14. The Procedure of Proposition and Examination of Finance Laws’ by Oraphin Phonsuwan Sabairup; ‘15. The Revision of the Modes of Functioning of the System of Parliamentary Commissions’ by Thongthong Chandransu. 38 Of these 15 questions, only one is related to rights and liberties (‘1. Rights and Liberties’ by Worapot Wisukpith) when the others are related to checks and balances to limit the executive power (most notably: ‘3. Anticorruption systems’ by Bowornsak Uwanno; ‘5. System to control

From the Royal Prerogative to the Constitutional Court Ruling   207 dominant discourse at the time, whereby Thai political problems were linked to the inability of Thai rural voters to choose honest, ‘good people’– in order for Thai democracy to function, these choices had to be corrected, which was a role for the judiciary to play.39 At the time, in the late 1990s, the judiciary enjoyed high levels of public trust; it was seen as a locus of particularly virtuous men who were trained to fight the inherently corrupt politics with the moral Rule of Law. According to the dominant views aired in the 1997 Constitution-drafting debates, in contrast to politicians, who were associated with corruption and private interests, judges held the highest moral standards. For instance, Sawat Khamprakop, one of the members of the 1997 Constitution-Drafting Assembly who advocated giving a greater role in the oversight of politicians to judges, made the following statement: ‘We respect and revere our judges. Judges are not ordinary people … They know the Buddhist virtue, they carry it with them in their hearts.’40 Judges owed their moral standards to their Buddhist credentials (Buddhist teachings form the core of their residential training upon passing the judge exam),41 but also and perhaps more significantly to their perceived proximity to the monarch. They were, after all, the only civil servants who officially acted ‘in the name of the King’ (nai phraboromaphitai ­phramahakasat) – no other institution other than the judiciary uses the formula ‘in the name of the King’ except the regent, who is the King’s directly mandated representative, sitting at the very top of the bureaucratic hierarchy, as indicated by the term ‘phu samret rachakan’, literally ‘the one who has completed his royal service’. By judging ‘in the name of the King’, not only were members of the judiciary considered by the public as having a specific status in the Thai bureaucratic hierarchy, but so too did their rulings, which were invested with sacred royal authority.42 Against this background, the 1997 Constitution-drafters insisted on having the Constitutional Court issue its rulings ‘in the name of the King’, which, to them, was meant to establish it as an impartial body independent from both government and Parliament. The Constitutional Court was to become another

government’ by Surapon Nitikraiphot, ‘6. Electoral system that reduces vote-buying and allows good people to be recruited’, by Phaitoon Boonwat, ‘7. Independent organizations for the organization of fair elections’ by Phaitoon Boonwat). Rights and liberties or governmental stability appeared as concerns of lower importance. 39 Anek Laothamatas, ‘A Tale of Two Democracies: Conflicting Perceptions of Elections and Democracy in Thailand’ in Robert Taylor (ed), The Politics of Elections in Southeast Asia (Woodrow Wilson Center Press, 1996); Prajak Kongkiratti, การเมืองว่าด้วยการเลือกตัง้ : วาทกรรม อํานาจ และพลวัตชนบทไทย [The Politics of Elections: Discourses, Power and Dynamics in the Countryside] (Samesky Books, 2012). 40 รายงานประชุมสภาร่างรัฐธรรมนูญ [Constitution-Drafting Assembly Minutes], 12th Session, 8 May 1997. 41 Duncan McCargo, ‘Competing Notions of Judicialization in Thailand’ (2014) 36 Contemporary Southeast Asia 417. 42 See Piyabutr Saengkanokkul, ในพระปรมาภิไธย ประชาธิปไตยและตุลาการ [In the Name of the King, Democracy and the Judiciary] (Openbooks, 2009).

208  The Rule of Law and Buddhist Kingship channel through which the King would exercise judicial sovereignty. In the first study on the possibility of a constitutional court as commissioned by the CDC, its author Kamonchai Rattanasakawong wrote: The organ named Constitutional Court that we will create in Thailand will be ­independent: it will adjudicate cases according to the law and in the name of the King to ensure that neither the legislative nor the executive can dominate it … Before taking office, the judges of the Constitutional Court will swear an oath to the King … Judges at the Constitutional Court will render their judgements and ordinances in the name of the King. Thus, the King will exercise sovereignty through the Constitutional Court.43

Without much debate, the newly established Constitutional Court gained the right to rule ‘in the name of the King’: each of its decisions would be preceded by the highly prestigious formula. Like their colleagues at other courts, Constitutional Court judges would have the constitutionally entrenched duty to swear an oath of loyalty to the King, to promise to act in the King’s name and to uphold DKHS.44 DKHS remained to be defined further by continued sedimentation of constitutional practices as well as by the Constitutional Court’s judicial interpretation, itself informed by evolving legal doctrine. Already its doctrinal definition could build on Thongthong’s seminal work of identifying a much broader royal prerogative in Thailand than elsewhere, creating an irreducible distance between the Thai monarchy and the British model of parliamentary monarchy. Building on the Chulalongkorn Faculty of Law’s understanding of the royal prerogative, several Chulalongkorn law students walked in the footsteps of Thongthong, Wissanu and Bowornsak to develop an indigenous doctrine of the royal prerogative. For instance, in 2000, a law student named Jesada Pornchaiya wrote his Master’s thesis on a comparison between the Thai and British monarchies.45 Referring to Walter Bagehot and Albert Venn Dicey as mediated by Bowornsak and Wissanu through the concept of ‘Thai constitutional conventions’, he argued for the superiority of the Thai system, where the Thai King was truly ‘above politics’, as opposed to the British Queen.46 His Master’s thesis was successfully defended before a committee that brought together Thongthong, who had become Dean of Chulalongkorn Law Faculty in the meantime, Thanin, the original theorist of the King’s powers in times of crisis and former ‘King’s choice’ Prime Minister, and Bowornsak, then

43 Kamonchai Rattanasakawong, ศาลรัฐธรรมนูญและวิธีพิจารณาคดีรัฐธรรมนูญ [The Constitutional Court and Constitutional Procedure] (Thailand Research Fund, 1994). 44 Article 252 of the 1997 Constitution. 45 Jesada Pornchaiya, ‘พระราชอำ�นาจของพระมหากษาตริย์ตามกฎหมายและธรรมเนียมปฏิบัติทางรัฐธรรมนูญ: ศึกษาเปรียบเทียบประเทศ อังกฤษและประเทษไทย’ [‘The Royal Prerogative and Constitutional Conventions: A Comparative Study of Great Britain and Thailand’] (Chulalongkorn University, 2000). 46 ibid จ.

From US-Style Judicial Activism to ‘Judicialisation’  209 Secretary-General of the newly created King Prajadhipok’s Institute.47 As Thaksin Shinawatra was elected Prime Minister on 6 January 2001, Wissanu joined Thaksin’s government as Secretary to the Cabinet; eventually, Bowornsak replaced Wissanu in 2003, as the latter became Deputy Prime Minister. However, for these scholars as well as many other people associated with the Thai Rak Thai Party, working closely with Thaksin did not entail renouncing the idea of an unwritten, extensive royal prerogative. II.  FROM US-STYLE JUDICIAL ACTIVISM TO ‘JUDICIALISATION’: TRANSFERRING THE KING’S EXTRA-CONSTITUTIONAL POWERS TO THE CONSTITUTIONAL COURT

In 2005, Pramual Rujanaseri, a leading civil servant from the Ministry of the Interior and a rebel Thai Rak Thai MP,48 published a short book entitled Royal Prerogative,49 which quickly became a bestseller. Very lightly referenced, it elaborated on the notion of the ‘Royal Customary Rule of Law’ ­(nittirachaphrapheni), arguing bluntly that the King was not only ‘above politics’ but also ‘above the constitution’. It opened with a preface drafted by the author himself in which he quoted the King as declaring: ‘I have read [this book], I have loved it, it is very well written, and what is written is­ accurate … I have really enjoyed it.’50 Such an exceptional preface gave great authority to the book. It provided a royal endorsement to many myths of the monarchy developed since the times of Prince Dhani and the later work of the Pramot brothers. In the preface, the author defined his book as having a ‘scientific’ purpose, outlining the reasons for writing the piece: The majority of Thais nowadays have insufficient and false knowledge of royal power. They think that the Thai Monarchy must be placed under the Constitution, although all constitutional laws must be approved or authorized by the King before their promulgation. The majority of Thais only know about the royal prerogatives that are written in the constitution although royal power is mostly exerted by royal customary rule of law (nittirachaphrapheni) … The majority of Thais know that when a crisis is

47 พระราชบัญญัติสถาบันพระปกเกล้า พ. ศ. 2540 [Act on the King Prajadhipok’s Institute], 30 August 1998. It was placed under the supervision of Parliament: the president of Parliament is its ex officio president; its secretary-general is elected by the King Prajadhipok’s Institute committee composed of parliamentarians and officials from both houses: ibid art 8. 48 Pramual Rujanaseri, born in 1939, studied political science at Thammasat University before joining the Ministry of the Interior. In 2001, he was elected Member of Parliament under the banner of Thaksin’s Thai Rak Thai Party. He served as Assistant Minister to the Minister of the Interior in Thaksin’s government. 49 Pramual Rujanaseri, พระราชอำ�นาจ [Royal Prerogative] (Sumeth Rujanaseri, 2005). 50 ibid 6. According to the author, this royal remark would have been addressed to Piya Malakul Na Ayutthaya. Piya Malakul Na Ayutthaya, born in 1937, comes from a family with royal lineage (as indicated in the suffix of his name, Na Ayutthaya). His father was ambassador to the UK. He himself studied banking in the UK before returning to Thailand to work in banking and edition.

210  The Rule of Law and Buddhist Kingship declared whose solution is beyond the means provided by the usual, official and legal mechanisms, the Thai Monarchy will always be capable of solving the crisis.51

Pramual stated that his purpose in writing the book was to fill the knowledge gap of Thais vis-a-vis the extra-constitutional role of the King; the King is ‘above the Constitution’ and is not bound by it. Pramual accepted the idea that the 24 June 1932 Revolution led to a ‘decrease in the use of absolute royal power in accordance with the provisions of the Constitution’, but then added that this ‘does not mean in any way that the Constitution has a superior status to that of the King’.52 He also referred to the ‘durable cultural legacy’ of the ‘sixteen Thai constitutions’53 forming the royal customary Rule of Law, acknowledging its military component. According to him, nittirachaphrapheni builds on several principles, including the father–son relationship between the King and the people, the limitation of royal power through dharma, and the political neutrality of the King.54 In line with the views of Dhani Nivat and Seni Pramot, the royal customary rule of law has, according to Pramual, existed since the times of the Kingdom of Sukhothai. More importantly, he claimed that the royal customary rule of law was not only a doctrinal concept, but was also an element of positive law, as it was referred to in Article 7 of the 1997 Constitution: The Thai Royal customary law regarding politics and administration is extensive and old. It is a customary law that reveals the relationship between the Monarchy and the people. As of now, no political scientist from any university has identified the various royal customary laws that can be used in line with Democracy with the King as Head of State. Article 7 of the current Constitution states ‘Whenever no provision under this Constitution is applicable to any case, it shall be decided in accordance with the customs of Democracy with the King as Head of the State’ which means that there is really a royal customary law and that it must be studied and clearly identified. In the history of Thai democracy there have been violent episodes whereby no provision of the constitution applied. The Monarchy applied the old Royal Customary Law in a proper manner and it became a sort of political culture.55

The book was very well received, especially in the legal academic field. Only three intellectuals, all historians by training, came out to criticise the argument proposed by Pramual.56 Others found it so compelling that they organised a seminar in its honour, with the most notable law professors being invited to

51 ibid preface. 52 ibid 49. 53 ibid 52. 54 ibid 31–38. 55 ibid 32. 56 See the online symposium organised by the Midnight University in September and October 2005 featuring blog posts by Somsak Jiemteerasakul and Tongchai Winnichakul. Somsak Jiemteerasakul, ‘บทวิจารณ์หนังสือเรื่อง’พระราชอำ�นาจ’ [‘A Critique of the Book ‘Royal Prerogative’] (Midnight University, 10 September 2005); Thongchai Winnichakul, ‘วาทกรรมพระราชอำ�นาจหรือประชาธิปไตยแบบคิดสั้น’ [‘The Discourse on Royal Power or Short-Sighted Democracy’] (Midnight University, 1 October 2005). Unfortunately, these are no longer available online.

From US-Style Judicial Activism to ‘Judicialisation’  211 join in with the praise. The ‘Royal Prerogative of the King’ seminar, held on 6 September 2005 at the Faculty of Law at Thammasat University, in the presence of the author, featured interventions by Surapon Nitikraipot, law professor and President of Thammasat University, Surayud Chulanont, then-King’s Privy Councillor and future head of the 2007 military junta, and Nakharin Mektrairat, Dean of Thammasat’s Faculty of Political Science.57 The seminar itself was an important event, making the news headlines as it launched a wider academic movement criticising Prime Minister Thaksin (freshly re-elected in February 2005 with an overwhelming absolute majority of 350 seats out of 500) for increasingly encroaching upon the royal prerogative.58 As the following year marked the sixtieth anniversary of the King’s accession to the throne, legal scholars produced an impressive number of publications glorifying the monarchy. Within the context of intensified street protests against Thaksin’s alleged disrespect for the Monarchy and corruption, Thai universities, Parliament, the courts, the Council of State and King Prajadhipok’s Institute joined in the praise – a tradition already long established, but whose deployment reached unprecedented heights that year – 60 being a very auspicious anniversary.59 Both the Thammasat and Chulalongkorn Faculties of Law published their own edited volumes to celebrate the King’s 60 years on the throne. Bowornsak, Meechai, Wissanu, and Thongthong were prominently featured in the Chulalongkorn volumes, while Thammasat University had contributions from Kittisak Prokati and Sawaeng Boonchalermwiphat.60 Nakharin authored his own book, The King Who Gave Us Democracy.61 In June 2006, Bowornsak also published his own book glorifying the monarch, entitled Ten Principles of a Righteous King and the King of Thailand,62 part of which was devoted to identifying Thai constitutional conventions and

57 Sumeth Tantiwechakul, Secretary-General of the Chai Pattana Foundation and head of the Thammasat University Council, Kaewsan Athibodi, member of the Senate, as well as the author. See Thanapol Eawsakul, ‘พระราชอำ�นาจมีจริง’ [‘There is Really a Royal Prerogative’] (2005) 3 Samesky Journal 192. 58 ‘Academic Forum Debates Royal Powers’, Bangkok Post, 6 September 2005, reproduced in Nicholas Grossman (ed), Chronicle of Thailand: Headline News since 1946 (Bangkok Post, 2009) 388. It referred notably to Thaksin’s earlier decision to declare an emergency in the Deep South without consulting the King beforehand. 59 The major doctrinal books about the powers of the King were, incidentally or coincidentally, published in anniversary years: Thanin Kraivichien in 1976 (the thirtieth anniversary of the King’s accession to the throne), Thongthong Chandransu in 1986 (the fortieth anniversary of the King’s accession to the throne). Dhani Nivat’s seminal lecture was published in 1946, the very year of the King’s accession to the throne. 60 Thammasat University Law Faculty (ed), รวมบทความทางวิชาการ เนือ่ งในวโรกาสทีพ่ ระบาทสมเด็จพระเจ้าอยู่หัวภูมิพลอดุ ลยเดชมหาราชทรงครองสิริราชสมบัติครบ 60 ปี [Collection of Academic Articles on the Occasion of the Sixtieth Anniversary of the King’s Accession to the Throne] (Thammasat University Press, 2008). 61 Nakharin Mektrairat, พระผู้ทางเกล้าฯ ประชาธิปไตย: 60 ปีสิริราชสมบัติกับการเมืองการปกครองไทย [The King Who Gave Us Democracy: 60 Years of Reign and the Thai Politics and Administration] (Thammasat University Press, 2006). 62 Bowornsak Uwanno, ทศพิธราชธรรมกับพระมหากษัตริย์ไทย [Ten Principles of a Righteous King and the King of Thailand] (Chulalongkorn University Press, 2006).

212  The Rule of Law and Buddhist Kingship continuing the process of distancing the Thai monarchy from the British model. According to Bowornsak, the letter of the Thai Constitution was relatively similar to what a codified version of the British monarchy would look like, but it was constitutional conventions that set the two monarchies apart, for instance, with regard to the different exercises of veto. Quoting British jurists such as Dicey and Jennings, and referring frequently to Bagehot, Bowornsak argued that totsaphitrajadharma regulated the Thai monarchy through specific ‘constitutional conventions’ that had developed gradually since the times of the absolute monarchy. He defined the concept of constitutional convention in the following terms: ‘The Convention of the Constitution refers to practices which have been transmitted throughout the years until they became consensus and created a sentiment of obligation (opinio juris); they have a normative dimension, but they cannot be invoked before a court of justice.’63 He then applied the concept of constitutional convention to the interpretation of the King’s veto. According to past and current Thai constitutions, the King’s veto was only suspensive: the King could only delay the promulgation of the law twice before the Prime Minister could promulgate it without royal sanction.64 But in reality, Parliament had never, throughout the reign of Bhumibol Adulyadej, overcome the King’s veto. Therefore, according to Bowornsak, the Thai constitutional convention stated, in contrast to British conventions, that royal veto, albeit written as suspensive, was in fact absolute: It has become accepted custom in Britain that a monarch will not refuse to give royal assent to the bills which the Parliament has approved … The same case would not apply to Thailand because a Thai monarch has the royal prerogative in accordance with the Constitution (Section 94) to block a bill … For this reason, it cannot be assumed that Thailand shares with Britain the same convention of the constitution that the monarch will never refuse royal assent because practices and consensus on this issue differ in the two countries. It can be argued, however, that if a Thai king refuses royal assent to a flawed bill, then the National Assembly will not reaffirm that bill.65

Bowornsak reproduced the metaphor given by Jennings of the written Constitution being a skeleton, with the conventions being its ‘flesh and blood’: ‘With regards to the dasarajadharma, [totsaphit-rajadharma] it is clear that the original objective has been to restrain the enormous royal prerogative of the King under the absolute monarchy system. However, His Majesty the King has impeccably turned this set of principles into “flesh and blood that envelop the skeleton” of a democratic constitution.’66 Bowornsak’s book on the Ten Principles of a Righteous King tied together the global discourses on constitutionalism, the Rule of Law and good governance with the Buddhist kingship

63 ibid

17. 94 of the 1997 Constitution and art 151 of the 2007 Constitution. 65 Bowornsak (n 62) 19. 66 ibid. 64 Article

From US-Style Judicial Activism to ‘Judicialisation’  213 dharmaraja doctrine, and the exceptional persona of King Bhumibol, all by relying on the concept of constitutional conventions: The aim of this article is to demonstrate that ever since His Majesty the King uttered his Accession Oath, He has lived this Oath throughout the 60 years’ period of His reign and, by so doing, has transformed the ten principles of dasarajadhamma [the Ten Principles of a Righteous King] from religious and moral principles into constitutional principles and practice, or ‘Conventions of the Constitution’, of a modern-day democracy, compatible with the principle of constitutional monarchy.67

According to Bowornsak: ‘The dhamma principles of administration born over 2,500 years ago therefore remain contemporary in their essence and are nicely compatible with democracy, [a] new concept of administration and globalized society. Such demonstrates that these dhamma principles are universal, long-lasting and never outmoded’.68 Furthermore, the 10 Virtues of a Righteous King informed not only Thai constitutional conventions governing the royal prerogative, but also the entire conduct of the Thai bureaucracy, which looked up to the King as a role model: [The King’s] practices have also turned the dasarajadharma principles into principles for public and civil management for administrators at all levels in the public, private and civil society sectors and eventually social principles for all members of society. In all, His Majesty the King has made the religious and moral principles of more than 2,500 years ago contemporaneous for the age of globalisation and not less universal than good governance, the principle which the World Bank only highlighted and used in its present meaning for the first time in 1989.69

Yet he pointed out that the World Bank’s concept of ‘good governance’ was inferior to the much older principles of dharma, noting ‘the profundity of the concept of dasarajadharma and its superiority to the Western concept of good governance’.70 In the same vein, he suggested that the Kingdom of Sukhothai had perhaps created the ‘first Ombudsman’ in the history of the world: King Ramkamhaeng.71 In any case, he described royal power ‘according to royal customary Rule of Law’ (phrarachaamnat tam nittirachaphrapheni) as limited and fair, being righteous by nature: The King stresses in particular honesty, integrity, truthfulness, morality and ethics. Therefore, many often look for guidance from His discourses and speeches, which not only reflect His strict adherence to the principle of avirodhana [­righteousness] and promotion of this principle, but also His quality as a ‘teacher’ who guides others, both the constitutional organs and the people, to a correct way. There is no law

67 ibid 6. 68 ibid 74. 69 ibid 6, referring to World Bank, Sub-Saharan Africa: From Crisis to Sustainable Growth (World Bank, 1989). 70 Bowornsak (n 62) 74. 71 ibid 73.

214  The Rule of Law and Buddhist Kingship which requires those listening to His discourses and speeches to act accordingly … The King’s conduct in this regard, besides being consistent with dasarajadharma, is also fully consistent with the principles of democracy with constitutional monarchy of the modern day.72

For this reason, the King progressively became ‘the supreme arbiter and the conciliator of the nation’73 towards whom people and constitutional organs would defer whenever there was a crisis. The doctrine was established based on the precedent of the 1973 and 1992 royal interventions, neither of which was, according to Bowornsak, extra-constitutional.74 According to him, the appointment by the King of Sanya Thammasak as Prime Minister in 1973 was in accordance with the 1972 Constitution, as the act was countersigned by the vice-president of the National Assembly. Likewise, the royal dissolution of the National Assembly and the appointment of a new assembly in the same year was constitutional, as it had been countersigned by the (royally appointed) prime minister. The same applied to the 1992 royal appointment of Anand Panyarachun: the use of royal prerogatives was always in conformity with the dispositions of the Constitution of the day. Besides, in times of crisis, the righteous King had a special role to play: Because all of the King’s royal discourses and speeches are consistent with the principle of righteousness (avirodhana) in the dasarajadharma, when the country meets with crises and the constitutional organs as efficient parts cannot resolve the problems, the people will look for guidance from the King’s Royal remarks. Once the King speaks, all sides will wholeheartedly act accordingly.75

Bowornsak’s book also suggested that engaging in judicial activism was an act of loyalty to the King. Indeed, he identified the ‘Royal remarks of 25 April 2006’,76 in which Bhumibol had urged high court judges to become activists and step in to solve the Thai political crisis, as one key example of the King offering his royal ‘guidance’; therefore, loyalty to the King entailed engaging in or at least supporting judicial activism.77 The book was well received in academic

72 ibid 24. 73 ibid 26. 74 ibid 31–33. 75 ibid 26. 76 พระราชดำ�รัสในโอกาสที่พระราชทานพระบรมราชวโรกาสให้ประธานศาลปกครองสูงสุด (นายอักขราทร จุฬารัตน) นำ�ตุลาการศาลปกครอง สูงสุด เฝ้า ฯ ถวายสัตย์ปฏิญาณก่อนเข้ารับตำ�แหน่งหน้าที่ ณ วังไกลกังวล [Royal speech on the occasion of the President of the Supreme Administrative Court (Akharaton Chularath) bringing the Supreme Administrative Court’s judges to swear their oath of allegiance before starting their duty, delivered at the Far From Worry Palace], 25 April 2006; พระราชดำ�รัสในโอกาสที่ประธานศาลฎีกา (นายชาญชัย ลิขิตจิตถะ) นำ�ผู้พิพากษาประจำ�ศาล สำ�นักงานศาลยุติธรรม เฝ้าฯ ถวายสัตย์ปฏิญาณก่อนเข้ารับหน้าที่ ณ วังไกลกังวล [Royal speech on the occasion of the President of the Supreme Court (Chanchai Likithchitha) bringing the Supreme Administrative Court’s judges to swear their oath of allegiance before starting their duty, delivered at the Far From Worry Palace], 25 April 2006. 77 Bowornsak referred to three cases in which the King offered his ‘royal guidance’ in times of crisis: ‘the incident on 14 October 1973, the Black May incident in 1992, and the Royal remarks of 25 April 2006’; Bowornsak (n 62) 26.

From US-Style Judicial Activism to ‘Judicialisation’  215 circles and the press, as public intellectuals were already partaking in the advocacy of judicial activism in the name of constitutionalism, the Rule of Law and the King. Among them, public intellectual Thirayuth Boonmee imported the concept of ‘judicialisation’ from ‘Europe and the US’, which he later translated as ‘tulakanphiwat’ and defined as follows: [Judicialisation] is a way to understand judicial power as having an expanded role. [This] is what European countries, referring to the process of [judicial] control of administration call judicialisation of politics [in English] and what the United States of America, referring to the [judicial] power of control of the executive, legislative and judicial power, call the power of judicial review [in English]: the judicial power truly and zealously comes in to control the legislative process and the exercise of power by politicians.78

According to Thirayuth, judicialisation was a progressive concept adopted by Western democracies in line with thick interpretations of democracy and the Rule of Law. To him, ‘judicialisation’, a natural consequence of the introduction of a constitutional court, constituted the best answer to the ‘dictatorship of Parliament’. Thirayuth associated the tulakanphiwat phenomenon with modernisation and democratisation, good governance and the Rule of Law. As such, it was a highly desirable development in the present state of Thai politics. It resonated well with the concerns of Amorn and others, for whom the attempts to neutralise the ‘dictatorship of Parliament’ through the 1997 Constitution had gone wrong as Thaksin’s Thai Rak Thai Party had managed to secure an absolute majority in Parliament, an unprecedented event in Thai political history. This constituted a return to a parliamentary dictatorship and an unacceptable abuse of the Constitution; as such, it justified judicial activism. To fit the times, the old-fashioned concept of the ‘dictatorship of Parliament’ was updated to the more global term of ‘electoral’ or ‘democratic’ authoritarianism,79 with the underlying narrative that the Rule of Law should trump democratic majoritarianism. Opponents of Thaksin saw there an opportunity to tie their anti-majoritarian, anti-election discourse to the concept of the Rule of Law.80 This rhetoric was espoused by members of the military and judiciary, as well as legal academics holding political positions as a means to move away from or to turn directly against Thaksin. In May, the Constitutional Court cancelled Thaksin’s re-election,81 in June, Bowornsak resigned from his position in the Cabinet to enter the Buddhist monkhood (Wissanu also resigned from his

78 Thirayuth Boonmee, ตุลาการภิวัตน์ (Judicial Review) [Judicialisation (Judicial Review)] (Winyuchon, 2006). 79 See, for instance, Thitinan Pongsudhirak, ‘Thailand: Democratic Authoritarianism’ (2003) 1 Southeast Asian Affairs 277. 80 See Eugénie Mérieau, ‘Anti-election Discourses: Vote-Buying and Populism’ in The Politics of (No) Elections in Thailand (White Lotus Press, 2016). 81 คําวินิจฉัยศาลรัฐธรรมนูญ ๙/๒๕๔๙ [Constitutional Court Ruling 9/2549], 8 May 2006.

216  The Rule of Law and Buddhist Kingship position of Deputy Prime Minister at the same time)82 and in September, while Thaksin was attending the UN General Assembly meeting in New York, the military seized power in a ‘good coup’83 undertaken to restore constitutionalism, the Rule of Law and DKHS. The junta handpicked a constitution-drafting committee composed of pro-judicialisation jurists, such as Somkit Lertpaithoon, Vicha Mahakun and Jaran Phakdithanakul, trained in France, Thailand and the UK, respectively. The aim was to correct the weaknesses of the 1997 Constitution, which, to them, had failed in its mission to tame Parliament. Somkit explained that the intention of the 2007 Constitution was to expand judicial power as a means to solve the ‘uniquely Thai’ circumstance of parliamentary dictatorship: ‘[in Thailand there is] the problem of a parliamentary dictatorship in which the governing political party [holds] absolute control in the parliament, result[ing] in the legislative-executive checks and balances mechanisms skewed and thrown off the balance’,84 while Noranit Settabutr added that ‘in the five years during which the Thai Rak Thai Party led the one-party government, the Opposition was not even once able to open a House debate for a vote of no-confidence against the Prime Minister’.85 Other Constitution-drafters, in particular the career judges, notably Vicha and Jaran, proposed involving judges even further in the control of political processes, going as far as to propose replacing most elections with judicial appointments. Vicha declared: ‘We all know elections are evil.’86 As one of the drafters of the 2007 Constitution, he succeeded in suppressing the elected Senate to replace it with a half-appointed body selected by a panel dominated by judges. To support his argument, he referred to the trust that the King placed in the judiciary: ‘To elect senators is a problem, as seen in the past … If you do not want judges in the senators selection committee although His Majesty endows his trust in judges, then [doesn’t it mean that] you are disloyal to Him?’87 In accordance with the wishes of its drafters and perhaps thanks to the force of the ‘royal trust’ argument, Thailand’s top judges were mandated by the 2007 Constitution to select and be members of independent constitutional organs, as well as take part in the appointment of Senate, all in the name of the King, and with the aim of terminating the ‘dictatorship of Parliament’ by enforcing ‘the Rule of Law’.

82 ‘บวรศักดิ์ลาบวช’’ [‘Bowornsak Resigns to Enter Monkhood’], Prachatai, 7 June 2006. 83 Michael K Connors and Kevin Hewison, ‘Introduction: Thailand and the “Good Coup”’ (2008) 38 Journal of Contemporary Asia 1. 84 Somkit Lertpaithoon, ‘The Origins and Spirit of the 2007 Constitution’ in Wutthisan Tanchai (ed), Exploring the 2007 Constitution (King Prajadhipok’s Institute, 2007) 18. 85 Noranit Settabutr, ‘The 2007 Constitution and the Second Round of Political reform’ in ibid 44–45. 86 Quoted in ‘Charter Drafter Pans “Evil” Elections’ (The Nation, 27 April 2007). 87 ibid.

From Good Governance to Dharmaraja Governance  217 This intellectual revival of anti-parliamentarism was given its constitutional consecration in the 2007 Constitution. The notion of ‘Rule of Law’ was, for the first time, written into the text of the Constitution88 as nittitham, a compound of the roots ‘law’ and ‘dharma’. Nittitham carried with it the idea of natural law, as opposed to ‘nittirat’, the ‘legal state’, which conveyed a legal positivist, statist reading of the Rule of Law. This was introduced as a second paragraph to Article 3 on sovereignty: ‘The sovereign power belongs to the Thai people. The King as Head of State shall exercise such power through the National Assembly, the Council of Ministers and the Courts in accordance with the provisions of this Constitution. The performance of duties of the National Assembly, the Council of Ministers, the Courts, and the constitutional organs as well as State agencies shall be under the Rule of Law (nittitham).’89 Likewise, the 2007 Constitution introduced, for the first time, a reference to ‘good governance’, pushed by Bowornsak as well as by development scholars from the fields of economics and political science90 using the word ­thammaphiban, which built on the roots ‘dharma’ and ‘administration’, carrying with it the idea of Buddhist ethics and mainstreaming of the Ten Virtues of a Righteous King as practised by Bhumibol to all levels of the State administration. Here too, the dharma-based neologism had beaten a competing neologism also built on the word for dharma, but associating it with the word for ‘State’: thammarat (Just State), which had initially been proposed by Thirayuth.91 Just like nittirat (State of Law), this word did not make it into the Constitution. In accordance with the constitutionally sanctioned neologisms, good governance and the Rule of Law had become associated with dharma and in particular with the Buddhist kingship doctrine of dharmaraja. III.  FROM GLOBAL DISCOURSES ON THE RULE OF LAW AND GOOD GOVERNANCE TO THE DOCTRINE OF DHARMARAJA GOVERNANCE

The dharmaraja, ‘Buddhicised’ version of global concepts of the Rule of Law, good governance and constitutionalism spread largely in Thai legal circles, while Bowornsak’s legal conceptualisation of the King’s royal prerogative according to the ‘constitutional conventions’ of DKHS became mainstream 88 It had appeared before in the preamble to the 1974 Constitution and the 2006 interim Constitution. 89 Article 3 of the 2007 Constitution. 90 The government of Chuan Leekpai asked Thailand’s Development Research Institute (TDRI) to work on a blueprint for ‘good governance’. The TDRI finalised its blueprint 1999, which became a Royal Decree in 2003 under the Thaksin government. See Bidhya Bowornwathana, ‘Importing Governance into the Thai Polity: Competing Hybrids and Reform Consequences’ in B Bowornwathana and C Wescott (eds), Comparative Governance Reform in Asia: Democracy, Corruption, and Government Trust (Emerald Group Publishing, 2008). 91 Thirayuth Boonmee, ‘Good Governance : A Strategy to Restore Thailand’ in Duncan McCargo (ed), Reforming Thai Politics (NIAS, 2002) 29.

218  The Rule of Law and Buddhist Kingship constitutional thought. This transpired notably in The Monarchy in the System of Democracy, a book commissioned by the National Legislative Assembly appointed by the military,92 the aim of which was to justify, a posteriori, judicialisation of politics and the 2006 coup by framing it into a Buddhist-royalist and legalistic discourse. Contributors included Bowornsak, Wissanu, Thongthong and Nakharin, among others. It opened with the theme of ‘the King and the Government in the Democratic System in times of crisis’.93 Within that theme, one chapter, by Meechai, dealt with ‘Monarchy and Democracy’. This explained how Thailand’s luck, ‘a luck unique in comparison to other countries’, was that all Thai kings, whether absolute or constitutional monarchs, had always ruled according to Buddhist ­kingship doctrines94 and how because Prajadhipok had unilaterally octroyed the 1932 Constitution to the people (the interim Constitution bearing the sole signature of the King), the monarchy remained to date the source (thi ma) of the Constitution.95 Besides, Meechai’s writing reflected and reproduced a doctrinal shift from ‘judicial activism in the name of the Rule of Law’ into ‘judicialisation in the name of the King’: It seems that the tribunals are the only independent organs; but because tribunals exercise power in the name of the King, when the country is confronted with a crisis, and that the other organs are in a stalemate, the monarchy uses the tribunals to deal [with the crisis] – this is what we call tulakanphiwat [judicialisation] and which ­operates thanks to the link [between the monarch and the judges]. This also protects the monarchical institution – so that it is not [directly] involved in politics.96

Judicialisation was increasingly seen as a means of conflict resolution based on the model of royal intervention. Judges, as images of the King (himself an image of Lord Buddha), took on the duty to solve conflicts by upholding the dharma. In 2009, King Prajadhipok’s Institute organised its Annual Congress on ‘Conflict Resolution and the Reform of the State’, holding several panels on ‘tulakanphiwat’ [judicialisation] and ‘tulakantipatai’ [juristocracy].97 ‘Judicial activism’ was identified as a potential solution to the political crisis. According to this construction, it belongs to the judges, in the name of the King, to solve any 92 National Legislative Assembly (ed), พระมหากษัตริย์ในระบอบประชาธิปไตย [The Monarchy in the System of Democracy] (National Legislative Assembly, 2007). 93 Other sections included ‘The Thai Monarch and International Relations in the Democratic System’ and ‘the King and Grassroots Democracy’; ibid 61, 97. 94 Meechai Ruchupan, ‘พระมหากษัตริย์ตามรัฐธรรมนูญ’ [‘The King According to the Constitution’] in ibid 5. 95 ibid: ‘During the 24 June 1932 Revolution, although the People’s Committee had changed the system of absolute power, it did not draft a constitution but asked King Rama VII to octroy a constitution. Thus, the first constitution, that we call the 1932 interim constitution of Siam, was promulgated by the king, whose signature was not countersigned.’ 96 ibid 7. 97 King Prajadhipok’s Institute (ed), ความขัดแย้ง ความชอบธรรม และการปฏิรูประบบรัฐ : การจัด สรรผลประโยชน์ที่เป็นธรรมใน สังคมไทย [Conflict, Legitimacy and Government Reform: Equitable Allocation of Resources in Thai Society] (King Prajadhipok’s Institute, 2009). Panel number 3 on judicial power/judicial activism included articles from Prasith Piwawattanaphanich and Udom Rattaomrith.

From Good Governance to Dharmaraja Governance  219 crisis threatening DKHS, even if this implies violating the Constitution or the existing positive law. Several booklets on ‘The King’s Philosophy of Law’ were compiled from royal speeches and distributed widely. These emphasised the King’s preference for principles of natural justice over the strict application of the law and re-affirmed the King’s special relationship with judges.98 The years leading to the 2017 Constitution were times of frenzy intellectual escalation towards the fusion of all these concepts (Buddhist kingship, the Rule of Law, good governance and constitutionalism) under the umbrella of DKHS. In 2009, Bowornsak led the way with the publication of Lèse Majesté: A Distinctive Character of Thai Democracy amidst the Global Democratic Movement,99 in which he linked DKHS to Buddhist kingship, the Rule of Law, good governance, constitutionalism, lèse-majesté and the figure of Bhumibol Adulyadej. In particular, Bowornsak established a link between Article 8 of the Constitution on the King’s inviolability and Article 112 of the Penal Code on lèse-majesté through the idea of the King as a dharmaraja: The bond between the Thai monarchy and the Thai people is unique. It is not one between the Head of State as a political institution and the people as holders of sovereign power. It is a special relationship with certain characteristics that may be difficult for foreigners to appreciate … This is the basis of a provision which appears in every Thai constitution – that ‘The person of the King shall be enthroned in a position of revered worship and shall not be violated. No person shall expose the King to any sort of accusation or action’ (Section 8 of the present Thai Constitution) … When the Thai King is unfairly criticized, most Thais feel like their own parent is being attacked and cannot accept it – much in the same way that Thais do not accept anyone demeaning the Buddha or even statues that represent him.100

Thus, the lèse-majesté law was tied to a wider understanding of the King as being a ‘father’ and a dharmaraja.101 To Bowornsak, the lèse-majesté law reflected 98 Udomphon Amontham (ed), ปรัชญากฎหมาย พระเจ้าอยู่หัว: ยอดแนวคิดทางกฎหมายจากพระประมุขผู้ทรงเป็นปราชญ์ [The King’s Legal Philosophy] (Saeng Dao, 2007). See also Likhit Thiravekin, ความถูกต้องตามกฎหมาย (Legality), ความชอบธรรมทางการเมือง (Legitimacy) และธรรมแห่งอำ�นาจ (Moral Authority) [Legality, Legitimacy, and Moral Authority] (Thammasat University Press, 2013). 99 Bowornsak Uwanno, Lèse Majesté: A Distinctive Character of Thai Democracy amidst the Global Democratic Movement (King Prajadhipok’s Institute, 2009). 100 ibid 33. It must be added that in 1997, when he was Secretary-General of the Constitution-Drafting Assembly, Bowornsak was asked to give his views on the link between art 8 and lèse-majesté. Members of the Constitution-Drafting Committee had proposed adding a mention of lèse-majesté to art 8 of the Constitution as follows: ‘The person of the King is inviolable and sacred. He cannot be exposed to any accusation, lèse-majesté [du min] or criminal proceedings.’ Thongthong and Bowornsak argued against such a proposal as it was already implicit – in the event of doubt, they stated, the Constitutional Court would eventually have to solve the question. รายงานการประชุมคณะกรรมาธิการพิจารณาร่าง รัฐธรรมนูญ 2540 [Constitution-Drafting Committee Minutes], 11th session, 9 June 1997, p. 69–70. 101 Bowornsak (n 99) 24: ‘It is clear from the above that the Thai Criminal Code classifies offences of insult or defamation in accordance with the status of and relations among persons in line with ethical norms in Thai society. This has made Thai laws different from those of other countries in a number of respects. For instance, deliberate homicide (Section 288) is punishable by death, life imprisonment, or imprisonment for 15 to 20 years, while murdering an ascendant (e.g. parents and

220  The Rule of Law and Buddhist Kingship Thai culture;102 his understanding of ‘law as a mirror of culture’ contrasted with the legal positivism of the previous generation of jurists (such as Yut SaengUthai) and established him clearly as a proponent of the historical school of jurisprudence as well as an advocate of Buddhist natural law principles. In the same year, Thanin Kraivichien published a short book entitled The Rule of Law,103 which likewise criticised legal positivism and advocated for a return to the historical school of jurisprudence and the principles of Buddhist natural law. He defined the Rule of Law as being in opposition to the type of legal positivism practised in the UK: In the UK, they adhere to the principle of ‘Justice according to the law’ [in English in the text] whereby the law is equivalent to justice: even though the law creates injustice, the courts will have to interpret the law strictly … I strongly disagree with the principle of rendering justice according to law; if the law conflicts with justice, we should hold that justice prevails over and pre-exists the law.104

Thanin therefore tied the idea of the Rule of Law to a specific practice of judicial interpretation: the rejection of textualism and, presumably, of judicial precedent. He was indeed fascinated by the controversial English judge Lord Denning, who was known for his habit of ‘always re-making the law’105 while disregarding precedent (in the name of ‘fairness’) – he had earlier written an influential book about Denning’s life and ideas.106 And what is the Rule of Law in the Thai context? According to Thanin, it is derived from avirodhana or ‘righteousness’, the tenth Virtue of a Righteous King: ‘Avirodhana is the root of the Thai principle of the Rule of Law’.107 Thanin’s short book also linked the Rule of Law to karma and to other Buddhist principles;108 it immediately became the standard textbook on the subject, notably among Constitutional Court justices. The Constitutional Court, relying on Thanin’s definition of the ‘Rule of Law’, produced multiple publications on the theme, fusing ideas of the Buddhicised Rule of Law, judicialisation and royal doctrine, often inviting the King’s Privy Councillors to contribute pieces in its journal.109 In 2013, it grandparents), an official in the exercise of his or her duties, etc. (as specified under Section 189) carries a mandatory death sentence. This is because in Thai society, parricide is, based on its religious and ethical norms, an unforgivable sin and the gravest act of ingratitude.’ 102 ibid 23. 103 Thanin Kraivichien, หลักนิตธิ รรม [The Rule of Law] (Office of the Civil Service Commission, 2009). 104 ibid 20. 105 ‘Lord Denning, Controversial “People’s Judge”, Dies Aged 100’, The Guardian, 6 March 1999. 106 Thanin Kraivichien, นักกฎหมายในอุดมกตี [Judges with Convictions] (Thai Bar, 2001). This book focuses on the life and work of four ‘judges with convictions’: Sanya Thammasak, Phraya Anthakariniphon, Tom Denning (Lord Denning) and Oliver Wendell Holmes. 107 ibid 28. 108 ibid 52. 109 For instance, Anthanithi Ditaamnat, ‘พระบาทสมเด็จพระเจ้าอยู่หัวกับการทรงใช้พระราชอำ�นาจตามรัฐธรรมนูญ’ [‘The King and the Exercise of the Royal Prerogative in Accordance with the Constitution’] (2011) 39 Constitutional Court Journal 7. Anthanithi Ditaamnat (อรรถนิติ ดิษฐอำ�นาจ) was appointed to the Privy Council on 16 August 2007; he had been trained in law at Thammasat University and at Harvard Law School, before embracing a career first in the judiciary and then at the Council of State, all the while teaching law at Chulalongkorn University.

