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Uniting Force?
‘Asian Values’ & the Laws
14th Asian Law Institute Conference
Hosted by University of Philippines, College of Law (UP)
Conference Venue: Novotel Manila Araneta Center
Conference Dates: 18 & 19 May 2017, Thursday & Friday

COVER PAGE FOR PAPER SUBMISSION

From Kelsenian-ising Schmitt to Schmittian-ising Kelsen: Unity

under ‘Thai-ness’ and its challenge in the 21st century

Rawin Leelapatana
(sponsored by the University of Bristol alumni foundation)
Chulalongkorn University (Thailand) and University of Bristol (United Kingdom)
Rawin.l@chula.ac.th

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Date of Presentation Thursday, 18 May 2017
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From Kelsenian-ising Schmitt to Schmittian-ising Kelsen: Unity under ‘Thai-ness’ and

its challenge in the 21st century
Rawin Leelapatana
‘[Thai] politics is as spicy as its food.’—Hillary Clinton1

1. Introduction
The Thai-ness ideology constitutes the traditional conceptions of political stability
and authority in Thailand. Just as Lee Kuan Yew’s concept of Asian Values, it similarly gives
primacy to the unity embodied by a leader, political stability and security.2 In this paper, I
seek to consider this ideology in the light of Carl Schmitt’s and Hans Kelsen’s public law
theories.
The Thai-ness ideology inherits Schmitt’s conservative position as it entrusts a
sovereign with an authority to deal with political instability caused by liberal pluralism
through shattering the iron cage of formal legality in order to restore/protect a pacified
political unity. In an ongoing era of colour-coded politics, the military and their supporters
(‘the Yellow’) generally criticised parliamentary democracy and liberalism for inviting ‘evil’
politicians of the ‘Red’ faction, especially Thaksin Shinawatra, who is regarded as a threat to
political unity and therefore an enemy of the state, to participate in politics to justify two
coups in 2006 and 2014. However, according to several scholars, the military—in order to
secure hegemony of Thai-ness in the context of the rising liberal forces—can no longer
simply rely on a coup, but has to increasingly rationalise such ideology through Kelsen’s
legal-rational mechanism—the constitutional court. They view that since 2006, the Thai
constitutional court has played a significant role not only in suppressing the Red camp, but
also in paving a way for the coups. Nevertheless, rather than facilitating peace and stability as
the Thai-ness ideology intends, the process of ‘Kelsenian-ising Schmitt’ which later leads to
‘the Schmittian-isation of Kelsen’ has sparked hatreds among many Red Shirts and critiques
by pro-democracy groups.
This paper does not intend to criticise ‘Thai-ness’ or any particular institutes, but,
through the review of scholars’ comments, seeks to assess the aforesaid ideology in the
context of public law theories, especially the Kelsen-Schmitt debate and Locke’s theory. In
this paper, I therefore ask: how might the Thai traditional conceptions of political stability
and authority be adapted in order to accommodate the changing public law landscape in
Thailand? Due to the country’s polarised politics, peace and stability in Thailand, I argue, is
no longer dependent crudely on the creation of a homogeneous, unified community, but
increasingly on John Locke’s approach which recognises the tensional relationship among
normativity (Kelsen), extra-legal emergency power (Schmitt) and an empirical multitude.

2. Thai-ness: the Thai traditional conceptions of authority and political stability

Modern Thai political history after the abolition of the absolute monarchy in 1932 is
ostensibly plagued with factional violence, coups and martial law declarations. Coups d’état
and martial law impositions have been regarded as vital means for the Thai conservatives,
especially the military and bureaucrats, in preserving their hegemonic political status over