From Good Governance to Dharmaraja Governance  221 published an influential book on the Rule of Law under DKHS,110 in which the Rule of Law was understood as natural justice/Buddhist kingship/dharma. As part of this process, some royal quotes resurfaced opportunistically to become the motto of the entire profession of the judiciary, such as that of 7 August 1972: ‘The law is a mere tool in the service of justice; consequently it cannot be considered as more important than justice; justice pre-exists law and is superior to law’111 or that of 29 October 1981: ‘The law is not justice. It is merely a tool to uphold and administer justice, not a tool to safeguard the text of the law itself. To uphold and administer justice in the Land, one should not only be circumscribed by the law, but should expand beyond into the realm of morality (silathamcharaya).’112 These quotes taken from royal speeches to lawyers or law students were added to training materials for the judiciary and were printed in bold letters in various bestselling books. The principle of natural law or natural justice linked to Buddhist kingship was increasingly returning as both an ideology and a guiding principle of judicial interpretation. In the following year, the King Prajadhipok’s Institute organised its annual Congress on the theme of the dharmaraja, with contributions from the Secretary-General, Bowornsak, as well as Wissanu and Nakharin as guests. On 8–10 November 2013, two and a half days were dedicated to discussing, in plenary sessions and panels, how well Rama IX compared to: Emperor Ashoka of India,113 King Ramkamhaeng of the Sukhothai Kingdom,114 Plato’s ‘Philosopher King’115 and Barack Obama,116 among others. The edited volume of the Congress starts with the following introduction: [The] Dharmaraja, as a King who gives happiness to the people through His Virtue, governs by the Dharma at three levels: first, the King and the administrators must act in accordance with the dharma notably through the exercise of the 10 royal virtues, etc.; second, the King must lead the people towards behaving in a virtuous manner; and third, the competition with the other countries must be won through virtue or virtuous battle and not with weapons or strategic battles. The Thai Monarchy has

110 Constitutional Court (ed), ศาลรัฐธรรมนูญภายใต้หลักนิติธรรมในการปกครองระบอบประชาธิปไตยอันมีพระมหากษัตริย์ทรงเป็นป ระมุข [The Constitutional Court under the Rule of Law in the Democratic System with the King as Head of State] (Office of the Constitutional Court, 2013). This publication is 571 pages long. 111 พระบรมราโชวาทในพิธพี ระราชทานประกาศนียบัตรแก่นกั ศึกษาของสำ�นักอบรมศึกษาฎหมายแห่งเนติบณ ั ฑิตยสภา [Royal speech on the occasion of the granting of diploma to graduates of the Thai Bar Training Centre], 7 August 1972. 112 พระบรมราโชวาทในพิธีพระราชทานประกาศนียบัตรแก่ผู้สอบไล่ได้วิชาความรู้ชั้นเนติบัณฑิตยสภา [Royal speech on the occasion of the granting of diploma to students accepted to the Thai Bar], 29 October 1981. 113 Mahinda Deegalle, ‘Visions of the Dharmaraja: Conceptualizations of Just Ruler in Theravada Buddhist Societies in South and Southeast Asia’ in King Prajadhipok’s Institute, ธรรมราชา [Dharmaraja] (King Prajadhipok’s Institute, 2014) 49–75. 114 Pricha Changkhwanyeun, ‘คุณธรรมประจำ�พระราชาสุโขทัยธรรมราชา’ [‘Royal Virtue and the Sukhothai Dharmaraja’] in King Prajadhipok’s Institute (n 113) 95–105. 115 Kritsada Kaewkhlieng, ‘ธรรมราชาในการปกครองระบบประชาธิปไตยของไทยและความคิดแปลโต: ความเหมือนและความแตกต่าง’ [‘Dharmaraja in the Thai Democractic System and Plato’s Philosopher King: Similarities and Differences’] in King Prajadhipok’s Institute (n 113) 195–220. 116 Damien Keown, ‘Barack Obama: American Dhammaraja?’ in King Prajadhipok’s Institute (n 113) 37–48.

222  The Rule of Law and Buddhist Kingship always adhered to these principles which are the foundation of the country’s good governance from the times of Sukhothai until today.117

Most of the articles aimed to demonstrate that King Bhumibol Adulyadej was a true dharmaraja, and that the 10 Virtues of a Righteous King, as practised by kings since the Sukhothai era, was the best way to govern. Researchers who attended the Congress agreed that royal power was a necessary corrective to the ‘dictatorship of Parliament’, corruption, vote-buying and the like. Thus, this Congress marked the revamp of the ‘royal intervention in the name of dharma’ argument. A few months later, the Constitutional Court annulled Yingluck Shinawatra’s re-election118 before dismissing her as Prime Minister;119 in May, the military seized power in a coup, Bowornsak was enrolled in the drafting of a new Constitution, and Wissanu joined the military government as Deputy Prime Minister.120 Following the death of King Bhumibol two years later, a significant portion of the legal academia committed much of its writing time to publishing pieces in the late King’s honour. The Chulalongkorn Law Journal republished its 1987 issue in honour of Rama IX121 and opened it with a poem composed by Bowornsak, dedicated to the King and entitled ‘Words to the Great Dharmaraja’.122 In 2017, Chulalongkorn University invited Bowornsak to give a seminar on ‘Rule of Law: Rule of the King’ in which he spelled out very authoritatively how the Rule of Law derived directly from the 10 Virtues of a Righteous King.123 Since then, King Prajadhipok’s Institute, the Council of State, the Constitutional Court, Bowornsak and Wissanu have continued publishing on the same themes, with a common aim of justifying the necessity of the judicialisation of politics, the ‘lèse-majesté’ law and the royal prerogative, all in the name of the Rule of Law and good governance as incorporated into the renewed legal doctrine of DKHS.124 * At the turn of the twenty-first century, Thai jurists embraced the new constitutionalism, which they Buddhicised and associated with the monarchy. 117 King Prajadhipok’s Institute (n 113) 5. 118 คําวินิจฉัยศาลัฐธรรมนูญ ๕/๒๕๕๗ [Constitutional Court Decision 5/2559], 21 March 2014. 119 คําวินิจฉัยศาลัฐธรรมนูญ ๙/๒๕๕๗ [Constitutional Court Decision 9/2559], 8 May 2014. 120 ประกาศแต่งตัง้ รัฐมนตรี [Announcement on the Appointment of the Council of Ministers], 30 August 2014. 121 Chulalongkorn Law Faculty, ได้เป็นหมอความ [So I Have Been a Lawyer] (Chulalongkorn, 2017). 122 Bowornsak Uwanno ‘มหาธรรมิกราชาศิรวาท’ [‘Words to the Great Dharmaraja’] in ibid. 123 Bowornsak Uwanno, ‘นิติรัฐ: นิติราช’ [‘Rule of Law: Rule of the King’], Chulalongkorn University, 23 January 2017. 124 However, it must be noted that most of these publications are concerned with Rama IX specifically rather than the monarchy as an institution; see, for instance, Wissanu Krea-ngam, ‘พระราชอัจฉริย ภาพทางกฎหมายของพระบาทสมเด็จพระปรมินทรมหาภูมิพลอดุลยเดช รัชกาลที่๙’ [‘The Legal Genius of Bhumibol Adulyadej, Rama IX’] (2017) 3 Chulanitti, Journal of the Senate 77. See also Suphamit Pittipat, จุดเริ่มต้นสถาปนา ‘การปกครองประชาธิปไตย มีพระมหากษัตริย์เป็นประมุข’ [The Origin of the Establishment of ‘Democracy with the King as Head of State’] (King Prajadhipok’s Institute, 2020).

From Good Governance to Dharmaraja Governance  223 They resuscitated the theory of the dharmaraja and made it into a ‘constitutional convention’ embodied by Bhumibol Adulyadej. A handful of jurists, mostly associated with the Chulalongkorn Law Faculty, worked in parallel towards such an end. Established jurists, notably those born in the 1930s and completing their career in the Council of State, such as Amorn and Meechai, saw in the figure of the King the necessary corrective to the ‘dictatorship of Parliament’: they built the concept of DKHS as possessing its own set of customs. The doctrine was elaborated further by the generation of constitutional lawyers born in the 1950s and associated with the King Prajadhipok’s Institute, notably Wissanu and Bowornsak. Career judges such as Vicha and Jaran or academically trained jurists such as Somkit and Noranit also contributed to the validation of the doctrine of the King being above the Constitution by virtue of being dharmaraja, and the judiciary being mandated to exercise the King’s unwritten, extra-constitutional ‘royal crisis powers’ in his name. Periods of intense academic activity on the concept of ‘judicialisation of politics’ and the dharmaraja preceded the 2006 and 2014 coups, respectively, to prepare the ­intellectual ground for their acceptance.

10 From Judicialisation at the King’s Request to Juristocracy under Royal Command

F

ollowing the 1992 ‘Black May’ events, the military was seemingly back in the barracks for good. The King was at the pinnacle of his wealth and at the height of his prestige: he was also the longest-reigning monarch in the world. In 1996, the fiftieth anniversary of his accession to the throne was celebrated by millions of people throughout the kingdom as well as by foreign monarchs, such as British Queen Elizabeth II who paid a five-day visit to Bhumibol.1 The King’s moral credentials were remarkable: he had lived through these 50 years untainted by any sex or corruption scandals – he was a true dharmaraja. Under his care, Thailand was seemingly entering a new era of democratic transition and consolidation, with the King assuming his position as Thailand’s revered constitutional monarch who was truly above politics. As the cult of Rama IX was about to reach its climax, anxieties about the upcoming royal succession were emerging: as a response, the King started to engage in the ‘weaponisation’ of the judiciary against Parliament. I.  JUDICIALISATION AT THE KING’S REQUEST: PRACTICES OF DIRECT AND INDIRECT ROYAL VETOES

On the occasion of the fiftieth anniversary of his accession to the throne, Bhumibol published his first book on Buddhism: it focused on the issue of perseverance, the ninth virtue of a Righteous King.2 The following year, as the Asian Financial Crisis hit Thailand hard, the King called for a return to more ‘Buddhist’ ways of managing the economy: he proposed to adopt a

1 ‘Queen Elizabeth and Prince Philip Visit’, Bangkok Post, 28 October 2006, reproduced in Nicholas Grossman (ed), Thailand News Headlines since 1946 (Bangkok Post, 2009) 333. 2 Bhumibol Adulyadej, พระราชนิพนธ์เรือ่ งพระมหาชนก [The Story of Mahajanaka] (Office of the King’s Secretary, 1996). It tells the story of the last reincarnation of the Buddha as King Mahajanaka who, thanks to his perfect practice of the virtue of perseverance, is reborn as Siddharta, the future Buddha.

Judicialisation at the King’s Request  225 Buddhist-inspired philosophy, which he termed the ‘self-sufficiency economy’.3 This was presented as an indigenous antidote to the ‘cancers’ of greed, immorality and corruption, to be promoted as such by various State institutions, including the Privy Council. The King’s Privy Council had by then become an influential and stable institution, composed primarily of military men and judges, along with other high-ranking bureaucrats.4 In 1998, the King appointed former Prime Minister and Privy Councillor Prem Tinsulanond as President to the Privy Council,5 which endowed him with one of the highest ‘barami’ or karmic forms of moral authority in the kingdom. In March 2000, elections took place for the ‘apolitical’ Senate: electoral campaigning was prohibited and candidates were banned from having any partypolitical affiliation. Although it was an ‘apolitical’ election aiming at recruiting ‘moral’ people, it was nevertheless the first time ever that the Senate had been elected directly by the people. The Senate election was followed in January 2001 by general elections: Thaksin Shinawatra’s newly founded party, the ‘Thai Rak Thai’ Party, won 248 seats out of the 500 seats of the Lower House, and Thaksin became Prime Minister. The Senate, tasked by the 1997 Constitution with appointing members of the various independent constitutional organs, chose the high-ranking royal servant Jaruvan Maintaka as Auditor-General, who was entrusted with the mission of fighting corruption.6 Both Thaksin’s and Jaruvan’s appointments soon were challenged in the newly established and powerful Constitutional Court: Thaksin was alleged to have illegally concealed his assets – these had been registered in the name of his cook and driver, among others – therefore disqualifying him from office, while Jaruvan’s appointment was challenged on the grounds that she had come second in the vote by the State Audit Commission, so her name should not have been forwarded to the Senate for appointment in the first place. In Thaksin’s case, the Court ruled 8-7 in August 2001 that he had committed an ‘honest mistake’ and was therefore found not to have violated the Constitution.7 He was reportedly saved by Prem’s direct intervention on behalf of the Privy Council and therefore ultimately of the King, probably because Thailand needed a strong and savvy Prime Minister to recover

3 พระราชดำ�รัสพระราชทานแก่บุคคลต่างๆ ที่เข้าเฝ้าฯ ถวายชัยมงคลเนื่องในโอกาสวันเฉลิมพระชนมพรรษา [Royal speech on the occasion of the King’s birthday], 4 December 1997. 4 Eugénie Mérieau, ‘The Legal–Military Alliance for Illiberal Constitutionalism in Thailand’ in Björn Dressel and Marco Bünte (eds), Politics and Constitutions in Southeast Asia (Routledge, 2017). 5 ประกาศแต่งตั้งปรมเป็นประธานองคมนตรี [Announcement of the appointment of Prem Tinsulanond as President of the Privy Council], 4 September 1998. 6 ประกาศแต่งตั้งผู้ว่าการตรวจเงินแผ่นดิน [Announcement of the appointment of the Auditor-General], 31 December 2001. She had to resign from civil service to accept the position of Auditor-General, which is a political position. 7 คำ�วินิจฉัยศาลรัฐธรรมนูญ ๒๐/๒๕๔๔ [Constitutional Court, Decision 20/2544], 3 August 2001. See Michael Nelson, ‘Thailand’s House Elections of 6 January 2001: Thaksin’s Landslide Victory and Lucky Escape’ in Michael H Nelson (ed), Thailand’s New Politics (King Prajadhipok’s Institute and White Lotus Press, 2001).

226  From Judicialisation to Juristocracy from the Asian Financial Crisis.8 In Jaruvan’s case, when the Constitutional Court ruled in July 2004 that her appointment was unconstitutional,9 she refused to step down, invoking the King’s support – Jaruvan affirmed that she had been appointed by the King and would only resign by order of the King.10 When in early 2005 the State Audit Commission selected a new AuditorGeneral to replace her, and sent its decision, after confirmation from the Senate, to the King for his signature, Bhumibol exercised his administrative veto and did not sign the decree of appointment. Notably, the Senate’s action to appoint a successor to Jaruvan was interpreted as a clear show of defiance against the King11 – this was even more the case since the Senate had from its inception been envisioned as a chamber to exercise the royal veto instead of the King, or at the very least to prevent the royal veto from being oveturned. This act of rebellion against the King’s wish was strikingly unprecedented and was proof that even when ‘apolitical’, an elected Senate was no royal chamber. Royal support for Thaksin, in contrast to that shown to Jaruvan, soon became muted. Thaksin in fact was losing the King’s support. A few ‘early warnings’ could retroactively be interpreted as such. First, in November 2002, the King had published a bestseller about his dog Thongdaeng; one passage read: ‘Thongdaeng is a respectful dog with proper manners, she is humble and knows protocol. She would always sit lower than the King.’12 Second, in December 2003, in his annual birthday speech, the King had ‘cautioned’ Thaksin on ‘responsibility’ and advised him to know his place.13 However, it was on 4 December 2005, 10 months after Thaksin had been triumphantly re-elected with an absolute majority of 350 seats out of 500, that the King made an overt criticism of him. In his traditional message to the Thai nation on the occasion of his birthday, the King accused the Prime Minister of using the lèse-majesté law and the protection of the monarchy as instruments both to strengthen his

8 Duncan McCargo, ‘Network Monarchy and Legitimacy Crises in Thailand’ (2005) 18 Pacific Review 499, 513; Thitinan Pongsudhirak, ‘The Tragedy of the 1997 Constitution’ in John Funston (ed), Divided over Thaksin: Thailand’s Coup and Problematic Transition (Institute of Southeast Asian Studies, 2009) 33. 9 คำ�วินิจฉัยศาลรัฐธรรมนูญ ๔๔/๒๕๔๗ [Constitutional Court, Decision 44/2547], 6 July 2004. The State Audit Commission appointed the deputy Auditor-General as acting Auditor-General, but this appointment was not enforced. 10 ‘I came to take the position as commanded by a royal decision, so I will leave the post only when directed by such a decision’, quoted in ‘Jaruvan Waits for Royal Word’, The Nation, 9 September 2005. 11 ‘The Thai public has shown an unusual amount of anger towards the Senate because the move to replace the current Auditor-General without the King’s endorsement has been seen as a challenge to the King’s authority.’ US diplomatic cable, ‘Update on Auditor-General Controversy’, 30 September 2005, https://wikileaks.org/plusd/cables/05BANGKOK6240_a.html. 12 Bhumibol Adulyadej, เรื่องทองแดง [The Story of Thongdaeng] (Amarin, 2002). The initial print run of 100,000 copies sold out within a few hours. “Thongdaeng” is a National Sensation’, Bangkok Post, 29 November 2002, reproduced in Grossmann (n 1) 369. 13 ‘King Cautions Thaksin on “Responsibility”’, Bangkok Post, 4 December 2003, reproduced in Grossmann (n 1) 375.

Judicialisation at the King’s Request  227 own power and to weaken the monarchy by politicising it: ‘The Prime Minister wants to put people in jail for criticising the monarch. But in doing that, who gets in trouble? Not the Prime Minister, but the Monarch.’14 This concern of avoiding politicisation seemed to weigh on the King: Under constitutional monarchy, ‘the King can do no wrong’, as they say, as Mister the Privy Councillor likes to say, but when he says ‘the King can do no wrong’, it is actually wrong, it is false, such should not be said. In fact, reading a British constitutional law handbook – the handbook that is often cited by those who study British Law and that our jurists approve – it is written that the ‘King can do no wrong’. But to say that ‘the King can do no wrong’ is very condescending for the King. Why would it be that ‘the King can do no wrong’? If the King cannot ‘do wrong’, this would mean that ‘the King’ is not human – but the King can ‘do wrong’. More importantly, I am the King. … because I do things with consciousness and will not allow myself to do wrong.15

It is unclear what the King really meant by his reference to the British maxim; it is also unclear which British constitutional law handbook he referred to here, although it can be assumed that it was probably, mistakenly, Walter Bagehot’s 1867 The English Constitution.16 In any case, this speech demonstrated not only that the maxim served as a rallying discourse in his own entourage, mostly through the Privy Council, but that the King was engaged in reflections about his status and powers as a constitutional monarch. The year 2006 was to be the sixtieth anniversary of his accession to the throne and it was to be organised by the most popular prime minister ever. However, the year started extremely badly for King Bhumibol: in January, Yale University Press announced the publication of an unauthorised biography of him, written by the American journalist Paul Handley.17 The King Never Smiles documented how Bhumibol had, over his 60-year reign, been heavily involved in politics, especially in encouraging and condoning undemocratic military coups: its main argument was that he was no constitutional monarch. Additionally, Handley’s book suggested that the monarch had possibly caused, accidentally by playing with guns, the death of his thenreigning brother Ananda in 1946, which would make Bhumibol’s rejection of a royal pardon for the three men found guilty of the ‘regicide’ and executed in 1955 by firing squad even more outrageous. Bowornsak Uwanno, then Secretary to Thaksin’s Cabinet, had travelled to New Haven to persuade Yale University Press not to publish the book, but to no avail. It was immediately banned in

14 พระราชดำ�รัสพระบาทสมเด็จพระเจ้าอยู่หัวพระราชทานแก่คณะบุคคลต่าง ๆ ที เ ข้าเฝ้าฯ ถวายพระพรชัยมงคล ในโอกาสวันเฉลิมพระชนมพรรษา [Royal speech on the occasion of the King’s birthday], 4 December 2005. 15 ibid. 16 In this book, Bagehot does not refer to the ‘King can do no wrong’ doctrine, which is found in William Blackstone’s Commentaries on the Law of England initially published by Clarendon Press in 1765. 17 Paul M Handley, The King Never Smiles: A Biography of Thailand’s Bhumibol Adulyadej (Yale University Press, 2006).

228  From Judicialisation to Juristocracy Thailand, but pirated copies, soon translated into Thai, were widely circulated in the kingdom.18 Meanwhile, as controversy was growing over Jaruvan’s continued presence as Auditor-General in spite of the 2004 Constitutional Court ruling, the King once again intervened to support her. He voiced such support during a royal audience with then Prime Minister Thaksin in February 2006; following the audience, Thaksin wrote down the royal remarks in a letter he sent to the State Audit Commission. The Commission organised a new vote, this time in support of Jaruvan, and ‘invited Khunying Jaruvan Maintaka to resume her position as Auditor-General in accordance with the King’s remarks’.19 This event exemplified some of the common practices of Thailand’s monarchy: words exchanged during royal audiences were not kept secret, nor were they intended to be kept secret. The King’s remarks, as reported by the Prime Minister, had authority and produced political effects. In this particular instance, they had the effect of nullifying the 2004 Constitutional Court ruling. The practice of acting upon the King’s wish as reported by the Prime Minister was analysed by some constitutional scholars, such as Bowornsak, as being equivalent to a practice of obeying a royal decree countersigned by the Prime Minister.20 In any case, by reporting the King’s wish to the State Audit Commission, Thaksin participated in his own downfall – Jaruvan had become fiercely anti-Thaksin and was determined to do whatever it took to bring him down for corruption. As allegations of corruption against Thaksin were growing,21 protesters (Jaruvan proudly included amongst them) marched the streets of Bangkok to ask for a direct royal intervention. The protesters requested a ‘royally granted’ prime minister (‘nayok phrarachathan’), invoking the doctrine of ‘customs of Democracy with the King as Head of State’ based on Article 7 of the Constitution.22 The argument divided the legal community between advocates and opponents, but was nevertheless backed by the most powerful professional organisation of lawyers, the Lawyers Council of Thailand.23 The protesters, calling themselves the People’s Alliance for Democracy, dubbed the ‘yellow shirts’ 18 ‘Controversial Biography of the King is Banned’, Bangkok Post, 19 January 2006, reproduced in Grossman (n 1) 391. An account of the incident can be found in David Case, ‘Thais Protest Royal Biography’ (2006) 6 Yale Alumni Magazine 22. 19 Bowornsak Uwanno, Ten Principles of a Righteous King and the King of Thailand (Chulalongkorn University Press, 2006) 23. See also Michael K Connors, ‘Article of Faith: The Failure of Royal Liberalism in Thailand’ (2008) 38 Journal of Contemporary Asia 143. 20 Bowornsak (n 19) 23. 21 On the various cases, see Duncan McCargo and Ukrist Pathmanand, The Thaksinization of Thailand (NIAS Press, 2005). 22 Michael H Nelson, ‘Thaksin Overthrown: Thailand’s “Well-Intentioned” Coup of September 19, 2006’ (2007) 6 Journal of Contemporary Eastern Asia 1. 23 Some jurists called for a royally appointed prime minister without invoking art 7, such as Surapon Nitikraipot, President of Thammasat University, while others, such as Vorajet Pakeerat, refused it. See Chayat Chaiporn, ประเพณีการปกครองระบอบประชาธิปไตยอันมีพระมหากษัตริยท์ รงประมุข: บทวิเคราะห์มาตรา 7 [Customs of Democracy with the King as Head of State: An Analysis of Article 7] (King Prajadhipok’s Institute, 2019).

Judicialisation at the King’s Request  229 for wearing the yellow colour in honour of King Bhumibol, invoked the precedents of the King’s nomination of Prime Ministers Sanya Thammasak and Anand Panyarachun in the 1973 and 1992 crises respectively to request a royally granted prime minister through a dika, a royal petition. In March 2006, a group of 100 high-profile individuals, led by Jaruvan, filed a dika with the King, which was officially received and accepted by the King’s Private Secretary.24 In February, Thaksin had dissolved Parliament and called for early elections, which took place in early April. The opposition Democrat Party, together with other smaller parties, boycotted the poll; as a result, in several constituencies, Thaksin’s party ran uncontested. According to the election law, in the event that only one political party stands in an election, in order for the election to be valid, the party must win at least 20 per cent of the vote,25 a threshold that the party failed to achieve in many constituencies. Nevertheless, Thaksin received 16 million votes in total; he appeared triumphantly on TV to claim his victory and thank his supporters for such an overwhelming show of support. He was summoned to the palace shortly afterwards for an audience with King Bhumibol; 24 hours after his triumphant speech, he appeared again on TV to announce his resignation as Prime Minister.26 What happened during this royal audience? Earlier, Thaksin had announced: ‘The only person who can tell me to quit is His Majesty the King. If His Majesty whispers to me, “Thaksin, please leave”, I’ll go.’27 As a result, pending new elections, Thaksin became caretaker Prime Minister. A few days after his audience with Thaksin, the King held two separate audiences for judges in his Hua Hin ‘Far From Worry’ summer residence: the first with the judges of the Supreme Administrative Court and the second with the judges of the Supreme Court. In both audiences, the King suggested that the courts should intervene to solve the crisis in his name. This echoed an earlier speech, in which he warned newly appointed judges ‘when you do not perform well, because you rule in my name, you dishonour me, and put the monarchy in trouble’.28 On 25 April 2006, he addressed the judges of the Supreme Administrative Court in the following terms: Your oath of loyalty is very important because it is very broad. The duty of a judge, as a person involved in governance, is very broad. You might think that, as Administrative Court judges, your duty is not that broad – but it is, very much. 24 ฎีกาขอนายกรัฐมนตรีพระราชทาน [Petition to the King to ask for a royally granted prime minister], 5 March 2006. The petition was signed by Jaruvan as well as prominent intellectuals such as Chai-Anan Samudavanija and prominent high-ranking royal servants such as Klanarong Chantik, former Secretary-General of the National Counter-Corruption Commission, and members of the Senate. 25 พระราชบัญญัติประกอบรัฐธรรมนูญว่าด้วยการเลือกตั้งสมาชิกสภาผู้แทนราษฎรและสมาชิกวุฒิสภา พศ 2541 [1998 Organic Constitutional Act on the Election of the House of Representatives and the Senate], article 74. 26 ‘PM Would Go Only if King Tells Him’, Bangkok Post, 5 February 2006. Kasian Tejapira, ‘Toppling Thaksin’ (2006) New Left Review 5, 5. 27 ibid 9. 28 พระราชดำ�รัส ในโอกาสที่ประธานศาลฎีกานำ�ผู้พิพากษาประจำ�ศาล เฝ้าฯ เพื่อถวายสัตย์ปฏิญาณก่อนเข้ารับหน้าที่ [Royal speech on the occasion when the President of the Supreme Court led Supreme Court judges to a royal audience to swear the oath of loyalty before assuming their duties], 9 July 2003.

230  From Judicialisation to Juristocracy At this time, I should probably not speak but … this morning I listened to somebody telling me about the election, in particular about candidates who have obtained less than 20% of votes and were the only candidates in their constituencies. This is problematic, because they did not get the 20%. In the end the parliament does not have full membership. I don’t know if that concerns you, but in fact, it should.29

He suggested that they should either cancel the election results or quit: ‘[If democracy cannot function], the oaths you have pronounced become invalid. You must do everything you can to make democracy work. If you cannot, then you should quit … The election could be annulled or something. You have the right to say what should happen and what should not.’30 The King then asked the Supreme Administrative Court to consult with the presidents of the Supreme and Constitutional Courts to undertake joint action: I ask you to study [the question]: is it your concern or not? If you think that it is not, then you should quit. It is your responsibility, you have the knowledge, you should act so that the country can function. Otherwise, go see the judges of the Supreme Court: it is also their concern. You can consult among the four of you [referring to the current presidents of the three courts and the incoming president of the Supreme Court], together you have the knowledge and integrity, and you bear this responsibility to uphold the stability of the country … Therefore I ask Akharaton [the President of the Supreme Court] to go inform the others … thank you very much.31

In his second speech, to the judges of the Supreme Court, the King opposed the argument according to which Article 7 would give him power to appoint a prime minister, before asking the judiciary to step in instead and to act boldly and promptly: I am in trouble due to the fact that whenever a problem arises, the people request a prime minister appointed by the King – which is undemocratic. To cite article 7 of the Constitution is wrong. Article 7 cannot be cited. Article 7 has only two paragraphs that provide that whenever no disposition of the Constitution is applicable, then it must be decided in accordance with customs or past practices. But to demand a prime minister appointed by the King is not democratic: it is, please excuse my language, random, it does not make sense … Do not let people hope for a royally granted premier, this is not democratic. You are judges at the Supreme Court, you have a sharp mind, you can find a way to solve [this crisis]. Today, the people are putting their hopes in you, the judges, and above all the judges at the Supreme Court.32

29 พระราชดำ�รัส ในโอกาสที่ประธานศาลปกครองสุงสุดนำ�ผู้พิพากษาประจำ�ศาล เฝ้าฯ เพื่อถวายสัตย์ปฏิญาณก่อนเข้ารับหน้าที่ [Royal speech on the occasion when the President of the Supreme Administrative Court led Supreme Administrative Court judges to a royal audience to swear the oath of loyalty before assuming their duties], 25 April 2006. 30 ibid. 31 ibid. 32 ibid.

Judicialisation at the King’s Request  231 He then became even more explicit: Some call for the intervention of the King … but it is up to the Supreme Court to speak up and decide. Thus, I ask you to think about it, to consult with other courts, the Administrative court, the Constitutional Court, about what should be done … and you should hurry, otherwise the country will sink … Don’t be afraid. The people will owe you gratitude. I thank you in the name of the entire people, for your courage, I thank you and I wish you to succeed in your mission, to have good health, and to keep fighting for the Good, for justice in this country, thank you.33

Three days later, the three courts convened a ‘judicial summit’ to discuss the royal speeches and act upon them.34 A few days later, the Constitutional Court annulled the re-election of Thaksin, arguing that it violated ‘Democracy with the King as Head of State’, among other things.35 The petition had been filed with the Ombudsman by the jurist and scholar Banjerd Singkaneti. The following week, the Supreme Administrative Court confirmed the outcome of the ruling, but following a different legal reasoning.36 Meanwhile, the President of the Supreme Court sent a telegram to the President of the Senate, explaining the Court’s dissolution move as motivated by the King’s speech and as a constitutional exercise of the King’s sovereignty according to the formulation of Article 3 (‘The King exercises sovereignty through the Cabinet, the Parliament and the Courts’): In the system of Democracy with the King as Head of State, if there is an emergency calling for immediate protection of the system for the peace of the kingdom, the King can exercise his sovereignty through the courts, in accordance with article 3 of the 1997 Constitution as stated by the King in his Royal Speech to the Presidents of the Supreme Administrative Court and Supreme Court on 25 April 2006. Therefore, the acts of the courts in application of the royal order are constitutional.37

Bolstered by the coordinated action of the three courts, anti-Thaksin protesters demanded the resignation of the members of the Electoral Commission who, according to them, were responsible for Thaksin’s annulled re-election in April. One of them resigned, but, in spite of calls to resign formulated repeatedly by the three supreme courts, the remaining members of the Electoral Commission

33 ibid. 34 ‘Judges Divided at 11th Hour’, The Nation, 30 April 2006, quoted in Michael Montesano, ‘Political Contests in the Advent of Bangkok’s 19 September Putsch’ in Funston (n 8) 23. 35 คำ�วินิจฉัยศาลรัฐธรรมนูญ ๙/๒๕๔๙ [Constitutional Court Decision 9/2549], 8 May 2006. The election was found to have violated the requirement of secrecy of vote (art 104(3) of the Constitution), based on the positioning of the voting booths. According to the Court, this technicality amounted to a violation of DKHS (arts 2 and 3 of the Constitution). 36 คำ�พิพากษาศาลปกครองกลางคดีหมายเลขแดง  ๖๐๗-๖๐๘/​๒๕๔๙ [Central Administrative Court Decision, Red Cases 607-608/2549], 16 May 2006. 37 Telegram of Chanchai Likitchitta, President of the Supreme Court to the President of the Senate, 1 June 2006, published in Matichon Daily (2 June 2006), quoted in Piyabutr Saengkanokkul, ศาลรัฐประหาร: ตุลาการ ระบอบเผด็จการ และนิติรัฐประหาร [The Coup Court: The Judiciary, Dictatorship and Coup by Law] (Samesky Books, 2017) 12.

232  From Judicialisation to Juristocracy insisted on remaining in office to supervise the organisation of new elections. In July, they were sentenced to a four-year jail sentence by the Criminal Court for malfeasance in organising the April election and automatically dismissed.38 A new electoral commission was appointed by the Senate, which comprised four senior judges and one deputy attorney-general.39 New elections were planned for October 2006, but the elections never took place: the power vacuum left by the Constitutional Court’s decision and its aftermath paved the way for a military coup.40 On 19 September 2006, the ‘Council for the Reform of the Democratic System of Government with the King as Head of State’ overthrew Thaksin’s government.41 It seemed that the coup had strong backing from Prem, the President of the King’s Privy Council,42 and therefore from the Palace: in the run-up to the coup, Prem had toured the military training facilities (army and naval) to remind young officers that ‘the military belongs to the King, not to the government’ – in other words, their loyalty should lie with the King and not with the prime minister.43 II.  MORE JUDICIALISATION AT THE KING’S REQUEST: THE CONSTITUTIONAL COURT DEFINES ‘DKHS’ AND ITS CUSTOMS

Following an established pattern, the junta, led by Army Chief Sonthi Boonyaratklin, announced the coup in a televised message to the nation. The five military officers spoke under the pictures of the King and Queen, surrounded by the yellow flag of the monarchy and the blue, white and red flag of Thailand, in a move aimed at suggesting that royal support had been secured. The next day, the King granted an audience to Sonthi; in the evening, Sonthi announced in a televised statement that he had received Bhumibol’s blessing for the coup.44 Royal support was further demonstrated when one of the King’s favourite Privy Councillors, Surayud Chulanont, was appointed Prime Minister;45 the King also signed the 2006 interim Constitution, which granted an amnesty to the perpetrators of the coup and gave judicial immunity to the coup as a whole; it was countersigned by Surayud: the overall sequence

38 คำ�พิพากษาศาลอาญา คดีหมายเลขดำ�ที่ อ.1234/2549 [Criminal Court Judgment, Black Case 1234/2549], 25 July 2006. 39 Nelson (n 22) 4. 40 Björn Dressel, ‘Judicialization of Politics or Politicization of the Judiciary? Considerations from Recent Events in Thailand’ (2010) 23 Pacific Review 671. 41 Nelson (n 22) 11. 42 Kevin Hewison, ‘A Book, the King and the 2006 Coup’ (2008) 38 Journal of Contemporary Asia 190. 43 ‘Prem: The Military Belongs to the King’, Bangkok Post, 14 July 2006, reproduced in Grossmann (n 1) 394. He famously compared the military to a horse: the King is the owner of the horse, while the government is its jockey. 44 ‘Thailand’s King Gives Blessing to Coup’, CNN, 20 September 2006. 45 ประกาศแต่งตั้งนายกรัฐมนตรี [Announcement on the appointment of a Prime Minister], 1 October 2006. The appointment was countersigned by Sonthi Boonyaratklin.

More Judicialisation at the King’s Request  233 of events was reminiscent of the 1976 coup. The Constitutional Court, the Election Commission and most constitutional organs were abolished – together with the House of Representatives and the Senate. Only Jaruvan’s position as Auditor-General (along with the King’s Privy Council) survived the coup. While dismissing all the other members of the State Audit Commission, the junta promulgated a special declaration authorising her and only her to stay in her position until further notice.46 Apart from the Auditor-General (and the King’s Privy Council), the other constitutional organs, which had been abolished, were replaced. To replace the State Audit Commission, a royal decree created the ‘Assets Examination Committee’, a special investigative body tasked with the preparation of criminal cases against Thaksin’s administration47 – as Jaruvan was named Prosecutorin-Chief, she initiated more than 30 cases against Thaksin and his associates for corruption, tax evasion and the like.48 To replace the Constitutional Court, the interim Constitution provided for the creation of a Constitutional Tribunal composed of career judges from the Supreme Court and the Supreme Administrative Court, under the ex officio presidency of the President of the Supreme Court,49 which was soon encouraged by the King to dissolve Thaksin’s party, the Thai Rak Thai. In April 2007, as the Constitutional Tribunal was about to deliver a ruling on Thaksin’s party, the King once again held two separate audiences for judges from the Supreme Court and the Supreme Administrative Court. This time, he started with the Supreme Court. In this first audience, he emphasised that the historical mission of judges was to suppress corruption, a mission for which they had been directly mandated by him: You have sworn an oath of loyalty according to which you must accomplish your mission in my name. If you do it well, I will receive the honours of your work done in the public interest. If you do not do it well, I will be dishonoured … If there is no justice, this means that people can cheat and act evil. If the courts do not fulfil their duty to support the good people, the country will not survive.50

46 ประกาศคณะปฏิรูปการปกครองในระบอบประชาธิปไตยอันมีพระมหากษัตริยิ์ทรงเป็นประมุข ฉบับที่ ๑๒ เรื่อง ให้ พระราชบัญญัติประกอบรัฐธร รมนูญบางฉบับมีผลใช้ บังคับต่อไป [12th Announcement of the Reform Council for Democracy with the King as Head of State extending the validity of some organic constitutional laws], 20 September 2006. Article 2 of the three-article ‘announcement’ stated: ‘the Auditor-General in date of 18 September shall remain in office until further notice’. Article 1 dismissed other members of the State Audit Commission, transferring their powers to Jaruvan. 47 ประกาศคณะปฏิรูปการปกครองในระบอบประชาธิปไตย อันมีพระมหากษัตริย์ทรงเป็นประมุข ฉบับที่ 30 เรื่อง การตรวจสอบการกระทำ�ที่ก่อให้ เกิดความเสียหายแก่รัฐ [30th Announcement of the Council Reform for Democracy with the King as Head of State regarding the Assets Examination Committee], 30 September 2006. 48 See State Audit Commission, ปัจฉิมบท คตส. พันธกิจ การตรวจสอบแทนประชาชน 30 ก.ย. 2549–30 มิ.ย. 2550 [Closing the Chapter on the Assets Examination Commission: Its Mission of Scrutiny in the Name of the People, 30 September 2006–30 March 2007] (State Audit Commission, 2008). 49 Article 35 of the 2006 interim Constitution. 50 พระราชทานพระบรมราชวโรกาสให้นายปัญญา ถนอมรอด ประธานศาลฎีกา นำ�ผู้พิพากษาประจำ�ศาล เฝ้าฯเพื่อถวายสัตย์ปฏิญาณก่อนเข้ารับหน้าที่ [Royal speech on the occasion when Pannya Thanomrod, the President of the Supreme Court, led judges of the Supreme Court to a royal audience to swear their oaths of loyalty before assuming their duties], 9 April 2007.

234  From Judicialisation to Juristocracy To the judges of the Supreme Administrative Court, he reflected on the process of judicialisation he had initiated a year earlier through his April 2006 royal speeches: I spoke about responsibility, last time there was a crisis, in Hua Hin, more than a year ago. And you have taken these responsibilities unto yourselves. People have taken notice, and raised questions. These questions have their justifications. And things got complicated. And in a few days there will be even further complications.’51

The King also asked them to ‘be prepared’ for the upcoming ruling of the Constitutional Tribunal: ‘Now almost everything is on the brink of destruction. That is why you bear the responsibility to do everything to avoid the destruction of the country. Warn the people by informing them … on the direction the country must take. You can do it, you can say it, you can devise it, because you have the knowledge for that. That is why I am asking you to try to solve this situation because it is very bad. I am listening to the radio and they are right … You have given me this judge’s role, I am a judge like you … I thank you to try to find solutions so that the country can survive the crisis.52

The royal speech was published in newspapers and discussed by lawyers.53 In the run-up to the ruling, many leading voices urged the courts to follow the royal advice.54 Asked about whether they would reflect on the royal speech in terms of guiding their ruling on the dissolution of the Thai Rak Thai, the judges replied ‘we will see’. On 30 May 2007, as widely expected, the Constitutional Tribunal dissolved the Thai Rak Thai and banned its executive board members from politics for five years for electoral fraud committed during the 2006 annulled election55 – the 102-page ruling was widely criticised in legal circles

51 พระราชดำ�รัสในวโรกาสที่นายอักราทร จุฬารัตน ประธานศาลปกครองสูงสุด พร้อมคณะตุลาการศาลปกครองและข้าราชการฝ่ายปกคร อง เข้าเฝ้าฯ [Royal speech on the occasion when Akharaton Chularat, the President of the Supreme Administrative Court, led judges of the Supreme Administrative Court and other royal servants to a royal audience], 24 May 2007. 52 ibid. 53 See Pramote Nakhornthap, ‘นายกฯ พระราชทาน นายกฯ คนกลาง นายกฯ คนนอก’ [‘Royally Appointed Premier, Neutral Premier, External Premier’] (Manager, 2 May 2006); Kasien Tejapira, ‘ตุลาการ การเมือง และเรื่องรัฐธรรมนูญ เกี่ยวเนื่องกับ ตุลาการภิวัตน์ และสถาบันกษัตริย’์ [‘Judges, Politics, and the Constitution, in Relation to Judicialization and the Royal Institution’] (Midnight University, 19 July 2006). 54 Meechai Ruchupan, ‘ปธ.สนช.ตีความพระราชดำ�รัสในหลวง ชี้ศาลควรกล้าตัดสินใจคีดยุบพรรค’ [‘The President of the Assembly Considers That the Royal Speech Asks the Constitutional Tribunal to Dissolve the Party’] (Matichon, 25 May 2007); Kasien Tejapira, ‘ประชาธิปไตยแบบหลัง 14 ตุลาฯ บทบาทหน้าที่ของนักนิติศาสตร์’ [‘Democracy after 14 October, Powers and Missions of Jurists’] (Matichon, 5 May 2010). 55 คำ�วินิจฉัยศาลรัฐธรรมนูญ ๓/๕​๒๕๕๐ [Constitutional Court Decision 3-5/2550], 30 May 2007. The Constitutional Tribunal condemned the Thai Rak Thai Party for having paid small parties to contest the 2 April 2006 elections to prevent the cancellation of the results by the Court. If the decision to dissolve the Party was unanimous, the decision to revoke the electoral rights of the 111 members of the executive bureau for a five-year period was approved by a margin of 6-3. The three judges from the Supreme Court (Thanit Keswaphithak, Kittisak Kittikhunpairoth and Panya Thanomrot) opposed the revocation of electoral rights based on a decree of the junta passed after the coup, arguing that this constituted a retroactive use of the law. See their dissident opinions in the Royal Gazette, 13 July 2007, 1–365.

More Judicialisation at the King’s Request  235 for its retroactive use of legislation.56 Interestingly, as Thaksin had challenged the jurisdiction of the Tribunal, invoking the illegality of the 2006 coup, the Tribunal replied that if electoral fraud was a case of violation of DKHS, a military coup was not.57 Meanwhile, the Constitution-Drafting Committee appointed by the junta had completed the constitutional process. The ‘self-sufficiency economy’ was now enshrined in the Constitution,58 the powers of the judiciary were reinforced and the Senate was half-appointed. Under the new Constitution, elections held in December 2007 returned the pro-Thaksin forces to ­government. Samak Sundaravej, leader of the People’s Power Party, the successor party to the Thai Rak Thai, became Prime Minister. The King immediately re-appointed Surayud to the Privy Council, signalling his continued support, just as he had done in 1977 with Thanin. The following year confirmed the trend towards increasing judicialisation of politics with the King’s approval, as suggested by the unabated support offered to Jaruvan, the main prosecutor of the Assets Examination Committee and royal protégée, by the Constitutional Court.59 Throughout 2008, court cases initiated by the Assets Examination Committee against Thaksin and his former associates piled up in the courts, but the Thai Rak Thai was technically still in power, through its successor party, the People’s Power Party. This did not last more than a year. In September 2008, the Constitutional Court dismissed elected Prime Minister Samak for a conflict of interest after he hosted a cookery show on TV, which the Court ruled was incompatible with his status as Prime Minister.60 The following month, clashes between pro- and anti-Thaksin forces led to the death of a young anti-Thaksin protester, whose funeral was attended by the Queen, signalling royal support for the yellow shirts. To the red shirts, this was the ultimate proof that the King was not ‘above politics’.61 At the time, anti-Thaksin protesters were blocking the international Suvanabhumi Airport and were calling for the dissolution of the People’s Power Party. Within this context of heightened political tension, the dissolution of the People’s Power Party would offer an easy solution to the political crisis: it would satisfy the yellow shirts’ main demand whilst being in line with the mission of crisis resolution that had been bestowed upon the Constitutional Court by the King back in 2006. Hence, in December 2008, the Court eventually dissolved 56 For an academic discussion of the ruling, see Vat Tingsamit, ‘ใช้กฎหมายย้อนหลังเพื่อเพิกถอนสิทธิเลือกตัง้ เ มื่อยุบพรรคการเมือง’[‘The Retroactive Use of the Law on the Withdrawal of Political Rights in Case of Dissolution of Political Parties’] (Public Law, 24 June 2007); Nittirat, ‘ปั ญหาบางประการของการเพิกถอนสิทธิเลื อกตั้งที่ปรากฏในระบบกฎหมายไทย’ [‘A Few Problems Related to the Provisions of the Withdrawal of Political Rights in the Thai Legal System’] (Enlightened Jurists, 2007). 57 คำ�วินิจฉัยศาลรัฐธรรมนูญ ๓-๕/​๒๕๕๐ [Constitutional Court Decision 3-5/2550], 30 May 2007, 91. 58 Articles 78 and 83 of the 2007 Constitution. 59 คำ�วินิจฉัยศาลรัฐธรรมนูญ ๕/๒๕๕๑ [Constitutional Court Decision 5/2551], 30 June 2008. 60 คำ�วินิจฉัยศาลรัฐธรรมนูญ ๑๒-๑๓/​๒๕๕๑ [Constitutional Court Decision 12-13/2551], 9 September 2008. 61 As a result, 13 October 2008 was dubbed by the pro-Thaksin red shirts the ‘day of national enlightenment’ (wan ta sawaeng haeng chat). For details, see Eugénie Mérieau, Les Chemises rouges de Thaïlande [The Red Shirts of Thailand] (IRASEC, 2013) 115–17.

236  From Judicialisation to Juristocracy the People’s Power Party for a case of electoral fraud committed back in December 2007.62 It banned its executives from engaging in political activities for five years, which de facto dismissed the then Prime Minister Somchai Wongsawat and paved the way, with the help of the military, for the prime ministership of the leader of the opposition, Abhisit Vejjajiva,63 who would remain in government for two and a half years. Wasan Soipisuth, one of the Constitutional Court justices, justified the dissolution by referring to the judiciary’s mandate to act in times of political crisis: If the country at that time had been peaceful, the government and the opposition could have joined hands, the country could have moved forward, and I believe most of the judges would have decided not to dissolve the [People’s Power] Party. But the country at that time was chaotic and the Constitutional Court had to use its judgement to maintain law and order.64

The ruling was denounced amongst the ranks of the pro-Thaksin camp and increasingly so throughout 2009 and 2010, since the Constitutional Court failed to dissolve Abhisit’s Democrat Party in a similar case and under circumstances of mass protests, this time by the pro-Thaksin red shirts.65 To the pro-Thaksin camp, the decision revealed the biased nature of the Constitutional Court – its outrageous ‘double standards’. In addition, other courts were handing down harsh sentences to red shirts for crimes of lèse-majesté and sedition, invoking not only provisions of the Penal Code but also constitutional provisions on DKHS and the King’s inviolability.66 Thaksin meanwhile was sentenced to a two-year term in jail and his assets were seized.67 The Assets Examination Committee had by then completed its initial investigation in a dozen cases, had frozen many assets of former Thai Rak Thai members and had forwarded cases 62 นิจฉัยศาลรัฐธรรมนูญ ๒๐/๒๕๕๑ [Constitutional Court Decision 20/2551], 2 December 2008. The decision was taken on the basis of acts committed in December 2007. In February 2008, the Electoral Commission voted to cancel the election of Yongyuth Tiyapairat, Vice-President of the Party and former President of the Lower House, for acts of electoral fraud committee in Chiang Rai. The Electoral Commission sent the case to the Supreme Court’s Special Division for Holders of Political Office, which found Yongyuth guilty. In July 2008, the Constitutional Court revoked the electoral rights of Yongyuth for five years on the basis of the Supreme Court’s ruling and ordered the dissolution of the People’s Power Party. 63 Paul Chambers, ‘Thailand on the Brink: Resurgent Military, Eroded Democracy’ (2010) 50 Asian Survey 842. 64 Wasan Soipisuth, quoted in ‘Charter Court Chief Focuses on Balance’ (The Nation, 16 March 2013); see also Wasan Soipisut, เรื่อง (ไม่) สนุกในศาลรัฐธรรมนูญ [About Things (Not) Fun at the Constitutional Court] (Tontham, 2014). 65 คําวินิจฉัยศาลรัฐธรรมนูญ ๑๖/๒๕๕๓ [Constitutional Court Decision 16/2553], 9 December 2010. 66 David Streckfuss, ‘Freedom and Silencing under the Neo-absolutist Monarchy Regime in Thailand, 2006–2011’ in Pavin Chachavalpongpun (ed), Good Coup Gone Bad: Thailand’s Political Development since Thaksin’s Downfall (ISEAS–Yusof Ishak Institute, 2014). 67 คำ�พิพากษาศาลฎีกาแผนกคดีอาญาของผู้ดำ�รงตำ�แหน่งทางการเมือง ในคดีหมายเลขแดงที่ อม. ๑/๒๕๕๐ [Judgment of the Supreme Court’s Special Division for Political Office Holders, Red Case 1/2553], 17 September 2008; คําพิพากษาศาลฎีกาแผนกคดีอาญาของผู้ดํารงตําแหน่งทางการเมือง คดีหมายเลขดําที่ อม. ๑๔ /๒๕๕๑ คดีหมายเลขแดงที่ อม. ๑ /๒๕๕๓ [Judgment of the Supreme Court’s Special Division for Political Office Holders, Black Case 14/2551, Red Case 1/2553], 26 February 2010.

More Judicialisation at the King’s Request  237 to the Supreme Court’s Special Division for Political Office Holders, which was prosecuting Thai Rak Thai executives. Mass protests developed, calling for fresh elections, until the Abhisit government sent in the Army to suppress the protests, resulting in the death of about 100 people. Unlike in the 1973 and 1992 crises, the King did not intervene to stop the military crackdown. Within the pro-Thaksin camp, the royal silence was painfully noted: ‘Father, where are you?’ read some of the graffiti in downtown Bangkok.68 Eventually, the Abhisit government agreed to hold elections, which were scheduled for 3 July 2011. The Phuea Thai Party (the successor to the People’s Power Party) won the election with an absolute majority, securing 265 seats out of 500, and Yingluck Shinawatra, Thaksin’s younger sister, became Prime Minister.69 One of the electoral promises of Yingluck had been to revise the Constitution, and in particular to change the mode of selection of senators, in order to have a fully elected ‘political’ Senate. Another hope following Yingluck’s election lay in the possibility of the reform of the lèse-majesté law. However, as Yingluck’s commitment to lèse-majesté law reform proved rather elusive during her first years in office, Thai activists turned to the courts to push forward their reform agenda. In May 2012, Somyot Phreuksakasemseuk and Ekkachai Hongkawan, who were both on separate trials for lèse-majesté, challenged the lèse-majesté law before the Constitutional Court. The claimants challenged the constitutionality of Article 112 of the Penal Code on the grounds of its alleged violation of Articles 29 (limits to rights and liberties and the principle of proportionality) and 45 (freedom of expression) of the 2007 Constitution. On 10 October 2012, invoking the doctrine of the 10 Virtues of a Righteous King, the notion of ‘customs’ of DKHS and the fact that the Thai monarchy was the ‘soul of the nation’, a ‘particular feature of Thailand that no other country knows’,70 the Court ruled that Article 112 was fully in conformity with the Constitution.71 In fact, bearing a clear influence from Bowornsak’s doctrinal book on the Ten Virtues of a Righteous King, the Court argued that the lèse-majesté law was a key element of DKHS, being instrumental in ­‘enforcing’ Article 2 of the Constitution on DKHS.72 If Yingluck’s government had been reluctant to launch a reform of Article 112 of the Penal Code, it did not renege on its promise to revise the Constitution.

68 Mérieau (n 61) 118; Claudio Sopranzetti, Red Journeys: Inside the Thai Red-Shirt Movement (Silkworm Books, 2012) 124. See also Serhat Ünaldi, ‘Working towards the Monarchy and its Discontents: Anti-royal Graffiti in Downtown Bangkok’ (2014) 44 Journal of Contemporary Asia 377. 69 On the election, see Eugénie Mérieau (ed), The Politics of (No) Elections in Thailand: Lessons from the 2011 General Election (White Lotus Press, 2016). 70 คำ�วินิจฉัยศาลรัฐธรรมนูญ ๒๘-๒๙/๒๕๕๕ [Constitutional Court Decision 28-29/2555], 10 October 2012, 9. 71 ibid 11–13. 72 ibid 13. For a detailed analysis and commentary of the decision, see Eugénie Mérieau, ‘Thailand’s Lèse-Majesté Law: On Blasphemy in a Buddhist Kingdom’ (2019) 4 Buddhism, Law and Society 54, 72–75.

238  From Judicialisation to Juristocracy Almost immediately after being sworn in, Yingluck had launched a process of constitutional revision that would enable the setting-up of a Constitutiondrafting body.73 However, in June 2012, the Constitutional Court accepted a petition challenging the constitutionality of the move as an ‘attempt to overthrow the democratic system with the King as Head of State’, based on Article 68 of the Constitution.74 Although the possibility of invoking Article 68 to petition the Constitutional Court directly was challenged in s­ ociety at large as dubious, the Court nevertheless proceeded with the request.75 On 13 July 2012, the Court issued its opinion on the set-up of a constitution-drafting assembly, suggesting that the move was unconstitutional.76 The Court referred in particular to the principle of the supremacy of the Constitution: Thailand has adopted a system of democracy with the King as Head of State. It is a civil law country that adheres to the principle of supremacy of the Constitution; the Constitution defines the specific mode and procedure of constitutional revision, different from the modes and procedures of ordinary laws.

Finally, in an obiter dictum, it recommended amending the Constitution a­ rticle by article.77 The government followed the opinion of the Constitutional Court and engaged in a process of constitutional revision, article by article. The government chose to amend the selection of senators (Article 113) first. The draft Article 113 made the Senate an entirely elected body, which had been one of the main promises of Yingluck since 2011. It was adopted by the National Assembly on 28 September 2013 and was forwarded to the King for signature, but in yet another subtle use of the royal veto, King Bhumibol kept silent and did not sign the amendment into law. In the meantime, appointed senators had petitioned the Constitutional Court to annul the constitutional amendment, arguing that it constituted an attempt to overthrow DKHS.78

73 Article 291 of the 2007 Constitution. 74 ibid art 68. Article 68 reads: ‘No person shall exercise the rights and liberties prescribed in the Constitution to overthrow the democratic regime of government with the King as Head of the State under this Constitution or to acquire the power to rule the country by any means not in accordance with the modes provided in this Constitution. In the case where a person or a political party has committed the act under paragraph one, the person knowing of such act shall have the right to request the Prosecutor General to investigate its facts and submit a motion to the Constitutional Court for ordering cessation of such act without, however, prejudice to the institution of a criminal action against such person.’ 75 The debate relates to whether petitions can be filed directly with the Court or if they must be filed with the Prosecutor-General, who then decides whether or not to forward the case to the Court. In this case, the Prosecutor-General said he would not have forwarded the case to the Court, but by then, the Constitutional Court had already affirmed jurisdiction: ‘Thai Attorney-General: Constitutional Amendments are Legal’, Bangkok Pundit, 8 June 2012. For details, see Eugénie Mérieau, ‘Thailand’s Juristocracy’, New Mandala, 17 May 2014. 76 คำ�วินิจฉัยศาลรัฐธรรมนูญ ๑๘-๒๒/๒๕๕๕ [Constitutional Court Decision 18-22/2555], 13 July 2012. 77 ibid 23. 78 Michael H Nelson, ‘Constitutional Contestation over Thailand’s Senate, 1997 to 2014’ (2014) 36 Contemporary Southeast Asia 51, 68.

More Judicialisation at the King’s Request  239 Finally, on 20 November 2013, the Constitutional Court declared the unconstitutionality of the attempt to revise the mode of selection of the Senate. It considered that aiming to establish an entirely elected Senate indeed constituted an attempt to overthrow DKHS, which was prohibited by Article 68, although it stated that the conditions were not sufficient to dissolve the party and ban its executive members from participating in political activities for five years. In its decision, the Constitutional Court argued that the Senate was the key institution representing the interests of the minority in Thailand – if its members were to be elected, Thailand would go back to being a ‘parliamentary dictatorship’, which would be in violation of the aims of constitutional democracy as bestowed upon the Thai people by King Prajadhipok in 1932. The dictatorship of the majority is against the system of government of our country whose foundational principle has always been to prevent abuses of power or the reign of arbitrary power to the benefit of one person or a group of persons in particular.79

This formulation referred to the abdication telegram of King Prajadhipok in 1935 and inscribed the ruling in a counter-People’s Party, counter-revolutionary legacy. The government of Yingluck did not survive this blow for very long. After the government proposed an amnesty bill in Parliament which could have paved the way for her brother Thaksin to return, she faced continuous mass protests in Bangkok. Like her brother before her, she responded by dissolving Parliament and calling new elections. These were held in February 2014, only to be cancelled once again by the Constitutional Court.80 Influential lawyers, with official support from the Lawyers Council of Thailand, once more called on the King to ‘grant’ a prime minister using Article 7 of the Constitution.81 Instead, Yingluck was dismissed by the Constitutional Court for the wrongful transfer of a civil servant to an inactive post, based on a judgment issued by the Supreme Administrative Court,82 and her government was overthrown by the military in May 2014. The junta declared martial law, abolished the Constitution and replaced it with the 2014 interim charter. This time, the military did not dissolve the Constitutional Court which would continue to consider cases and issue rulings. Also, rather than relying on extra-judicial means to stifle opposition to the coup, the military entrusted such task to

79 คำ�วินิจฉัยศาลรัฐธรรมนูญ ๑๕-๑๘/๒๕๕๖ [Constitutional Court Decisions 15–18/2556], 20 November 2013, 31. 80 คำ�วินิจฉัยศาลรัฐธรรมนูญ ๕/๒๕๕๗ [Constitutional Court Decision 5/2557], 21 March 2014. 81 ‘The Senate can propose the name of a Prime Minister to the King and countersign the act. The Prime Minister can then appoint a government and administer the country in accordance with the provisions of the Constitution’: Communiqué of the Lawyers Council of Thailand under royal patronage, 9/2557, 9 May 2014. To the Lawyers Council of Thailand, the conditions were sufficient to allow the use of art 7: the act of nomination could be countersigned by the president of the Senate. 82 คําพิพากษาศาลปกครองสูงสุด คดีหมายเลขดําที่ อ. ๙๙๒/๒๕๕๖ คดีหมายเลขแดงท่ี อ. ๓๓/๒๕๕๗ [Supreme Administrative Court Decision, Black Case 992/2556, Red Case 33/2557] 20 February 2014; คำ�วินิจฉัยศาลรัฐธรรมนูญ 9/2557 [Constitutional Court Decision 9/2557], 9 May 2014.

240  From Judicialisation to Juristocracy the (military) courts: sedition and lèse-majesté cases were transferred to the jurisdiction of the military courts.83 III.  ROYAL CONSTITUTIONAL VETOES, LÈSE-MAJESTÉ AND ‘DKHS’: THE AFFIRMATION OF THE ROYAL PREROGATIVE

In 2014, the junta was more subtle in claiming legitimacy deriving from the King than in 2006. In their address to the nation to announce the coup, the military officers did not pose under the portraits of the King and Queen as their predecessors had done. The junta called itself the National Council for Peace and Order, which, in contrast to its predecessor, did not refer to the monarchy. Still, the message was pretty clear: they had carried out the coup first and foremost to protect and safeguard the monarchy. As in 2006, the coup was inspired by the need to ‘restore’ a form of ‘DKHS’ corrupted by ‘parliamentary dictatorship’: the protesters who had called for the military to seize power and had cheered the coup were themselves called the ‘People’s Committee for changing Thailand into a true Democracy with the King as Head of State’.84 Two days after the successful power seizure, Prayuth Chan-ocha, chief of the Army and leader of the coup, was appointed head of National Council for Peace and Order by Royal Command – the Act of appointment was countersigned by none other than Prayuth himself.85 A couple of days later, Prayuth signalled palace support in a traditional ceremony in front of the picture of the King – he hinted that the King could not physically grant him an audience due to the latter’s poor health rather than because he opposed the coup.86 Unlike previous coups which had abolished the Constitution in its entirety, the 2014 coup maintained Title 2 of the Constitution, which related to the monarchy. In doing so, it realised Bowornsak’s theory of ‘shared sovereignty’ between the King and the people – whenever a coup happens, sovereignty is returned to the monarch. Finally, Prayuth’s appointment as Prime Minister was promulgated by Royal Command87 as well as the 2014 interim Constitution, which granted him an amnesty and declared the coup to be legal and constitutional. Although it was challenged before the courts, the 83 See Thai Lawyers for Human Rights, The Miracle of ‘Law’: The Judiciary and the 22 May 2014 Coup (Thai Lawyers for Human Rights, 2017). 84 On the ‘People’s Committee for a real Democracy with the King as Head of State’, known by their English name as ‘People’s Democratic Reform Committee’ or PDRC, see Chris Baker, ‘The 2014 Thai Coup and Some Roots of Authoritarianism’ (2016) 46 Journal of Contemporary Asia 388; Erik Martinez Kuhonta and Aim Sinpeng, ‘Democratic Regression in Thailand: The Ambivalent Role of Civil Society and Political Institutions’ (2014) 36 Contemporary Southeast Asia 333. 85 ประกาศแต่งแต่งตั้งหัวหน้าคณะรักษาความสงบแห่งชาติ [Act of Appointment of the Head of the National Council for Peace and Order], 24 May 2014. 86 ‘Thai King Endorses Junta Leader as Prime Minister’, Associated Press, 26 May 2014. 87 ประกาศแต่งแต่งตั้งนายกรฐั บมนตรี [Announcement on the appointment of the Prime Minister], 24 August 2017.

Royal Constitutional Vetoes, Lèse-Majesté and ‘DKHS’  241 constitutionality of the coup and the immunity of the authors of the coup were upheld on the grounds of the royally sanctioned Constitution.88 Yet the Constitutional Court fell short of stating that a Thai constitutional custom existed according to which a coup needed the royal sanction in order to be ‘legal’. Sombat Boongamanong, a red-shirt Thai activist, invoked this argument before the Administrative Court in 2016. Prosecuted for refusing to comply with the junta’s order summoning him to the military headquarters after the 2014 coup, he argued that his refusal to comply with the orders of the junta was motivated by the initial delay in the granting of the royal sanction. Indeed, in the first hours after the seizure of power, when he was ordered to report to the military headquarters, the King had not yet signed or granted an audience to the authors of the coup; therefore, according to Sombat, the coup was not yet effective, the military not yet sovereign, and the theory of revolutionary legality inapplicable. The Court dismissed the argument, stating that Sombat’s claim meant involving the King in politics and therefore was inadmissible.89 Other activists used other strategies to test the courts on the theory of royally sanctioned coups. Some argued before the criminal courts that coups were a usurpation of royal power and, as such, constituted the crime of lèse-majesté. The courts dismissed all these claims.90 Yet the Constitutional Court soon affirmed that the royal sanction of legislation was the cornerstone of the DKHS system and that a Constitution was only valid if it had been properly signed by the King. When King Bhumibol’s death was announced on 13 October 2016, the draft Constitution was ­awaiting royal approval. As Bhumibol’s son Vajiralongkorn declined to succeed to the throne immediately upon the death of his father, asking for some time to grieve, Thailand was left without a King for 47 days and the constitutional draft remained in limbo. Obviously, the first obstacle to constitutional promulgation was that there was no King to sign it. The second obstacle was that the preamble stated the name of Bhumibol Adulyadej, in line with the consecrated formula ‘The King has decided to grant this Constitution’. One possibility was to have the regent sign the Constitution and to revise the preamble accordingly, but the constitutionality of such an unprecedented move raised questions. The Constitutional Court claimed jurisdiction over this set of questions by invoking the ‘constitutional customs’ of DKHS – in times of an interregnum, when no constitutional provision applied to the situation, the Constitutional Court acted as the ultimate decision-maker. In October 2016, it issued its decision: the regent’s signature would not be constitutional, as only

88 For an analysis of cases, see Piyabutr (n 37) ch 3. 89 คำ�พิพากษาศาลอุทธรณ์ 414/2559 [Appeal Court, Case 414/2559], 16 May 2016; คําพิพากษาศาลฎีกา 3578/2560 [Supreme Court Verdict No 3578/2560], 1 June 2017. 90 คำ�พิพากษาศาลอุทธรณ์ 3494/2550, 7841/2553 [Appeal Court, Case 3494/2550, 7841/2553], 21 June 2010; คำ�พิพากษาศาลอาญา /2557 [Criminal Court/2557], 11 June 2014. See also Piyabutr (n 37) 133.

242  From Judicialisation to Juristocracy constitutions signed by the King were valid.91 Actually, there was no need for a court ruling on the matter: Prem, President of the Privy Council who had become ex officio regent following the death of the King, had refused to sign royal acts, including the Constitution, from the day he became regent.92 In the same ruling, the Constitutional Court stated that the preamble to the draft Constitution could be amended and the names changed. It reiterated that in a system of ‘Democracy with the King as Head of State’, the Constitution was not complete until the King had signed it.93 Vajiralongkorn eventually took the throne on 1 December 2016. A monthand-a-half later, he still had not signed the constitutional draft. Instead, in January 2017, he informed the government of his refusal to give his royal sanction unless major constitutional revisions were made first.94 First, he insisted on reforming the provisions on the regency to allow him to spend time abroad without appointing a regent to represent him pro tempore (in his absence). This would allow him to reign from Germany. Second, he requested a change to the wording relating to provisions on the countersignature on all royal acts. Finally, he required the ‘royal crisis powers’ (the ‘constitutional customs’ clause) that the current constitutional draft had transferred away from the King to the Constitutional Court to be returned to him by reverting the wording of the ­article back to its previous ambiguous formulation.95 The draft Constitution, including its preamble, was immediately amended by a committee specifically set up for that purpose headed by Meechai Ruchupan;96 the National Legislative Assembly eventually approved the changes requested by King Vajiralongkorn. Once the new text restored the King’s preferred wording, Vajiralongkorn finally signed the Constitution in a grand ceremony held on 6  April 2017, the anniversary of the founding of the Chakri dynasty. Following the precedents set by Prajadhipok and Bhumibol, the promulgation ceremony of the 2017 Constitution re-enacted the myth of a ‘royally granted’ Constitution, establishing Vajiralongkorn as the ultimate law-giver. In full regalia, seated on his golden throne, he formally ‘granted’ the samutthai book of the Constitution on its golden phanwenfa tray to a kneeling Prime Minister, in the presence of Privy Councillors, ambassadors and high-ranking civil servants. The preamble was solemnly read aloud; the ceremony was broadcast live on Thai television, radio, Facebook and YouTube. Once the Constitution had been promulgated by King Vajiralongkorn, the judicialisation of politics seemed to lose its focus. In September 2017, Yingluck was 91 คำ�วินิจฉัยศาลรัฐธรรมนูญ ๗/๒๕๕๙ [Constitutional Court Decision 7/2559], 16 October 2016. 92 Thanks to the use of art 44 of the interim Constitution, Prayuth Chan-Ocha could run the country on a daily basis without the need for a royal signature. 93 คำ�วินิจฉัยศาลรัฐธรรมนูญ ๗/๒๕๕๙ [Constitutional Court Decision 7/2559], 16 October 2016. 94 His Majesty’s Personal Private Secretary letter to the government, as reported to the media by Prayuth. See ‘NLA Approves Move to Amend Charter Regarding King’s Power’, Bangkok Post, 13 January 2017. 95 Eugénie Mérieau, ‘Seeking More Power, Thailand’s New King is Moving the Country away from Being a Constitutional Monarchy’, The Conversation, 3 February 2017. 96 ‘Prayuth to Change Constitution at King’s Request’, Khaosod, 10 January 2017.

Royal Constitutional Vetoes, Lèse-Majesté and ‘DKHS’  243 sentenced to five years in jail in absentia for corruption, but the Constitutional Court did not use this conviction to dissolve her political party. Instead, on 28 September 2017, the National Legislative Assembly adopted a new organic law on the Constitutional Court,97 providing for jail sentences for the crime of defaming the Constitutional Court, in addition to the established offence of contempt of court (lameut amnat san)98 and of defamation of individual judges.99 This, de facto, created a comprehensive system of what could be termed the criminal offence of ‘lèse-court’: as the sacredness of the King had been transferred onto the Constitutional Court, criticising the Court, targeting either the institution or the individual judges was being criminalised. Meanwhile, the King engaged in a vigorous campaign of reaffirmation of his traditional roles as Lord of the Land, Lord of Life and Upholder of Buddhism, respectively, by reclaiming corresponding royal prerogative powers. In order to do so, he had several pieces of legislation amended. As the Lord of the Land, he re-established control over the wealth of the Crown (and grabbed significant portions of lands in Bangkok);100 as the Lord of Life, he enforced the death penalty for some death row inmates while granting royal pardons to others;101 and as the Upholder of Buddhism, he regained the discretionary power to appoint the Buddhist Supreme Patriarch.102 In a move that could be interpreted as a way to assert his authority over both the judiciary and the military, he ordered the judiciary throughout the kingdom to stop prosecuting lèse-majesté cases filed by the military, resulting in a de facto moratorium on the crime of lèse-majesté.103 In less than two years, he had firmly elevated himself to a position of neo-absolute monarch and had this consecrated in law. By the end of 2018, as the King’s position appeared firmly established, the post-coup military ban on political parties was lifted and elections were eventually scheduled to be held in March 2019 – once again, it was widely expected that, just like in 2001, 2005, 2007 and 2011, the Party associated with Thaksin would win the election by a large margin. Yet in anticipation of possible dissolution by the Constitutional Court, the Pheua Thai Party decided to have several legally separate sister parties run – of course, candidates from the sister parties

97 พระราชบัญญัติประกอบรัฐธรรมนูญว่าด้วยวิธีพิจารณาของศาลรัฐธรรมนูญ พ.ศ. ๒๕๖๑ [Organic Constitutional Law on the Constitutional Court Procedure], 27 February 2018; ข้อกําหนดศาลรัฐธรรมนูญว่าด้วยวิธีพิจารณาคดีรัฐธรรมนูญ พ.ศ. ๒๕๖๒ [Regulation on the Constitutional Court’s Rules of Procedure], 5 September 2019. 98 Article 31 of the Civil Procedure Code. 99 Article 198 of the Penal Code. 100 พระราชบัญญัตจิ ัดระเบียบทรัพย์สินพระมหากษัตริย์ พ.ศ. ๒๕๖๑ [2018 Act on Crown Property], 2 November 2018. 101 An execution took place on 18 June 2018. See ‘Has Rama X Revived Thailand’s Death Penalty?’, New Mandala, 22 June 2018. Massive royal pardons were notably granted in 2016 and 2019; see Eugénie Mérieau, ‘Thailand in 2018: Military Dictatorship under Royal Command’ in Daljit Singh and Malcolm Cook (eds), Southeast Asian Affairs 2019 (ISEAS–Yusof Ishak Institute, 2019). 102 พระราชบัญญัติคณะสงฆ์ (ฉบับที่ ๓) พ.ศ. ๒๕๖๐ [2017 Sangha Act (Third Version)], 6 January 2017. 103 Office of the Prosecutor-General, บันทึกข้อความ เรื่องแนวทางปฏิบัติในการดำ�เนินคดีอาญาตามประมวลกฎหมายอาญา มาตรา 112 [Directive in Prosecution of Criminal Cases According to Article 112 of the Penal Code], 21 February 2017.

244  From Judicialisation to Juristocracy were not to be fielded in the same constituencies as the Pheua Thai Party. One of the parties was the Thais Save the Nation Party, which registered Princess Ubol Ratana, King Vajiralongkorn’s elder sister, as its prime ministerial candidate on the morning of 8 February 2019. In the evening, the King issued a statement deeming this move to be ‘against the customs of Democracy with the King as Head of State’ and ‘the spirit of the Constitution’.104 He stated: All Constitutions of Thailand have included a title on the Monarchy including the current Constitution. These provisions recognise the special status of the Monarchy. According to the traditions of the Democracy with the King as Head of State, the Monarchy is above politics and in a position of revered worship; nobody can violate, charge, or prosecute the King in any way whatsoever. This article covers the King, the Queen and the Heir to the Throne, including close members of the Royal Family who have been assigned to perform royal duties together or on behalf of the Monarch. Therefore, the Queen, the Heir to the Throne, and other close members of the Royal Family must remain above politics and neutral and cannot hold any political position which would be a breach of the spirit of the Constitution and the customs of Democracy with the King as Head of State.105

The ‘customs of DKHS’ were now a concept adopted by the King himself. In response, the Electoral Commission filed a petition with the Constitutional Court seeking the dissolution of the party for its ‘attempt to overthrow the system of Democracy with the King as Head of State’ as well as for practices ‘incompatible with the system of Democracy with the King as Head of State’. On 9 March 2019, the Court ruled to dissolve the Party for violating the DKHS system.106 The ruling referred to the concept of militant democracy, calling it ‘self-defending democracy’. It argued that allowing a princess, even one stripped of her royal title, to run for political office would undermine democracy by ­turning Thailand into a ‘ruling monarchy’.107 Thus, the new King Vajiralongkorn had also, like his father, induced the Court to dissolve a Thaksin-aligned political party. Interestingly, the Court defined ‘Thailand’s Democracy with the King as Head of State’ as ‘Thailand’s constitutional identity’. The ruling confirmed that DKHS formed the core guiding principle of constitutional interpretation in Thailand – it was the main pillar of Thailand’s constitutional culture. 104 ประกาศ​สถาบันพระมหากษัตริย์ตามรัฐธรรมนูญแห่งราชอาณจักรไทย [Announcement on the institution of the monarchy according to the Constitution of the Kingdom], 8 February 2019, published in the Royal Gazette, vol 136, issue 37. 105 ibid. 106 คำ�วินิจฉัยศาลรัฐธรรมนูญ ๓/๒๕๖๒ [Constitutional Court Decision 3/2562], 9 March 2019. 107 The Court found a breach of art 92 of the 2017 Political Party Act, which states: ‘When the Election Commission has evidence that one political party has committed one of the following acts, it shall refer the case to the Constitutional Court for dissolution of the political party: (1) Overthrowing Democracy with the King as Head of State or to gain power by unconstitutional means; (2) Acts deemed hostile to Democracy with the King as Head of State.’ For a detailed examination of the ruling, see Eugénie Mérieau, ‘The Thai Constitutional Court, a Major Threat to Democracy’ (Blog of the International Association of Constitutional Law, 3 May 2019).

Royal Constitutional Vetoes, Lèse-Majesté and ‘DKHS’  245 To the Constitutional Court, DKHS meant that the Thai King enjoyed a special role and status in the Thai polity. Using the argument provided by Vajiralongkorn, the Court mobilised the concept of ‘constitutional customs’, relying on Article 5, paragraph 2 of the Thai Constitution on ‘constitutional customs of Democracy with the King as Head of State’. It defined several DKHS customs, including the principle of royalty being ‘above politics’ and of the King being guided by ‘the Ten Virtues of a Righteous King’.108 This special status allowed him to act in times of crisis, provided he followed the ‘Ten Virtues of a Righteous King’.109 The dissolution of the Thais Save the Nation Party deprived the opposition of one of its major parties just weeks before the general election, finally held on 24 March 2019. The day before the vote, Vajiralongkorn called on Thais to choose ‘good people’, a coded wording to refer to the military. In the midst of allegations of electoral fraud, the Phalang Pracharat Party, which was allied with the military, won the election and the leader of the 2014 coup, Prayuth, was returned as Prime Minister. In a sense, the 2019 party dissolution at the suggestion of the King paved the way for the ­‘electoral coup’ returning a general to the post of head of government, sustaining the interplay between the King, the courts and the military that had characterised Bhumibol’s later reign. Within this new context of a seemingly ‘return to civilian rule’, Vajiralongkorn engaged, like his father before him, in two major royal ceremonies: his marriage to a Queen and his own coronation ceremony, held on 3 and 4 May, respectively. In July, Prayuth led the new Cabinet to the Dusit Palace to be sworn in during an audience with the King, now officially Rama X. In what appears to be a lastminute change of mind, the King expressed his wish that the members of the Cabinet do not pronounce the oath as written in the Constitution, but rather a customised version of it. Instead of swearing to ‘be loyal to the King and comply and uphold the Constitution’, they swore to ‘be loyal to the King’ tout court. The Cabinet complied with the King’s ‘advice’: they swore to ‘be loyal to the King’, not the Constitution, and added they would be so ‘forever’.110 The King being above politics meant, literally, the King being above the Constitution. The newly founded Future Forward Party, which had come third in the 2019 election, immediately denounced the Cabinet’s oath ceremony to the King as being a blatant violation of the Constitution: the ombudsmen filed a petition with the Constitutional Court, but the Court dismissed the case, arguing that it had no authority to rule on the matter.111 108 See Eugénie Mérieau, ‘Buddhist Constitutionalism, When Rajadhamma Supersedes the Constitution’ (2018) 13 Asian Journal of Comparative Law 283. 109 คำ�วินิจฉัยศาลรัฐธรรมนูญ ๓​/๒๕๖๒ [Constitutional Court Decision 3/2562], 9 March 2019. 110 During the ceremony, which was broadcast on TV, Prayuth was seen reading the rewritten oath from a sheet of paper in his hand, omitting to swear to uphold the Constitution and adding the word ‘forever’, as Cabinet members repeated Prayuth’s words. See ‘Prayut Makes Light of Alleged Oath Gaffe’, Bangkok Post, 5 August 2019. 111 คำ�สั่งศาลรัฐธรรมนูญ​ ๓๕/๒๕๖๒ [Order of the Constitutional Court 35/2562], 11 September 2019.

246  From Judicialisation to Juristocracy Instead, it was the Future Forward Party which soon faced multiple dissolution grounds in the Constitutional Court for ‘violating the Constitution’, including one for ‘attempt to overthrow DKHS’. The party was eventually dissolved in February 2020 and its executive board members were banned from engaging in politics for 10 years.112 As a reward for his service, the Constitutional court’s presiding judge, who had favoured giving Future Forward Party members a lifetime political ban, was appointed by the King to the Privy Council.113 The aforementioned judge, Nurak Mapranit, had an impressive record of career achievements: he had participated in the dissolution of the Thai Rak Thai Party in 2007, the drafting of the 2007 Constitution, the dismissal of Samak from his prime ministership in 2008, the dissolution of the People’s Party in 2008, the ruling on the unconstitutionality of revising the Constitution to have an elected Senate in 2013, the invalidation of Yingluck’s re-election in 2014 and the dissolution of the Thais Save the Nation Party in 2019. This appointment to the Privy Council signalled that judicial activism, when done in the name of the King and with the aims to police compliance with DKHS, still yielded the highest rewards.  The practices of juristocracy ‘in the name of the King’, initiated with the 1997 Constitution, deepened under the 2007 and 2017 Constitutions. The ‘exercise of royal sovereignty through the courts’, as mandated by the Constitution, manifested itself in judicial activism against politicians and in the various royally sanctioned ‘judicial coups’. Following the April 2006 royal remarks, Thai judges vowed to exercise ‘royal crisis powers’ on behalf of the King: they saw their duty as providing service to the monarchy by upholding, first and foremost, ‘Democracy with the King as Head of State’. Key elements of DKHS were later defined by the Constitutional Court as including, notably, the principle of an appointed Senate as well as the enforcement of royal inviolability through the use of the lèse-majesté law. More importantly, the Constitutional Court endorsed the principle of an enforceable set of constitutional ‘customs’ associated with DKHS, Thailand’s ‘constitutional identity’. Against readings of irreducible differences in terms of leadership style, there is continuity between the reigns of Bhumibol and Vajiralongkorn – both encouraged the judicialisation of politics in order to preserve the royal prerogative. To that end, both monarchs paid heed to both technical and symbolic aspects of Thai constitutional law, making use of their royal vetoes if necessary. In other words, they both made sure that the juristocracy remained under royal control.

112 คำ�วินิจฉัยศาลรัฐธรรมนูญ ๕/๒๕๖๓ [Constitutional Court Decision 5/2563], 21 February 2020. The party was dissolved for having accepted a loan at a very low interest rate from its co-founder, Thanathorn Juangroongruangkit. 113 ประกาศแต่งแต่งตั้งองคมนตรี [Announcement on the appointment of a Privy Councillor], 4 May 2020. The appointment was countersigned by the President of the Privy Council, Surayud Chulanont.

11 Conclusion: Democracy with the King as Head of State The Bricolage of Thai Constitutional Identity

#

Republic-of-Thailand, #Why-do-we-need-a-King, #Constitutional-reform. In the autumn of 2020, these hashtags were trending on Twitter as young protesters gathered in various Bangkok locations to challenge the monarchy: they demanded the repeal of the lèsemajesté law and urgent constitutional reform.1 On 19 September 2020, under the banner of the ‘United Front of Thammasat and Demonstration’, they organised a huge rally at Sanam Luang, literally ‘the Royal Field’, located near the Grand Palace, the official residence of the King. In defiance of ‘Long Live the King’, they relentlessly shouted ‘Long Live the People’ (‘pracharasadorn chong charoen’). That same night, they placed a commemorative plaque near the Grand Palace as a way to inscribe their struggle in the continuity of the 1932 Revolution. Reproducing the famous statement made by the 1932 revolutionaries, the plaque read: ‘this country belongs to the people and not to the King as they have misled us into believing’. It pictured the three-finger salute from the US film series The Hunger Games, the symbol of the ‘Free Youth’ movement. In the morning, they marched to the Privy Council headquarters to submit their 10-point manifesto on monarchic reform to a representative of the King. In particular, they demanded that the monarch be stripped of his legal immunity, that the lèse-majesté law should be abolished and that all people jailed on lèse-majesté grounds should be pardoned, that public funding of the monarchy should be cut, that all royal offices, including the Privy Council, should be abolished, and that the giving of royal consent to military coups should be outlawed.2 1 See the special issue of Critical Asian Studies on the 2020 Thai youth protests, in particular Aim Sinpeng, ‘Hashtag Activism: Social Media and the #FreeYouth Protests in Thailand’ (2021) 54 Critical Asian Studies 192. 2 The full list of demands was translated in English and published in ‘The Demonstration at Thammasat Proposes Monarchy Reform [Full Statement]’ Prachatai, 11 August 2020. See also Hathairath Phaholtap and David Streckfuss, ‘The Ten Demands That Shook Thailand’ (New Mandala, 2 September 2020).

248  Democracy with the King as Head of State as Bricolage ‘We order You to submit to the Constitution!’ read some of the most moderately worded graffiti seen on the streets of Bangkok during the protests.3 For these student activists, finishing the ‘unfinished’ revolution of 1932 implied turning Thailand into a true constitutional monarchy, resembling the type of monarchy that existed in the UK. ‘We are calling for the reform of the Thai monarchy, like in England, where the royal family does not directly intervene in politics’,4 declared Panusaya Sithijirawattanakul, one of the leaders of the 2020 protests. In line with the main contention of this book, Panusaya and the 2020 protesters articulated a three-pronged argument: first, they identified the monarchy rather than the military (or the courts or Parliament) as the locus of power in Thailand; second, they considered the King’s power to be directly derived from specific constitutional provisions such as those providing for a Privy Council, an appointed Senate and a royal veto, as well as provisions on royal inviolability which have routinely been used by the courts and the military to justify the use of the lèse-majesté law shielding the monarchy from criticism; and finally, in order to reduce the King’s role in Thai politics and tame his exercise of the royal prerogative, they saw constitutional reform as a necessary first step. The end goal, for those among the affiliated members of the ‘United Front for Thammasat and Demonstration’ who did not directly invoke republicanism, was to turn Thailand into a constitutional monarchy modelled on the UK. This reflects the fact that in the Thai context, what ‘constitutional monarchy’ entails is defined in reference to the British monarchy. In fact, asking ‘is Thailand a constitutional monarchy?’ is equivalent to asking the following question: how similar or how different from the role of the British Queen is the role of the Thai monarch? At first glance, the Thai constitutional provisions on the monarch largely resemble a codified version of the British constitutional conventions governing the royal prerogative: the procedure of ministerial countersignature of royal acts established by the Constitution suggests that the King must always act on ministerial advice.5 Moreover, Article 2 of the Thai Constitution textually defines Thailand as a ‘democratic monarchy’: the Thai expression used since 1949, first as two separate sentences, then merged into one expression (prachatipatai (an) mi phramahakasat song pen pramuk), approximates a 3 The English translation provided does not accurately reflect the insulting tone of the message. The wording used in Thai makes use of very familiar pronouns (‘กูสงั่ ให้มึงอยู่ใต้รัฐธรรมนูญ’). Statements painted all over Bangkok also included demands such as the outright abolition of the monarchy, often written in English (‘We want a Republic of Thailand’). 4 Panusaya Sithijirawattanakul, quoted in ‘Thai Anti-government Protesters Rally in the Thousands, as Challenge to the Once-Untouchable Monarchy Grows’ (Washington Post, 16 August 2020). 5 Peter Leyland and Andrew Harding rightly observed that the powers provided explicitly to the Thai King by the Constitution ‘conform to the standard prescriptions for constitutional monarchy, such as assent to legislation, summoning and proroguing the Legislature, and acting on government advice’l Andrew Harding and Peter Leyland, The Constitutional System of Thailand: A Contextual Analysis (Hart Publishing, 2011) 32.