1
Suthichai Yoon and Veenarat Laohapakakul, Interview with Hillary Clinton, United
States Secretary of State (Bangkok, 24th July 2009).
2
Tae-Ung Baik, Emerging Regional Human Rights Systems in Asia (Cambridge
University Press 2012), pp 56-58.
 3

electoral politics, and in establishing their version of political stability.3 Since the late 1950s,
these conservatives have, in general, appealed to what I refer in this article as the ideology of
Thai-ness to justify their actions.
The Thai-ness ideology is rooted in the Buddhist teaching of ‘benevolent ruler’.
According to this teaching, a ruler/leader of a particular society is expected to rule in
accordance with the following elements, namely charity, morality, self-sacrifice, honesty,
gentleness, self-control, non-anger, non-violence, forbearance, and conformity to
righteousness in order to be regarded as righteous.4 In a broader perspective, this tradition is
further premised on the cardinal Buddhist teaching of Karma, under which past and present
actions driven by intentions are assumed to be causes of future consequences.5 A person
performing good Karma in the past including past lives subsequently accrues Bun (merits)
and Barami (a set of virtues).6 A person with high social status is normally perceived as
holding a great degree of Bun and Barami.7 Overall, the Thai traditional conceptions of
authority and political stability grow from a traditional belief in the authority of ‘a senior’
(Phu Yai)—noble people presumably possessing great Bun and Barami—rather that in
individualism and political participation.8
3. The Thai-style democracy: the Buddhist version of Carl Schmitt’s constitutional
thesis in context of global trends towards modernisation, liberalisation and
democratisation
The waves of liberalisation and democratisation since the late 19th century have
enormously posed a challenge on the Thai-ness ideology. On the 24th June 1932, a group of
civil officers and military known as ‘the People’s Party’ staged a coup d’état against King
Prajadhipok (1925-1935), overthrowing the absolute monarchy. Their key figures were Pridi
Banomyong, a doctoral law scholar, and a military strongman, Field Marshal Plaek
Phibunsongkhram (‘Phibun’). While the Thai-ness ideology puts emphasis on a hierarchical
social structure and a personalistic authority (i.e., a belief in a concrete rule by men of virtue),
Pridi attempted to implement in Thailand the Weberian meritocratic bureaucracy, the legality
of enacted laws and constitutionalism, the principle of equality, representative democracy,
and government-supported economy.9 The ideal goals Pridi sought to achieve here, I argue,
are largely similar to Kelsen’s.
Having advocated the core of liberal constitutionalism, that the constitution is the
supreme law of the land which ensures the rights and liberties of the people, Pridi—to use
Andrew Harding’s words—endeavoured to make a liberal written constitution ‘an
embodiment of the unchanging Kelsenian grundnorm.’10 He intended to entrench the

3
Chaianan Samutwanit, Thai Young Turks (Institute of Southeast Asian Studies
1982), pp 1-5.
4
Ibid.
5
Irene Stengs, Worshipping the Great Moderniser: King Chulalongkorn, Patron
Saint of the Thai Middle Class (NUS Press 2009), p 67.
6
Ibid, p 83.
7
See Jack Fong, ‘Sacred Nationalism: The Thai Monarchy and Primordial Nation
Construction’ (2009) 39 Journal of Contemporary Asia 673, p 681.
8
Thak Chaloemtiarana, Thailand: The Politics of Despotic Paternalism (Cornell
Southeast Asian Program 2007), p 106.
9
Pasuk Phongpaichit and Chris Baker, Thailand: Economy and Politics (Oxford
University Press 1995), p 244.
10
Andrew Harding, ‘Emergency powers with a moustache: special powers, military
rule and evolving constitutionalism in Thailand’ in Victor V. Ramraj and Arun K.
 4

hierarchical system of law and make the constitution ‘a new focus of public loyalty’ by
vigorously urging every Thai, through radio broadcasting, ‘to love the nation and [to]
preserve the constitution’ since it ‘fuses [everyone] as one unity.’11 Such ambition was
analogous to that of Kelsen who asserted that ‘the unity of individuals constituting a state’s
population can only be seen in the fact … that their behaviour is regulated by the same legal
order.’12
Despite the peaceful takeover, subsequent Thai political history is turbulent, and
riddled with elite infighting. For more than eighty years after the abolition of an absolute
monarchy in 1932, Thailand has witnessed clashes between these different political
standpoints as well as attempts to reconcile them together. Similarly, to Pridi’s political
career, the attempt to firmly entrench constitutionalism in Thailand was harshly challenged
from within and outside the People’s Party. Phibun took the office of Prime Minister (‘PM’)
in 1938, but—due to the influence of the rise of far-right politics in Europe—subsequently
turned to authoritarian rule, causing the almost irreconcilable struggle between him and Pridi.
The Pridi-Phibun tension eventually led to political violence and acts of vandalism, notably
the coup d’état against the government backed by Pridi in 1947 and the attempted coup by
Pridi in 1949.
To many conservatives, the introduction of liberal democracy with parliamentary
system was a source of political instability as it generated what Carl Schmitt called political
romanticism, that is, ‘pluralism without hierarchy [and] political cacophony without strong
state orchestration’.13 They also criticised liberalism for allowing ‘public enemies’—those
holding ideologies inimical to the survival of the Thai community (especially the radical
leftists)—to legally infiltrate into state politics (as Pridi’s attempt to establish a full-fledged
democracy in the late 1940s facilitated the rise of ‘leftist’ parties within Parliament).14
By 1957, with supports especially from the bureaucrats, Field Marshal Sarit Thanarat,
a rightist dictator and Phibun’s subordinate, successfully seized power from his mentor,
Phibun, marking the introduction of the Thai-style democracy (‘the TSD’ or ‘a paternalistic
despotic regime’) which was explicitly constructed on the Thai-ness ideology. He served as
the country’s PM between 1958 and 1963. As a strong supporter for the Thai-ness ideology, a
good dictatorship by a man of virtue, for Sarit, was preferred to liberal democracy as it
facilitated a rule for public interest without having to concern any party-political squabbles.
In other words, an authoritarian rule and a military putsch were not ‘bad things’ as they
helped purify politics by eliminating party political conflicts and promoted social peace and
harmony under a strong leader. Yet, the TSD was not solely based on the Thai tradition, but
also embraced the European conservative constitutional theory. His closest confidant and
Phibun’s former advisor, Luang Wichitwathakan, was an outward proponent of the rise of
conservative politics in Europe—a regime Schmitt strongly advocated, and saw an

Thiruvengadam (eds), Emergency Powers in Asia: Exploring the Limits of Legality

(Cambridge University Press 2010), p 301.
11
Chris Baker and Pasuk Phongpaichit, A History of Thailand (3rd edn, Cambridge
University Press 2014), p 123.
12
Hans Kelsen, Pure Theory of Law (Max Knight (tr), 5th edn, Law Book Exchange
2008), p 288.
13
Carl Schmitt, Political Romanticism (Guy Oakes (tr), Transaction Publishers 2011),
p 99; Donald Schoonmaker, ‘Schmitt Reconsidered’ (1988) 50 The Review of Politics 130, p
130.
14
Frank C. Darling, ‘Marshal Sarit and Absolutist Rule in Thailand’ (1960) 33 Pacific
Affairs 347, pp 350-352.
 5

authoritarian, militaristic approach to national identity compatible with the Thai tradition.15
According to John Draper, the TSD can be regarded as the paternalistic version of Schmitt’s
thesis.16 Below, I will delineate Schmitt’s constitutional theory and show how its
compatibility with the TSD.
According to Schmitt, as I mentioned earlier, political romanticism entailed by
liberalism is a key source of political instability, which, in turn, recalls the concepts of
‘decisionism’ and ‘personalism’.17 Struggling with a threat to political stability, confining
measures applied to handle an exigency within legal statutes, for him, ultimately exacerbates
the destruction of the state.18 Accordingly, the state must not be forced to remain faithful to
the commitment to legality, but is allowed to employ whatsoever means, including those that
go against the law, to preserve the ultimate legitimate goal—its own existence.19 However,
unlike Kelsen, Schmitt did not understand the state as a closed, self-referential system of
laws, but as a concrete order—the unity of the homogeneous people.20 It thus needs a strong
and tangible executive leader known as a sovereign, who embodies and represents the
popular will, to decide on what constitutes such incident and how it should be resolved.21 A
sovereign is also ‘existential reality’ which precedes and guarantees an applicability of legal
rules. His conception of sovereign authority is further linked to the notion of democracy.
Having criticised liberal democracy for allowing fragmented wills of self-interested, egotistic
individuals to capture politics for their private gains, Schmitt instead urged that the core of
the genuine democratic ideal is the realisation of the public will of the people as a whole.22
He therefore advocated the so-called the identitarian version of democracy, according to
which insofar as everyone holds ‘the similar [and concrete] quality of belonging to a demos’,
they are all genuinely equal.23 The establishment of such quality embodied by a sovereign
does not only help bind the people as one, but eventually fosters the unified, public will of the
people essential for the creation of political stability on a more permanent basis.24
The TSD, I again reiterate, contained the elements of this Schmittian conservative
thesis, especially its preference to personalistic authority and to the importance of a
legitimate goal over the commitment to legality. The slight difference between the two is
where the latter, especially the notion of ‘sovereign authority’, is developed from the
Weberian charismatic authority—a charismatic leader who embodies a political unity, the
former, I briefly mentioned, puts emphasis on the traditional domination—the goodness of