Democracy with the King as Head of State as Bricolage  249 translation of ‘democratic monarchy’ from English. However, its current authoritative translation is neither ‘democratic monarchy’ nor ‘constitutional monarchy’, but ‘Democracy with the King as Head of State’ (DKHS), suggesting that Thailand’s polity is based on a unique system distinct from a constitutional monarchy.6 As this book has shown, DKHS progressively emancipated itself from any reference to the English term ‘constitutional monarchy’ to become a Thai legal concept built on notions of Buddhist kingship, which soon provided the basis for expanding the royal prerogative beyond what is ­considered ‘standard’ in a constitutional monarchy.7 Is Thailand a constitutional monarchy? This seemingly straightforward question demands unpacking. It appears that it is closely related, if not equivalent, to another set of interrogations: is the King constrained by the Rule of Law in Thailand? Does the Thai Constitution matter at all? Is the supremacy of the Constitution enforced against the King? Does Thailand ‘have’ constitutionalism? This set of questions assumes, respectively, that the Rule of Law can only be conceived of as limiting the royal prerogative, not expanding it; that the Thai Constitution can only be said to ‘matter’ if it limits the royal prerogative, not if it expands it; and that Thailand ‘has’ constitutionalism only if the King is a ceremonial monarch and the royal prerogative is de facto exercised, by constitutional convention, by the Cabinet. The royal prerogative refers to royal discretionary powers,8 the exercise of these discretionary powers is restrained by rules known as constitutional conventions,9 and conventions are built on the interplay between black letter text, past political practices and doctrine (as co-produced by scholars and courts).10 However, in Thailand, both the political 6 The authoritative translation of prachatipatai (an) mi phramahakasat song pen pramuk in English as ‘Democracy with the King as Head of State’ is derived from the Council of State’s translation of constitutional documents. Article 2 of the 1997 Constitution is translated as ‘Thailand adopts a democratic regime of government with the King as Head of the State’, while the Thai version reads: ‘ประเทศไทยมีการปกครองระบอบประชาธิปไตยอันมีพระมหากษัตริย์ทรงเป็นประมุข’. 7 Leyland and Harding identify a set of ‘standard’ prescriptions for constitutional monarchy, namely ‘assent to legislation, summoning and proroguing the Legislature, and acting on government advice’; Leyland and Harding (n 5) 32. They also define the power of the King in a ‘constitutional monarchy along the European pattern’ as ‘having mainly ceremonial powers, or substantive but somewhat nominal powers such as the power to refuse assent to a bill passed by the Legislature, sending it back for reconsideration’ (at 29–30). 8 AV Dicey defined it authoritatively as: ‘The residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown’; AV Dicey, Introduction to the Study of the Law of the Constitution (10th Ed) (Macmillan and Co, 1959) 424. See also Robert Blackburn, ‘Monarchy and the Personal Prerogatives’ [2004] Public Law 546; Rodney Brazier, ‘Monarchy and the Personal Prerogatives: A Personal Response to Professor Blackburn’ [2005] Public Law 45; Noel Cox, The Royal Prerogative and Constitutional Law: A Search for the Quintessence of Executive Power (Routledge, 2020); Peter Leyland, The Constitution of the United Kingdom (Hart Publishing, 2016) 87–90. 9 Dicey (n 8) 24; Geoffrey Marshall, Constitutional Conventions: The Rules and Forms of Political Accountability (Clarendon Press, 1984); Leyland (n 8) 32–40. 10 Ivor Jennings proposed the following test to identify a constitutional convention: ‘first, what are the precedents; secondly, did the actors in the precedents believe that they were bound by a rule; and thirdly, is there a reason for the rule?’ Sir Ivor Jennings, The Law and the Constitution, 5th edn (University of London Press, 1959) 136.

250  Democracy with the King as Head of State as Bricolage and judicial interpretations of the Constitution and the doctrinal definitions of the Rule of Law reinforce and expand rather than limit the royal prerogative. Therefore, even if they do not work towards limiting the royal prerogative, and perhaps precisely for that very reason, the Thai Constitution matters, and so do Thai discourses on the Rule of Law. The key point of this book is that they should be taken seriously and studied on their own terms. Thai jurists have always used the British parliamentary model of monarchy as their reference point, yet the Thai monarchy owes much of its design to the ‘constitutional monarchism’ of nineteenth-century continental Europe, defined by the theory of the ‘granted constitution’ locating constituent power in the monarch while acknowledging the principle of popular sovereignty. This finding is consistent with the fact that the Thai monarchy is based on a written, codified, extremely rigid and entrenched Constitution, providing for a Kelsenian Constitutional Court, within a wider legal order based on the civil law model. Yet simultaneously, the legal imagination of Thai jurists was heavily shaped by common law conceptions, as well as British jurisprudence, particularly its school of legal positivism. Thai jurists have also found inspiration in the historical and natural law schools of jurisprudence, as well as in doctrines such as the theory of revolutionary legality. Importantly, Buddhist worldviews have informed the reception and adaptations of these jurisprudential schools of thought and their various doctrines, which in turn have shaped Thai definitions of the royal prerogative, constitutional conventions and the Rule of Law. Thai constitutional law might appear secular, but in fact, indigenised definitions of the Rule of Law and of constitutionalism reflect deeply embedded Buddhist worldviews locating the King at the apex of a constitutional order conceived of as deriving from the monarch rather than the other way round. I.  SUMMARY OF THE BOOK’S CONTRIBUTION: BRICOLAGE AS A PROCESS AND METHOD IN COMPARATIVE CONSTITUTIONAL LAW

The process of assembling borrowed legal mechanisms and doctrines from various origins and traditions is what this book has defined, building on Claude Lévi-Strauss11 and Mark Tushnet,12 as ‘constitutional bricolage’: within a global repertoire of specific constitutional models and doctrines, itself determined by global power asymmetries,13 bricolage is the dual process of collecting and

11 Claude Lévi-Strauss, The Savage Mind (University of Chicago Press, 1966) 16–25. 12 Mark Tushnet, ‘The Possibilities of Comparative Constitutional Law’ (1999) 108 Yale Law Journal 1225, 1285–1306. 13 Günter Frankenberg, ‘Constitutions as Commodities: Notes on a Theory of Transfer’ in Order from Transfer (Edward Elgar, 2013); Günter Frankenberg, ‘Constitutional Transfer: The IKEA Theory Revisited’ (2010) 8 International Journal of Constitutional Law 563.

Summary of the Book’s Contribution: Bricolage as Process and Method  251 putting together various constitutional ‘formants’14 or ‘irritants’,15 including institutional mechanisms, textual provisions, legal doctrines, modes of constitutional interpretation and patterns of political practices, while giving them new meanings, purposes and functions vis-a-vis one another. In contrast to ‘diffusion’, ‘migration’ or ‘circulation’, bricolage refers to the holistic process of assemblage while focusing on the actual work of bricolage done by the ‘bricoleur’ jurist, which is both to collect, import and localise these eclectic elements and to integrate them into a ‘coherent’ constitutional order by crafting a set of legal doctrines specifically tailored to that end. As the process of constitutional borrowing, guided by historical contingencies and the accessibility of ‘constitutional material’ at a specific time and place, involves a lot of improvisation, the doctrinal activity of the bricoleur is key: using legal arguments, it conceals the initial improvisation of the bricolage by rationalising it. This process obviously involves the constant rewriting of constitutional history for the purposes of ‘erasing’ the randomness of the bricolage. To reveal and analyse the process of constitutional bricolage, this book applied the Geertzian method of ‘thick description’16 to constitutional orders and called this ‘constitutional ethnography’. ‘Thick description’, also known as ‘layered description’, is the deciphering of the meanings produced at various ‘depths’ of a cultural system (the cultural system being ‘read’ like a text).17 Applied to a constitutional order, constitutional ethnography is the deciphering of the meanings produced in the various ‘layers’ of constitutional activity: the making of constitutions through constitution-drafting, the crafting of legal doctrines through scholarship and adjudication, and the production of constitutional practices through political and counselling activities. These three categories or layers correspond roughly to (constitutional) structure, (constitutional) ideas and (political) agency, respectively, which in turn correspond to three major types of ‘constitutional formants’: constitutional law in books, constitutional law in minds and constitutional law in action. Within these three ‘layers’ or activities, this book has put legal ideas, or constitutional law

14 The term ‘constitutional formant’ is derived from Rodolfo Sacco’s ‘legal formants’; see Rodolfo Sacco, ‘Legal Formants: A Dynamic Approach to Comparative Law (Installment I of II)’ (1991) 39 American Journal of Comparative Law 1; Alan Watson, ‘From Legal Transplants to Legal Formants’ (1995) 43 American Journal of Comparative Law 469. 15 The term ‘constitutional irritant’ is derived from Gunther Teubner’s ‘legal irritants’. See Gunther Teubner, ‘Legal Irritants: Good Faith in British Law or How Unifying Law Ends up in New Divergences’ (1998) 61 Modern Law Review 11. 16 Clifford Geertz, ‘Thick Description: Toward an Interpretive Theory of Culture’ in The Interpretation of Cultures: Selected Essays (Basic Books, 1973). 17 ‘The concept of culture I espouse … is essentially a semiotic one. Believing, with Max Weber, that man is an animal suspended in webs of significance he himself has spun, I take culture to be those webs, and the analysis of it to be therefore not an experimental science in search of law but an interpretive one in search of meaning. It is explication I am after, construing social expressions on their surface enigmatical’ (ibid 5); Mark A Schneider, ‘Culture-as-Text in the Work of Clifford Geertz’ (1987) 16 Theory and Society 809.

252  Democracy with the King as Head of State as Bricolage in minds,18 literally at the centre of the description (Chapters 3, 6, 9), in order to show the power of legal ideas both on the rationalisation of constitutional bricolage and on the actual practice of power. Constitutional doctrines do not only rationalise a posteriori an established constitutional order; they in turn shape the political interpretations of the Constitution. DKHS is a paradigmatic example of this process: DKHS, a bricolage of ‘constitutional monarchy’ and ‘Buddhist kingship’, was first ‘invented’ by doctrinal scholarship to justify the King’s role in Thai politics, before being enshrined in successive constitutions, enforced by courts and in turn practised by the monarch. Even though the wording itself is a result of successive historical accidents born out of a translation from English, the DKHS doctrine transformed this original (mis) translation into an entire coherent dogmatic apparatus mixing theories of constitutional monarchy with Buddhist kingship and ultimately expanding the King’s power. Thinking through local legal doctrines and categories, such as DKHS, is key to any attempt at a ‘thick description’ of a constitutional order. Within the debate between autonomism and contextualism, the study of how local doctrinalism re-interprets foreign transplants displaces or even transcends the Legrand-Watson debate19 by emphasising, beyond the complementarity between both approaches, the need for taking seriously, within a contextual study of comparative constitutional law, the fiction of legal autonomism and its associated methodology: formalism. Contextualism does not annihilate the relative autonomy of the legal – its formalism, its internal logic and its own set of internal constraints. Legal transplants are surely re-interpreted along religious lines and for political purposes, but then they are nevertheless incorporated within a coherent doctrinal legal thinking that, as such, seeks to stake a claim of autonomy from both religion and politics. In addition, transplants do not simply move from an origin to a destination; they have plenty of transit points and their trajectories are highly diachronic. With so many re-interpretations along the way, any serious attempt at tracing the origin of a transplant is quite preposterous, and comparing the ‘real’ meaning of the transplant at its hypothetical point of origin to its ‘failure’, ‘subversion’ or ‘abuse’20 later at its point of destination proves rather elusive. In other words, as transplants have no inherent, fixed meanings travelling with them as they move across time and space, they are impossible. And yet they occur all the time – bricolage is the dual process of their transformative aggregation and constant doctrinal re-ordering. 18 William Ewald, ‘Comparative Jurisprudence (I): What was it Like to Try a Rat?’ (1995) 143 University of Pennsylvania Law Review 1889. 19 Alan Watson, Legal Transplants: An Approach to Comparative Law (University of Georgia Press, 1993); Pierre Legrand, ‘The Impossibility of “Legal Transplants”’ (2017) 4 Maastricht Journal of European and Comparative Law 111. 20 Rosalind Dixon and David Landau, ‘1989–2019: From Democratic to Abusive Constitutional Borrowing’ (2019) 17 International Journal of Constitutional Law 489.

Summary of the Book’s Contribution: Bricolage as Process and Method  253 In a Derridean move,21 one would be tempted to declare that all is bricolage, starting with the very concept of constitutional monarchy itself, an uneasy mixture of democratic and monarchic elements to which Walter Bagehot gave one of the most enduring attempts at a posteriori rationalisation in the form of the so-called ‘tripartite convention’, misunderstood and re-interpreted over the years to create what is assumed today to be an operational concept of constitutional monarchy reconciling monarchy and democracy.22 Buddhist kingship is also an unsteady composite of contradictory Hindu and Buddhist elements, the former conferring a divine character upon the King and the latter the character of a virtuous man23 – these were assembled and re-interpreted over the years to elevate the King to a sacred, paternal demi-god status to which the dharmaraja doctrine provided a tentative doctrinal justification. Finally, DKHS itself is a bricolage between the concepts of constitutional monarchy and Buddhist kingship – in short, a bricolage of bricolages. This radical hypothesis translates, methodologically, into a call for comparative constitutional scholars to engage, as much as possible, in a constitutional ethnography or holistic ‘layered description’ of the institutional and doctrinal ‘layers’ of constitutional orders by relying on socio-legal modes of inquiry unveiling the categories of symbolic thought that form the basis of the legal imagination – most notably religion – as well as the historical method tracing the genealogy of laws and institutions. Ideally, it implies deep immersion in fieldwork, the mastering of the local language, and participant observation.24 In the Thai context, constitutional ethnography involving participant observation has traditionally not been the preferred methodology of legal scholars. Perhaps the endeavour of anthropologist Quaritch Wales in the 1930s to study ‘State ceremonies’ can retrospectively qualify as constitutional ethnography.25 Legal scholars, unlike anthropologists, have little incentive to learn the Thai language and spend long periods of time carrying out fieldwork in Thailand.26 21 Commenting on Claude Lévi-Strauss’ concept of bricolage, Jacques Derrida wrote: ‘If one calls bricolage the necessity of borrowing one’s concepts from the text of a heritage which is more or less coherent or ruined, it must be said that every discourse is bricoleur’; Jacques Derrida, Writing and Difference (University of Chicago Press, 1978) 285. 22 Anne Twomey, ‘From Bagehot to Brexit: The Monarch’s Rights to Be Consulted, to Encourage and to Warn’ (2018) 107 Round Table 417. 23 Stanley Jeyaraja Tambiah, World Conqueror and World Renouncer: A Study of Buddhism and Polity in Thailand against a Historical Background (Cambridge University Press, 1976) 97. 24 Kim Lane Scheppele, ‘Constitutional Ethnography: An Introduction’ (2004) 38 Law & Society Review 389; Nick Cheesman, ‘Rule-of-Law Ethnography’ (2018) 14 Annual Review of Law and Social Science 167. See also Vivian Grosswald Curran, ‘Cultural Immersion, Difference and Categories in US Comparative Law’ (1998) 46 American Journal of Comparative Law 43. 25 HG Quaritch Wales, Siamese State Ceremonies: Their History and Function (Bernard Quaritch Ltd, 1931). 26 Even Thai PhD students enrolled in programmes outside of Thailand have little incentive to do fieldwork in Thailand. As such, not much has changed since Benedict Anderson’s bleak diagnosis on the state of Thai studies published in 1978. See Benedict Anderson, ‘Studies of the Thai State: The State of Thai Studies’ in Eliezer Ayal (ed) The Study of Thailand: Analyses of Knowledge, Approaches and Prospects in Anthropology, Art History, Economics, History, and Political Science (Ohio University Center for International Studies, 1978).

254  Democracy with the King as Head of State as Bricolage As a result, in spite of a shared and sincere advocacy of contextualism, recent comparative accounts of the Thai monarchy tend to locate Thai constitutional developments within an evolutionary sequence towards the British or European model of constitutional monarchy.27 Even though the contextualist critique of normativism is being increasingly subscribed to, in practice it often falls short of its promise: discourses about the success, failure or abuse of legal transplants and the need for legal reform, as well as remarks about ‘nonsensical’ legal theories or ‘illogical’ rulings, are not rare occurrences, notwithstanding some bona fide pledge to cultural analysis.28 Using the principle of charitable interpretation29 or, as Pierre Legrand calls it, ‘empathy for alterity’30 means taking Thai constitutional texts, doctrines and practices seriously. In the following sections, I will offer a brief overview of the broader theoretical and methodological implications of the book’s tentative findings. II.  TAKING TEXTUAL PROVISIONS SERIOUSLY: ON THE ROYAL PREROGATIVE AND CONSTITUTIONAL CONVENTIONS

The category of constitutional monarchy is problematic. As monarchy is understood to be a ‘political anomaly’,31 it is seriously under-theorised. In particular, the intermediary forms between a purely figurehead monarch and a ruling absolute monarch are overlooked in both the political science and the legal literature, owing to the understanding that mixed constitutional monarchies, in which the King retains significant political power, are transitory phenomena: the royal prerogative is thus often described as a ‘constitutional anachronism’.32 27 An example from the political science literature would be Roger Kershaw, Monarchy in South East Asia: The Faces of Tradition in Transition (Routledge, 2002), which examines the role of monarchy in bringing about a political transition to liberal democracy. In the legal literature, it is interesting to compare Leyland’s The Constitution of the United Kingdom (n 8) to Leyland and Harding’s The Constitutional System of Thailand (n 5), both published as part of the Hart ‘Constitutional Systems of the world’ series. They follow the same outline (introductory chapter on context and history, followed by chapters on the legislature, the executive, the judiciary, local democracy and a concluding chapter on perspectives for the future), but the UK version has a detailed 20-page chapter on the Crown and the royal prerogative, while the Thai version only devotes a two-page subchapter to the monarchy and the military combined, within the chapter on the executive branch of government. 28 For instance, in the comments received as part of this book peer-review process – comments nevertheless still extremely useful and valuable. 29 As Donald Davidson wrote: ‘Charity is forced on us; whether we like it or not, if we want to understand others, we must count them right in most matters’; Donald Davidson, Inquiries into Truth and Interpretation (Oxford University Press, 2001) 197. This principle is in turn closely related to Hans-Georg Gadamer’s concept of understanding (‘Verstehen’); see Hans-Georg Gadamer, Truth and Method (A&C Black, 2013). 30 Pierre Legrand, Fragments on Law-as-Culture (WEJ Tjeenk Willink, 1999) 11; Pierre Legrand, ‘European Legal Systems are Not Converging’ (1996) 45 International and Comparative Law Quarterly 52, 76. 31 Michael Leifer’s preface to Kershaw (n 27) xi. 32 Thomas Poole, ‘United Kingdom: The Royal Prerogative’ (2010) 8 International Journal of Constitutional Law 146, 147.

The Royal Prerogative and Constitutional Conventions  255 It is true that the model of limited monarchy, characterised by its dualist parliamentarism (the prime minister being doubly responsible to both the King and Parliament), which has been the preferred form of government throughout the nineteenth century in Europe, has progressively been replaced by monist parliamentary monarchies (the prime minister being solely responsible to Parliament) or even republics.33 However, elsewhere in the world, such as in Thailand, mixed constitutional monarchies have survived and thrived; therefore, it might be useful to revisit the category of limited monarchy and rehabilitate it for present usage. Its dualist parliamentary practices rely on the doctrine of ‘constitutional monarchism’, which marries the principle of the supremacy of the Constitution with the monarchic principle.34 The main device through which this difficult compromise is achieved is the typical ‘granted constitution’ model, according to which the Constitution is a gift or octroy from the King to the people.35 This model was debated at length in French and German doctrinal constitutional scholarship of the first half of the twentieth century, most notably in the works of Adhémar Esmein, Paul Bastid and Carl Schmitt. According to Bastid, when the principle of ‘granted constitution’ is constitutionally consecrated, such as in the case of the French 1814 and 1830 Charters, it is not the Constitution that pre-exists the monarch, but the monarch that pre-exists the Constitution.36 Hence, as the law exists thanks to the monarch rather the other way round, the monarch can at any time and at will revoke the Constitution he or she has benevolently granted.37 Adhémar Esmein gave a detailed account of how ‘granted constitutions’ theorise sovereignty: sovereignty is declared to be owned by the people but exercised by the King,38 thereby making the two principles of popular and royal sovereignty co-exist simultaneously. According to Schmitt, responding to Friedrich Julius Stahl’s earlier arguments,39 such a compromise, typical of the 1850 Prussian Constitution, can only be dilatory: at some point, either the monarchic principle or the democratic/ parliamentary principle must eliminate the other, as was historically the case in the UK.40 This understanding of the phenomenon of ‘granted constitutions’ 33 Günter Frankenberg, ‘Constitutional Transfers and Experiments in the Nineteenth Century’ in Order from Transfer (Edward Elgar, 2013). 34 Markus Prutsch, Making Sense of Constitutional Monarchism in Post-Napoleonic France and Germany (Springer, 2012). 35 Luigi Lacchè, ‘Granted Constitutions: The Theory of Octroi and Constitutional Experiments in Europe in the Aftermath of the French Revolution’ (2013) 9 European Constitutional Law Review 285. 36 Paul Bastid, Les institutions politiques de la monarchie parlementaire française, 1814–1848 [Political Institutions of the French Parliamentary Monarchy, 1814–1848] (Sirey, 1954) 183. 37 ibid 146. 38 Adhémar Esmein, Eléments de droit constitutionnel français et étranger [Fragments on French and Foreign Constitutional Law] (Sirey, 1921) 172–73. 39 Friedrich Julius Stahl, The Doctrine of State and the Principles of State Law (WordBridge Publishing, 2009) 275–314. 40 Carl Schmitt, Constitutional Theory (Duke University Press, 2008) 105. In this English translation, it is unfortunate that Jeffrey Seitzer misleadingly translated ‘octroyed’ (‘oktroyiert’ in German) as ‘imposed’ constitution. For the original German text, see Carl Schmitt, Verfassungslehre [Constitutional Theory] (Duncker & Humboldt, 1989) 54.

256  Democracy with the King as Head of State as Bricolage as belonging to the distant past explains why legal literature has given it little consideration in recent decades.41 Another reason is that the principles of royal octroy and royal sovereignty usually appear in the constitutional preamble or in general provisions, and as these are traditionally considered as declaratory rather than normative statements, they have been consistently overlooked.42 The principle of sovereignty and the fiction about the source of the Constitution as written in the preamble and the general provisions matter little indeed in the daily operations of constitutional politics, yet they critically do in times of constitutional crisis. Situations of crisis are, historically, the first vehicle of the affirmation of sovereign power and are an often brutal reminders of where sovereignty truly lies. In cases of ‘granted constitutions’, as Schmitt put it: ‘The sovereignty of the monarch immediately reveals itself during every conflict and in every crisis.’43 When there is a major constitutional crisis, the monarchic principle is unveiled and the monarchy’s use of discretion is not only possible, but is in fact warranted. According to Sir Ivor Jennings, the monarch must refuse unlawful ministerial advice in times of emergency, when the constitutional order is at stake.44 According to Vernon Bogdanor, it is precisely because these circumstances have not occurred since 1914 in the UK that royal sovereignty has progressively made way for democratic/parliamentary sovereignty.45 In simple terms, the more constitutional crises, the more discretionary powers are given to the monarch. It is no coincidence that Thailand’s most durable constitution, the 1932 Constitution, concurred with the longest period of regency in Thailand’s history.46 The theory of the granted Constitution is also extremely crucial in cases of a military coup. Whenever a coup occurs, a monarch has two options: accept the coup or oppose it. A monarch’s utmost exercise of his or her prerogative can be to oppose a coup, like King Juan Carlos did in Spain in 1981, or to accept it, as King Constantine II did in Greece in 1967. A third possibility is

41 With a few exceptions, such as Lacchè (n 35); Oscar Ferreira, ‘The Ambiguities of “Granted Constitutionalism” : A Transatlantic Debate (I)’ 16 (2015) Historia constitucional 67; Oscar Ferreira, ‘The Ambiguities of “Granted Constitutionalism” : A Transatlantic Debate (II)’ 18 (2017) Historia constitucional 119; and Oscar Ferreira, ‘The Ambiguities of “Granted Constitutionalism” : A Transatlantic Debate (III)’ (2018) 19 Historia constitucional 351. 42 See Wim Voermans, Maarten Stremler and Paul Cliteur (eds), Constitutional Preambles (Edward Elgar, 2017). 43 Schmitt (n 40) 314. 44 Sir Ivor Jennings, Cabinet Government, 3rd edn (Cambridge University Press, 1959) 412; Rodney Brazier, ‘The Monarchy’ in The British Constitution in the Twentieth Century (British Academy, 2004) 69; Anne Twomey, The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems (Cambridge University Press, 2018) 691–730. However, this is contested in Robert Blackburn, ‘Queen Elizabeth II and the Evolution of the Monarchy’ in The British Constitution in the Twentieth Century: A Festschrift for Vernon Bogdanor (Oxford University Press, 2004) 170. 45 Vernon Bogdanor, ‘The Monarchy and the Constitution’ (1996) 49(3) Parliamentary Affairs 420. 46 The 1932 Constitution lasted 14 years; the second most-durable Constitution was the 1978 Constitution, which lasted 13 years. The 1959 interim Constitution and the 1997 Constitution both lasted nine years.

The Royal Prerogative and Constitutional Conventions  257 abdication, as Queen Elizabeth II did in Fiji in 1987.47 In Thailand, where military coups routinely happen (every seven years on average), the King has more often than not condoned military coups; when he did not, the coups simply failed. Hence the following questions: to what extent has the King’s role in military coups become a practice that can qualify as a constitutional convention? Are there specific circumstances under which the King is bound by convention to give his stamp of approval to military coups? Is there a convention according to which military leaders ought to seek the royal blessing before staging a military coup? Peter Leyland and Andrew Harding are careful not to address these questions conclusively; they simply acknowledge that ‘it is necessary for a coup to be validated by the King’.48 Tom Ginsburg goes further and identifies the ‘unwritten constitutional rule’ whereby, in Thailand, ‘coup leaders should always seek a private blessing from the throne before, and a public one immediately after, any coup’.49 Nithini Thongtae goes even further, considering the principle whereby the King’s validation of a coup is the very criteria of the coup’s ‘validity’ as being a ‘constitutional custom’.50 Whether any of these practices qualifies as a constitutional convention according to Dicey or Jennings is obviously a conundrum. In any case, the very possibility that the King can refuse to sign a Constitution born out of a coup, as well as to promulgate the Amnesty Act for the junta, exposing the coup-makers to prosecution for violating the Constitution, suffices to establish a political constraint on military leaders, forcing them to seek a blessing from the throne before and immediately after staging a coup. Therefore, the fiction of the ‘royal octroy’ and the hard law that stems from it, namely royal assent to constitutions, is key to the extra-constitutional power of the King vis-a-vis military coups.51 In addition, in times of elected government, the principle according to which the monarch acts on ministerial advice loses its practicality when the possibility of a royally backed coup looms large – the already tenuous difference between the monarch’s ‘right to warn’ and the rejection of ministerial advice disappears entirely. The possibility of a military coup 47 The Queen’s decision to step down as Head of State of Fiji was reportedly made against the advice of then Prime Minister Margaret Thatcher. See Twomey (n 44) 805–06. 48 Leyland and Harding (n 5) 32. 49 Zachary Elkins, Tom Ginsburg and James Melton, The Endurance of National Constitutions (Cambridge University Press, 2009) 190–91. 50 Nithini Thongthae, ‘สถาบันพระมหากษัตริย์กับกระบวนการสร้างรัฐธรรมนูญจารีตประเพณีว่าด้วยการรัฐประหาร’ [‘The Royal Institution and the Mechanism of Construction of Constitutional Custom Regarding Coups’] [2012] Journal of Social Sciences and Law 46. 51 The relationship between these two powers was noted (albeit not explained) by Leyland and Harding: ‘the extra-constitutional role of the monarchy is subtle but taken for granted, including, in one sense, by the constitutions themselves, which invariably indicate in the preamble that the constitution is “graciously bestowed” by the king. It is also necessary for a coup to be validated by the king signing a royal decree issuing an interim constitution which grants immunity to the military, as occurred in 2006; in this sense these two powers are inextricably mixed. It is the king’s consent rather than popular assent which gives a coup such legitimacy as it enjoys. Without that assent the coup would become a revolution’; Leyland and Harding (n 5) 32.

258  Democracy with the King as Head of State as Bricolage (or military-backed judicial coup) becomes a political constraint weighing on the interpretation of the constitution by political actors, just like the possibility of the abolition of the monarchy becomes a political constraint weighing on the interpretation of the British ‘unwritten’ Constitution by political actors in the UK. The porous frontier between law and politics, captured by the concept of ‘constitutional convention’, mirrors the porous frontier between ‘informal’ royal advice and ‘formal’ use of the royal prerogative: the confidential threat of royal veto is as effective, if not more so, than the public exercise of the royal veto.52 In other words, the formal powers need not to be formally exercised, precisely because they formally exist and the possibility of their use acts as a political constraint on political behaviour. In short, this book has shown how the King’s so-called ‘informal powers’, as exercised through speeches, statements and royal audiences, are directly related to his ‘formal powers’ on royal assent to the Constitution and to legislation. Other seemingly symbolic textual provisions such as those on royal inviolability or on DKHS, and their ‘constitutional customs’ (which is a form of formalising informal powers, or constitutionalising the King’s extra-constitutional powers), are also key hard law from which the King’s ‘informal powers’ are derived. The provisions about the royal prerogative, understood to be pure rhetoric, in fact carry a lot of weight. As a member of the 1932 Constitution-Drafting Committee declared to the 1932 drafters, ‘we put them [the royal prerogatives] down in the Constitution for the sake of rhetoric as well as an honour to the King’.53 However, the fact that these written provisions were ‘put down in the Constitution’ in deliberately vague language, once interpreted in line with the principle of the ‘granted Constitution’, could easily be leveraged by the King to expand his own powers. The implication is that textual provisions matter, including narratives put down in the preamble and general provisions, such as declaratory statements on the sources of the Constitution, constituent power and principles of sovereignty. III.  TAKING LOCAL DOCTRINE SERIOUSLY: ON THE POWER OF LEGAL IDEAS AND THE USE OF RELIGION TO LOCALISE LEGAL TRANSPLANTS

It is often assumed that doing law in context presumes disregarding legal doctrine, due to the understanding that these two approaches – doctrinalism 52 Referring to the British monarchy, Bagehot remarked that ‘its mystery is its life’. He further added that, in order to preserve its mystery, the monarch should never ‘seem to struggle’; Walter Bagehot, The English Constitution (Cambridge University Press, 2001) 41, 50. 53 Thawatt Mokarapong, History of the Thai Revolution: A Study in Political Behavior (Chalermnit, 1972) 121. According to Thawatt’s analysis, ‘a few provisions were written down in the [1932 constitutional] document in deliberately vague language to guarantee that no real power was to be exercised by the King’.

The Power of Legal Ideas and the Use of Religion  259 and contextualism – are mutually exclusive.54 It is true that doing law in context means refraining from applying one’s own legal categories and doctrinal reasonings, but precisely so as to be able to grasp foreign legal categories and doctrines on their own terms in order to gain a deeper understanding of the functioning of the legal system under scrutiny (namely, beyond textualism). Each ‘legal culture’55 is underpinned by different legal categories and doctrinal reasonings. These are a product of history; they build on religious and philosophical worldviews, and are embedded in political constellations. The standard textbook doctrine of constitutional monarchy – the monarch shall be entirely bound by ministerial advice and the law of the Constitution, yet can exercise the rights to ‘be consulted, to encourage and to warn’56 – is undergirded by a discourse on the Rule of Law whose terms are rooted in the British experience and British doctrinal writings. It must be recalled here that Bagehot had little to say about the constitutional monarch being constrained by the Rule of Law, or even about the Rule of Law in general: the term was not mentioned even once in his treatise on the ‘English constitution’.57 Bagehot’s writing was informed by its political context and shaped by the scholarly debates of the day, which can be summarised as follows: which model is better, the presidential or the parliamentary? Is the Queen necessary or useful to parliamentary government? Bagehot’s point was to establish the superiority of parliamentary government over presidential government (with a view to ‘diffusing’ the British model to the world), as well as to show that the monarchy was not necessary at all for parliamentary government to function (precisely due to the superiority of parliamentary government).58 His political affiliation therefore comes as no surprise: his republicanism is well documented.59 If his ‘tripartite convention’ corresponded only very little to the actual practice of Queen Victoria at that time,60 it was so much referred to in later years that it acquired performative powers. Centuries later, it still yields a powerful effect on the practice of the British monarchy itself and is even referred

54 Ewald (n 18) 2142. See also William Twining, ‘Jurisprudence, Law in Context, Realism and Doctrine’ in Jurist in Context: A Memoir (Cambridge University Press, 2019). 55 Here, legal culture is taken in its most restrictive definition, referring to the ‘law in minds’ of professional jurists or ‘internal legal culture’. See William Ewald, ‘The Jurisprudential Approach to Comparative Law: A Field Guide to “Rats”’ (1998) 46 American Journal of Comparative Law 701; Roger Cotterrell, ‘Comparative Law and Legal Culture’ in Reinhard Zimmermann and Mathias Reimann (eds), Oxford Handbook of Comparative Law (Oxford University Press, 2006). See also David Nelken, Comparing Legal Cultures (Dartmouth, 1997); Curran (n 24) 45. 56 For instance, John McEldowney, ‘Constitutional Monarchy’ in The New Oxford Companion to Law (Oxford University Press, 2008), http://www.oxfordreference.com/view/10.1093/ acref/9780199290543.001.0001/acref-9780199290543-e-429. 57 This was noted by the editor Paul Smith in his introduction; see Bagehot (n 52) xvi. 58 David M Craig, ‘Bagehot’s Republicanism’ in Andrzej Olechnowicz (ed), The Monarchy and the British Nation, 1780 to the Present (Cambridge University Press, 2007). 59 ibid. See also Twomey (n 22) 417. 60 See Frank Hardie, The Political Influence of Queen Victoria, 1861–1901 (Frank Cass and Co, 1963). On the source of Bagehot’s theorisation of the three powers, see Craig (n 58) 150.

260  Democracy with the King as Head of State as Bricolage to by British courts.61 Bagehot’s constitutional scholarship is here revealed as an ‘agent’ of constitutional change, in that his nineteenth-century doctrinal work acted as a self-fulfilling prophecy, with effects lasting well into the twentyfirst century: it constrained the monarch to the point of turning Britain into a ‘disguised republic’ – Parliament being sovereign. From the late nineteenth century until today, Bagehot’s tripartite convention theory has been one of the main reference points of Thai jurists. Yet in Thailand, it was used for the purpose of expanding the King’s powers at the expense of Parliament rather than the other way round. The tripartite convention was used to justify the King’s prerogative powers as being nothing more than the King’s conventional ‘rights’, while denying that the King was a ruling monarch, as the use of these ‘rights’ conformed to the theory of constitutional monarchy as defined in the UK and therefore to what could arguably be construed as ‘international standards’ of the Rule of Law. Bagehot’s contribution was localised by relying on doctrines of Buddhist kingship, in relation to which a culturally specific category of Rule of Law, called nittitham, was developed. Nittitham refers to the law of dharma, of which the King, according to Buddhist doctrines of kingship, is the final upholder. The Buddhist King is the ‘wheel-turning monarch’ who turns the Wheel of the Law; thereby ­maintaining order.62 Altogether, Bagehot’s and Buddhist kingship doctrines were assembled to craft a doctrinal definition of the Rule of Law empowering the King to act extra-constitutionally in times of crisis. In the system of DKHS, Buddhist kingship is to Thai constitutionalism what Marxism is to Socialist constitutionalism: namely, the core of the ‘legal imagination’, the imagined source of the constitutional order and the test of its validity.63 No matter how ‘abusive’ the bricolage of the British model of constitutional monarchy with doctrines of Buddhist kingship, how ‘nonsensical’ the various theories associated with DKHS or how ‘illogical’ the rulings that rely on them, DKHS is key to an understanding of Thai constitutionalism. Its authors (such as Seni Pramot, Thanin Kraivichien and Bowornsak Uwanno) have radically changed Thai understandings of the Rule of Law and constitutional practices. It is no coincidence that the most important constitutional scholars of Thai history, responsible for crafting DKHS and the related Thai doctrines of the Rule of Law, have been fervent Buddhists and zealous monarchists. Most of them were

61 For instance, Evans v Attorney General [2015] UKSC 21, [2015] 2 WLR 813. See Trevor Allan, ‘Law, Democracy, and Constitutionalism: Reflections on Evans v Attorney General’ (2016) 75 Cambridge Law Journal 38. 62 The Wheel of Law is associated with Buddha’s First Sermon at Deer Park (the dharmachakra). Another wheel, the Jewel Wheel (the chakratana), is the first and foremost of the seven attributes that a dharmaraja king must possess in order to become a universal emperor. See Dhanit Yupho, Dharmacakra or the Wheel of the Law (Fine Arts Department, 1990). 63 As Rodolfo Sacco puts it: ‘It would be as difficult to explain canon law without the notion of God as it would be to explain Soviet law without ideas taken from Marx or Engels or Lenin’; Sacco (n 14) 32.

The Power of Legal Ideas and the Use of Religion  261 educated in the Buddhist faith, trained in Britain and had ties to the Thai royal family:64 using what was ‘ready at hand’ such as Bagehot’s tripartite convention and the doctrines of Buddhist kingship, they ultimately worked to consolidate rather than limit the monarchy. Legal scholars are political actors: they produce doctrines echoing their own worldviews in order to reach specific political outcomes, in the hope that these doctrines will become authoritative and turn into self-fulfilling prophecies. As Pierre Bourdieu puts it, ‘law is the quintessential form of “active” discourse, able by its own operation to produce its effects’.65 Even more than Bagehot’s tripartite convention, DKHS has been a successful legal doctrine turned into a self-fulfilling prophecy: it is now referred to 14 times in the Constitution,66 enshrined as an eternity clause67 and defined as Thailand’s very constitutional identity by the Constitutional Court.68 In short, this book has documented how the bricolage of DKHS, especially in its doctrinal dimension, has relied extensively on the notion of Buddhist kingship. The study of Thai jurisprudence illustrates how religion (here Buddhism) has been invested with the function of both resisting and localising foreign borrowings, such as Bagehot’s tripartite convention, which is still at the heart of the constitutional monarchy-constitutionalism-Rule of Law nexus. The methodological implications are twofold. First, in line with repeated calls to engage in comparative jurisprudence,69 this is an invitation extended to comparative constitutional law scholars to pay renewed attention to the modes of constitutional thought, or constitutional imagination, underpinning a constitutional order and, in particular, to examine how religion informs the processes through which constitutional meanings are fabricated. Second, following from the first point, it can be helpful to rely on the biographical approach70 to shed light on meanings produced through local jurisprudence in order to recontextualise legal thought in light of the personal trajectories, political inclinations and religious thinking of its various authors.

64 See the Appendix. 65 Pierre Bourdieu, ‘The Force of Law: Toward a Sociology of the Juridical Field’ (1987) 38 Hastings Law Journal 805, 839. 66 Articles 2, 5, 45, 49, 50, 78, 191, 255, 257, 258(1) and 258(5), and three times in the preamble. 67 Article 255: ‘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 shall be prohibited.’ See also art 49: ‘No person shall exercise the rights or liberties to overthrow the democratic regime of government with the King as Head of State. Any person who has knowledge of an act under paragraph one shall have the right to petition to the Attorney-General to submit a motion to the Constitutional Court for an order to cease such act.’ 68 ‘การปกครองระบอบประชาธิปไตยอันมีพระมหากษัตริย์ทรงเป็นประมุขเป็นเอกลักษณ์เฉพาะของประเทศไทย’ [‘Democracy with the King as Head of State is Thailand’s unique identity’]. คำ�วินิจฉัยศาลรัฐธรรมนูญ ๓/๒๕๖๒ [Constitutional Court Decision 3/2562] 9 March 2019, 18. 69 William Ewald, ‘Comparative Jurisprudence (II): The Logic of Legal Transplants’ (1995) 43 American Journal of Comparative Law 489. 70 Jean-Louis Halpérin, ‘For a Renewed History of Lawyers’ (2016) 56 American Journal of Legal History 53. See also Victoria Barnes, Catharine MacMillan and Stefan Vogenauer, ‘On Legal Biography’ (2020) 41 Journal of Legal History 115.

262  Democracy with the King as Head of State as Bricolage IV.  TAKING CONSTITUTIONAL PRACTICES SERIOUSLY: ON POLITICAL PRECEDENTS AND THE PERFORMATIVITY OF CONSTITUTIONAL STORY-TELLING

Constitutional histories are not inert; they are contested, weaponised, instrumentalised and rewritten all the time. Constitutional history serves power: writing a constitutional history is the process of articulating constitutional texts into a grand narrative, a process which can hardly be devoid of a political agenda. Traditionally, there are two ways to write national constitutional h ­ istories – the hopeful and the tragic, progress or decadence, the messianic tale and the tragedy. They emphasise cyclical or linear temporalities – the Nietzschean eternal return or the Hegelian dialectic. In any case, writing any history is about turning a series of random events into a plot – the ‘emplotting’ of history. As Roland Barthes famously demonstrated, historical writing is a subjective literary exercise striving to produce a ‘reality effect’ on a reader in order to promote a certain ideology.71 As such, it is fraught with endless controversies. These questions have not been adequately addressed in comparative constitutional law. They are not addressed in the most comprehensive research handbooks in the ­discipline,72 even though master comparative constitutional law histories (especially European ones) have been written for decades.73 More importantly, constitutional histories are performative. In the Thai context, constitutional history is often told according to the original sin/decadence narrative pattern. The original sin is the attempt to import the British monarchy model to Siam, at a time when the country was not ready for self-government. The 1932 Revolution, referred to as a military coup rather than a revolution, unwisely abolished the absolute monarchy, prematurely imported an unsuitable Constitution into Siam and tried to force democracy on a people who had not asked for it. According to that narrative, the foreign idea of constitutional monarchy did not ‘fit’ Thai culture; it clashed with traditional conceptions of kingship based on Thai Buddhism (the irony of course being that Buddhism is itself a borrowing from India). As a result 71 Roland Barthes, ‘The Discourse of History’ in The Rustle of Language (University of California Press, 1989). 72 Although the Oxford Handbook on Comparative Law includes a chapter on legal history, there is no equivalent in the Oxford Handbook on Comparative Constitutional Law. The Edward Elgar and Routledge handbooks on Comparative Constitutional Law and Comparative Constitutional Theory do not have dedicated chapters either. See Mathias Reimann and Reinhard Zimmermann, The Oxford Handbook of Comparative Law (Oxford University Press, 2019); Michel Rosenfeld and András Sajó, The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012); Xenophon Contiades and Alkmene Fotiadou, Routledge Handbook of Comparative Constitutional Change (Routledge, 2020); Gary Jacobsohn and Miguel Schor, Comparative Constitutional Theory (Edward Elgar, 2018). 73 RC van Caenegem, An Historical Introduction to Western Constitutional Law (Cambridge University Press, 1995); Luigi Lacchè, History & Constitution. Developments in European Constitutionalism: The Comparative Experience of Italy, France, Switzerland and Belgium (19th–20th Centuries) (Vittorio Kolstermann, 2016).