15
Federico Ferrara, The Political Development of Modern Thailand (Cambridge
University Press 2015), pp 112, 155; Scot Barmé, Luang Wichit Wathakan and the Creation
of a Thai Identity (Institute of Southeast Asian Studies 1993), p 78.
16
See John Draper, ‘Paternalism, the Führerprinzip, and the Psychology of
Authoritarian Leadership in Thailand’ (Prachatai, 2nd November 2015)
th
<http://www.prachatai.com/english/node/5578> accessed 10 December 2016.
17
Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty
(George Schwab (tr), University of Chicago Press 2005), p 12.
18
Carl Schmitt, On the Three Types of Juristic Thought (Joseph W. Bendersky (tr),
Praeger 2004), pp 67-71.
19
Ibid.
20
Carl Schmitt, Constitutional Theory (Jeffrey Seitzer and Christopher Thornhill (trs),
Duke University Press 2008), p 262.
21
Schmitt, Political Theology, pp 10, 12-13.
22
Schmitt, Legality, p 28.
23
Schmitt, Constitutional Theory, p 258.
24
Ibid.
 6

the glorious past and the Thai traditional leadership culture.25 By asserting the elements of
decisionism and personalism, Sarit’s embracement of the Schmittian approach here has a
significant impact upon the Thai public law culture, especially in regard to the role of the
military in politics. Such approach also enabled Sarit to bridge the gap between modernity
and democracy on the one hand, and traditionalism on the other. Now, I wish to turn to the
Schmittian elements inherent in the TSD.
To begin with, to implement the TSD, Sarit issued the 1959 interim Constitutional
Charter (‘the 1959 Charter’) which did not only abolish parliamentary system and all human
rights provisions, but its infamous Section 17 (‘M-17’) also gave the PM—if perceiving any
disturbance or threat to the throne or national security—an unfettering power to take
whatever special measures or issue decrees of any content to deal with such a threat before
informing the National Assembly thereafter.26 The 1959 Charter had been enforced for nine
years—longer than some permanent constitutions—before being replaced by a permanent
constitution in 1968.27 Influenced by the traditional conceptions of ‘benevolent ruler’, Sarit
portrayed himself as Phu Yai who governed ordinary people (Phu Noi (children/junior)) like
a father looking after his children (Phor Kun)—a claim which enabled him to assert a
responsibility to promote security, order and welfare within a society.28 Here, Sarit’s despotic
paternalism followed Schmitt’s line, in that, a sovereign is not merely seen as a supreme law-
giver, but also an authority entitled to ‘switch off’ the application of law through emergency
decrees issued under M-17 or even through a military takeover, if necessary. Strictly
speaking, the Schmittian stance embraced by Sarit has, in effect, strengthened the Thai public
law culture of military rule after a sovereign in Thailand does not only hole an authority to
issue coup decrees and a military-drafted constitution (such as the 1959 Charter), but is also
eligible for acting within a space beyond law, in particular, through emergency measures.29
As Sarit held an absolute and exclusive authority to decide when M-17 was to be invoked and
what had to be done, he could be regarded as a sovereign in the Schmittian sense.
Furthermore, the true spirit of the constitution, under the TSD, connotes the creation
of ‘a strong state’ led by a sovereign who embodies political stability by creating the
homogeneity of the Thai people.30 Like Schmitt, for Sarit, a written liberal constitution is
only a mere set of rules which might even impose obstacles to the task of securing national

25
See Max Weber, Economy and Society: Volume I (Guenther Roth and Claus
Wittich (eds), University of California Press 1978), p 227.
26
Section 17 of the 1959 Charter:
‘In the case where the Prime Minister contemplates it necessary to prevent or suppress
any acts threatening national security or the security of the throne or any acts impairing or
disturbing internal or external peace of the Kingdom, he, through Cabinet resolution, shall be
bestowed with the power to order or to perform any act whatsoever. Such order or act shall
be deemed lawful.
Upon issuance of any order or performance of any act in virtue of the former
paragraph, the Prime Minister shall inform the Legislative Assembly thereafter.’
27
The average life span of a written constitution in Thailand is approximately four
years.
28
Thak Chaloemtiarana, Thailand: The Politics of Despotic Paternalism (Cornell
Southeast Asian Program 2007), p 106.
29
See David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency
(Cambridge University Press 2006), pp 3, 42; Schmitt, Legality, pp 4, 7-8.
30
David Streckfuss, Truth on Trial in Thailand (Routledge 2011), p 301.
 7

security.31 For this reason, the TSD inherits Schmitt’s concept of the political by bestowing
an authority upon a sovereign to distinguish ‘friends’ from ‘political enemies’—the others or
the strangers who hold substantive qualities threatening the homogeneity and unity of a
state—in order to create homogeneity within a polity.32 The idea of political enemies here
explicitly links political unity of a state with ‘the jus belli, i.e., the real possibility of deciding
in a concrete situation upon the enemy and the ability to fight him with the power emanating
from the entity.’33 The TSD utilised Thai-ness discourse as a parameter to distinguish what
constitutes public enemies.34 Claiming to be the guardian of Thai-ness, Sarit could, through
the Buddhist cosmological understanding underpinning his despotic regime, legitimately
assert to conduct good Karma, and declare himself as Khon Dee. Emergency powers issued
especially in virtue of M-17, regardless of their content, were important tools for stifling
political enemies posing threats against ‘the self-contained unity of the Thai people’. In this
respect, the TSD, we can conclude, signifies two types of political enemy—the anti-Thai and
the un-Thai.35 The term ‘anti-Thai’ connotes any foreign ideologies of which basis is
premised upon a challenge against political unity embodied by a strong executive leader
particularly liberalism and parliamentary democracy. As illustrated earlier, Sarit, just as
Schmitt, normally denounced political romanticism induced by liberalism for inviting
antagonisms among egotistic ‘evil’ politicians or what Buddhists call Mara to legally capture
the state apparatus for their own purposes. On the other hand, the term ‘un-Thai’ refers to
Thais who object to unity under Thai-ness discourse. Only those who follow it belong to ‘the
Thai family’, while those questioning a sovereign’s authority, including, in particular, radical
leftists, impliedly declares himself as an enemy. In the extreme, Sarit resorted to M-17 to
detain without trial and order the public execution of his leftist political rivals notably a pro-
democracy Khrong Chandawong and Thongphan Suthimat, or those challenging the TSD
regime such as Suphachai Sri-Sati, accusing them of potentially instigating a political
instability and even of being a communist.36 Thus, just like Schmitt, ‘popular consent’ under
the TSD rests on the obligation not to exercise ‘the right to resistance’ against a sovereign.
Here, a sovereign under the TSD would not lose his status quo, if he is challenged by the
ruled. Instead, pro-democracy activists challenging a sovereign’s authority would—like
Khrong or Suphachai—lose their membership of the collectivity of friends and are subjected
to suppression.
Moving onto my last observation, it was apparent that Sarit was fully aware of the
irreversible process of modernisation in Thailand, which began in the mid-19th century. The
introduction of the notions of ‘constitutionalism’ and ‘democracy’ to the country’s public law
landscape by Pridi, he also realised, meant that a total rejection of the notion of democracy