Political Precedents and the Performativity of Constitutional Story-telling  263 of this ‘malicious’ legal transplant,74 Thailand was set on a decadent path and engulfed in a vicious cycle of chronic instability, endless coups and short-lived constitutions. In the words of a prominent Thai diplomat: The fundamental cause of our political instability in the past lies in the sudden transplantation of alien institutions onto our soil without careful preparation and, more particularly, without proper regard to the circumstances that prevail in our homeland, the nature and characteristics of our own people – in a word, the genius of our race – with the result that their functioning has been haphazard and ever chaotic. If we look at our national history, we can see very well that this country works better and prospers under an authority – not a tyrannical authority, but a unifying authority, around which all elements of the nation can rally. On the contrary, the dark pages of our history show that whenever such an authority is lacking and divisive elements are set into play, the nation has been plunged into one disaster after another.75

The narrative blames the ‘failure’ of democracy and constitutionalism in Thailand on the initial ‘alien’ transplant of British constitutional monarchy, while emphasising the ‘Thainess’ and greatness of kingship as a form of rule. Critical scholars have long challenged this narrative and have attempted to rewrite it.76 They displaced the original sin from 1932 to the royalist coups of either 1933 or 1947 and shifted the worship from kings to the People’s Party. Hence, to some extent, they still subscribed to the same narrative pattern – that of the ‘original sin’ story. Besides, they also read Thai history as a struggle between two forces: the ‘ultra-royalists’ and the ‘moderate royalists’, the ‘traditional’ and the ‘constitutionalist’, the ‘British-educated’ and the ‘continental European-educated’.77 Mainstream scholars side with the traditionalist British-educated royalists, while critical scholars support the constitutionalist, European-educated not-so-royalists. Regardless of whether or not this schematisation is useful, there is little doubt that Thai critical constitutional history tends to mirror the mainstream narrative pattern, merely substituting heroes and villains by replacing the hagiographic emphasis on the King’s autonomous role with a critical emphasis on his autonomous role. This book has sought to add some nuance in this regard by focusing on uncertainties, misunderstandings, re-assignments, manoeuvres, circulations and subversive re-appropriations – in other words, on the dialectic between these two 74 I borrow this term from Mathias Siems; see Mathias Siems, ‘Malicious Legal Transplants’ (2018) 38 Legal Studies 103. 75 As quoted in Thak Chaloemtiarana, Thailand: The Politics of Despotic Paternalism (Cornell University Press, 2019) 101. 76 See, for instance, Nattapol Chaiching, ‘The Monarchy and the Royalist Movement in Modern Thai Politics, 1932–1957’ in Saying the Unsayable: Monarchy and Democracy in Thailand (NIAS, 2010). 77 Nattapol Chaiching, ขอฝันใฝ่ในฝันอันเหลือเชื่อ: ความเคลื่อนไหวของขบวนการปฏิปักษ์ปฏิวัติสยาม (พ.ศ. 2475–2500) [They Dreamed the Impossible Dream: The Counter-revolutionary Movement in Siam] (Samesky Books, 2013); Nakharin Mektrairat, ‘คำ�อธิบำ�ยของปัญญำ�ชนฝ่ายที่สนับสนุนกับฝ่ายที่ต่อต้านการปฏิวัติสยำ�ม 2475’ [‘Explanation of Intellectuals Supporting the Counter-Revolution in 1932’] [2004] Journal of the King Prajadhipok’s Institute 1.

264  Democracy with the King as Head of State as Bricolage ‘forces’ of Thai history, showing how the history of DKHS is one of accidents, exchanges and re-appropriations, and unintended consequences. Although DKHS as a constitutional expression was born in 1949 and the doctrinal concept associated with it is a construct of the mid-1970s, the official history, as told in the preamble of the current Constitution and of its predecessors, is that Thailand has been a DKHS since 1932. The preamble to the 2017 Constitution states that Thailand was granted democracy by King Prajadhipok’s constitutional octroy in 1932 and that since then, Thailand has ‘continuously’ had a ‘democratic system with the King as Head of State’, ‘even though constitutions have been annulled, amended and promulgated on several occasions’.78 So, it does not really matter that the kingdom has been a military dictatorship for more than half of the period inaugurated by the 1932 Revolution. Democracy is here conceived as a rough equivalent to ‘constitutional politics’ or even ‘constitution’ tout court; as such, democracy was benevolently ‘octroyed’ at the same time as the 1932 Constitution by King Prajadhipok. King Prajadhipok became the source of constitutionalism and democracy in the kingdom; King Bhumibol embodied its magnificent climax.79 Enshrining the origin of Thai constitutionalism as the King’s royal octroy is a key aspect of DKHS, and perhaps the most legally efficient underlying the DKHS narrative. Against the official ‘plot’ of Thai constitutional history, actively held and reproduced by established jurists within the Council of State and King Prajadhipok’s Institute, and constitutionalised in the Thai Constitution, this book has proposed a different narrative. It has rehistoricised DKHS by documenting the lengthy trial-and-error process of building the sacred monarchy through law – emphasising, against the tale of the exceptional King, the key role of legal scholars in theorising DKHS and building it into the Constitution. At least three issues in the methodology of constitutional history writing should be more widely discussed, in particular in relation to legal transplants: first, the premise of constitutional path dependency and, especially, the importance of ‘constitutional foundings’;80 second, the premise of the temporality of constitutionalism (‘constituent processes’ and ‘de-constituent processes’ such as Constitution-drafting, consolidation, routinisation, decay and abolition); and, third, the premise of constitutional intertextuality among past and present constitutions (diachronicity), both local and foreign (synchronicity).81 Methodologically speaking, this book has stressed the importance of engaging

78 2017 Constitution, preamble. 79 Craig Reynolds, ‘The Plot of Thai History’ in Patterns and Illusions: Thai History and Thought (Australian National University, 1993); see also Federico Ferrara, ‘The Legend of King Prajadhipok: Tall Tales and Stubborn Facts on the Seventh Reign in Siam’ (2012) 43 Journal of Southeast Asian Studies 4. 80 Kevin Tan and Ngọc Sơn Bùi, Constitutional Foundings in Southeast Asia (Hart Publishing, 2019). 81 The concept of intertextuality was first defined by Julia Kristeva in ‘Word, Dialogue and Novel’ in The Kristeva Reader (Columbia University Press, 1986).

Thailand and the Possibility of Decentring Comparative Constitutional Law  265 in deep archival research or, as Comaroff and Comaroff call it, an ‘ethnography of archives’82 in order to locate constitutional borrowings into a wider global constitutional history. V.  EPILOGUE: THAILAND AND THE POSSIBILITY OF DECENTRING COMPARATIVE CONSTITUTIONAL LAW

Comparative law has long been considered as an instrument for domestic legal reform, the aim being global legal convergence. As a result, traditional approaches to comparative law, functionalism and positivism, have been interested in the similar rather than the different.83 To prevent existential challenges against the lawyer’s idea of law, against the constitutionalist’s idea of constitutionalism, ‘sameness’ or paths to sameness rather than differences were established as primary objects of comparative legal study.84 Cases that did not fit into the established constitutional categories, or at least could not be fitted into a narrative of ‘evolution’ towards the established constitutional categories, were discarded as obeying ‘traditional’ rationalities rather than legal rationalities, the realm of sociological facts rather than legal norms, and were therefore overlooked by the discipline of comparative law. The monarchy does work differently in Thailand than in the UK, and this difference, which will endure, is precisely what makes it interesting and worthy of deep, comparative scrutiny within the common comparative matrix of constitutionalism. Constitutional comparison is essentially the process of reflecting upon differences – of differential thought – based on the fundamental premise of (legal) comparability. Instead of trying to desperately fit the Thai constitutional system into the category of constitutional monarchy or seeking paths to make it ‘converge’ towards the British model, the Thai case can instead be drawn on to challenge the category of ‘constitutional monarchy’ itself. Beyond the question of definition of the category of ‘constitutional monarchy’, the Thai case challenges established theories in comparative constitutional law in many different ways. Knowledge derived from its various situations – as a presently neither liberal nor democratic, but formerly liberal and democratising ‘Global South’, non-Western, Buddhist, monarchic, military, never-colonised post-colony – offers different perspectives on the way in which constitutionalism works, thereby uncovering ‘unthought’ problems and overlooked questions. Most of the time, comparative scholars have just briefly alluded to Thailand, en passant, as part of a wider argument: Ran Hirschl has

82 Jean Comaroff and John Comaroff, ‘Ethnography on an Awkward Scale: Postcolonial Anthropology and the Violence of Abstraction’ (2003) 4 Ethnography 147. 83 Pierre Legrand, ‘The Same and the Different’ in Pierre Legrand and Roderick Munday (eds), Comparative Legal Studies: Traditions and Transitions (Cambridge University Press, 2003). 84 David Kennedy, ‘The Methods and the Politics’ in Legrand and Munday (n 83).

266  Democracy with the King as Head of State as Bricolage identified Thailand as a secular country85 based on the official State narrative about ‘religious harmony’ that denies favouring Buddhism, and Randall Perenboom has lamented trends towards the ‘politicisation’ of the Parliament as being akin to autocratisation that threatens the Rule of Law,86 based on the ultra-royalist/Buddhist narrative about parliamentary politics as chaos, corruption and moral bankruptcy. However, partial readings and misunderstandings about Thailand are not to be blamed on comparative scholars, who often have no alternative but to rely on secondary sources. The misunderstanding is actually part of the Thai story, to be maintained at any cost in order to maintain the kingdom’s claim to exceptionalism. As Benedict Anderson famously wrote in his ‘Studies of the Thai State: The State of Thai Studies’: ‘Siam, however, not being ex-colonial, was taken as ipso facto “unique”. And this uniqueness was typically celebrated, rather than studied or concretely demonstrated.’87 First, the Thai case is truly the paradigmatic example of ‘juristocracy for self-interested hegemonic preservation’, where royalist elites have tasked the Constitutional Court with protecting their entrenched interests against elected politicians by intervening in politics (‘mega-political cases’). Since its adoption in 1997, the Thai Constitutional Court has dismissed every single elected prime minister, either by disqualification, party dissolution or invalidation of the re-election result, paving the way for two military coups in 2006 and 2014. The Thai case thus bridges the gap between the literature on juristocracy88/ judicialisation of politics,89 which usually deals with democratic or at least democratising countries,90 and the literature on the key role of constitutional courts in military dictatorships, which has often apprehended it as some Latin American or Arab phenomenon.91 Thailand also sees its judges commonly side with the military to prevent democratisation and to condone massive human rights violations in the name of fighting corruption or other recognised evils (‘communism’). In the related literature on deep states, judicial-military coups and the question of judicial independence vis-a-vis military autonomy, also often exclusively studied in the cultural context of Muslim societies,92 85 Ran Hirschl, ‘Comparative Constitutional Law and Religion in Asia’ in Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law in Asia (Edward Edgar, 2014) 315. 86 Randall Peerenboom (ed), Asian Discourses of Rule of Law, Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the US (Routledge, 2004) 24. 87 Anderson (n 26) 197. 88 Ran Hirschl, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard University Press, 2007). 89 Martin Shapiro and Alec Stone Sweet, On Law, Politics, and Judicialization (Oxford University Press, 2002). 90 Tom Gerald Daly, The Alchemists: Questioning Our Faith in Courts as Democracy-Builders (Cambridge University Press, 2017). 91 Lisa Hilbink, Judges beyond Politics in Democracy and Dictatorship: Lessons from Chile (Cambridge University Press, 2007); Mohammad H Fadel, ‘The Sounds of Silence: The Supreme Constitutional Court of Egypt, Constitutional Crisis, and Constitutional Silence’ (2018) 16 International Journal of Constitutional Law 936. 92 Anil Kalhan, ‘“Gray Zone” Constitutionalism and the Dilemma of Judicial Independence in Pakistan’ (2013) 46 Vanderbilt Journal of Transnational Law 61; Mehtap Söyler, The Turkish

Thailand and the Possibility of Decentring Comparative Constitutional Law  267 Thailand provides a fascinating, Buddhist case study where so-called ‘judicialmilitary’ coups are perhaps by far the most common of all. Thailand can in fact also arguably be described as a sort of ‘constitutional theocracy’,93 where the religious pervades politics and any understanding of the Constitution: Buddhist kingship guides constitutionalism, from constitution-making to constitutional interpretation and adjudication. Thailand is also a textbook case of ‘authoritarian constitutionalism’:94 the constitution is the primary device through which non-elected power holders, such as the monarchy, the military and, more recently, the courts, maintain the existence of their veto powers over Parliament and the government, and effectively use them. In times of a full-fledged military dictatorship or of a ‘tutelary democracy’,95 the Constitution is a key site of political struggles. In 2020, under what appears to be a stable hybrid elected military regime, the Thai Constitutional Court continues to dissolve any political party which would dare to challenge DKHS and the monarchy-military dominance of Thai politics. The Constitutional Court has turned out to be the main ally of both the monarchy and the military, and a major threat to Thai democracy. As such, Thailand is also a telling case of ‘militant constitutional identity’96 in which constitutional actors, including constitution-drafters and the Constitutional Court, are working against the preferences of the majority of the Thai people as expressed through voting. Elaborate entrenchment clauses, including eternity clauses that are enforced aggressively by the Court (notably through party dissolution and the invalidation of ‘unconstitutional constitutional amendments’),97 succeed in protecting Thailand’s contested constitutional identity from elected majorities. As DKHS cannot be challenged in Parliament or in the courts, as this would be unconstitutional, it can only be done in the streets: the 2020 protests are a watershed event in that regard. Notwithstanding the aforementioned characteristics of Thai monarchical constitutionalism, this book has resisted any attempt to blame the monarchy for a perceived ‘failure’ of constitutional democracy in Thailand (or to blame the military or the courts, for that matter). Nor has it offered judgements on how Thailand is performing on ideals of liberal-democratic constitutionalism and the (liberal) Rule of Law, or suggested solutions on how to improve Thailand’s Rule of Law/constitutional performance through reform. These categories and ideals have been useful departure points to lead to an analysis of differences Deep State: State Consolidation, Civil-Military Relations and Democracy (Routledge, 2015); Jean-Pierre Filiu, From Deep State to Islamic State: The Arab Counter-revolution and its Jihadi Legacy (Hurst & Company, 2015). 93 Ran Hirschl, Constitutional Theocracy (Harvard University Press, 2010). 94 Helena Alviar García and Günter Frankenberg, Authoritarian Constitutionalism: Comparative Analysis and Critique (Edward Elgar, 2019). 95 Adam Przeworski, ‘Democracy as a Contingent Outcome of Conflicts’ in Jon Elster and Rune Slagstad (eds), Constitutionalism and Democracy (Cambridge University Press, 1988). 96 Gary Jacobsohn, Constitutional Identity (Harvard University Press, 2010). 97 Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (Oxford University Press, 2017).

268  Democracy with the King as Head of State as Bricolage and tentative deconstruction. Ultimately, this book has not sought to emphasise sameness or difference, or advocated for divergence or convergence. It is truly a hermeneutical project aimed at a thick description of a constitutional order that takes into account legal rationalities at play in its very ordering. Nevertheless, it is not devoid of a political agenda. As might be clear by now, such an agenda is located at the epistemological level and is mainly concerned with the aim of decentring comparative constitutional law. I hope my work supports attempts to deconstruct the AmericanoEurocentrism of the discipline, built partly on derivatives of the modernisation theory and Weberian categories, which still informs and undergirds much of the constitutional law literature today.98 It is the ambition of this book that the concept of bricolage and the associated methodology of constitutional ethnography or ‘layered constitutional description’ offer useful conceptual and methodological tools to comparative constitutional law scholars eager to study the sophistication of constitutional phenomena outside the West, regardless of whether they conform to a specific Western model of constitutional monarchy or pre-existing abstract ideals of constitutionalism and the Rule of Law. In fact, constitutional ethnography might arguably be the only method that can be used to truly engage in a contextualist approach to comparative constitutional law, redefined as a transdisciplinary critical project under the label of ‘constitutional studies’.99

98 Daniel Lev, ‘Social Movements, Constitutionalism, and Human Rights: Comments from the Malaysian and Indonesian Experiences’ in Douglas Greenberg (ed), Constitutionalism and Democracy: Transitions in the Contemporary World (Oxford University Press, 1993) 139–40. 99 Ran Hirschl, ‘From Comparative Constitutional Law to Comparative Constitutional Studies’ (2013) 11 International Journal of Constitutional Law 1; Günter Frankenberg, Comparative Constitutional Studies: Between Magic and Deceit (Edward Elgar, 2018).

Appendix Biographical Data of Major Thai and Foreign Jurists and their Contribution to Thai Constitutionalism Note on honorary titles: before 1932, hereditary titles were awarded on the basis of birth rank and non-hereditary titles were awarded based on individual promotions in the bureaucracy. Hereditary titles are as follows, from lowest to highest: Mom, Mom Luang, Mom Rachawong, Mom Chao, Phra (Ong) Chao and Chao Fa. Non-hereditary titles are as follows, from lowest to highest: Phan, Meun, Khun, Luang, Phra, Phraya and Chao Phraya. Given names change with ranks. Note on names: the romanisation of names does not follow the Royal Thai General System of Transcription (RTGS). Instead, names are romanised according to the English transcription chosen by the jurist himself, as the case may be, or according with the most common romanisation used in English newspapers, English-language correspondence and/or secondary literature in English. (Chao Phraya) Gustave Rolin-Jaequemyns ( พระยาอภัยราชาสยามานุกูลกิจ) (1835–1902) Gustave Rolin-Jaequemyns was born in Ghent, Belgium. In 1857, he gained his doctorate in law and political sciences from the University of Ghent and became a lawyer. As a young lawyer, he participated in the establishment of the discipline of international law. In 1876, he published one of his major works, International law and the Orient Question, in which he advocated for sovereign equality among nations. In 1878, he was appointed Interior Minister by King Leopold II of Belgium, a position he held from 1878 to 1884. In 1892, as his financial situation deteriorated, he accepted King Chulalongkorn’s offer to assist Siam in its legal reform and codification. Upon his arrival in Siam, he was appointed General Advisor to the Kingdom and kept his position for almost 10 years. In 1896, he was granted the title of Chao Phraya, the highest rank in the Siamese bureaucracy. Among his major contributions to Siam is the proposal for the setting-up of a law school that would train future civil servants in law. Following his advice, a law school was established within the Ministry of Justice in 1897. During his tenure, he also trained his younger foreign colleagues, such

270  Appendix as Robert Kirkpatrick, a Belgian jurist employed at the Court of Siam from 1894 to 1900. In 1901, he left his position as General Advisor and returned to Belgium, where he died in 1902. (Prince) Phichit Preechakorn (พระเ าบรมวง เธอ กรมหลวงพิชิตปรีชากร) (1855–1909) Prince Phichit Preechakorn was the son of King Mongkut and a minor wife. In 1874, at the age of 19 and after a short period of training at the courts, he was appointed as both judge and Privy Councillor. He quickly became his halfbrother King Chulalongkorn’s chief legal advisor, helping to draft legislation to gradually end slavery, among other things. He advised the King to establish a Dika Court to relieve him of the burden of dealing directly with dika petitions addressed to the King; in 1876, the Court was set up and he became its first President. He left this position in 1883 and was sent on a mission to Chiang Mai to organise the administration of the northern provinces. Upon his return to Bangkok, his Buddhist views inspired his influential and groundbreaking 1885 essay ‘Considerations on Justice’, in which he articulated traditional Siamese and modern Western ideas of justice, most notably inspired by the jurisprudence of Jeremy Bentham. In 1893, he was appointed as the chief judge at the Special Court set up to prosecute Phra Yot, a Siamese officer accused of killing a French officer during the Franco-Siamese war. Phra Yot was acquitted, a verdict for which Phichit gained much praise. His prestige led to him being appointed Minister of Justice in 1894. In this role under King Chulalongkorn, he reformed criminal procedure, including an overhaul of the law of evidence, and the abolition of torture and flogging. In 1897, he resigned as Minister of Justice and was replaced by Prince Raphi, who had just returned from Britain. He was appointed to the Law Commission for Codification along with Rolin-Jaequemyns. He died in 1909. (Prince) Ratbuti Direkrit (พระเ าบรมวง เธอกรมหลวงราชบุรีดีเกฤท )/Raphi Phatthanasak (พระอง เ ารพีพัฒนศัก ) (1874–1920) Prince Raphi graduated from Christchurch College, Oxford University, in 1894, at the age of 20. He returned to Siam to work at the King’s Secretariat as well as to provide legal expertise to the King’s Privy Council. In 1897, he was appointed Minister of Justice to replace Phichit Preechakorn. Opposed to the project of legal codification, he was nevertheless appointed to preside over the first commission in charge of drafting a criminal code for Siam, but resigned over conflicts with members of the commission advocating for a detailed codification based on the European model. As a fierce promoter of the common law system, he was disgruntled to see the King adopt the continental civil law system. In the same year, he set up, in accordance with the Rolin-Jaequemyns proposal, the first Siamese law school whose curriculum and teaching style he based on the British system. He himself taught extensively at the school and published his lectures under the title Prince Raphi’s Law Handbook in 1905. Drawing on John Austin’s jurisprudence, in particular on his ‘command theory of law’, it became

Appendix  271 the chief reference law handbook for a few decades and laid the foundations of legal positivism in Siam. Prince Raphi left the post of Minister of Justice in 1910 and died in 1920 in Paris. Half a century after his departure from the Ministry of Justice, in 1964, he was named the ‘father of Siamese law’. A special day in his honour, ‘Raphi Day’, was established and a statue of him was erected in front of the Office of the Court of Justice. (Phraya) Manopakorn Nititada (พระยามโนปกร นิติธาดา)/Kon Hutasingh ( อน หุตะสิง ) (1884–1948) Kon Hutasingh studied law at the Ministry of Justice’s Law School. After graduation, he became an English-Thai interpreter for the Ministry of Justice. In 1905, he travelled to Britain to continue his studies at Middle Temple in London and pass the bar exam. Upon his return in Siam in 1909, he became a judge at the Court of Appeal under the Ministry of Justice while teaching law at the same time. He later became a judge at the Supreme Court and finally was appointed as a Privy Councillor in 1918. When the 1932 Revolution occurred, he was Permanent Secretary to the Ministry of Finance and his wife was the ladyin-waiting to the Queen. Following the Revolution, he was appointed ‘Head of the People’s Committee’, a title equivalent to that of Prime Minister, in the hope that he would be able to bring about compromises between the People’s Party and the King. His main contribution was undeniably the December 1932 ‘compromise’ Constitution, Siam’s first ‘permanent’ Constitution, for which he served as head of the Constitution-Drafting Committee (which included several other prominent jurists such as Sriwisanwancha and Manawarachasewi). The 1932 Constitution was adopted in late November and he was reappointed as Prime Minister. A few months after he orchestrated the 1933 royalist ‘coup’ (the dissolution of the House in response to Pridi’s ‘communist’ economic plan and the partial suspension of the Constitution), he faced the People’s Party countercoup and fled to Malaysia, where he died in 1948. Francis B Sayre (1885–1971) Francis B Sayre graduated from Harvard Law School in 1912 and married the daughter of then-American President Woodrow Wilson in 1913, which elevated him to a prominent position as a promising young lawyer. In 1918, he earned his JD from Harvard Law School and joined the Harvard Law School Faculty as Assistant Professor. In the early 1920s, King Rama VI sought assistance from Roscoe Pound, the Dean of Harvard Law School, to identify a suitable Harvard lawyer for appointment to the post of advisor in foreign affairs (a position previously labelled ‘General Advisor’). Pound recommended Sayre, who left for Siam in 1923. His mission was to negotiate treaties ending extraterritorial rights for foreign powers. He stayed in the kingdom for only a year, but continued to extend assistance to the Thai government in the following years. Within the next two years, he successfully negotiated treaties ending extraterritoriality with most of the European countries, including the UK, as a result of which he gained the

272  Appendix highest honours at the Royal Court, including the title of Phya Kalyan Maitri, ‘Beloved Friend’ and the Grand Cross of the Crown of Thailand. In 1926, he advised King Prajadhipok against implementing constitutional government in Siam, a reform he considered that the Siamese people were not ready for. His 12-article tentative Constitution for Siam nonetheless provided for a premier, but one who would be responsible to the King. In 1926, he left Siam and returned to Harvard to teach and publish about his experience in Siam, among other subjects. From 1933 to 1939, he was Assistant Secretary of State under President Franklin D Roosevelt, then High Commissioner for the Philippines, and eventually American representative to the United Nations Trusteeship Council. He then returned to Asia, where he served as a representative of the Bishop of the Episcopal Church of America in Japan. He died in 1971. (Chao Phraya) Srithammathibet (เ าพระยาศรีธรรมาธิเบศ)/Jit Na Songkhla (จิตร ณ สงขลา) (1885–1976) Jit Na Songkhla studied law at the Law School of the Ministry of Justice and was admitted to the Siamese bar at the age of 20. In 1905, he obtained a scholarship to further his studies at Gray’s Inn in London under the mentorship of Prince Raphi. He finished his studies in 1911 and returned to Siam to work as a judge for the Ministry of Justice while teaching law. King Vajiravudh appointed him Privy Councillor in 1918 and from 1919 he also taught at Chulalongkorn University. In 1927, during King Prajadhipok’s reign, he was appointed President of the Supreme Court and in 1931 was the last person in Siamese history to be granted the title of Chao Phraya. After the 1932 Revolution, he headed many ministries (the Ministries of Finance, Justice, Foreign Affairs and Public Health) while teaching law at Thammasat University. Like Manopakorn Nitithada before him, his proximity to the monarch (through his wife’s family) earned him the position of intermediary between the People’s Party and the King. In 1935, he travelled to London to seek out a compromise with King Prajadhipok in order to avoid the latter’s abdication. When Prajadhipok eventually abdicated, he travelled to Lausanne to convince Ananda Mahidol to accept the throne. After the 1947 royalist coup, he became President of the Senate and President of the 1948 Constitution-Drafting Assembly. As a key drafter of the 1949 Constitution, his main contribution lies in the significant and long-lasting restoration of royal power operated by the Constitution, for which he was rewarded. In 1952, King Bhumibol appointed him to the Privy Council, of which he became President in 1963. He died in 1976. (Phraya) Nitisatpaisan (พระยานิติศาสต พศาล)/Wan Chamonman (วัน จามรมาน) (1888–1967) Wan Chamonman graduated from the Law School of the Ministry of Justice in 1909 and travelled to Britain to further his studies at Gray’s Inn London. Upon his return to Siam in 1916, he became a judge at the Ministry of Justice and gained a position at the Supreme Court. In 1920, he started to work at the King’s private secretariat, being responsible for foreign affairs. He stayed there for

Appendix  273 about 10 years before returning to the judiciary. Following the 1932 Revolution, he was appointed to the House of Representatives and subsequently to the 1932 Constitution-Drafting Committee. In this capacity, he went on to become one of the most opinionated and vocal jurists defending the constitutional draft before the Assembly composed of members of the People’s Party. After the Revolution, he was named head of the People’s Party – then called an ‘association’ (samakhom). From 1933 to 1935, he joined the government of Pahonyothin and continued his political career as an appointed Member of Parliament until 1951. He also held the position of Dean of the Faculty of Law at Thammasat University from 1949 to 1953 and continued to teach law. His major scholarly contributions include various volumes on Thai legal history as well as a comparative study of the Siamese and British constitutional models. He died in 1967. (Phraya) Manawarachasewi (พระยามานวราชเสวี)/Plod Na Songkhla (ปลอด วิเชียร ณ สงขลา) (1890–1984) Plot Wichien Na Songkhla, the younger brother of Chao Phraya Srithammathibet, travelled to Britain in 1913 to study law at Inner Temple, where he was called to the bar in 1916. He was supposed to study in Germany, but the First World War had prevented him from following his plan to become a civil law expert. He returned to Siam in 1916 to become a judge at the Ministry of Justice and to work in the Department of Legislation. He also held the position of Secretary to the Council of State from 1923 to 1925 – he was the first to ever hold this key position. He had an important role in drafting the Civil and Commercial Code, which began in 1908 and was finally completed in 1925 – for which he advised to copy Japanese law instead of looking at British models. Within the Ministry of Justice, he was quickly promoted to Head of the Office of the Prosecutor in the early 1930s. After the 1932 Revolution, he was appointed to the first Parliament and Constitution-Drafting Committee, where he pushed for a restoration of royal power. In 1936, he was appointed President of Parliament, succeeding his elder brother Chao Phraya Sri Thammatibeth, and remained in that post until 1943, and later again from 1944 to 1945. In 1946, he became the President of the 1946 Constitution-Drafting Committee, but his royalist views were kept in check by Pridi Banomyong, who was then Prime Minister. He was appointed Regent from 1946 to 1949, what put him in the position to promulgate Constitutions on behalf of King Bhumibol. As he could not be found when the 1947 coup occurred, his name is missing from the 1947 Constitution, but he did promulgate the 1949 Constitution. He was rewarded: King Bhumibol appointed him to the Privy Council in 1949. He left the Privy Council in late 1974 and died in 1984. (Phraya) Sriwisanwacha (พระยาศรีวิสารวาจา)/Thienlieng Huntrakul (เทียนเลี้ยง ฮุนตระกูล) (1896–1968) Thienlieng Huntrakul was sent to Britain at the age of 15 to study at Oxford University, where he obtained his bachelor’s degree. He became a diplomat at

274  Appendix the London Thai Embassy and was later posted in Paris. In 1928, at the age of 32, he was granted the Phraya title and became the Minister of Foreign Affairs under King Prajadhipok. He also became one of his closest legal advisors. In early 1932, he authored with Raymond B. Stevens the memorandum for limited constitutional government in Siam (An Outline of Change in the Form of Government) proposing a Prime Minister appointed at the discretion of the King and responsible to the King, and a half-appointed, half-elected Parliament. After the 1932 Revolution, when the People’s Party was granted a royal audience, he was present by the side of King Prajadhipok as expert in constitutional matters: to the People’s Party, Prajadhipok explained that Phraya Sriwisanwacha’s earlier advice against constitutional government was the main reason why he himself had not earlier granted a Constitution to the people. Phraya Sriwisanwacha was appointed to the nine-member Constitution-Drafting Committee of the 1932 Constitution, and the People’s Party also re-appointed him as Minister of Foreign Affairs. After the 1947 royalist coup, he became an appointed Senator and sat on the Constitutional Tribunal. King Bhumibol appointed him Privy Councillor in 1952, but he resigned in 1962 to join the appointed National Legislative Assembly acting as Constitution-Drafting Assembly: as a member of the Constitution-Drafting Committee, he played an important part in the drafting of the 1968 Constitution. He died a few months before its promulgation, in March 1968. (Luang) Pradit Manutham (หลวงประดิษฐ์มนูธรรม)/Pridi Banomyong (ปรีดี พนมยงค์) (1900–83) Pridi Banomyong was the first law student to complete his legal education in France. In 1920, he passed the Thai bar exam and was given a stipend to study law in France. He obtained an undergraduate law degree from the University of Caen, followed by a graduate degree in private law from the University of Paris. He also attended, in parallel to his studies, economic policy classes at the School of Political Sciences in Paris. In 1926, he launched a movement of Siamese students in France, initially for the purpose of claiming an increase in the monthly amount of scholarships. The Siamese Minister in France worried about Pridi’s political activity and requested that he be sent back to Siam, speaking of him as representing a ‘dangerous class, the half-educated class’. His father wrote a petition to the King, asking him to overturn this decision. The request was granted and the King annulled the decision to send him back, declaring: ‘When [Pridi] will be in government, at a responsible rank, he probably will work very well, and I do not believe that he will become a danger for the government.’ Yet, from France, he planned, together with his comrades from the Association of Siamese Students, a revolution to overthrow the absolute monarchy. After he obtained his doctorate in 1927, which dealt with comparative corporate law, he returned to Siam and worked as a judge for the Ministry of Justice for some time. He was then transferred to the Department of Law-Drafting, while teaching administrative law at the Law School of the Ministry of Justice, as well as

Appendix  275 compiling the third volume of the Civil Code. He was granted the honorary title of Luang and the name Praditmanutham (‘the one who creates justice’). From 1928 onwards, he was the first Siamese to teach French law at the Law School of the Ministry of Justice. In 1931, he opened up his first administrative law curriculum, in which he taught notions of constitutional law. In doing so, he fundamentally altered the way in which constitutional law was taught: for the first time, he taught public law as a social science discipline. He also set up Nittisan, the first-ever Thai law review. In 1932, he participated in the Revolution that foisted a Constitution upon King Prajadhipok. He was the main if not the sole drafter of the revolutionary 1932 interim Constitution. He was also appointed to the 1932 Constitution-Drafting Committee, but his voice was lost among those of the more senior, British-educated jurists, including that of Nititada Manopakorn, the President of the Committee. In 1933, the backlash to his economic plan forced him into a short period of exile. He returned in 1934 to join the government – not as Prime Minister, but as Minister of the Interior. That same year, he established the public University of Law and Political Sciences, Thammasat University, with the aim of democratising legal and political education beyond segments of the society associated with the royal family. In 1941, during the Second World War, he became Regent until 1946, when he was elected Prime Minister of Thailand for a few months. As such, he presided over the promulgation of his much-desired, parliamentary 1946 Constitution. After the 1947 coup, he exiled himself, returning briefly in 1949 to attempt a coup against his friend-turned-foe Phibun Songkhram, but this failed and he left for exile for good, first for China and later for France, where he died in 1983. (Luang) Chakpanisrisilvisuth (หลวงจักรปาณีศรีศีลวิสุทธิ์)/Visuth Kraireuk (วิสุทธิ์ ไกรฤกษ์) (1903–58) Visuth Kraireuk studied law at Oxford University from 1921 to 1928. Upon his return to Siam, he became a trainee judge and was admitted to the bar in 1932, a month before the Revolution. Soon after, he married the daughter of Phraya Srithammathibet. Exactly one month after the promulgation of the 1932 interim Constitution, he published the first-ever Handbook of Comparative Constitutional Law, in which he praised the British and Japanese models of monarchy and gave a translation of the Japanese Constitution. After the Revolution and the publication of his handbook, he continued to work as a judge for the Ministry of Justice and, in addition, he started to teach law at Chulalongkorn and from 1934 onwards at Thammasat. At the time of his death in 1958, he was a judge at the Supreme Court. (Mom Rachawong) Seni Pramot (หม่อมราชวงศ์เสนีย์ ปราโมช) (1905–97) Seni Pramot was born into a branch of the Chakri dynasty and was sent to Trent College in Britain before studying jurisprudence at Oxford University. He continued his legal education at Gray’s Inn before returning to Thailand in 1930 to pass the bar exam. He first worked as a judge before switching to a

276  Appendix career in the Ministry of Foreign Affairs. Before the Second World War, he was appointed ambassador to the US. When Phibun Songkhram issued a declaration of war against the US (and Britain) in 1942, he refused to deliver the message to the US authorities and instead supported a US-based resistance movement against the Japanese. He returned to Thailand after the War and became Prime Minister for about six months. In this capacity he proposed the setting up of a war crimes tribunal to judge Phibun for his collaboration with Japan. Seni also co-founded the Democrat Party, responsible for spreading the rumour that Pridi had masterminded Ananda’s regicide; he was the key drafter of the 1947 and 1949 Constitutions, which greatly expanded the King’s powers. From the 1950s onwards, he established himself as one of the most prominent Thai public intellectuals. As such, he gave many influential lectures, which were often later printed as books. In The Laws of Ayutthaya as well as in the Ramkamhaeng Stele, he affirmed that both in Sukhothai and Ayutthaya, the Siamese monarchy was constrained by a customary Constitution, which endured over the centuries. In so doing, his aim was to demonstrate the superiority of Thailand over the West, as well as to glorify the monarchy and advocate against the codification of constitutional conventions limiting the royal prerogative. He assumed two other prime ministerships in 1975 and 1976 under the banner of the Democrat Party. Upon the termination of his prime ministership by the military coup in October 1976, he focused on writing and teaching law and legal history at various universities in Thailand. He died in 1997. Sanya Thammasak (สัญญา ธรรมศักดิ์) (1907–2002) Sanya Thammasak graduated from the Law School of the Ministry of Justice in 1928 and moved to Britain to study law at Middle Temple. In 1932, he was admitted to the Thai bar. He first joined the judiciary as an English interpreter and later on became a judge. In 1946, he was appointed Secretary-General to the commission in charge of investigating Ananda Mahidol’s death. He eventually became President of the Supreme Court in 1963 at the age of 56 and held the position until 1967. In 1968, he became Dean of Law Faculty of Thammasat University and was President of the University from 1968 to 1971. In 1973, after the events of 14 October, he was appointed Prime Minister by the King. In 1973, he supervised the drafting of the 1974 Constitution, acting as the Vice-President of the Constitution-Drafting Assembly. The resulting 1974 Constitution bore the imprint of his royalist and democratic views. Upon his removal from the prime ministership in 1975, he was appointed to the King’s Privy Council, of which he became the President, a post he retained until 1998, when Prem Tinsulanond replaced him. Throughout his career as a Supreme Court judge and Privy Councillor, he was a devout Buddhist, holding the position of Head of the Buddhist Association of Thailand from 1958 to 1980. He died in 2002. Jitti Tingsaphat (จิตติ ติงศภัทิย์) (1908–95) Jitti Tingsaphat graduated from the Law School of the Ministry of Justice in 1927. He first worked as a prosecutor in the Ministry of the Interior and later

Appendix  277 as a judge in the Ministry of Justice, before reaching the Supreme Court. In 1942, he graduated from Thammasat University and went to the US to further his education. He graduated in 1957 from the Southern Methodist University and returned to Thailand to teach at Thammasat University, where he became the Dean of the Law Faculty from 1971 to 1974. In 1973, he was appointed by the King to the National Legislative Assembly. In 1974, he became President of the Senate. He was later appointed President of the Constitution-Drafting Committee of the 1978 Constitution, and the 1978 Constitution remains his most outstanding work. He wrote dozens of handbooks, mainly pertaining to civil and commercial law, and to some extent to criminal law, but his most important contribution to legal studies at large might be his introduction of a mandatory subject in the law curriculum of Thammasat University, that of ‘the work of lawyer’ (lak wichachip), which emphasises morality of the judge over the letter of the law. He also wrote the first handbook on this subject. Known for his close proximity to the public intellectual and monk Buddhadasa Bhikkhu, his teaching focused on the moral aspects of being a lawyer, closely tied to Buddhist understandings of morality and justice. In 1984, he was appointed to the position of King’s Privy Councillor. He died in 1995. Yut Saeng Uthai (หยุด แสงอุทัย) (1908–79) Yut Saeng Uthai studied at the School of Law of the Ministry of Justice before traveling to Germany in 1931 to further his education at the University of Berlin. There, he reportedly sat in Carl Schmitt’s constitutional theory classes. His international private law doctoral dissertation, defended in 1936, received a summa cum laude. He returned to Siam in 1937, where he was appointed to the Council of State and became a prolific writer. As one of the most influential jurists at the time, he introduced Thai jurists to Carl Schmitt’s theory of sovereignty and to Hans Kelsen’s theory of revolutionary legality, which, together, were used to justify the judicial immunity for military coups and their authors. He participated in several Constitution-Drafting Committees and published some of the very first constitutional law handbooks. Among the Constitution-Drafting Committees he participated in were those for the 1949 (as Secretary-General) and 1952 Constitutions, both under the prime ministership of Phibun Songkhram. During the 1949 Constitution-drafting process, he claimed that the monarchical character of the Thai state was unamendable, as it constituted the core of the nation. As such, he was the first jurist to identify Thailand’s ‘constitutional identity’. From 1953 to 1968, he held the position of Secretary-General of the Council of State. In 1976, he was appointed to the Constitutional Tribunal. He died in 1979, having written more than 30 law handbooks, about 50 law articles and more than 200 commentaries on Supreme Court rulings. Thanin Kraivichien (ธานินทร์ กรัยวิเชียร) (1927–) Thanin Kraivichien studied law at Thammasat University and then at the London School of Economics, and was called to the bar at Gray’s Inn. Upon his return in Thailand in 1954, he started a career as a judge. Meanwhile, he taught law at

278  Appendix Thammasat University and Chulalongkorn University. After the mass protests of 14 October 1973, he was appointed by the King to the National Convention. In 1976, he popularised the term ‘Democracy with the King as Head of State’, arguing that in this system, the King held extra-constitutional powers derived from customary law, which attracted the King’s attention – as a result, the King suggested his name to those behind the 1976 coup. A few weeks after his appointment, he published his treatise on the monarchy and democracy, which remains his most important doctrinal contribution to date. After the 1976 coup, he was subsequently appointed Prime Minister by the King, but only for about a year. His anti-democratic programme, outlining plans for a 12-year transition to democracy, was too much even for the military, which overthrew him in 1977. He was immediately appointed to the Privy Council. Upon Vajiralongkorn’s accession to the throne in 2016, he was not reappointed. During his life, he published an extensive number of works on the Rule of Law, the monarchy, and ethics for lawyers, many of which remain extremely influential to this day and are key introductory readings at law schools throughout the kingdom. Amorn Chantarasomboon (อมร จันทรสมบูรณ์) (1930–) Amorn Chantarasomboon graduated in law from Thammasat University in 1951. He obtained his doctorate in international law from Paris in 1955. Upon his return to Thailand the following year, most of his career was spent at the Council of State, which he radically transformed. In 1973, the King appointed him to the National Legislative Assembly; he was also an appointed member of the post-1977 coup legislature, holding both positions concurrently with his role at the Council of State. From 1980 onwards, as the newly appointed Secretary-General, he prompted the Council of State to become an institution with jurisdiction to consider legal complaints in accordance with the 1979 Law on the Council of State, paving the way for the introduction of a full administrative court in 1998 – as a result, he is often referred to as ‘the father of Thai public law’. After he retired from his position as Secretary-General of the Council of State in 1990, he published widely on constitutionalism while teaching law at Chulalongkorn University. His article ‘Have Jurists Lost Their Way?’, published in 1990 in the Administrative Law Review, preceded his book Constitutionalism: The Solution for Thailand (1994), in which he advocated for the drafting of a new Constitution that would resolve Thailand’s ills. This proposal had the effect of channelling the then-boiling movement to reform politics into the path of constitutional reform. He proposed to exclude politicians from the constitutional process and have legal experts, free from self-interest, draft it instead. In 1996, he became a Senator. In 1997, he was appointed to the Constitution-Drafting Committee and actively pushed for a Constitutional Court. After 1997, unlike many of his contemporaries, he did not get directly involved in politics, but continued to offer his thoughts and proposals on Thai political developments.

Appendix  279 Meechai Ruchupan (มีชัย ฤชุพันธุ์) (1938–) Meechai Ruchuphan gained his bachelor’s degree in law from Thammasat University in 1961 before traveling to the US for his master’s degree. Upon his return to Thailand in 1967, he joined the Council of State and was appointed legal advisor to the Prime Minister Sanya Dharmasakti in 1973. Following the 1976 and 1977 coups, he was appointed as a member of the National Legislative Assembly, Deputy Secretary-General to the Prime Minister and SecretaryGeneral of the 1978 Constitution-Drafting Committee. In 1980, he was appointed to the office of the Prime Minister Prem Tinsulanond, a position he held until 1988. From 1983 to 1989, he was also a senator. In April 1991, he was appointed Deputy Prime Minister under Anand Panyarachun and then Suchinda Kraprayoon. He was also President of the Constitution-Drafting Committee for the 1991 Constitution. Following the events of 1992, he became interim Prime Minister. He also presided over the Constitutional Tribunal, which held a decree giving amnesty to Suchinda for his order to shoot protestors in 1992 to be legal and constitutional. After the 2006 coup, the military appointed him President of the National Legislative Assembly, before naming him head of the Commission of Legal Reform in the Council of State. Together with Bowornsak Uwanno and Wissanu Krea-ngam, he was also a key drafter of the 2006 p ­ ost-coup interim Constitution. After the 2014 coup, the military appointed him President of the Constitution-Drafting Committee, whose work resulted in the 2017 Constitution. Jaran Phakdithanakul (จรัญ ภักดีธนากุล) (1950–) Jaran Phakdithanakul obtained his bachelor’s degree in law from Chulalongkorn University and passed the Thai bar exam. He furthered his studies at Cambridge University and was called to the bar at Gray’s Inn. Upon his return to Thailand, he joined the judiciary in 1992 and from 2001 onwards also taught law at Chulalongkorn University. He later became the Secretary to the Supreme Court President. After the 2006 coup, he became Permanent Secretary to the Ministry of Justice and was later appointed to the Constitution-Drafting Committee, in which he played a key role in expanding the powers of the Constitutional Court, although his proposal for a crisis committee composed of the three courts, including the Constitutional Court, was defeated. In 2008, he was appointed to the Constitutional Court and assumed a leading role in the interpretation of the major political cases that have reached the Court since then, such as the dissolution of the People’s Power Party in December 2008, of the Thai Raksa Chat Party in March 2019 and of the Future Forward Party in February 2020. A fervent royalist, he is known for declaring, in various press conferences, that the King is the first judge in the kingdom and, as such, has every right to exercise his judicial sovereignty through the courts.

280  Appendix Wissanu Krea-ngam (วิษณุ เครืองาม) (1951–) Wissanu Krea-ngam studied law at Thammasat University, before moving to the US to study for an LLM and a JSD at the University of Berkeley. Upon his return to Thailand, he was appointed law professor at the University of Chulalongkorn. In 1991, he became the Deputy Secretary-General of the Cabinet and in 1993, he was appointed Secretary-General to the Cabinet, a position he held for nearly a decade. In 2002, he became the new Deputy Prime Minister in the Thaksin government. On that occasion, the press crafted the term ‘netiborikon’ or ‘legal servant’ to refer specifically to him. A few months before the 2006 coup, he resigned from his post. After the 2006 coup, he helped draft a promilitary interim Constitution and became a member of the National Legislative Assembly appointed by the military junta. After the 2014 coup, he became Deputy Prime Minister in Prayuth Chan-ocha’s military government. Although he wrote few legal treatises, his constitutional law handbook, Constitutional Law, first published in 1980, was the standard reference constitutional law handbook for several generations of students and scholars. To date, he has worked for eight prime ministers, spending three decades in the Prime Minister’s Office. A member of the prestigious Royal Society, he has also written several articles and books on the monarchy, touching on issues such as the Palace Law, the Royal Succession Law and royal ceremonies. Bowornsak Uwanno (บวรศักดิ์ อุวรรณโณ) (1954–) Bowornsak Uwanno studied law at the University of Chulalongkorn before moving to France in 1979 to further his legal education at the University of Paris X Nanterre, where he graduated in 1982 with a doctoral dissertation on British constitutional conventions. Upon his return to Thailand, he became a law professor. In 1988, while teaching law at Chulalongkorn University, he became Secretary to the Prime Minister. In the 1990s, he participated in the reflection groups on constitutional reform, before being appointed Dean of the Law Faculty of Chulalongkorn University and Secretary-General of the 1997 ConstitutionDrafting Committee. From 1999 to 2003, he was the Secretary-General of King Prajadhipok’s Institute. In 2003, he was appointed Secretary-General to the government, succeeding his relative Wissanu Krea-ngam, who had become Deputy Prime Minister in Thaksin’s government. During the 2006 political crisis, both Wissanu and Bowornsak resigned not long before the coup, raising suspicions of them having prior knowledge thereof. Following the 2006 coup, Bowornsak, together with Wissanu and Meechai, helped the military junta draft a post-coup constitution. Bowornsak was then appointed a member of the Legislative National Assembly and later became Secretary-General of King Prajadhipok’s Institute once more. After the 2014 coup, he was appointed to the post-coup Constitution-Drafting Committee. His draft resulted in a backlash for its over-emphasis on Buddhism and Buddhist morality and was voted down by the military. He was replaced by Meechai and subsequently joined the

Appendix  281 National Reform Council. Besides his political appointments, his three-volume handbook on public law remains the most influential constitutional law handbook in Thailand to date. Thongthong Chandransu (ธงทอง จันทรางศุ) (1955–) Thongthong Chandransu studied law at Chulalongkorn University, was admitted to the Thai bar and started to teach law at Chulalongkorn University in 1980. In 1986, he defended his master’s thesis, written under the supervision of Bowornsak Uwanno, who was then an assistant professor at Chulalongkorn. In his thesis, he offered a defence of the royal prerogative based on the concept of constitutional conventions. He continued his studies in the United States, receiving an LLM from New York University. In 1999, he became the Dean of the Faculty of Law at Chulalongkorn University. He also worked at the Ministry of Justice as Deputy Permanent Secretary, Permanent Secretary and Advisor of the Office of the Prime Minister, as well as in the Council of State. In 1997, he became a member of the Constitution-Drafting Committee, in which he voiced his support for an uncodified but expanded royal prerogative. Throughout his career, he wrote influential books on constitutional law and the monarchy as well as books on royal ceremonies, customs and history. His most influential work remains his master’s thesis, which was published as a book in 2005.

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Legal Codes and Statutes ประมวลกฎหมายรัชกาลที่ ๑ จุลศักราช ๑๑๖๖ เล่ม ๑ [1805 Code of Rama I Volume 1] (Thammasat University Press, 1938] กฎอัยการศึก รศ ๑๒๖ [1907 Martial Law], 10 December 1907 กฎหมายลักษณะอาญา ร.ศ. ๑๒๗ [1908 Penal Code], 1 June 1908 พระราชกฤษฎีกาวางระเบียบทูลเกล้าถวายฎีกา พ.ศ. ๒๔๕๗ [1914 Royal Decree on Petition to the King], 10 January 1914 พระราชบัญญัติกฎอัยการศึก พ.ศ. ๒๔๕๗ [1914 Martial Law], 27 August 1914 พระราชกำ�หนดเพิ่มเติมและแก้ไขธรรมนูญลักษณะปกครองคณะนคราภิบาลดุสิดธานี พ.ศ. ๒๔๖๑ [1918 Decree on the Revision of the Constitution of the Municipality of Dusit Thani], 13 December 1918 พระราชบัญญัติแก้ไขพระราชกำ�หนดเพิ่มเติมธรรมนูญลักษณะปกครองนคราภิบาลดุสิตธานี พ.ศ. ๒๔๖๑ พ.ศ. ๒๔๖๓ [1920 Decree on the Revision of the Decree on the Revision of the 1918 Constitution of the Municipality of Dusit Thani], 7 July 1920 พระราชบัญญัติว่าด้วยสมุดเอกสารหละหนังสือพิมพ์ พ.ศ. ๒๔๖๕ [1922 Royal Act on Books, Documents and Journals], 30 January 1922 ประมวลกฎหมายแพ่งและพาณิชย์ พ.ศ. ๒๔๖๖ [1923 Civil and Commercial Code], 11 November 1923 กฎมณเฑียรบาลว่าด้วยการสืบราชสันตติวงศ์ พระพุทธศักราช ๒๔๖๗ [1924 Palace Law on Royal Succession], 11 November 1924 พระราชบัญญัติสมุด เอกสาร และหนังสือพิมพ์ พ.ศ. ๒๔๗๐ [1927 Royal Act on Documents and Journals], 2 September 1927 พระราชกำ�หนดนิรโทษกรรมในคราวเปลี่ยนแปลงการปกครองแผ่นดินพุทธศักราช ๒๔๗๕ [1932 Amnesty Decree Regarding the 1932 Regime Change], 26 June 1932 พระรากฤษฎีกาให้ปิดประชุมสภาผู้แทนและตั้งขณะรัฐมนตรีจุดใหม่ พ.ศ. ๒๔๗๖ [1933 Royal Decree to Close the Parliamentary Session and Appoint a New Government], 1 April 1933 พระราชบัญญัติจัดการป้องกันรักษารัฐธรรมนูญ พ.ศ. ๒๔๗๖ [1933 Law on the Defense of the Constitution], 12 November 1933 พระราชบัญญัติอาชาญกรสงคราม พ.ศ. ๒๔๗๗ [1945 Law on War Crimes], 8 October 1945 พระราชบัญญัติ นิรโทษกรรมแก่ผู้กระทำ�รัฐประหาร พ.ศ. ๒๔๙๑ [1947 Amnesty Law for the Perpetrators of the 1947 Coup], 23 December 1947 พระราชบัญญัติจัดระเบียบทรัพย์สิน ฝ่ายพระมหากษัตริย์ (ฉบับที่ ๓) พ.ศ. ๒๔๙๑ [1948 Act on the Regulation of the Wealth of the Crown (Third Amendment)], 3 February 1948 ประมวลกฎหมายอาญา พ.ศ. ๒๔๙๙ [1956 Penal Code], 13 November 1956

284  Bibliography พระราชบัญญัตินิรโทษกรรมแก่ผู้กระทําการยึดอํานาจการบริหารราชการแผ่นดินเมื่อวันที่ ๑๖ กันยายน พ.ศ. ๒๕๐๐ พ.ศ. ๒๕๐๐ [1957 Amnesty Law for those who seized power on 16 September 1957], 26 September 1957 พระราชบัญญัตินินิรโทษกรรมแก่ผู้กระทำ�การปฏิวัติเมื่อวันที่ ๒๐ ตุลาคม ๒๕๐๑ พ.ศ. ๒๕๐๒ [1959 Amnesty Law for the Perpetrators of the 20 October 1958 Revolution], 31 March 1959 พระราชบัญญัติ นิรโทษกรรมแก่ผู้กระทำ�การยึดอำ�นาจการปกครองประเทศ เมื่อวันที่ ๖ ตุลาคม พ.ศ. ๒๕๑๙ [1976 Amnesty Law for those who seized power on 6 October 1976], 24 December 1976 พระราชบัญญัติ นิรโทษกรรมแก่ผู้กระทำ�การยึดอำ�นาจการปกครองแผ่นดิน เมื่อวันที่ ๒๐ ตุลาคม พ.ศ. ๒๕๒๐ [1977 Amnesty Law for those who seized power on 20 October 1977], 3 December 1977 พระราชบัญญัตินิรโทษกรรมแก่ผู้กระทำ�การยึดและควบคุมอำ�นาจการปกครองแผ่นดินเมื่อ วันที่ ๒๓ กุมภาพันธ์ พ.ศ. ๒๕๓๔ [1991 Amnesty Law for those who seized power on 23 February 1991], 3 May 1991 พระราชบัญญัติประกอบรัฐธรรมนูญว่าด้วยการเลือกตั้งสมาชิกสภาผู้แทนราษฎรและสมาชิกวุฒิสภา พ.ศ. ๒๕๔๑ [1998 Organic Constitutional Law on the Election of the House of Representatives and the Senate], 6 June 1998 พระราชบัญญัติ ว่าด้วยการออกเสียงประชามติร่างรัฐธรรมนูญ พ.ศ. ๒๕๕๙ [2016 Referendum Act], 22 April 2016 พระราชบัญญัติคณะสงฆ์ (ฉบับที่ ๓) พ.ศ. ๒๕๖๐ [2017 Sangha Act (third version)], 6 January 2017 พระราชบัญญัติประกอบรัฐธรรมนูญ ว่าด้วยวิธีพิจารณาของศาลรัฐธรรมนูญ พ.ศ. ๒๕๖๑ [2018 Organic Constitutional Law on the Constitutional Court Procedure], 27 February 2018 พระราชบัญญัติ จัดระเบียบทรัพย์สินพระมหากษัตริย์ พ.ศ. ๒๕๖๑ [2018 Act on Crown Property], 2 November 2018

Decrees and Regulations ประกาศเปลี่ยนธรรมเนียมใหม่ [Decree on New Practices], 1873 กฎธานิโยปการ พ.ศ. 2465 [Regulation on Public Works 1922], 14 September 1922 ประกาศตั้งคณะกรรมการสอบสวนกรณีสวรรคต [Act of Appointment of a Commission of Inquiry into the case of the Royal Death], 25 June 1946 ประกาศแต่งตั้ง องคมนตรี [Royal Command Appointing Members of the Privy Council], 8 April 1952 ประกาศรัฐมนตรีลาออกและแต่งตั้งรัฐมนตรี [Announcement of Ministerial Resignation and Ministerial Appointment], 12 September 1957 ประกาศพระบรมราชโองการตั้งผู้รักษาพระนครฝ่ายทหาร [Royal Command Appointing a Military Defender of the Capital], 16 September 1957 ประกาศพระบรมราชโองการให้ใช้กฎอัยการศึกทั่วราชอาณาจักร [Royal Command to Use Martial Law over the Entire Kingdom], 16 September 1957 ประกาศคณะปฏิวัติฉบับที่ 17 [Announcement of the Revolutionary Group No 17], 17 October 1958 คำ�สั่งหัวหน้าคณะปฏิวัติ 36/2515 [Order of the Revolutionary Council No 36/2515], 22 June 1972 ประกาศสถาปนาสมเด็จพระบรมโอรสาธิราชสยามมกุฎราชกุมาร [Royal Command Establishing His Royal Highness the Prince as Crown Prince], 28 December 1972 ประกาศแต่งตั้งนายกรัฐมนตรี [Royal Command Appointing the Prime Minister], 14 October 1973 พระราชกฤษฎีกายุบสภา [Royal Decree of Dissolution of Parliament], 16 December 1973 ประกาศแต่งตั้งสมาชิกสภานิติบัญญัติแห่งชาติ [Royal Command Appointing the Members of the National Legislative Assembly], 23 December 1973 ประกาศแต่งตั้งตุลาการรัฐธรรมนูญ [Royal Command Appointing the Justices of the Constitutional Tribunal], 26 March 1975 คำ�สั่งของคณะปฏิรูปการปกครองแผ่นดิน ฉบับที่ 41 [Order 41 of the National Reform Council], 21 October 1976 ประกาศแต่งตั้งนายกรัฐมนตรี [Royal Command Appointing the Prime Minister], 2 March 1991 ประกาศแต่งตั้งนายกรัฐมนตรี [Royal Command Appointing the Prime Minister], 14 June 1992 ประกาศแต่งตังเปรมเป็นประธานองคมนตรี [Royal Command Appointing Prem Tinsulanond as President of the Privy Council], 4 September 1998 ประกาศแต่งตั้งผู้ว่าการตรวจเงินแผ่นดิน [Royal Command Appointing the Auditor-General], 31 December 2001 ประกาศคณะปฏิรูปการปกครองในระบอบประชาธิปไตยอันมีพระมหากษัตริย์ทรงเป็นประมุข ฉบับที่ ๑๒ เรื่องให้พระราชบัญญัติประกอบรัฐธรรมนูญบา งฉบับมีผลใช้ บังคับต่อไป [12th Announcement of the Reform Council for Democracy with the King as Head of State extending the validity of some organic constitutional laws], 20 September 2006

Primary Sources  285 ประกาศคณะปฏิรูปการปกครองในระบอบประชาธิปไตย อันมีพระมหากษัตริย์ทรงเป็นประมุข ฉบับที่ 30 เรื่องการตรวจสอบการกระทำ�ที่ก่อให้เกิดความ เสียหายแก่รัฐ [30th Announcement of the Council Reform for Democracy with the King as Head of State regarding the Assets Examination Committee], 30 September 2006 ประกาศแต่งตั้งนายกรัฐมนตรี [Royal Command Appointing the Prime Minister], 1 October 2006 ประกาศคณะปฏิรูปการปกครองในระบอบประชาธิปไตยอันมีพระมหากษัตริย์ทรงเป็นประมุข ฉบับที่ 27 [Announcement no 27 of the ‘Committee for the Democracy with the King as Head of State], 3 October 2006 ประกาศแต่งตั้งรัฐมนตรี [Royal Command Appointing the Council of Ministers], 30 August 2014 บันทึกข้อความ เรื่องแนวทางปฏิบัติในการดำ�เนินคดีอาญาตามประมวลกฎหมายอาญา มาตรา 112 [Office of the ProsecutorGeneral’s Directive in prosecution of criminal cases according to Article 112 of the Penal Code], 21 February 2017 ประกาศแต่งตั้งนายกรับมนตรี [Royal Command Appointing the Prime Minister], 24 August 2017 ประกาศ​สถาบันพระมหากษัตริย์ตามรัฐธรรมนูญแห่งราชอาณาจักรไทย [Royal Command on the Institution of the Monarchy according to the Constitution of Thailand], 8 February 2019 ข้อกําหนดศาลรัฐธรรมนูญว่าด้วยวิธีพิจารณาคดีรัฐธรรมนูญ พ.ศ. 2562 [Regulation on the Constitutional Court’s Rules of Procedure], 5 September 2019 ประกาศแต่งตั้งองคมนตรี [Royal Command Appointing a Privy Councillor], 4 May 2020

Court Cases คำ�พิพากษาศาลฎีกาที่ ๔๐๙​/๑๒๙ [Supreme Court Decision 409/129], 1910 คำ�พิพากษาศาลฎีกาที่ ๕๖๗​/๒ ​ ๔๗๑ [Supreme Court Decision 567/2471], 1927 คำ�พิพากษาคดีอาชญาการสงครามที่ ๑​/๒๔๘๙ [1946 Supreme Court Decision on War Crimes 1/2489], 23 March 1946 คำ�พิพากษาศาลฎีกาที่ ๑๑๕๓-​๑๑๕๔​​/๒๔๙๕ [Supreme Court Decision 1153–1154/2495], 23 September 1952 คำ�พิพากษาศาลฎีกาที่ ๔๕/​๒๔๙๖ [Supreme Court Decision 45/2496], 12 January 1953 คำ�พิพากษาศาลฎีกาที่ ๑๒๓๔​/๒ ​ ๕๒๓ [Supreme Court Decision 1234/2523], 1980 คำ�พิพากษาศาลฎีกาที่ ๒๓๗๖​/๒๕๒๖ [Supreme Court Decision 2376/2526], 17 August 1983 คำ�วินิจฉัยศาลรัฐธรรมนูญที่ ๒๐​​/๒๕๔๔ [Constitutional Court Decision 20/2544], 3 August 2001 คำ�วินิจฉัยศาลรัฐธรรมนูญที่ ๔๔​/๒๕๔๗ [Constitutional Court Decision 44/2547], 6 July 2004 คำ�วินิจฉัยศาลรัฐธรรมนูญที่ ๙​/๒๕๔๙ [Constitutional Court Decision 9/2549], 8 May 2006 คำ�พิพากษาศาลปกครองกลาง คดีหมายเลขแดงที่ ๕๐๗ ๖๐๘ ​/๒๕๔๙ [Central Administrative Court Decision, Red Cases 607–08/2549], 16 May 2006 คำ�วินิจฉัยศาล คำ�พิพากษาศาลอาญา คดีหมายเลขดำ�ที่ ๑๒๓๔​/๒๕๔๙ [Criminal Court Judgment, Black Case 1234/2549], 25 July 2006 รัฐธรรมนูญที่ ๓ ๕​/ ๒๕๕๐ [Constitutional Court Decision 3-5/2550], 30 May 2007 คำ�วินิจฉัยศาลรัฐธรรมนูญที่ ๕​/ ๒๕๕๑ [Constitutional Court Decision 5/2551], 30 June 2008 คำ�วินิจฉัยศาลรัฐธรรมนูญที่ ๑๒-๑๓​/๒๕๕๑ [Constitutional Court Decision 12–13/2551], 9 September 2008 คำ�วินิจฉัยศาลรัฐธรรมนูญที่ ๒๐ ​/ ๒๕๕๑ [Constitutional Court Decision 20/2551], 2 December 2008 คำ�พิพากษาศาลอุทธรณ์ที่ ๓๔๙๔​/๒๕๕๐ [Appeal Court Judgment 3494/2550, 7841/2553], 21 June 2010 คําวินิจฉัยศาลรัฐธรรมนูญที่ ๑๖/๒๕๕๓ [Constitutional Court Decision 16/2553], 9 December 2010 คำ�วินิจฉัยศาลรัฐธรรมนูญที่ ๑๘-๒๒​/๒๕๕๕ [Constitutional Court Decision 18–22/2555], 13 July 2012 คําวินิจฉัยศาลรัฐธรรมนูญที่ ๒๘-๑๙​/๒๕๕๕ [Constitutional Court Decision 28–29/2555], 10 October 2012 คำ�วินิจฉัยศาลรัฐธรรมนูญที่ ๑๕-๑๘/๒๕๕๖ [Constitutional Court Decisions 15–18/2556], 20 November 2013 คําพิพากษาศาลปกครองสูงสุด คดีหมายเลขดําที่ อ. ๙๙๒/๒๕๕๖ คดีหมายเลขแดงที่อ. ๓๓/๒๕๕๗ [Supreme Administrative Court Decision, Black Case 992/2556, Red Case 33/2557] 20 February 2014 คําวินิจฉัยศาลรัฐธรรมนูญที่ ๕/๒๕๕๗ [Constitutional Court Decision 5/2557], 21 March 2014 คำ�วินิจฉัยศาลรัฐธรรมนูญที่ ๙/๒๕๕๗ [Constitutional Court Decision 9/2557], 7 May 2014 คำ�พิพากษาศาลอาญาที่ ๑๕๙๑/๒๕๕๗ [Criminal Court Judgment 1591/2557], 11 June 2014 คำ�พิพากษาศาลอุทธรณ์ที่ ๔๑๔/๒๕๕๙ [Appeal Court Judgment, Case 414/2559], 16 May 2016 คำ�วินิจฉัยศาลรัฐธรรมนูญที่ ๔ ๒๕๕๙ [Constitutional Court Decision 4/2559], 29 June 2016 คำ�วินิจฉัยศาลรัฐธรรมนูญที่ ๗/​๒๕๕๙ [Constitutional Court Decision 7/2559], 16 October 2016

286  Bibliography คําพิพากษาศาลฎีกาที่ ๓๕๗๘/ ๒๕๖๐ [Supreme Court Judgment 3578/2560], 1 June 2017 คำ�วินิจฉัยศาลรัฐธรรมนูญที่ ๓ ๒๕๖๒ [Constitutional Court Decision 3/2562], 9 March 2019 คำ�สั่งศาลรัฐธรรมนูญที่​๓๕/๒๕๖๒ [Constitutional Court Order 35/2562], 11 September 2019 คำ�วินิจฉัยศาลรัฐธรรมนูญที่ ๕/​๒๕๖๓ [Constitutional Court Decision 5/2563], 21 February 2020

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Primary Sources  289 ——, ‘แนวพระราชดำ�รีทางกฎหมายในพระบาทสมเด็จพระเจ้าอยู่หัว’ [Royal Thinking about the Law by King Bhumibol Adulyadej] (1987) 11 Law Journal of Chulalongkorn University 36 ——, ‘ความรู้ทั่วไปเกี่ยวกับกฎหมายรัฐธรรมนูญ’ [General Principles of Constitutional Law] in เอกสารการสอนชุดกฎหมายมหาชน [Documents for the Teaching of Public Law] (Sukhothai Thammarirat University, 1988) ——, กฎมณเฑียรบาลในระบบกฎหมายไทย [The Palace Law in the Thai Legal Order] (Charoen, 2010) ——, ‘พระราชอัจฉริยภาพทางกฎหมายของพระบาทสมเด็จพระปรมินทรมหาภูมิพลอดุลยเดช รัชกาลที่๙’ [The Legal Genius of Bhumibol Adulyadej, Rama IX] (2017) 3 Chulanitti, Journal of the Senate 77 Wissanu Krea-ngam and Bowornsak Uwanno, ‘พระราชฐานะของพระมหากษัตริย์ตามธรรมนูญการปกครองราชอาณาจักร’ [The Status of the Monarchy According to the Constitution of the Kingdom] (1977) 3 Law Journal of Chulalongkorn University 148 ——, ธรรมนูญการปกครองราชอาณาจักร พุทธศักราช 2520 [The 1977 Constitution] (Chulalongkorn University, 1977) Visuth Krairik, คำ�อธิบายธรรมนูญปกครองแผ่นดินสยามเปรียบเทียบกับประเทศ ต่างๆ [Explanation of the Siamese Constitution in a Comparative Perspective] (Siam Bannakit, 1932) Wan Waithayakon, ‘งานบัญญัติศัพท์ของผลตรี พระเจ้าวรวงศ์เธอ พระองค์เจ้าวรรณไวทยากร’ [The Creation of Vocabulary by Prince Wan] in วิทยทัศน์พระองค์วรรณ [Prince Wan’s Vision] (Chulalongkorn University Press, 2001) ——, ‘ความคิดเห็นบางประการเกี่ยวกับเรื่อง ‘รัฐธรรมนูญ’ [A Few Thoughts about the Topic ‘Constitution’] in กฎหมายกับรัฐธรรมนูญ [The Law and the Constitution] (Bangkok School of Law, 1933) Yut Saeng Uthai, คำ�อธิบายรัฐธรรมนูญ พุทธศักราช 2475–95 [Explanation of the 1932–1952 Constitutions] (Thammasat University, 1952) ——, ‘หมายเหตุท้ายคำ�พิพากษาศาลฎีกา 45/2496’ [Commentary on the Supreme Court Decision 45/2496] in Prakop Hutasing (ed), คำ�พิพากษาฎีกาประจำ�พุทธศักราช 2496 [Supreme Court Rulings of the Year 1953] (Lawyer’s Council, 1953) ——, ‘วัฒนธรรมทางเนติธรรมกับรัฐสภา’ [The Culture of the Rule of Law and the Parliament] (1953) 4 Journal of the Parliament 115 ——, ความผิดที่กระทำ�ทางวาจา พร้อมด้วยคำ�พิพากษาฎีกาประกอบ และ คำ�อธิบาย พ.ร.บ. ป้องกันการกระทำ�อันเป็นคอมมิวนิสต์ พ.ศ. 2495 เรียงมาตรา [Offences Related to Speech, Relevant Case Law and Article-by-Article Explanation of the 1952 Communist Act] (Thammasat University, 1953) ——, รัฐธรรมนูญแห่งราชอาณาจักรไทย และรัฐธรรมนูญทั่วไป [The Thai Constitutions and General Constitutional Law] (Thammasat University, 1957) ——, คําถาม-คําตอบ รัฐธรรมนูญแห่งราชอาณาจักรไทย: พร้อมท้ังคําแปลเป็นภาษาอังกฤษธรรมนูญการปกครอง ราชอาณาจักร 2502 [Questions and Answers Regarding the Constitution of the Kingdom of Thailand: Together with an English Translation of the 1959 Interim Constitution] (Santisuk, 1959) ——, คำ�บรรยายกฎหมายรัฐธรรมนูญ [Lecture on Constitutional Law] (Thammasat University, 1972) ——, คำ�อธิบายธรรมนูญการปกครองราชอาณาจักรไทย พ.ศ. 2515 [Explanation of the 1972 Constitution] (Thammasat University, 1973) ——, คำ�อธิบายรัฐธรรมนูญแห่งราชอาญาจักรไทยพุทธศกราช 2511 และ ธรรมนูญการปกครองราชอาญาจักร พุทธศักราช 2515, ว่าด้วยพระมหากษัตริย์ [Explanation of the 1968 Constitution and the Interim 1972 Constitution Regarding the Monarchy] (Winyuchon, 2008)

Royal Speeches พระราชดำ�รัสในพระบาทสมเด็จพระจุมจมเกล้าอยูห่ วั ทรงแถลงพระบรมราชาธิบายแก้ไขการปกครองแผ่นดิน[Chulalongkorn’s 1888 speech on administrative reform], 1888 พระราชดำ�รัสวันกองทัพบก [Royal speech to the Royal Thai Army], 15 January 1956 พระบรมราโชวาทในพิธีพระราชทานประกาศนียบัตรแก่นักศึกษาของสำ�นักอบรมศึกษากฎหมายแห่งเนติบัณฑิตยสภา [Royal speech on the occasion of the granting of diploma to graduates of the Thai Bar Training Center], 7 August 1972 พระบรมราโชวาทในพิธีพระราชทานประกาศนียบัตรแก่ผู้สำ�เร็จการศึกษาของสำ�นักอบรมศึกษากฎหมายแห่งเนติบัณฑิตยสภา’ [Royal message on the occasion of the graduation ceremony of the Lawyer’s Council], 6 November 1975

290  Bibliography พระบรมราโชวาทในพิธีพระราชทานประกาศนียบัตรแก่ผู้สอบไล่ได้วิชาความรู้ชั้นเนติบัณฑิตยสภา [Royal speech on the occasion of the granting of diploma to students accepted to the Thai Bar], 29 October 1981 พระราชดำ�รัสพระราชทานแก่บุคคลต่างๆ ที่เข้าเฝ้าฯ ถวายชัยมงคลเนื่องในโอกาสวันเฉลิมพระชนมพรรษา [Royal speech on the occasion of the King’s birthday], 4 December 1997 พระราชดำ�รัสพระบาทสมเด็จพระเจ้าอยู่หัวพระราชทานแก่คณะบุคคลต่างๆ ที่เข้าเฝ้าฯ ถวายชัยมงคล ในโอกาสวันเฉลิมพระชนมพรรษา [Royal speech on the occasion of the King’s birthday], 4 December 2005. พระราชดําารัสของพระบาทสมเด็จพระเจ้าอยู่หัวฯ ทรงตรัสกับ ม.ร.ว.ทองน้อย ทองใหญ่ [Royal speech delivered to Thongnoi Thongyai], 1 January 1988 พระราชดำ�รัส เนื่องในโอกาสวันเฉลิมพระชนมพรรษา ณ ศาลาดุสิดาลัย วันที่ 4 ธันวาคม 2534 [Royal speech on the occasion of the King’s birthday, delivered on 4 December 1991 at Chitlada Palace], 4 December 1991 พระราชดํารัสในโอกาสที่นายสัญญา ธรรมศักิด์ ประธานองคมนตรี และ พลเอก เปรม ติณสูลานนท์ องคมนตรี นําพลเอก สุจินดา คราประยูร และพลตรี จําลอง ศรีเมือง ทูลละอองธุลีพระบาทณพระตําหนักจิตรลดารโหฐาวันพุธที่๒๐ พฤษภาคม ๒๕๓๕ เวลา ๒๑.๓๐ น. [Royal speech on the occasion when Sanya Thammasak, President of the Privy Council, and Prem Tinsulanond, Member of the Privy Council, led General Suchinda Krapyoon and Major General Chamlong Srimuang to a Royal Audience on 20 May 1992 at 9.30 pm], 20 May 1992 พระราชดำ�รัส ในโอกาสที่ประธานศาลฎีกานำ�ผู้พิพากษาประจำ�ศาล เฝ้าฯ เพื่อถวายสัตย์ปฏิญาณก่อนเข้ารับหน้าที่ [Royal speech on the occasion when the President of the Supreme Court led Supreme Court judges to a royal audience to swear the oath of loyalty before assuming their duties], 9 July 2003 พระราชดำ�รัสในโอกาสที่พระราชทานพระบรมราชวโรกาสให้ประธานศาลปกครองสูงสุด (นายอักขราทร จุฬารัตน) นำ�ตุลาการศาลปกครอง สูงสุด เฝ้า ฯ ถวายสัตย์ปฏิญาณก่อนเข้ารับตำ�แหน่งหน้าที่ ณ วังไกลกังวล [Royal speech on the occasion of the President of the Supreme Administrative Court (Akharaton Chularath) led Supreme Administrative Court judges to swear their oath of allegiance before starting their duty, delivered at the Far from Worry Palace], 25 April 2006 พระราชดำ�รัสในโอกาสที่ประธานศาลฎีกา (นายชาญชัย ลิขิตจิตถะ) นำ�ผู้พิพากษาประจำ�ศาล สำ�นักงานศาลยุติธรรม เฝ้าฯ ถวายสัตย์ปฏิญาณก่อนเข้ารับห น้าที่ ณ วังไกลกังวล [Royal speech on the occasion of the President of the Supreme Court (Chanchai Likithchitha) led Supreme Administrative Court judges to swear their oath of allegiance before starting their duty, delivered at the Far from Worry Palace], 25 April 2006 พระราชทานพระบรมราชวโรกาสให้นายปัญญา ถนอมรอด ประธานศาลฎีกา นำ�ผู้พิพากษาประจำ�ศาล เฝ้าฯเพื่อถวายสัตย์ปฏิญาณก่อนเข้ารับหน้าที่ [Royal speech on the occasion when Pannya Thanomrod, the President of the Supreme Court, led Supreme Court judges to a royal audience to swear their oaths of loyalty before assuming their duties], 9 April 2007 พระราชดำ�รัสในวโรกาสที่นายอักราทร จุฬารัตน ประธานศาลปกครองสูงสุด พร้อมคณะตุลาการศาลปกครองและข้าราชการฝ่ายปกครอง เข้าเฝ้าฯ [Royal speech on the occasion when Akharaton Chularat, the President of the Supreme Administrative Court, led judges of the Supreme Administrative Court and other royal servants to a royal audience], 24 May 2007

Royal Correspondence เจ้านายและข้าราชการกราบบังคมทูลความเห็นจัดการเปลี่ยนแปลงราชการแผ่นดิน ร.ศ. ๑๐๓ [Princes and royal servants advise the King to change the Kingdom’s administration], 8 January 1885 พระราชดำ�รัสตอบความเห็นของผู้จะให้เปลี่ยนการปกครอง [Royal response to those who want to change the Kingdom’s Administration], 29 April 1885 โทรเลขถึงพระบาทสมเด็จพระจุลจอมเกล้าเจ้าอยูห่ วั [Prince Raphi’s telegram to King Chulalongkorn], 2 December 1904 ‘Problems of Siam’, King Prajadhipok’s Memorandum to Dr Sayre, 23 July 1926 ‘Memorandum’, Francis Sayre’s Memorandum to King Prajadhipok, 27 July 1926 ‘An Outline of Changes in the Form of Government’, Phraya Sriwisanwacha’s Memorandum to King Prajadhipok, early March 1932 ‘Memorandum Concerning the Proposed Changes in the Form of Government’, Raymond B. Stevens’, Memorandum to King Prajadhipok, 9 March 1932 พระราชหัตถเลขาตอบคณะราษฎร [King Prajadhipok’s Telegram to the People’s Party], 24 June 1932

Primary Sources  291 พระราชบันทึก 1 [King Prajadhipok’s First Remarks to the People’s Party], 20 September 1934 โทรเลขจากหม่อมราชวงส์สมัครสมัน กฤดากร ผู้ทำ�การแทนราชเลขานุการในกระบวนเสด็จ ทูล พระวรวงศ์เธอพระองค์เจ้าอาทิตย์ทิพอาภา ราชเลขานุการในพระองค์ [Telegram of Mom Rachawong Samaksaman Kridakorn, Representative of the King’s Private Secretary in the Delegation to the United Kingdom, to Prince Aditya Dibabha, King’s Private Secretary], 27 October 1934 บันทึกย่อการไปเฝ้าพระบาทสมเด็จพรระเจ้าอยู่หัว ครั้งที่ 1 [Minutes of the First Royal Audience], 12 December 1934 บันทึกย่อการไปเฝ้าพระบาทสมเด็จพรระเจ้าอยู่หัว ครั้งที่ 2 [Minutes of the Second Royal Audience], 23 December 1934 พระราชบันทึก 3 [King Prajadhipok’s Third Remarks to the People’s Party], 26 December 1934 บันทึกย่อการไปเฝ้าพระบาทสมเด็จพรระเจ้าอยู่หัว ครั้งที่ 3 [Minutes of the Third Royal Audience], 20 January 1934 บันทึกย่อการไปเฝ้าพระบาทสมเด็จพรระเจ้าอยู่หัว ครั้งที่ 4 [Minutes of the Fourth Royal Audience], 24 January 1934 โทรเลขจากเจ้าพระยาศรีธรรมธิเบศ ทูล พระวรวงศ์เธอพระองค์เจ้าอาทิตย์ทิพอาภา ราชเลขานุการในพระองค์ [Chao Phraya Srithammathibet’s Telegram to Prince Aditya Dibabha, King’s Private Secretary], 25 January 1935 พระราชหัตถเลขาสละราชสมบัติพระบาทสมเด็จพระปกเกล้าเจ้าอยู่หัว [King Prajadhipok’s Telegram of Abdication], 2 March 1935 พระหัตถเลขาถึงจอมพล ป พิบูลสงคราม [King Bhumibol’s Telegram to Field Marshal Phibun Songkhram], 25 November 1947 บันทึกพระราชวิจารณ์เรื่องร่างรัฐธรรมนูญแห่งราชอาญจักรไทย แก้ไขเพิ่มเติม ๒๔๙๕ [King Bhumibol’s Comment on the Revised Constitution of 1952], 17 January 1952 หนังสือทูลเกล้ารายงานแด่พระบาทสมเด็จพระเจ้าอยู่หัวภูมิพลอดุลยเดช [Sarit Thanarat’s Letter to King Bhumibol], 20 October 1958 บันทึกพระราชกระแสเรื่องร่างรัฐธรรมนูญ พ.ศ. ๒๕๑๗​ [King Bhumibol’s Remarks on the Draft 1974 Constitution], 7 October 1974 ลายฝีพระหัตถ์ [Queen Sirikit’s Handwritten Note], 2 April 1981 ฎีกาขอนายกรัฐมนตรีพระราชทาน [Petition to the King to Ask for a Royally Granted Prime Minister], 5 March 2006

Cremation Volumes อนุสรณ์งานพระราชทานเพลิงศพ มหาเสวกโท พระยามโนปกรณ์นิติธาดา (ก้อน หุตะสิงห์) [Phraya Manopakorn Nititada’s (Kon Hutasingh) Cremation Volume], 1949 อนุสรณ์ในงานพระราชทานเพลิงศพพระยานิติศาสตร์ไพศาลย์ (วัน จามรมาน) [Nitisatpaisan’s (Wan Chamaraman) Cremation Volume], 1967 อนุสรณ์งานพระราชทานเพลิงศพพันเอก พระยาศรีวิสารวาจา [Phraya Sriwisanwacha’s Cremation Volume], 1968 อนุสรณ์งานพระราชทานเพลิงศพเจ้าพระยาศรีธรรมาธิเบศ (จิตร ณ สงขลา) [Chao Phraya Srithammathibet’s (Jit Na Songkhla) Cremation Volume], 1976 อนุสรณ์งานพระราชทานเพลิงศพ ศาสตราจารย์หยุด แสงอุทัย [Yut Saeng Uthai’s Cremation Volume], 1980 สุภาษิตพระราชนิพนธ์ อนุสรณ์ พระยามานวราชเสวี (ปลอด ณ สงขลา) [Royal Proverbs in Memory of Manawarachasewi (Plot Na Songkhla)], 1984 สีแี่ ผ่นดิน อนุสรณ์ในงานพระราชทานเพลิงศพ หม่อมราชวงศ์คึกฤทธิ์ ปราโมช [Four Kingdoms: Mom Rachawong Seni Pramot’s Cremation Volume], 1995

Newspaper Articles ‘Coronation of King Rama IX’ (Bangkok Post, 5 May 1950) ‘King testifies in brother’s murder trial’ (Bangkok Post, 16 May 1950) ‘Late King’s attendant found guilty’ (Bangkok Post, 27 September 1951) ‘Military seizes control in ‘silent coup’ (Bangkok Post, 29 November 1951) ‘King Bhumibol returns to a tense capital’ (Bangkok Post, 2 December 1951) ‘King hears court cases, pardons Thonburi thief’ (Bangkok Post, 26 January 1952)

292  Bibliography ‘2,500 years of Buddhist era; King and Queen absent from week-long celebrations’ (Bangkok Post, 12 May 1957) ‘Barge procession revived’ (Bangkok Post, 15 November 1959) ‘คอลัมน์คึฤทธิ’์ [Kukrit’s column] (Siam Rath, 11 December 1971) ‘Anand surprise pick for premier’ (Bangkok Post, 25 February 1991) ‘King tells protesters to accept constitution’ (Bangkok Post, 4 December 1991) ‘Lord Denning, controversial “people’s judge”, dies aged 100’ (The Guardian, 6 March 1999) ‘“Thongdaeng” is a national sensation’ (Bangkok Post, 29 November 2002. ‘King cautions Thaksin on “responsibility”’ (Bangkok Post, 4 December 2003) ‘Jaruvan waits for royal word’ (The Nation, 9 September 2005) ‘Update on Auditor-General controversy’ (WikiLeaks, 30 September 2005) ‘Academic Forum debates royal powers’ (Bangkok Post, 6 September 2005) ‘Controversial biography of the King is banned’ (Bangkok Post, 19 January 2006) ‘PM would go only if King tells him’ (Bangkok Post, 5 February 2006) ‘Judges divided at 11th hour’ (The Nation, 30 April 2006) ‘นายกฯ พระราชทาน นายกฯ คนกลาง นายกฯ คนนอก’ [Royally appointed premier, neutral premier, external premier] (Manager, 2 May 2006) ‘บวรศักดิ์ลาบวช’ [Bowornsak resigns to enter monkhood] (Prachatai, 7 June 2006) ‘Prem: the military belongs to the King’ (Bangkok Post, 14 July 2006) ‘Thailand’s King gives blessing to coup’ (CNN, 20 September 2006) ‘Queen Elizabeth and Prince Philip visit’ (Bangkok Post, 28 October 2006) ‘Charter drafter pans “evil” elections’ (The Nation, 27 April 2007) ‘From the People’s Constitution to the Judges’ Constitution’ (The Nation, 30 April 2007) ‘ปธ.สนช.ตีความพระราชดำ�รัสในหลวงชี้ศาลควรกล้าตัดสินใจคีดยุบพรรค’ [President of the Assembly [Meechai Ruchupan] interprets Royal Speech as invitation extended to the Constitutional Tribunal to Dissolve the [Thai Rak Thai] Party] (Matichon, 25 May 2007) ‘Thai king endorses junta leader as prime minister’ (Associated Press, 26 May 2014) ‘University leaders appointed to “military government”’ (University World News, 4 August 2014) ‘Prayuth to change Constitution at King’s request’ (Khaosod, 10 January 2017) ‘NLA approves move to amend charter regarding King’s power’ (Bangkok Post, 13 January 2017) ‘Constitution amended at King’s request; changing royal powers’ (Prachatai, 13 January 2017) ‘Prayut makes light of alleged oath gaffe’ (Bangkok Post, 5 August 2019) ‘Thai monuments are disappearing in the dead of night’ (Foreign Policy, 11 August 2020) ‘The demonstration at Thammasat proposes monarchy reform [full statement]’ (Prachatai, 11 August 2020) ‘Thai anti-government protesters rally in the thousands, as challenge to the once-untouchable monarchy grows’ (Washington Post, 16 August 2020)

Miscellaneous ประกาศคณะราษฎร ฉบับที่ ๑ [People’s Party First Announcement], 24 June 1932 Sarit Thanarat, ‘คำ�ปราศรัยในวันรัฐธรรมนูญและวันสิทธิมนุษยชน’ [Speech on Constitution and Human Rights Day], 10 December 1960 Somphop Hotrakit, ปาฐกถาเรื่องหลักการใหม่ ๆ ในรัฐธรรมนูญแห่งราชอาณาจากรไทย [Speech on the New Principles in the Thai Constitution] (Department of Public Relations, 1968) แถลงการณ์ของคณะปฏิรูปการณ์ปกครองแผ่นดิน [Press release of the Council for National Reform], 6 October 1976 Chanchai Likitchitta, ‘หนังสือถึงประธานวุฒิสภา’ [Telegram to the President of the Senate], 1 June 2006 แถลงการณ์ สภาทนายความแห่งประเทศไทย ฉบับที่ 9/2557 เรื่อง ปัญหาความชอบด้วยกฎหมายของรักษาการรองนายกรัฐมนตรีผู้ที่จะทำ�หน้าที่แทนรั กษาการนายกรัฐมนตรี และปัญหาการปฏิบัติหน้าที่ราชการของรักษาการรัฐมนตรีชุดที่เหลือหลังมีคำ�วินิจฉัยของศาลรัฐธรรมนูญ [Press release 9/2557 of the Thai Lawyer’s Council regarding the issue of the legality of the deputy prime minister acting as interim prime minister and the issue of the remaining Cabinet members acting as interim Cabinet members following the Constitutional Court’s Decision], 9 May 2014

Secondary Literature  293 SECONDARY LITERATURE

Thai Law, Politics and Religion Anderson B, ‘Withdrawal Symptoms: Social and Cultural Aspects of the October 6 Coup’ (1977) 9 Bulletin of Concerned Asian Scholars 13 ——, ‘Studies of the Thai State: The State of Thai Studies’ in EB Ayal (ed), The Study of Thailand: Analyses of Knowledge, Approaches and Prospects in Anthropology, Art History, Economics, History, and Political Science (Ohio University Center for International Studies, Southeast Asia Program, 1978) ——, ‘Murder and Progress in Modern Siam’ [1990] New Left Review 33 Anek Laothamatas, ‘A Tale of Two Democracies: Conflicting Perceptions of Elections and Democracy in Thailand’ in R Taylor (ed), The Politics of Elections in Southeast Asia (Woodrow Wilson Center Press, 1996) Angkhwang SY, Full Report, with Documentary Appendices, of the Phra Yot Trial before the Special Court at Bangkok (Hardpress, 2013) Anonymous, เบื้องหลังวันวิกฤต [Behind the Day of Crisis] (PG Press, 1981) Apirat P, ‘A Short History of Thai Criminal Law since the Nineteenth Century’ (1986) 28 Malaya Law Review 134 Askew M, Legitimacy Crisis in Thailand (Silkworm Books, 2010) Athon Kurawan, ‘การร่างรัฐธรรมนูญ 2521 กับการพัฒนาประชาธิปไตยในประเทศไทย’ [The Drafting of the 1978 Constitution and the Development of Democracy in Thailand] (Thesis, Chulalongkorn University, 1989) Attachak Sattayanurak, การเปลี่ยนแปลงโลกทัศน์ของชนชั้นผู้นำ�ไทยตั้งแต่ราชกาลที่ 4–2475 [Change in Worldviews of Thai Elites from the Fourth Reign until 1932] (Chulalongkorn University, 1995) ——, ‘The Intellectual Aspects of Strong Kingship in the Late Nineteenth Century’ (2000) 88 Journal of the Siam Society 72 ——, ‘Intellectual Origins of Strong Kingship (Part 2)’ (2001) 89 Journal of the Siam Society 12 Baker C, ‘The 2014 Thai Coup and Some Roots of Authoritarianism’ (2016) 46 Journal of Contemporary Asia 388 Baker C and Pasuk Phongpaichit, A History of Thailand, 3rd edn (Cambridge University Press, 2014) ——, The Palace Law of Ayutthaya and the Thammasat (Cornell University Press, 2016) Bandit Chanrochanakit, รัฐธรรมนูญสถาปนา: ชีวิตและชะตากรรมของประชาธิปไตยในวัฒนธรรมไทย [The Foundational Constitution: The Life and Fate of Democracy in Thai Culture] (Vipassa 2006) ——, ชีวประวัติธรรมนูญการปกครองและรัฐธรรมนูญแห่งราชอาณาจักรไทย พ.ศ. 2475–2520 [A Biography of the Interim Constitution and the Constitutions of the Kingdom of Thailand 1932–1977] (Research Development Fund, 2007) ——, ‘ธรรมนูญการปกครอง พ.ศ. 2502 กับมาตรา 17’ [The 1959 Interim Charter and Article 17] (Bandit Chanrochanakit’s Blog, 28 June 2014), https://blogazine.pub/blogs/pandit-chanrochanakit/ post/4878 Bartle GF, ‘Sir John Bowring and the Chinese and Siamese Commercial Treaties’ (1962) 44 Bulletin of the John Rylands Library 286 ——, ‘Jeremy Bentham and John Bowring: A Study of the Relationship between Bentham and the Editor of His Collected Works’ (1963) 36 Historical Research 27 Batson BA, ‘The Fall of the Phibun Government, 1944’ [1971] Journal of the Siam Society 89 ——, Siam’s Political Future: Documents from the End of the Absolute Monarchy (Cornell University Press, 1974) ——, The End of the Absolute Monarchy in Siam (Oxford University Press, 1984) Bouckaert P et al, Descent into Chaos: Thailand’s 2010 Red Shirt Protests and the Government Crackdown (Human Rights Watch, 2011) Bowornsak Uwanno, Economic Crisis and Political Crisis in Thailand: Past and Present (King Prajadhipok’s Institute, 2009)

294  Bibliography ——, ‘Depoliticising Key Institutions for Combatting Corruption: The New Thai Constitution’ in P Larmour and N Wolanin (eds), Corruption and Anti-corruption, 2nd edn (ANU Press, 2013) Bowornsak Uwanno and Burns WD, ‘The Thai Constitution of 1997: Sources and Process’ (1998) 32 University of British Columbia Law Review 227 Bowornwathana B, ‘Importing Governance into the Thai Polity: Competing Hybrids and Reform Consequences’ in C Wescott and B Bowornwathana (eds), Comparative Governance Reform in Asia: Democracy, Corruption, and Government Trust (Emerald, 2008) ——, ‘Administrative Reform and Regime Shifts: Reflections on the Thai Polity’ (2013) 35 Asia Pacific Journal of Public Administration 137 ——, ‘Administrative Reform and Tidal Waves from Regime Shifts: Tsunamis in Thailand’s Political and Administrative History’ (2013) 35 Asia Pacific Journal of Public Administration 167 ——, ‘Autonomisation of the Thai State: Some Observations’ (2013) 35 Asia Pacific Journal of Public Administration 183 ——, ‘Governance Reform in Thailand: Questionable Assumptions, Uncertain Outcomes’ (2013) 35 Asia Pacific Journal of Public Administration 149 ——, ‘The Politics of Becoming a Top Bureaucrat in the Thai Bureaucracy’ (2013) 35 Asia Pacific Journal of Public Administration 195 Bowring J, The Kingdom and People of Siam: With a Narrative of the Mission to That Country in 1855 (Cambridge University Press, 2013) Bradley CB, ‘The Oldest Known Writing in Siamese, the Inscription of Phra Ram Khamhaeng of Sukhothai, 1293 AD’ (1909) 6 Journal of the Siam Society 1 Bradley WL, ‘The Accession of King Mongkut’ [1961] Journal of the Siam Society 148 Bruce R, ‘King Mongkut of Siam and His Treaty with Britain’ (1969) 9 Journal of the Hong Kong Branch of the Royal Asiatic Society 82 Cadet JM, The Ramakien: The Thai Epic (Kodansha International, 1971) Callahan WA, Imagining Democracy: Reading ‘the Events of May’ in Thailand (Institute of Southeast Asian Studies, 1998) ——, ‘The Discourse of Vote Buying and Political Reform in Thailand’ (2005) 78 Pacific Affairs 95 Case D, ‘Thais Protest Royal Biography’ (2006) 6 Yale Alumni Magazine 22 Chai-Anan Samudavanija, The Thai Young Turks (Institute of Southeast Asian Studies, 1982) ——, ‘Democracy in Thailand: A Case of a Stable Semi-democratic Regime’ (1987) 150 World Affairs 31 ——, ‘ความคิดทางการเมือง เรื่อง ธรรมราชาและทศพิธราชธรรม’ [Political Thoughts on Dharmaraja and the Ten Royal Virtues] (1987) 11 Law Journal of Chulalongkorn University 11 ——, ‘Old Soldiers Never Die, They are Just Bypassed’ in K Hewison (ed), Political Change in Thailand: Democracy and Participation (Routledge, 1997) ——, Thailand: State-Building, Democracy, and Globalization (Institute of Public Policy Studies, 2002) Chanchai Sewengsak, อิทธิพลของฝรั่งเศสในการปฏิรูปกฎหมายไทย [The French Influence in Thai Legal Reform] (Winyuchon, 2015) Chambers P, ‘In the Shadow of the Soldier’s Boot: Assessing Civil–Military Relations in Thailand’ in M Askew (ed), Legitimacy Crisis in Thailand (Silkworm Books, 2010) ——, ‘Thailand on the Brink: Resurgent Military, Eroded Democracy’ (2010) 50 Asian Survey 835 ——, ‘Constitutional Change and Security Forces in Southeast Asia: Lessons from Thailand and Myanmar’ (2014) 36 Contemporary Southeast Asia 101 ——, ‘Securing an Alternative Army’ in P Chachavalpongpun (ed), Routledge Handbook of Contemporary Thailand (Routledge, 2019) Chanida Chitbandit, โครงการอันเนื่องมาจากพระราชดำ�ริ การสถาปนาพระร ราชอำ�นาจนำ�ในพระบาทสมเด็จพระเจ้าอยู่หัว [Royal Projects: Building the King’s Power of Guiding] (Foundation for the Promotion of Social Sciences and Humanities, 2007) Chanthana C, ‘ความเป็นมาและสถานะทางกฎหมายของ ‘สภาสนามม้า’ [Origins and Legal Status of the Horse Field Parliament] [2015] ชุมทางอินโดจีน’: เอเชียตะวันออกเฉียงใต้ปริทัศน์ [Indochina Junction: Southeast Asia Review] 51

Secondary Literature  295 Charnvit Kasetsiri, ‘The First Phibun Government and its Involvement in World War II’ (1974) 62 Journal of the Siam Society 25 ——, Thai Historiography (Routledge, 2019) Charnvit Kasetsiri and Thamrongsak Petchlertanan, 2475: การปฏิวัติสยาม [1932: The Siamese Revolution] (Foundation for the Promotion of Social Sciences and Humanities Textbook Projects, 2000) Chayat Chaiporn, ประเพณีการปกครองระบอบประชาธิปไตยอันมีพระมหากษัตริย์ทรงประมุข: บทวิเคราะห์มาตรา 7 [Customs of Democracy with the King as Head of State: An Analysis of Article 7] (King Prajadhipok’s Institute, 2019) Chem S, จมื่นอมรดรุณารักษ์ / แส, ดุสิดธานี เมืองประชาธิปไตยของพระบาทสมเด็จพระมงกุฎเกล้าเจ้าอยู่หัว [Dusit Thani, Democratic City of King Vajiravudh] (Chulalongkorn University Press, 1974) Chonchirdsin Sud, ‘The Ambivalent Attitudes of the Siamese Elite towards the West during the Reign of King Chulalongkorn, 1868–1910’ (2009) 17 South East Asia Research 433 Chookiat Panaspornprasit, ‘Thailand: The Historical and Indefinite Transitions’ (2017) 2017 Southeast Asian Affairs 353 Chula Chakrabongse, Lords of Life: A History of the Kings of Thailand (River Books, 2019) Chutimon Jamchurus, ‘แนวความคิดของหยุด แสงอุทัย เกี่ยวกับสถานะและพระราชอานาจ ของพระมหากษัตริย์ตามรัฐธรรมนูญ’ [Yut Saeng-Uthai’s Constitutional Concepts of the Monarchy and the Royal Prerogative] (Thesis, Thammasat University, 2019) Coedès G, ‘Jean Burnay et Robert Lingat: Lois siamoises. Code de 1805 [Siamese laws. 1805 Code. Miscellaneous Laws]. Lois diverses’ (1930) 30 Bulletin de l’Ecole française d’Extrême-Orient 472 ——, ‘Some Problems in the Ancient History of the Hinduized States of South-East Asia’ (1964) 5 Journal of Southeast Asian History 1 ——, The Indianized States of Southeast Asia (East-West Center Press, 1968) Collins S, ‘The Lion’s Roar on the Wheel-Turning King: A Response to Andrew Huxley’s “The Buddha and the Social Contract”’ (1996) 24 Journal of Indian Philosophy 421 Connors MK, ‘Framing the ‘People’s Constitution’’ in D McCargo (ed), Reforming Thai Politics (NIAS, 2002) ——, Democracy and National Identity in Thailand (Routledge, 2003) ——, ‘Goodbye to the Security State: Thailand and Ideological Change’ (2003) 33 Journal of Contemporary Asia 431 ——, ‘Article of Faith: The Failure of Royal Liberalism in Thailand’ (2008) 38 Journal of Contemporary Asia 143 ——, ‘Liberalism, Authoritarianism and the Politics of Decisionism in Thailand’ (2009) 22 Pacific Review 355 ——, ‘Thailand’s Emergency State: Struggles and Transformations’ in D Singh (ed), Southeast Asian Affairs 2011 (ISEAS–Yusof Ishak Institute Singapore, 2011) Connors MK and Hewison K, ‘Introduction: Thailand and the “Good Coup”’ (2008) 38 Journal of Contemporary Asia 1 Coorey PP, ‘Restraining Arbitrary Power in Thailand: The Sociological Approach in Examining the Rule of Law’ (Thesis, University of New South Wales, 2010) Damrong Rachanuphap, ลักษณะการปกครองประเทศสยามแต่โบราณ [Ancient Siamese Administration] (Sophonphipatanakan, 1928) ——, ตำ�นานกฎหมายเมืองไทย [A History of Thai Laws] (Sophonphiphatthanakan, 1930) Darling F, ‘Modern Politics in Thailand’ (1962) 24 Review of Politics 163 ——, ‘British and American Influence in Post-war Thailand’ (1963) 4 Journal of Southeast Asian History 97 ——, ‘Thailand: De-escalation and Uncertainty’ (1969) 9 Asian Survey 115 ——, ‘Thailand: Transitional Military Rule?’ (1978) 75 Current History 208 ——, ‘Thailand in 1977: The Search for Stability and Progress’ (1978) 18 Asian Survey 153 ——, ‘Thailand in the 1980s’ (1980) 79 Current History 185 ——, ‘Marshal Sarit and Absolutist Rule in Thailand’ (1960) 33 Pacific Affairs 347 ——, ‘Thailand in 1976: Another Defeat for Constitutional Democracy’ (1977) 17 Asian Survey 116 Darling F and Darling A, Thailand: The Modern Kingdom (Donald Moore for Asia Pacific Press, 1971)

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300  Bibliography ——, ‘Thailand’s Constitutional Watchdogs: Dobermans, Bloodhounds or Lapdogs?’ (2007) 2 Journal of Comparative Law 151 ——, ‘The Ombudsman Principle in Thailand’ (2007) 2 Journal of Comparative Law 1 Leyland P and Harding A, The Constitutional System of Thailand: A Contextual Analysis (Hart Publishing, 2011) Likhit Thiravekin, ความถูกต้องตามกฎหมาย (Legality), ความชอบธรรมทางการเมือง (Legitimacy) และธรรมแห่งอำ�นาจ (Moral Authority) [Legality, Legitimacy, and Moral Authority] (Thammasat University, 2013) ——, ‘The Relevance of the US Constitution to Thai Politics’ in Chinnawanno Wiriya So (ed), US Constitution: Thai Perspectives (Chulalongkorn University Press, 1990) Lingat R, ‘Note sur la révision des Lois Siamoises en 1805’ [1923] Journal of the Siam Society 19 ——, L’esclavage privé dans le vieux droit siamois (avec une traduction des anciennes lois siamoises sur l’esclavage) [Slavery in Ancient Siamese Law (with a Translation of Ancient Slavery Laws)] (Les éditions Domat-Montchrestien, 1931) ——, L’influence indoue dans l’ancien droit siamois [The Hindu Influence in Ancient Siamese Law] (Domat-Montchrestien, 1937) ——, ‘Evolution of the Conception of Law in Burma and Siam’ [1941] Journal of Siamese Society 9 ——, ‘The Buddhist Manu or the Propagation of Hindu Law in Hinayanist Indochina’ (1949) 30 Annals of the Bhandarkar Oriental Research Institute 284 ——, ‘La conception du droit dans l’Indochine hîniayâniste’ [The Conception of Law in Hinayana Indochina] (1951) 44 Bulletin de l’Ecole française d’Extrême-Orient 163 ——, Les sources du droit dans le système traditionnel de l’Inde [Sources of Law in the Traditional Indian System] (Mouton & Co, 1967) ——, The Classical Law of India (University of California Press, 1973) ——, ประวัติศาสตร์กฎหมายไทย [History of Thai Law] (Wattanapanit, 1983) ——, Royautés bouddhiques: Aśoka et la fonction royale à Ceylan [Buddhist Kingdoms: Ashoka and Kingship in Ceylon] (Editions de l’Ecole des hautes études en sciences sociales, 1989) ——, ‘Pour un droit comparé indochinois’ [For an Indochinese Comparative Law] (2005) 15 Aséanie 149 Loos T, ‘Gender Adjudicated: Translating Modern Legal Subjects in Siam’ (Thesis, Cornell University, 1999) ——, Bones around My Neck: The Life and Exile of a Prince Provocateur (Cornell University Press, 2016) ——, Subject Siam: Family, Law, and Colonial Modernity in Thailand (Cornell University Press, 2018) Luce D, ‘Thailand: How the US Engineered a Coup’ (1976) 35 Win 10 Lysa H, ‘Thailand in 1981: Reformulating the Polity from Within?’ [1982] Southeast Asian Affairs 339 Mahosodsripipat, การตรวจชําระและการร่างประมวลกฎหมายในกรุงสยาม [The Verification and Drafting of Laws in Siam] (Great Swing Ceremony, 1929) Mallet M, ‘Causes and Consequences of the October 76 Coup’ (1978) 8 Journal of Contemporary Asia 80 Marks T, ‘The Thai Monarchy under Siege’ (1978) 2 Asia Quarterly 109 Masao T, ‘The Sources of Ancient Siamese Law’ (1905) 15 Yale Law Journal 28 ——, ‘The New Penal Code of Siam’ (1908) 18 Yale Law Journal 85 McCargo D, ‘Alternative Meanings of Political Reform in Contemporary Thailand’ (1998) 13 Copenhagen Journal of Asian Studies 5 ——, ‘Understanding Political Reform’ in D McCargo (ed), Reforming Thai Politics (NIAS, 1998) ——, ‘Populism and Reformism in Contemporary Thailand’ (2001) 9 South East Asia Research 89 —— (ed), Reforming Thai Politics (NIAS, 2002) ——, ‘Thailand: State of Anxiety’ in Southeast Asian Affairs (ISEAS–Yusof Ishak Institute Singapore, 2008) ——, ‘Thai Politics as Reality TV’ (2009) 68 Journal of Asian Studies 7 ——, ‘Peopling Thailand’s 2015 Draft Constitution’ (2015) 37 Contemporary Southeast Asia 329 ——, ‘Readings on Thai Justice: A Review Essay’ (2015) 39 Asian Studies Review 23 ——, ‘Thailand in 2016: Fade to Gray’ (2017) 57 Asian Survey 150 ——, ‘Southeast Asia’s Troubling Elections: Democratic Demolition in Thailand’ (2019) 30 Journal of Democracy 119

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302  Bibliography Murashima E, ‘The Origin of Modern Official State Ideology in Thailand’ (1988) 19 Journal of Southeast Asian Studies 80 Nakharin Mektrairat, ความคิด ความรู้และอำ�นาจการเมืองในการปฏิวัติสยาม 2475 [Ideas, Knowledge and Political Power in the 1932 Revolution] (Samesky Books, 2003) ——, ‘คำ�อธิบำ�ยของปัญญำ�ชนฝ่ายที่สนับสนุนกับฝ่ายที่ต่อต้านการปฏิวัติสยำ�ม 2475’[Explanation of Intellectuals Supporting the Counter-revolution in 1932] [2004] Journal of the King’s Prajadhipok Institute 1 ——, พระผู้ทางเกล้าฯ ประชาธิปไตย: 60 ปีสิริราชสมบัติกับการเมืองการปกครองไทย [The King Who Gave Us Democracy: 60 Years of Reign and the Thai Politics and Administration] (Thammasat University Press, 2006) ——, การปฏิวัติสยาม พ.ศ. 2475 [The 1932 Revolution] (Samesky Books, 2010) Nattapol Chaiching, ‘The Monarchy and the Royalist Movement in Modern Thai Politics, 1932–1957’ in Saying the Unsayable: Monarchy and Democracy in Thailand (NIAS, 2010) ——, ‘พระบารมีปกเกล้าฯ ใต้เงาอินทรี แผนสงครามจิตวิทยาอเมริกัน กับการสร้างสถาบันกษัตริย์ ให้เป็น “สัญลักษณ์” แห่งชาติ’ [Royal Barami under the Shining Shadow: The American Psychological Warfare and the Building of the Institution of the Monarchy as a ‘Symbol’ of the Nation] (2011) 2 Samesky Journal 95 ——, ‘สยามบน “ทางสองแพร่ง”: ๑ ศตวรรษของความพยายามปฏิวัติ ร.ศ. ๑๓๐’ [Siam at a Crossroads: One Century after the Attempted 1912 Revolution] (2012) 33(4) Silapawattanatham 76 ——, ขอฝันใฝ่ในฝัน อันเหลื่อเชื่อ [They Dreamed the Impossible Dream: The Counter-revolutionary Movement in Siam] (Samesky Books, 2013) ——, กบฏบวรเดช: เบื้องแรกปฏิปักษ์ปฏิวัติสยาม 2475 [The Boworadet Rebellion: The FirstCounter–revolution] (Matichon, 2016) Neher CD, ‘Political Succession in Thailand’ (1992) 32 Asian Survey 585 Nelson MH, Thailand’s New Politics (King Prajadhipok’s Institute & White Lotus Press, 2001) ——, ‘Thaksin Overthrown: Thailand’s “Well-Intentioned” Coup of September 19, 2006’ (2007) 6 Journal of Contemporary Eastern Asia 1 ——, ‘Constitutional Contestation over Thailand’s Senate, 1997 to 2014’ (2014) 36 Contemporary Southeast Asia: A Journal of International and Strategic Affairs 51 ——, ‘Thailand’s 2015 Draft Charter: Abusive Constitution-Making of an Authoritarian Regime’, paper presented at City University of Hong Kong, 19 October 2019 Nidhi Eoseewong, ‘The Devaraja Cult and Khmer Kingship at Angkor’ in KR Hall and JK Whitmore (eds), Explorations in Early Southeast Asian History: The Origins of Southeast Asian Statecraft (Center for South and Southeast Asian Studies, University of Michigan, 1976) ——, ‘รัฐธรรมนูญฉบับวัฒนธรรมไทย’ [The Thai Cultural Constitution] (1991) 13 Silapawattanatham 1 ——, ชาติไทย, เมืองไทย, แบบเรียนและอนุสาวรีย์ ว่าด้วยวัฒนธรรม, รัฐ และรูปการจิตสำ�นึก [The Thai Nation, Thai Politics, Textbook and Monuments, about Culture, the State, and Consciousness] (Matichon, 2004) ——, การเมืองไทยสมัยพระเจ้ากรุงธนบุรี [Thai Politics in the times of the King of Thonburi] (Silapawattanatham, 2004) ——, ‘The Thai Cultural Constitution’, Kyoto Review of Southeast Asia, https://kyotoreview.org/ issue-3-nations-and-stories/the-thai-cultural-constitution Nikorn Tassaro, พระเจ้าบรมวงศ์เธอ พระองค์เจ้ารพีพัฒนศักดิ์ กรมหลวงราชบุรีดิเรกฤทธิ์:พระบิดาแห่งกฎหมายไทย [Prince Raphi, Father of Thai Law] (Nami Books, 2006) Niksch LA, ‘Thailand in 1980: Confrontation with Vietnam and the Fall of Kriangsak’ (1981) 21 Asian Survey 223 Nithini Thongthae, ‘สถาบันพระมหากษัตริย์กับกระบวนการสร้างรัฐธรรมนูญจารีตประเพณีว่าด้วยการรัฐประหาร’ [The Monarchy and the Process of Establishing Constitutional Customs Regarding Coups] (Thesis, Chiang Mai University, 2012) ——, ‘สถาบันพระมหากษัตริย์กับกระบวนการสร้างรัฐธรรมนูญจารีตประเพณีว่าด้วยการรัฐประหาร’[The Royal Institution and the Mechanism of Construction of Constitutional Custom Regarding Coups] [2012] Journal of Social Sciences and Law 46 Nittaya Kewkalna, ‘วรรณกรรมโลกศาสตร์ของไทยกับบริบททางสังคมแห่งยุคสมัย’ [Three Worlds Literature in Social and Historical Contexts] (2004) 4 Wannawithat 159 Nongyao Karnchanari (ed), พระมากษัตริย์ในพระบรมราชจักรีวงศ์กับประชาชน [The Chakri Monarchs and the Thai People: A Special Relationship] (Rungruangrat, 1982)

Secondary Literature  303 Noranit Settabutr (ed), เอกสารการพิจารณาร่างรัฐธรรมนูญ 10 ธันวาคม 2475 (โดยสภาผู้แทนราษฎรชุดแรก) [Documents of the Examination of the Draft 10 December 1932 Constitution (by the First Parliament)] (Thammasat University Press, 1999) ——, ‘The 2007 Constitution and the Second Round of Political Reform’ in Wutthisan Tanchai (ed), Exploring the 2007 Constitution (King Prajadhipok’s Institute, 2007) ——, รัฐธรรมนูญกับการเมืองไทย [The Constitution and Thai Politics] (Thammasat University Press, 2007) Nuntana Kapilakanchana, ‘การวิเคราะห์ในเชิงประวัติศาสตร์ เรื่องบทบาทของวังหน้าสมัยรัตนโกสินทร์: พ.ศ. 2325–2428’ [Historical Analysis towards the Roles of the Second Kings during the Bangkok Periods: 1782–1885] (1996) 17 Kasetsat Journal of Social Sciences 27 Ockey J, ‘Thailand: The Crafting of Democracy’ [1997] Southeast Asian Affairs 301 ——, ‘Monarch, Monarchy, Succession and Stability in Thailand’ (2005) 46 Asia Pacific Viewpoint 115 Office of the State Audit Commission, บทบาทขององค์กรตามรัฐธรรมนูญกับการพัฒนาประเทศ [The Role of Constitutional Organs in the Development of the Country] (State Audit Commission, 2012) Pallegoix J-B, Description du royaume Thai ou Siam: comprenant la topographie, histoire naturelle, mœurs et coutumes, législation, commerce, industrie, langue, littérature, religion, annales des Thaï et précis historique de la mission [Description of the Thai Kingdom or Siam, including its topography, natural history, manners and customs, legislation, commerce, industry, language, literature, religion, annals, and historical description of the mission] (Mission de Siam, 1854) Paphatsaun Thianpanya, ‘จักรวาลวิทยาสยาม : การศึกษาที่มาของอํานาจทางการเมือง และกฎหมายในกฎหมายตราสามดวง’ [Siamese Cosmology: A Study of the Sources of Political and Legal Authorities in the Three Seals Law] (Thesis, Thammasat University, 2008) Parkpume Vanichaka, ‘The Beginning of Liberalism in Thailand: Dan Beach Bradley and Bangkok Recorder’ (2015) 29 Journal of the Graduate School of Asia-Pacific Studies 21 Pasuk Phongpaichit, Thaksin: The Business of Politics in Thailand (Silkworm Books, 2004) Pasuk Phongpaichit and Baker C, The Palace Law of Ayuttaya and the Thammasat: Law and Kingship in Siam (Cornell University Press, 2016) ——, From the Fifty Jātaka: Selections from the Thai Paññāsa Jātaka (Silkworm Books, 2019) Pavin Chachavalpongpun (ed), Good Coup Gone Bad: Thailand’s Political Development since Thaksin’s Downfall (ISEAS–Yusof Ishak Institute, 2014) ——, Routledge Handbook of Contemporary Thailand (Routledge, 2019) Peleggi M, Thailand: The Worldly Kingdom (Reaktion, 2007) Phuttipong Manissorn, ‘การใช้กำ�ลังทหารล้มล้างรัฐธรรมนูญ: ศึกษาสถานะและผลทางกฎหมายของการยึดอำ�นาจ 19 กันยายน 2549’ [Military Coup d’Etat against the Constitution: Specific Study on the Legal Status and Effect of the Coup d’Etat on 19 September 2006] (Thesis, Thammasat University, 2013) Pitipat Supamit, ‘The Evolution of the Thai Monarchy in the Constitutional Period, 1932– Present’ (Thesis, American University, 1990) Piyabutr Saengkanokkul, พระราชอํานาจองคมนตรี และผู้มีบารมีนอกรัฐธรรมนูญ [Royal Prerogative, Privy Council and Extra-Constitutional Powers] (Openbooks, 2007) ——, ในพระปรมาภิไธย ประชาธิปไตยและตุลาการ [In the Name of the King, Democracy and the Judiciary] (Openbooks, 2009) ——, ‘La Juridiction Administrative en Thaïlande: Genèse d’une Institution’ [The Administrative Court in Thailand: The Genesis of an Institution] (Thesis, University of Toulouse, 2011) ——, รัฐธรรมนูญ: ประวัติศาสตร์ข้อความคิด, อํานาจสถาปนาและการเปลี่ยนผ่าน [Constitution: History of the Concept of Constituent Power and Change] (Samesky Books, 2016) ——, ศาลรัฐประหาร: ตุลาการ ระบอบเผด็จการ และนิติรัฐประหาร [The Coup Court: The Judiciary, Dictatorship and Judicial Coups] (Samesky Books, 2017) Prajak Kongkirati, และแล้วความเคลื่อนไหวก็ปรากฏ: การเมืองวัฒนธรรมของนักศึกษาและปัญญาชนก่อน 14 ตุลาฯ [And the Movement Emerged: Cultural Politics of the Students and Intellectuals before 14 October] (Thammasat University Press, 2005) ——, การเมืองว่าด้วยการเลือกตั้ง: วาทกรรม อํานาจ และพลวัตชนบทไทย [The Politics of Elections: Discourses, Power and Dynamics in the Countryside] (Samesky Books, 2012) ——, ‘Haunted Past, Uncertain Future: The Fragile Transition to Military-Guided Semiauthoritarianism in Thailand’ (2018) 2018 Southeast Asian Affairs 363

304  Bibliography Prawet Wasi, ปฏิรูปการเมือง: ทางออกสำ�หรับประเทศไทย [Political Reform: The Way out for Thailand] (Mochaoban, 1995) Pridi Hongsathorn, ‘มอง ‘งานฉลองรัฐธรรมนูญ‘ ในแง่การเมืองวัฒนธรรมหลังการปฏิวัติ 2475’ [The ‘Constitution Fair’ as Political Cultural War after the 1932 Revolution] (2012) 6 Thammasat University Archives 122 Pridi Kasemsap and Kittisak Prokati, นิติปรัชญา [Philosophy of Law] (Thammasat University, 2017) Prin Thepnarin, ‘การก่อตัวของอุดมการณร์ ราชาชาตินิยม, 2490–2510’[The Formation of Royal-Nationalist Ideology, 1947–67] [2013] Thammasat Journal 1 Prudhisan Jumbala, ‘Thailand: Constitutional Reform Amidst Economic Crisis’ (1998) 1998 Southeast Asian Affairs 265 Prudhisan Jumbala and Suchit Bunbongkan, Monarchy and Constitutional Rule in Democratizing Thailand (Chulalongkon University Press, 2012) Pruksacholavit P and Garoupa N, ‘Patterns of Judicial Behaviour in the Thai Constitutional Court, 2008–2014: An Empirical Approach’ (2016) 24 Asia Pacific Law Review 16 Puttiphong P and Chanan Y, ‘“ดุสิตธานี” หลุมหลบภัยของราชาธิปไตยและป้อมโจมตีประชาธิปไตย’[Dusit Thani, the Royalty’s Bunker and the Citadel of Attacks against Democracy] [2012] Samesky Journal 78 Quaritch Wales HG, Siamese State Ceremonies: Their History and Function (Bernard Quaritch Ltd, 1931) ——, Ancient Siamese Government and Administration (Bernard Quaritch Ltd, 1934) Rabibhadana A, The Organization of Thai Society in the Early Bangkok Period, 1782–1873 (Cornell University Press, 1969) Race J, ‘Thailand in 1974: A New Constitution’ [1975] Asian Survey 157 Raksasataya A and Klein JR, The Constitutional Court of Thailand: The Provisions and the Working of the Court (Constitution for the People Society, supported by the Asia Foundation, 2003) Reynolds C, ‘Buddhist Cosmography, with Special Reference to Nineteenth Century Culture Change’ (1976) 2 Journal of Asian Studies 203 ——, ‘The Plot of Thai History’ in Patterns and Illusions: Thai History and Thought (Australian National University, 1993) ——, National Identity and its Defenders: Thailand Today (Silkworm Books, 2002) Reynolds F, ‘The Two Wheels of Dhamma: A Study of Early Buddhism’ in Gananath Obeyesekere, Frank Reynolds and Bardwell L Smith, The Two Wheels of Dhamma: Essays on the Theravada Tradition in India and Ceylon (American Academy of Religion, 1972) ——, ‘Sacral Kingship and National Development: The Case of Thailand’ (1973) 4 Contributions to Asian Studies 40 ——, Three Worlds According to King Ruang: A Thai Buddhist Cosmology (University of California Press, 1982) ——, ‘Rāmāyaṇa, Rāma Jātaka, and Ramakien: A Comparative Study of Hindu and Buddhist Traditions’ in Paula Richman, Many Rāmāyaṇas (University of California Press, 1991) ——, ‘Dhamma in Dispute: The Interactions of Religion and Law in Thailand’ (1994) 28 Law & Society Review 433 Rien Srichan and Net Phoonwiwat, กบฏ ร.ศ.130: การปฏิวัติครั้งแรกของไทย [The 1912 Rebellion: The First Thai Revolution] (Sripanya, 2019) Riggs F, Thailand: The Modernization of a Bureaucratic Polity (East-West Center, 1966) Rohr JA, ‘Ethics and Constitutional Reform: The Case of Thailand’ (2004) 6 Public Integrity 133 Saichon Sattayanurak, พุทธศาสนากับแนวคิดทางการเมืองใน รัชสมัยพระบาทสมเด็จพระพุทธยอดฟ้าจุฬาโลก (พ.ศ. 2325–2352) [Buddhism and Political Ideologies in the Times of Phraphuttayotfachulalok (1782–1809)] (Matichon, 2003) ——, คึกฤทธิ์กับประดิษฐ์กรรม ‘ความเป็นไทย’ [Kukrit and the Crafting of ‘Thainess’] (Matichon, 2007) ——, ‘อุดมการณ์ชาตินิยมกับการเคลื่อนไหวทางการเมืองของชนชั้นกลางไทย’ [Nationalism and the Intellectual Movement of Thai Middle Classes] (2014) 2 Humanities Journal 35 Saneh Chamrik, การเมืองไทยกับพัฒนาการรัฐธรรมนูญ [Thai Politics and Constitutional Development] (Foundation for the Promotion of Social Sciences and Humanities, 2006)

Secondary Literature  305 Sawaeng Bunchalemphiwat, ประวัติศาสตร์กฎหมายไทย [Thai Legal History] (Winyuchon, 2000) Sayre FB, ‘The Passing of Extraterritoriality in Siam’ (1928) 22 American Journal of International Law 7 Siriporn Dabphet, ‘The Coronation Ritual and Thai Kingship since the Mid-nineteenth Century’ (Master’s thesis, National University of Singapore, 2009) ——, ‘The Legal Foundation of State Stability in the Early Bangkok Period’ (PhD thesis, National University of Singapore, 2013) Sombat Chantonvong and Montri Chenvidyakan, ‘Constitutional Rule and the Institutionalization of Leadership and Security in Thailand’ in Stephen Chee (ed), Leadership and Securitization in Southeast Asia (ISEAS Publishing, 1991) Somchai Preechasilapakun, ‘ปัญหาทางกฎหมาย บางประการเกี่ยวกับการปฏิวัต’ิ [Some Legal Problems Regarding the Revolution] (Thesis, Thammasat University, 1996) ——, ความยอกย้อนในประวัติศาสตร์ของบิดาแห่งกฎหมายไทย [Complexities in the History of the Father of Thai Law] (Winyuchon, 2003) ——, ‘การปรองดองกับอํานาจนิยมของนักนิติศาสตร์ไทยกระแสหลัก’[The Adjustment to Authoritarianism of Jurists from the Dominant School] [2011] Samesky Journal 139 ——, Dynamics and Institutionalization of Coups in the Thai Constitution (Institute of Developing Economies, Japan External Trade Organization, 2013) ——, นี่คือปณิธานที่หาญมุง่ : ข้อถกเถียงว่าด้วยสถาบันพระมหากษัตริย์ในองค์กรจัดทํารัฐธรรมนูญของไทย ตั้งแต่ พ.ศ.2475–2550 [This is a Brave Resolution: Discussion of the Monarchy in Constitution-Making Bodies, 1932–2007] (Samesky Books, 2018) Somchat Ropkit, ‘การร่างรัฐธรรมนูญ พ.ศ. 2517’ [The Drafting of the 1974 Constitution] (Thesis, Chulalongkorn University, 1980) ——, พระยาอรรถการีนิพนธ์ ผู้ร่างธรรมนูญการปกครองราชอาณาจักร พ.ศ 2502 และมาตรา 17 [Phraya Antakariniphon, the Drafter or the 1959 Interim Constitution and its Article 17], in อนุสรณ์ในงานพระราชทานเพลิงศพพระยาอรรถการี นิพนธ์ [Cremation Volume of Phraya Antakariniphon] (Office of the Prime Minister, 1983) Somsak Jiemteerasakul, ประวัติศาสตร์ที่เพิ่งสร้าง: รวมบทความเกี่ยวกับกรณี 14 ตุลา และ 6 ตุลา [The History That was Just Built: Collection of Articles on the Events of 14 October and 6 October] (6 Tula Press, 2001) ——, ‘กรณี ถวัติ ฤทธิเดช ฟ้อง พระปกเกล้า’ [The Case of Thawat Ridet’s Lawsuit against Prajadhipok] (2004) 26 Silapawattanatham 101 ——, ประวัติศาสตร์วันชาติไทย: จาก 24 มิถุนาถึง 5 ธันวา [History of the Thai National Day: from 24 June to 5 December] (2004) 2 Samesky Journal 95 ——, ‘50 ปีการประหารชีวิต 17 กุมภาพันธ์ 2498’[50 Years since the Capital Execution of 17 February 1955] [2005] Samesky Journal 64 ——, ‘บทวิจารณ์หนังสือเรื่อง"พระราชอำ�นาจ”’ [A Critique of the ‘Royal Prerogative’ Book] (Midnight University, 10 September 2005) ——, ‘สมัชชาแห่งชาติ 2516 หรือ วิธีทำ�รัฐประหารโดยไม่ให้คนรู้ตัว’ [The 1973 National Convention or How to Make a Coup without Anybody Noticing] (Somsak’s Work, 13 September 2006), http://somsakwork. blogspot.com/2006/09/blog-post_5237.html ——, ‘กรณี หยุด แสงอุทัย ถูกกล่าวหาว่าหมิ่นพระบรมเดชานุภาพ ๒๔๙๙’ [The Case of Yut Saeng Uthai’s Lèse-Majesté Accusation in 1956], Somsak’s Blog, 13 September 2006, available at http://somsakwork.blogspot. com/2006/09/blog-post_1973.html ——, ‘ในหลวงทรงปฏิเสธคำ�กราบบังคมทูลเชิญเสด็จกลับประเทศไทย จนกว่าคดีสวรรคตจะเสร็จสิ้น (2491)’ [The King Refuses to Return to Thailand until the Case of the Death of King Ananda is Closed (1948)] (27 January 2008), http://somsakwork.blogspot.com/2008/01/2491_27.html Sopranzetti C, Red Journeys: Inside the Thai Red-Shirt Movement (Silkworm Books, 2012) ——, ‘Thailand’s Relapse: The Implications of the May 2014 Coup’ (2016) 75 Journal of Asian Studies 299 Sriyaranya S, ‘Leading Thai Intellectuals: Role and Influence in the Public Sphere of Bangkok’ [2000] University of Bielefeld Working Paper 21 Stowe JA, Siam Becomes Thailand: A Story of Intrigue (Hurst, 1991)

306  Bibliography Streckfuss D, Truth on Trial in Thailand: Defamation, Treason, and Lèse-Majesté (Routledge, 2010) ——, The Intricacies of Lèse-Majesté: A Comparative Study of Imperial Germany and Modern Thailand’ in Soren Ivarsson and Lotte Isager (eds), Saying the Unsayable: Monarchy and Democracy in Thailand (NIAS, 2010) ——, ‘Freedom and Silencing under the Neo-Absolutist Monarchy Regime in Thailand, 2006–2011’ in Pavin Chachavalpongpun (ed), Good Coup Gone Bad: Thailand’s Political Development since Thaksin’s Downfall (ISEAS–Yusof Ishak Institute, 2014) Suchin Tantikul, รัฐประหาร พ.ศ.2490 [The 1947 Military Coup] (Matichon, 2014) Suchit B, ‘Thailand in 1991: Coping with Military Guardianship’ (1992) 32 Asian Survey 131 Sunait C, ‘Mandala, “Segmentary State” and Politics of Centralization in Medieval Ayudhya’ (1981) 78 Journal of the Siam Society 89 ——, ‘Cakravartin: Ideology, Reason and Manifestation of Siamese and Burmese Kings in Traditional Warfare (1538–1854)’ (1988) 4 Crossroads: An Interdisciplinary Journal of Southeast Asian Studies 46 Supamit Pitipat, ‘The Evolution of the Thai Monarchy in the Constitutional Period, 1932– Present’ (Thesis, American University, 1990) ——, จุดเริ่มต้นสถาปนา ‘การปกครองประชาธิปไตย มีพระมหากษัตริย์เป็นประมุข’ [The Origin of the Establishment of ‘Democracy with the King as Head of State’] (King Prajadhipok’s Institute, 2020) Suphot Dantrakul, ข้อเท็จจริงเกี่ยวกับกรณีสวรรคต [Facts about the Royal Death Case] (Social Science Association, 2001) ——, ประวัติรัฐธรรมนูญ [Constitutional History] (Social Sciences Foundation, 2007) Surachart Bamrungsuk, ‘The Development of the Hybrid Regime’ in P Chachavalpongpun (ed), Routledge Handbook of Contemporary Thailand (Routledge, 2019) Suthachai Yimpraset, แผนชิงชาติไทย: ว่าด้วยรัฐและการต่อต้านรัฐสมัยจอมพล ป. พิบูลสงคราม ครั้งที่สอง (พ.ศ. ๒๔๙๑-๒๕๐๐)[Field Marshal Phibunsongkhram’s Second Mandate Plan to Fight for the Nation (1948–1957)] (6 Tula Press, 2007) ——, สายธารประวัติศาสตร์ประชาธิปไตยไทย [Historical Perspectives on Thai Democracy] (Democracy Foundation, 2008) Tambiah SJ, World Conqueror and World Renouncer: A Study of Buddhism and Polity in Thailand against a Historical Background (Cambridge University Press, 1976) ——, ‘King Mahasammata: The First King in the Buddhist Story of Creation and His Persisting Relevance’ [1989] Journal of the Anthropological Society of Oxford 101 ——, ‘The Galactic Polity in Southeast Asia’ (2013) 3 HAU: Journal of Ethnographic Theory 503 Tan K and Bùi NS, Constitutional Foundings in Southeast Asia (Hart Publishing, 2019) Taratorn Moomthong, ‘หลัก The King Can Do No Wrong ตามรัฐธรรมนูญอังกฤษ’ [The ‘The King Can Do No Wrong’ Principle in British Constitutional Law] (Thesis, Thammasat University, 2015) Tarling N, ‘The Mission of Sir John Bowring to Siam’ (1962) 50 Journal of the Siam Society (Bangkok) 91 Terwiel B, Field Marshal Plaek Phibun Songkhram (University of Queensland Press, 1980) ——, ‘Thai Nationalism and Identity: Popular Themes of the 1930s’ in C Reynolds (ed), National Identity and its Defenders: Thailand Today (Silkworm Books, 2002) ——, The Ram Khamhaeng Inscription: The Fake That Did Not Come True (1 Aufl, Ostasien Verlag, 2010) Thak Chaloemtiarana et al, Thai Politics: Extracts and Documents (Social Science Association of Thailand, 1978) ——, ‘The Rise and the Fall of the Thai Young Turks’ (1983) 21 Japanese Journal of Southeast Asian Studies 130 ——, Thailand: The Politics of Despotic Paternalism (Cornell University Press, 2019) Thamrongsak Petchlertanan, ‘บทบาททางการเมืองของจอมพลถนอม กิตติขจร พ.ศ. 2506–2516’ [The Political Role of Marshal Thanom Kittikachorn, 1963–1973] (Thesis, Chulalongkorn University, 2007) ——, ข้ออ้าง การปฏิวัต-ิ รัฐประหารในการเมืองไทยสมัยใหม่ [The Reason for Coups in Modern Siam/Thailand: Document and Analysis] (Foundation for the Promotion of Social Sciences and Humanities Textbooks Project, 2018)

Secondary Literature  307 Thanapol Eawsakul, ‘พระราชอำ�นาจมีจริง’ [There is Really a Royal Prerogative] (2005) 3 Samesky Journal 192 ——, ‘ภูมิหลังองคมนตรีใต้พระบรมโพธิสมภาร’[Background of the Privy Council Members under the Barami of the King] [2015] Samesky Journal 70 ——, ‘องคมนตรีกับการเปลี่ยนผ่านสู่ระบอบไม่ประชาธิปไตย’ [The King’s Privy Council and the Advent of the Non-democratic System] (2015) Samesky Journal 2 Thanapol Eawsakul (ed), รัฐประหาร 19 กันยายน: รัฐประหารเพื่อระบอบประชาธิปไตยอันมีพระมหากษัตริย์ทรงเป็นประมุข [The 19 September Coup: A Coup for the System of Democracy with the King as Head of State] (Samesky Books, 2007) Thanavi Chotpradit, ‘Revolution versus Counter-revolution: The People’s Party and the Royalist(s) in Visual Dialogue’ (Thesis, University of London, 2016) ——, ‘Countering Royalism with Constitutionalism: The People’s Party’s Visual Culture after the Boworadet Rebellion’ (2018) 26 South East Asia Research 235 Thanet Aphornsuvan, ‘The United States and the Coming of the Coup of 1947 in Siam’ (1987) 75 Journal of the Siam Society 187 ——, ‘The Search for Order: Constitutions and Human Rights in Thai Political History’ (2007) 6 Article 2 32 Thawatt Mokarapong, History of the Thai Revolution: A Study in Political Behavior (Chalermnit, 1972) Thithinan Pongsuhirak, ‘Thailand: Democratic Authoritarianism’ [2003] Southeast Asian Affairs 277 ——, ‘The Tragedy of the 1997 Constitution’ in John Funston (ed), Divided over Thaksin: Thailand’s Coup and Problematic Transition (Institute of Southeast Asian Studies, 2009) Thongchai Winichakul, Siam Mapped: A History of the Geo-body of a Nation (University of Hawaii Press, 1994) ——, ‘The Changing Landscape of the Past: New Histories in Thailand since 1973’ (1995) 26 Journal of Southeast Asian Studies 99 ——, ‘The Quest for “Siwilai”: A Geographical Discourse of Civilizational Thinking in the Late Nineteenth and Early Twentieth-Century Siam’ (2000) 59 The Journal of Asian Studies 528 ——, ‘วาทกรรมพระราชอำ�นาจหรือประชาธิปไตยแบบคิดสั้น’ [The Discourse on Royal Power or Short-Sighted Democracy] (Midnight University, 1 October 2005) ——, ‘Toppling Democracy’ (2008) 38 Journal of Contemporary Asia 11 ——, ประชาธิปไตยที่มีกษัตริย์อยู่เหนือการเมือง: ว่าด้วยประวัติศาสตร์การเมืองไทยสมัยใหม่ [Democracy with the Monarchy above Politics: On the History of Contemporary Thai Politics] (Samesky Books, 2013) ——, ‘The Monarchy and Anti-monarchy: Two Elephants in the Room of Thai Politics and the State of Denial’ in Pavin Chachavalpongpun (ed), Good Coup Gone Bad: Thailand’s Political Development since Thaksin’s Downfall (ISEAS–Yusof Ishak Institute 2014) ——, Thailand’s Hyper-royalism: Its Past Success and Present Predicament (ISEAS-Yusof Ishak Institute, 2016) ——, ‘Thailand’s Royal Democracy in Crisis’ in M Shu Xun Heng, MJ Montesano and T Chong (eds), After the Coup: The National Council for Peace and Order Era and the Future of Thailand (ISEAS–Yusof Ishak Institute, 2019) ——, ประชาธิปไตยที่มีกษัตริย์อยู่เหนือการเมือง [Democracy with the King above Politics] (Samesky Books, 2019) ——, นิติรัฐอภิสิทธิ์และราชนิติธรรม: ประวัติศาสตร์ ภูมิปัญญาของ Rule by Law แบบไทย [Rule of Law, Privilege, and Royal Rule of Law: An Intellectual History of Thai Rule by Law] (Way, 2020) Tianphany Paphatsaun, ‘จักรวาลวิทยาสยาม: การศึกษาที่มาของอํานาจทางการเมือง และกฎหมายในกฎหมายตราสามดวง’ [Siamese Cosmology: A Study of the Sources of Political and Legal Authorities in the Three Seals Law] (Thesis, Thammasat University, 2008) Tipawan Jiemteerasakul, ปฐมทรรศน์ทางการเมืองของปรีดี พนมยงค์ [The Genesis of Pridi Banomyong’s Political Thought] (Santhi Prachatham, 1988) Tirayuth Boonmi, ‘Good Governance: A Strategy to Restore Thailand’ in D McCargo (ed), Reforming Thai Politics (NIAS, 2002) Totsiri Phunnuon (ed), คำ�ให้การต่อศาลอาชญากรสงคราม เอกสารประวัติศาสตร์ [Testimonials before the War Crimes Court, Historical Documents] (Pridi Banomyong Foundation, 2002)

308  Bibliography Traiwet Suraphon, พระมหากษัตริย์, รัฐธรรมนูญ, และ ประชาธิปไตย [The King, the Constitution and Democracy] (Winyuchon, 2006) Trakulhun S, ‘Chaophraya Thiphakorawong: A Book on Various Things (Thailand, 1867)’ in Religious Dynamics under the Impact of Imperialism and Colonialism (Brill, 2017) Tuck PJN, The French Wolf and the Siamese Lamb: The French Threat to Siamese Independence, 1858–1907 (White Lotus Press, 1995) Udomphon Amontham (ed), ปรัชญากฎหมาย พระเจ้าอยู่หัว: ยอดแนวคิดทางกฎหมายจากพระประมุขผู้ทรงเป็นปราชญ์ [The King’s Legal Philosophy] (Saeng Dao, 2007) Ukrist Pathmanand, ‘A Different Coup d’Etat ?’ (2008) 38 Journal of Contemporary Asia 124 Ünaldi S, ‘Working towards the Monarchy and its Discontents: Anti-royal Graffiti in Downtown Bangkok’ (2014) 44 Journal of Contemporary Asia 377 Vella WF, The Impact of the West on Government in Thailand (University of California Press, 1955) ——, Chaiyo! King Vajiravudh and the Development of Thai Nationalism (University of Hawaii Press, 1978) Vichitvong Na Pombhejara, Pridi Banomyong and the Making of Thailand’s Modern History (Siriyod Printing, 1982) Vickery M, ‘Prolegomena to Methods for Using the Ayutthayan Laws as Historical Source Material’ [1981] Journal of the Siam Society 37 ——, ‘The Constitution of Ayutthaya’ in A Huxley (ed), New Light on Thai Legal History (White Orchid Press, 1996) Vishnu Varunyu, ‘Les Sources Nationales et Étrangères du Constitutionnalisme Thaïlandais Depuis 1932: Recherche sur l’instabilité Constitutionnelle en Thaïlande’ [The National and Foreign Sources of Thai Constitutionalism since 1932: Research on Constitutional Instability in Thailand] (Thesis, Université Paris II, 1987) Wan Waithayakon, ‘งานบัญญัติศัพท์ของผลตรี พระเจ้าวรวงศ์เธอ พระองค์เจ้าวรรณไวทยากร’ [The Creation of Vocabulary by Prince Wan] in วิทยทัศน์พระองค์วรรณ [Prince Wan’s Vision] (Wan Waithayakon Foundation, 2001) Wanwisa Srikrajib, ‘L’Apport Français à La Réforme Juridique Thaïe : Du Temps de La Colonisation à l’ère de La Mondialisation’ [The French Contribution to Thai Legal Reform: From the Times of Colonisation until the Times of Globalisation] (Thesis, Silpakorn University, 2003) Wasan Soipisut, เรื่อง (ไม่) สนุกในศาลรัฐธรรมนูญ [About Things (Not) Fun at the Constitutional Court] (Tontham, 2014) Wasana Wongsurawat, ‘Beyond Jews of the Orient: A New Interpretation of the Problematic Relationship between the Thai State and its Ethnic Chinese Community’ (2016) 24 Positions: Asia Critique 555 Wat Rawee (ed), วิกฤต 19: ลำ�ดับเหตุการณ์บ้านเมือง 19 กันยายน 2549–19 พฤษภาคม 2553 [Crisis 19: A Chronology of Political Events from 19 September 2006 to 19 May 2010] (Sripanya, 2011) Watchalawalee Kumboonreung, ‘พหุลักษณ์ของ หยุด แสงอุทัย’ [The Plural Identity of Yoot Saeng–Uthai] (2018) 11 CMU Journal of Law and Social Sciences 55 Wenk K, The Restoration of Thailand under Rama I, 1782–1809 (University of Arizona Press, 1968) Wijeyewardene G et al, Patterns and Illusions: Thai History and Thought, 2nd edn (Richard Davis Fund and Department of Anthropology, Research School of Pacific Studies, Australian National University 1993) Wiriya So Chinnawanno and Chaichana Ingkhawat, US Constitution: Thai Perspectives (Chulalongkorn University Press, 1990) Wise J, Thailand: History, Politics and the Rule of Law (Marshall Cavendish Trade, 2019) Wor Chor Prasangsit, ปฏิวัติรัฐประการและกบฏจลาจลในสมัยประชาธิปไตยแห่งประเทศไทย [Revolutionary Coups and Rebellious Riots in Democratic Thailan] (Ratphakdi, 1949) Woraporn Poopongpan, ‘กฎมณเฑียรบาลในฐานะหลักฐานประวัติศาสตร์ไทนสมัยอยุธยาถึง พ.ศ. 2348’ [The Palatine Law as a Source for Thai History from the Ayutthaya Period to 1805] (Thesis, Chulalongkorn University, 2006)

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310  Bibliography ——, ‘Monarchy and the Personal Prerogatives’ [2004] Public Law 546 Blackburn R, ‘Queen Elizabeth II and the Evolution of the Monarchy’ in Vernon Bogdanor (ed), The British Constitution in the Twentieth Century: A Festschrift for Vernon Bogdanor (Oxford University Press, 2004) ——, ‘Enacting a Written Constitution for the United Kingdom’ (2015) 36 Statute Law Review 1 Blackstone W, Commentaries on the Laws of England, vol I (Oxford University Press, 2016) Bodin J, Les six livres de la République [The Six Books of the Republic] (Chez Iacques du Puys, 1576) Bogdanor V, The Monarchy and the Constitution (Oxford University Press, 1995) ——, ‘The Monarchy and the Constitution’ (1996) 49 Parliamentary Affairs 407 Bonney N, ‘Modernising the Monarchy: The Oaths of Office’ (2010) 81 Political Quarterly 564, 566. Bourdieu P, ‘The Force of Law: Toward a Sociology of the Juridical Field’ (1987) 38 Hastings Law Journal 805 Brazier R, ‘A British Republic’ (2002) 61 Cambridge Law Journal 351 ——, ‘The Monarchy’ in The British Constitution in the Twentieth Century (British Academy, 2004) ——, ‘Monarchy and the Personal Prerogatives: A Personal Response to Professor Blackburn’ [2005] Public Law 45 ——, ‘Legislating about the Monarchy’ (2007) 66 Cambridge Law Journal 86 Bruce S, Religion and Modernization: Sociologists and Historians Debate the Secularization Thesis (Clarendon Press, 1992) ——, ‘Secularization and its Consequences’ in Phil Zuckerman and John R Shook (eds), The Oxford Handbook of Secularism, vol 1 (Oxford University Press, 2017) Bühler G, The Laws of Manu (Forgotten Books, 2008) Bünte M and Dressel B, Politics and Constitutions in Southeast Asia (Routledge, 2016) Calhoun C, Juergensmeyer M and VanAntwerpen J (eds), Rethinking Secularism (Oxford University Press, 2011) Casanova J, ‘The Secular and Secularisms’ (2009) 76 Social Research 1049 ——, ‘The Secular, Secularizations, Secularism’ in Mark Juergensmeyer, Jonathan van Antwergen and Craig Calhoun (eds), Rethinking Secularism (Oxford University Press, 2011) Cheesman N, Opposing the Rule of Law: How Myanmar’s Courts Make Law and Order (Cambridge University Press, 2015) ——, ‘Rule-of-Law Ethnography’ (2018) 14 Annual Review of Law and Social Science 167 Chiba M, Asian Indigenous Law: In Interaction with Received Law (Routledge 1986) Choudhry S (ed), The Migration of Constitutional Ideas (Cambridge University Press, 2006) ——, Constitutional Design for Divided Societies: Integration or Accommodation? (Oxford University Press, 2008) Choukroune L, ‘Randall Peerenboom (ed), Asian Discourses of Rule of Law, Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the US’ [2005] Asian Discourses of Rule of Law 4 Cohen JA, ‘China’s Changing Constitution’ (1978) 76 China Quarterly 794 Collier D, Daniel Hidalgo F and Olivia Maciuceanu A, ‘Essentially Contested Concepts: Debates and Applications’ (2006) 11 Journal of Political Ideologies 211 Comaroff J, ‘Reflections on the Rise of Legal Theology: Law and Religion in the TwentyFirst Century’ (2009) 53 Social Analysis: The International Journal of Social and Cultural Practice 193 ——, (ed), Theory from the South: Or, How Euro-America is Evolving toward Africa (Paradigm Publishers, 2012) Comaroff J and Comaroff J, ‘Ethnography on an Awkward Scale: Postcolonial Anthropology and the Violence of Abstraction’ (2003) 4 Ethnography 147 ——, ‘Law and Disorder in the Postcolony’ (2007) 15 Social Anthropology 133

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318

Index Note: References in bold type refer to the Appendix. References to footnotes are represented as page number followed by note number (60n15). 1889 constitutional draft, 42–43, 66 1900 Decree on Royal Defamation, 89–90 1923 Civil and Commercial Code, 69 1932 Revolution, 71, 150, 210, 262–63 monuments commemorating, 1–2, 3 1932 Constitution: and concept of sovereignty, 73–75, 141, 150 drafting process, 48, 50–52, 71–77, 258 influence of King, 50–52, 55 imposed on King, 47–48, 94–95 response of King, 47n79, 48, 50, 95 interim document, 48–50 King’s interpretation of, 95–96, 98–99 and Meiji Constitution, 52–54, 74–75, 76, 95 moves to reinstate, 106–7, 157–58 naming of, 71–73 permanence of, 55–56 provisions, 52–55 royal octroy and granting of Constitution, 2, 75–77, 142, 264 1946 Constitution, 100, 106–7, 108, 116, 152–53 1947 coup, 107n8, 133, 154–55 1947 interim Constitution, 107–9, 132–33, 154, 155–56 1949 Constitution, 109–14, 131–32, 155–56, 157–58 1952 Constitution, 114–15, 158, 161, 162 1957 coup, 160–62 1959 interim Constitution, 115–17, 162 1968 Constitution, 117–19, 135–36, 163–64 1971 coup, 164–66 1972 interim Constitution, 119–20, 140–41, 165–66, 214 1974 Constitution, 120–24, 142, 167–68 1976 coup, 169–70 1976 interim Constitution, 124, 169 1977 interim Constitution, 125, 169–70 1978 Constitution, 125–26, 127 1991 coup, 171–72 1991 interim Constitution, 127–28, 172

1991 Constitution, 128, 129, 150, 172, 177–78 1997 Constitution, 177–89 anti-corruption measures, 179–81, 183–84 Constitutional Court provisions, 181–83, 185, 188 drafting process, 177–79, 185, 188, 206–8 principle of DKHS, 184–85, 186–88 rationalised parliamentarism, 179–80 abolition, 189 2006 coup, 189, 215–16, 232–33, 234–35 2006 interim Constitution, 189–90, 232–33 2007 Constitution, 190–94, 216–17, 235 2014 coup, 194, 240–41 2014 interim Constitution, 194–95, 240–41 2017 Constitution, 2–3, 5–6, 195–99, 242, 245, 264 Abhisit Vejjajiva, 194, 236, 237 Adul Aduldejaras, 156n19 Adul Wichiencharoen, Luang, 148–49, 150 Aduldetchacharan, 114n71 Akkharaton Chularatton, 189n86 Alongkot, Prince, 114n71, 156n19 amnesty laws, 95, 96, 120, 124, 155, 157–58, 169–70, 189, 240 see also immunity laws Amon Raksasat, 120n114 Amorn Chantarasomboon, 120n114, 121n116, 143, 205–6, 215, 278 Anan Pakpraphai, 165n74 Anand Panyarachun, 127, 129, 171–72, 173, 178, 214, 229 Ananda Mahidol, King (Rama VIII): and 1946 Constitution, 152–53 assertion of power, 153 death, 106, 152, 153, 154, 227 investigations and murder trial, 153, 155, 157, 158–59, 160, 162 regency, 99–100, 105, 153 Antakariniphon, Phraya, 116

320  Index anti-corruption framework, 179–81, 183–84, 189–90, 191 April Fool’s Rebellion, 170 Arthit Kamlangek, 171 Artit Urairat, 173n119 Attasith Sittisungthorn, 168 Austin, John, 66, 67–68, 130 Bagehot, Walter, 11, 144, 147, 203n14, 227, 253, 258n52, 259–60 Banjerd Singkaneti, 195, 231 Barthes, Roland, 262 Bastid, Paul, 255 Benjamin, Walter, 16–17 Bentham, Jeremy, 64 Bhumibol Adulyadej, King (Rama IX): birthday as National Day, 2 book endorsement, 209 and Buddhism, 160, 168, 224–25 coronation ceremony, 156–57 and death of King Anand, 155, 159, 162n61, 227 honorary law degree, 205 and military dictatorships: approval of 1947 coup, 154 return to kingdom following 1947 coup, 114, 155–56 agreement of 1952 Constitution, 157–58 1956 speech to military, 159 approval of 1957 coup, 160–61 signing of 1968 Constitution, 163–64 ambiguity around 1971 coup, 164–65 interventions in 1973–74, 123, 142, 144, 145, 166–67 intervention in 1976, 168–70 interventions post-1978, 170–73 position towards 1991 interim Constitution, 127–28, 172 non-intervention during 2011 crisis, 237 proclamation of, 153 profile as lawyer, 158 publications following death, 222 qualities and success of reign, 213–14, 224 royal guidance, 214 and royal veto, 212, 226, 238 speech to law students, 143 support for 2006 coup, 232 and Thaksin government, 226–27, 228–31, 233–34 unauthorised biography of, 15, 227–28 void following death, 188, 193–94, 241–42

Black May, 172–73 Bodin, Jean, 19 Bogdanor, Vernon, 256 Boonkerd Hiranyakam, 165n74 Borommakot, King, 62n25 Bovorn Wichaichan, Prince, 88 Boworadet Rebellion, 3, 96–97 Bowornsak Uwanno, 280 academic roles, 202, 205 Constitution-drafting, 178, 179–80, 183, 185, 188, 195, 199, 206, 217, 222 political appointments, 208–9, 215, 227 scholarship, 147, 149–50, 201–2, 211–15, 218, 219–20, 221 Bowring, John, 65n38, 83–84 Bradley, Dan Beach, 82, 86 bricolage, process of, 9–10, 20–26, 250–54 Britain see United Kingdom Buddhism: anniversary ceremony, 160 doctrines of kingship, 3–4, 18–19, 37–38, 57–63, 217–18, 253 law of karma, 60–61 laws regulating clergy, 41 Chai-Anan Samudavanija, 121n116, 205 Chakpanisrisilvisuth, Luang, 74–75, 275 Chakravatin, 58, 60n14 Chamlong Srimuang, 173 Chatichai Choonavan, 127, 171 Chinese constitutional developments, influence of, 48–49 Chuan Leekpai, 217n90 Chula Chakrabongse, Prince, 82n12 Chulalongkorn, King (Rama V): decrees under Three Seals Code, 41 draft Constitution, 42–43, 66 reforms and Westernisation, 42–43, 63–67, 87–91 succession to throne and crowning, 87 Chulalongkorn Law Journal, 205, 222 Chulalongkorn Law School, 204–5, 205 Code of Manu, 36–38, 57n2 colonialism, avoidance of, 35, 42 Committee for the Development of Democracy, 206–7 Constantine II, King of Greece, 256 Constitution: defined, 6 official representation of, 1 terminology, 3–4, 71–72

Index  321 Constitution Day, 2, 98 constitutional bricolage, process of, 9–10, 20–26, 250–54 Constitutional Council, 118–19, 128, 182 Constitutional Court: under 1997 Constitution, 181–83, 185, 188, 207–8 under 2006 interim Constitution, 189–90, 233 under 2007 Constitution, 191–93, 194 under 2017 Constitution, 196–97, 198, 199 annulling re-election of Thaksin, 231 constitutional review, 182–83, 197–98 defamation of, 243 dismissal of prime ministers, 266 on DKHS, 198, 237, 244–45 on election of Senators, 238–39 on royal sanction of legislation, 241–42 on Rule of Law, 220–21 rulings ‘in the name of the King’, 207–8 on supremacy of Constitution, 238 as threat to democracy, 267 constitutional review, 182–83, 197–98 Constitutional Tribunals, 112, 128, 168, 189, 233 corruption see anti-corruption framework Council of State, 88, 89 coups see military coups Damrong Rajanuphap, Prince, 24–25, 67, 70, 89 Decho Suwannanon, 179 Democracy Monument, 1–2, 100 Democracy with the King as Head of State see DKHS Democrat Party, 229, 236 Denning, (Tom) Lord, 220 Derrida, Jacques, 21, 253n21 Devaraja, 57–58, 58–59, 62, 80 Dhani Nivat, Prince, 114n71, 138, 156, 157, 203, 205, 211n59 dharma, concept of, 3–4, 18–19 Dharmaraja, 58, 60n14, 219, 221–22 Dicey, Albert Venn, 11, 16, 137–38, 249n8 DKHS (Democracy with the King as Head of State): in 1991 Constitution, 150 in 1997 Constitution, 184–85, 186–88 in 2006 interim Constitution, 189 in 2007 Constitution, 192 in 2017 Constitution, 195–99, 261 as bricolage, 252

British monarchy as reference model, 202 and Constitutional Court, 208, 237, 244–45 defined, 184 history of, 264 scholarship on, 217–18 Donavanit, Jade, 196 Duan Bunnag, 75 Dusit Thani Constitution, 44–46 edicts see royal edicts Ekkachai Hongkawan, 237 Electoral Commission, 180, 191, 231–32 Elizabeth II, British Queen, 224, 257 Esmein, Adhémar, 255 extra-territoriality, 84, 100n116 ‘fait accompli’ doctrine, 134 French Constitution, influence of: revolutionary model, 48, 49 imperial model, 42–43, 47 republican model, 69, 70, 88, 89–90, 116–17, 120, 179, 183 restoration model, 76 Future Forward Party, 245–46 Gaulle, Charles de, 116, 126 Geertz, Clifford, 18, 21, 24, 26, 251 German Constitution, influence of, 89, 179, 181–82, 186–87, 192 ‘granting the Constitution’ ceremonies, 2–3, 152, 158, 163, 242 Guyon, René, 89 Handley, Paul, 227–28 High Royal Court, 80 Hindu doctrines of kingship, 18–19, 36–38, 57–63, 80 House of Representatives, 112, 124, 129 immunity laws, 165–66, 191, 195 see also amnesty laws Japanese Constitution, influence of, 42, 52–54, 74–75, 76, 89–90, 95 Jaran Hatokham, 189n86 Jaran Phakdithanakul, 190, 216, 279 Jaruvan Maintaka, 225–26, 228, 229, 233, 235 Jennings, Sir Ivor, 11, 212, 249n10, 256 Jessada Phornchaya, 208 Jit Na Songkhla see Srithammathibet, Chao Phraya Jitti Tingsaphat, 276

322  Index Juan Carlos, King of Spain, 256 judges: audiences with King Bhumibol, 229–31, 233–34 defamation of, 243 independence of, 165 siding with military, 266–67 and Three Seals Code, 83 judicialization, 214, 215, 218–19, 229–31, 233–34 Kaewsan Athibodi, 211n57 Kamonchai Rattanasakawong, 181, 208 Kan Chamnonphumiwet, General, 111 Kanin Boonsuwan, 178n8 Kantorowicz, Ernst, 17–18 karma, law of, 60–61 Kasem Sirisampan, 120n114, 141 Kasien Tejapira, 15–16 Kat Katsongkhram, 107 Kelsen, Hans, 6, 130–31, 133, 134 Khien Theeravit, 178n8 King Prajadhipok’s Institute, 209, 218, 221–22 Kittisak Kittikhunpairoth, 189n86, 234n55 Kittisak Prokati, 211 Komet Khwanmuang, 178n8 Kon Hutasingh see Manopakorn Nititada, Phraya Kosai Mungjaroen, 162n61 Krairik Kasemsan, Mom Luang, 189n86 Kramol Thongthammachat, 120n114, 125–26, 188 Kriangsak Chamanan, General, 125, 126, 169–70 Kukrit Pramot, 121n116, 123, 125, 141, 141–42 Lapradelle, Albert de, 75 Latpli Thammaprakan, 107 Laws against Rebellion and Treason, 40 Laws on Civil Hierarchy, Military and Provincial Hierarchies, 41 legal transplants debate, 8–9 Leonowens, Anna, 87 lèse-constitution law, 2, 97 lèse-court law, 243 lèse-majesté laws, 3, 89–90, 91, 93, 97, 159–60, 219–20, 237, 243 Lévi-Strauss, Claude, 20–21, 250 Likhit Thiravekhin, 172n111 Lingat, Robert, 18–19, 36, 37n9, 37n11

Mahasammata, 59 Manawarachasewi, Phraya, 50n104, 114, 114n71, 121, 154n11, 156, 158, 273 Manopakorn Nitithada, Phraya, 50, 51–52, 74, 76–77, 95–96, 271 martial law, powers to declare, 54, 90–91, 108–9, 113 Meechai Ruchupan, 279 Constitution-drafting, 150n98, 172, 190, 196, 242 scholarship, 205, 211, 218 Meiji Constitution (Japan), 52–54, 65, 74–75, 76, 95 military coups, 256–58, 266–67 see also 1947, 1957, 1971, 1976, 1991, 2006, 2014 coups; April Fool’s Rebellion; Rebellion of 9 September; revolutionary legality doctrine Mongkut, King (Rama IV): and British treaty of extra-territoriality, 84 coronation ceremony, 84–85 decrees under Three Seals Code, 41 and despotism, 79–80, 85 prior to accession, 82, 84 reforms and Westernisation, 63–64, 85–87 royal titles, 85 Mot Amattayakul, 82n15 Nakharin Mektrairat, 211, 218, 221 Nangklao, Prince see Rama III Narong Kittikachorn, 167 National Counter-corruption Commission, 180, 191 National Day, 2, 100, 163 National Legislative Assembly, 121, 127, 189, 194, 243 national motto, 2 National Reform Council, 194 National Virtue Assembly, 196 Natkatmongkol Kittiyakorn, General Momchao, 156n20 Net Kemayothin, 132 Nithini Thongtae, 257 Nitisatpaisan, Phraya, 67–68, 272 Nurak Mapranit, 189n86, 246 Ombudsmen, 180, 192 Padoux, Georges, 89, 90 Pahon Phonphayuhasena, 96, 97, 99 Pairoj Chayanam, 75, 120n114

Index  323 Palace Law, 36, 38–40, 41, 57–59, 81, 92–93, 139 Pallegoix, Jean-Baptiste, 79–80, 82 Panusaya Sithijirawattanakul, 248 Panya Thanomrot, 189n86, 234n55 Parliament see House of Representatives; Senate penal laws, 83, 87, 89–90 see also lèse-majesté laws People’s Party, 47–48, 48n85, 51, 71, 97, 97–98, 99–100 People’s Power Party, 235–36 Phalang Pracharat Party, 245 Pheua Thai Party, 237, 243–44 Phibun Songkhram: coups against, 115, 132, 160 and ‘fait accompli’ doctrine, 135 following 1947 coup, 109, 154n11 as Prime Minister 1938–44, 100, 153n3 as Prime Minister 1948–57, 105–6, 114, 155–56, 157–58, 159, 160 Phichit Preechakorn, Prince, 64–66, 89, 270 Phin Choonhavan, General, 106, 154 Phongthep Thepkanchana, 178n8 Phrarachaamnat, 202–3, 205 Phrarachanitisat see royal edicts Phrarachasat, 36, 38 Phrathammasat, 36–38, 57–62, 81–82, 203 Piya Malakul Na Ayutthaya, 209n50 Piyabutr Saengkanokkul, 15–16 Plod Na Songkhla see Manawarachasewi, Phraya Prachert Aksornluksa, Luang, 75 Pradit Manutham, Luang see Pridi Banomyong Prajadhipok, King (Rama VII): and 1932 Constitution: influence on drafting process, 50–52, 55 interpretation of, 95–96, 98–99 response to imposition, 47n79, 48, 50, 95 royal octroy and granting of, 2, 75–77, 142, 264 abdication, 99, 110–11, 142 consolidation of royal power, 93–94 coronation speech, 70 coup against, 47–48, 71 defamation lawsuit against, 97 discomfort with law of succession, 93 draft Constitutions, 46–47 plan for parliamentary democracy, 203 plans for Senate, 113n61 prior to accession, 93 and royalist revolt, 3, 96–97, 98

Prakop Hutasingh, 121, 168 Prakopnittisan, Luang, 109, 204 Pramual Rujanaseri, 209–11 Praphas Charusathien, 120, 166, 167 Prasith Kowilaikun, 205n26 Prasith Piwawattanaphanich, 218n97 Prawet Wasi, 173n118 Prayuth Chan-ocha, 3, 5–6, 194, 196, 240–41, 242n92, 245 Prem Tinsulanond, General, 126–27, 170–71, 225, 232 Pridanribet, Phraya, 50n104 Pridi Banomyong, 274 and 1932 Constitution, 48–50, 51, 76, 77, 94–95 audience with King following Revolution, 47n79 criticised by King on abdication, 142 and cult of the Constitution, 98 and death of King Ananda, 153 economic plan, 96 as Prime Minister, 100–101, 106 resignation, 153, 153–54 as Regent, 105 scholarship, 68–71, 122 prime minister, office of, 108, 116, 117, 119, 126 Prisdang, Prince, 42, 65 Privy Council: under King Chulalongkorn, 88, 89 under King Prajadhipok, 203 under 1947 Constitution, 107 under 1949 Constitution, 110, 111, 112–13 under 1952 Constitution, 158 under 1968 Constitution, 164 under 1974 Constitution, 122, 167–68 under 1991 Constitution, 128 appointments in 1949–50, 156 as influential institution, 164, 225 Puey Ungpakorn, 121 Quaritch Wales, HG, 62n27, 253 Rama I, 35, 41, 60n15, 61–62 Rama II, 81n9 Rama III, 82, 82–83 Rama IV see Mongkut, King Rama V see Chulalongkorn, King Rama VI see Vajiravudh, King Rama VII see Prajadhipok, King Rama VIII see Ananda Mahidol, King Rama IX see Bhumibol Adulyadej, King

324  Index Rama X see Vajiralongkorn, King Ramkhamhaeng, King, 85–86, 92, 138–39 Ramkhamhaeng stone inscription, 85–86, 138–39 Rangsit, Prince, 109, 114n71, 153, 154, 155–56, 157 Raphi Phatthanasak, Prince, 66–68, 89, 91, 130, 140, 270 Rattana Uthaphan, 171n106 Rebellion of 9 September, 171 referenda, 5, 113, 118, 122, 190, 197–98 Regency Council, 111, 114n71, 154 revolutionary legality doctrine, 130–35, 136–37, 146–50, 154–55 Rolin-Jaequemyns, Gustave, 88, 269 Royal Acts Regarding Crimes against the King, 40–41 Royal Customary Rule of Law, 209–11, 213–14 royal decrees, 41, 43, 54, 62, 73, 108 royal edicts, 36, 80–81 royal octroy doctrine, 45, 75–76, 122, 133–34, 142 royal petitions, 39, 45, 70, 85–86, 91–92 royal veto: under 1932 Constitution, 49, 53–54, 95–96, 99 under 1946 Constitution, 153 under 1947 interim Constitution, 107–8, 108 under 1949 Constitution, 110–11, 112 under 1959 interim Constitution, 116 under 1968 Constitution, 118 under 2017 Constitution, 197–98 as absolute not suspensive, 212 role of Senate, 226 Rule of Law: European conceptions of, 16–17 modern scholarship on, 220–21 terminology, 3–4 written into Constitution, 217 see also Royal Customary Rule of Law Russia, influence of legal system, 48, 50 Sakdi Phasuknirand, 166n77 Samak Sundaravej, 194, 235 Sangad Chaloryu, General, 123–24, 125, 147, 169 Sangha Laws, 41n30 Sanya Thammasak, 276 appointments: to Ananda enquiry committee, 153 to Constitutional Tribunal, 168 as Prime Minister, 120, 144, 145, 167, 214

Constitution-drafting, 117 scholarship, 205 Sarasan Phraphan, Phra, 71 Sarit Thanarat, General, 115, 116, 117, 135, 160–63 Sawaeng Boonchalermwiphat, 211 Sawat Khamprakop, 207 Sayre, Francis B, 46–47, 93, 271 Schmitt, Carl, 17, 132, 134, 255, 256 Second World War, 105–6 secularisation thesis, 9, 17–20 Senate: under 1946 Constitution, 100 under 1947 interim Constitution, 107, 156 under 1949 Constitution, 110–11, 112 under 1952 Constitution, 115 under 1974 Constitution, 122 under 1976 interim Constitution, 124n146 under 1991 interim Constitution, 127 under 1997 Constitution, 183–84 under 2007 Constitution, 191, 216 under 2017 Constitution, 5, 196 attempted reform, 2013, 238–39 excercising royal veto, 226 King Prajadhipok’s plans for, 113n61 March 2000 elections, 225 Seni Pramot, 275 Constitution-drafting, 107, 109 as Prime Minister, 105, 123, 168 scholarship, 137–39, 203 shared sovereignty doctrine, 149–50 Sinadyotharak, Luang, 50n104 Sombat Boongamanong, 241 Somboon Rahong, General, 173 Somchai Phongsatha, 189n86 Somchai Preechasilapakun, 15–16 Somchai Wongsawat, 236 Somkit Lertpaithoon, 148, 178n8, 190, 195, 216 Somphop Hotrakit, 121n116, 141, 150n98 Somsak Jiemteerasakul, 15–16 Somyot Phreuksakasemseuk, 237 Sonthi Boonyaratklin, 232 South African Constitution, 179 South Korean Constitution, influence of, 186 Sri Suriyawong, 87 Srithammathibet, Chao Phraya, 106n4, 109, 109–10, 114, 158, 272 Sriwisanwacha, Phraya, 273 appointment to Privy Council, 158 Constitution-drafting, 47, 50–51, 75–76, 109, 117 lectures and speeches, 74, 140

Index  325 Stahl, Friedrich Julius, 255 State Audit Commission, 181, 191, 226, 233 Stevens, Raymond B, 47 student protests, 123, 142, 166–67, 168, 247–48 succession mechanisms, 80, 81–82, 87, 88, 92–93 Suchinda Krapayoon, General, 127, 128–29, 171, 172–73 Sulak Srivilak, 137, 171n106 Sumeth Tantiwechakul, 211n57 Sunthorn Kongsompong, General, 171 Supamit Pitipat, 113n61 Supreme Court, 67, 94, 229–31, 233–34 Surapon Nitikraipot, 211, 228n23 Surayud Chulanont, 211, 232, 235, 246n113 Taksin, King, 60n15 Tambiah, Stanley Jeyaraja, 58n5, 59, 62n27 10 Virtues of a Righteous King, 60n14, 145n70, 213, 237 Thai Rak Thai Party, 188, 209, 215–16, 225, 233–34, 235, 236–37 Thais Love the Nation Party, 244, 245 Thaksin Shinawatra: coup against, 189, 216, 232, 234–35 election victories, 194, 211, 215, 229, 231 financial misconduct allegations, 188–89, 225–26, 228, 233, 236 as Prime Minister, 188–89, 209, 211, 229 royal attitude towards, 225–26, 226–27, 229–31 Thamrong Nawasawat, 153–54 Thanathorn Juangroongruangkit, 246n112 Thanin Kraivichien, 277 academic duties, 208 Constitution-drafting, 121 as Prime Minister, 124, 125, 169–70 scholarship, 144–47, 150, 211n59 Thanit Keswaphithak, 189n86, 234n55 Thanom Kittikachorn: as Prime Minister, 117, 119, 142, 161, 163, 164–67 resignation, 144, 145, 167 return from exile, 168 scholarship, 220 Thawan Thamrongnawasawat, 106, 117 Thawatt Rithidet, 97 Thawi Rengkham, 120n115 Thepwithun, Phraya, 50n104, 106n4 Thewawong Woropakan, Somdeth Khrom Phraya, 42

Thienlieng Huntrakul see Sriwisanwacha, Phraya Thiphakorawong, Chao Phraya, 64 Thirayuth Boonmee, 215, 217 Thongthong Chandransu, 190, 202–5, 208, 211, 211n59, 218, 281 Three Seals Code: components, 36–41, 57–63, 62, 71, 81–82, 139 confidential nature of, 3, 36, 82–83, 83, 86 origins and name, 35–36 preambles, 80 and succession, 81–82 Trailok, King, 38–39 Ubol Ratana, Princess, 244 Udom Rattaomrith, 218n97 United Kingdom: British monarchy: influence of model, 13, 43, 66, 202 personal influences, 44, 92 rejected as model, 110 role of, 8, 11–12 Magna Carta, 16, 138–39 other legal and constitutional influences: common law system, 67 on parliamentary system, 125, 184 on Penal Code, 89–90 on Privy Council, 88, 203 tripartite convention theory, 259–61 proposals post Second World War, 105–6 treaty of extra-territoriality, 84 ‘Westminster-type’ interpretation, 95, 159, 202–3, 248–49, 250 United States Constitution, influence of, 121 Uthai Pimjaichon, 165n74 Uthong, King, 38 utilitarianism, 64 Vajiralongkorn, King (Rama X): alleged defamation as prince, 168 on DKHS, 244 ‘granting the Constitution’ ceremony, 2–3, 242, 245 limbo prior to succession, 241–42 reclamation of powers, 243 revisions to 2017 Constitution, 198, 242 Vajiravudh, King (Rama VI): accession to throne, 43 anti-Chinese sentiments, 91 decree on royal petitions, 70, 91–92 Dusit Thani Constitution, 43–46

326  Index lèse-majesté provisions, 91 martial law provisions, 91 national motto, 2 succession law, 92–93 Vajirunhis, Prince, 88 Veera Musikaphong, 171n106 Vicha Mahakun, 190, 216 Visuth Kraireuk see Chakpanisrisilvisuth, Luang Vorajet Pakeerat, 228n23 Wan Chamonman see Nitisatpaisan, Phraya Wan Waithayakon, Prince, 72–73, 121 Wasan Soipisuth, 236 Weber, Max, 13, 17, 18, 251n17 Wichai Cheunchompoonoot, 189n86 Wichit Wattakan, Luang, 98 Wilhelm I, King of Prussia, 89n54 Winit Winitnaiphak, 205n26

Wissanu Krea-ngam, 280 academic roles, 205 Constitution-drafting, 172n111, 194, 206 political appointments, 6, 209, 222 scholarship, 147–148, 150, 201–2, 211, 218, 221 Wisuth Pothithen, 185 World Bank, 180, 213 Yingluck Shinawatra, 194, 222, 237–38, 239, 242–43 Yongyuth Tiyapairat, 236n62 Yot, Phra, 88 Young Turks,170 Yut Saeng-Uthai, 277 Constitution-drafting, 109, 131–32 radio lectures, 159 scholarship, 132–34, 135–37, 144, 150, 163–64, 204