31
Tom Ginsburg, ‘Constitutional afterlife: The continuing impact of Thailand’s
postpolitical constitution’ (2009) 7 the International Journal of Constitutional Law 83, pp 88-
89.
32
Carl Schmitt, The Concept of the Political (University of Chicago Press 2007), pp
27-28, 34, 38, 71.
33
Ibid, p 45 (emphasis added).
34
Streckfuss, Truth, p 302.
35
Cf David Streckfuss, ‘The End of the Endless Exception?: Time Catches Up With
Dictatorship in Thailand’ (Cultural Anthropology, 23rd September 2014)
<http://www.culanth.org/fieldsights/567-the-end-of-the-endless-exception-time-catches-up-
with-dictatorship-in-thailand> accessed 24th April 2016.
36
Despite his affiliation with the Communist Party of Thailand, I consider Khrong a
pro-democracy activist since before his execution by Sarit, he ‘cursed’ the latter by saying
‘Dictatorship shall fall! Democracy rises’. See Baker and Pasuk, A History, pp 172-173.
 8

would be tantamount to formally restoring political power to mere persons or factions, thus
undermining the attempt to justify military takeovers through popular acclaim.37 Recognising
these developments, Sarit sought to rationalise the traditional conception of ‘benevolent
ruler’ by connecting the concepts of Karma, Bun and Barami to the increasing
disenchantment of the world. He decided to recast the idea of democracy to make it
compatible with the ideology of Thai-ness. Thus, he chose to fuse modern military power
with such ideology, and, like Schmitt, to connect an emergency rule with modern ideas
particularly the nation-state together with its constitutional order and the identitarian version
of democracy. The fact that Sarit portrayed himself as Khon Dee who embodied ‘the self-
contained unity of the Thai people’—a unity of Thai people embodied as one by the Thai-
ness ideology, enabled him and his supporters to legitimately assert a democratic mandate of
his regime.
Despite successfully implementing the TSD which, in effect, led to the restoration of
the hegemony of Thai-ness within Thailand’s public law culture, we have to keep in our mind
that such restoration occurred under the guise of a constitutional democracy and alongside
global trends towards modernisation, liberalisation and democratisation. Thus, where
scholars such as Ferrara and Nelson normally considered that the 1958 coup was an anti-
liberal coup that marked the end to constitutionalism, replacing it with the hegemony of the
Thai-ness, I alternatively considered that due to the aforesaid trends, Sarit could not totally
negate liberalism, in particular, its technique, if not its substance, to bolster his regime.38 As
we have seen, Sarit decided to constitutionalise the TSD shortly after his coup, rather than
seeking to prolong the rule under decisions, through the promulgation of the 1959 Charter,
which was regarded as the supreme law of the land. He also included in M-17 that any
actions and orders issued by the PM shall be deemed lawful. Here, it seems that for ‘the
Schmittian in an increasing liberal society’, the wreckage of liberal technique, that is, the
concept of constitutionality, is more demanding for stabilising an authoritarian rule.
As the country becomes more modernised, it appears that the Thai-ness ideology is
increasingly challenged by liberal forces. Below, I will consider this challenge against the
TSD in the post-Sarit era.
4. The tension between recurring demands for liberal democracy and attempts of self-
interested strategic actors to preserve their political hegemony: Thailand’s political
landscape between 1963 and 1992
Thai politics after Sarit’s death in 1963 has been highly tumultuous, reflecting an
increasing tension between the TSD and the legal-rational idea imported by Pridi. Owing to
the expansion of the middle class fostered by the country’s rapid economic growth from the
late 1950 onwards, the TSD witnessed an increasing challenge from the civil society, thus
embedding what I call ‘the demand-supply conflict’.39 The ‘demand-side’ perspective is
related to recurring demands for modernisation and democratisation of the political regime in
Thailand. It is premised on the Kantian viewpoint which highlights the essence of political

37
Björn Dressel, ‘When Notions of Legitimacy Conflict: The Case of Thailand’
(2010) 38 Politics & Policy 445, p 458.
38
Federico Ferrara, ‘Democracy in Thailand: theory and practice’ in William Case
(ed), Routledge Handbook of Southeast Asian Democratization (Routledge 2015), p 356;
Michael H. Nelson, ‘Delaying constitutionalism to protect establishment hegemony in
Thailand: designing the election system and the Senate in the Constitution of 2007’ in Marco
Bünte and Björn Dressel (eds), Politics and Constitutions in Southeast Asia (Routledge
2017), p 50.
39
I borrow such an approach from Dressel. See Björn Dressel (ed), The
Judicialization of Politics in Asia (Routledge 2012), pp 4-5.
 9

inclusion and equality, that is, humans must be treated ‘as ends in themselves bot mere
means’.40 By contrast, its ‘supply-side’ counterpart is agent-based. It connotes attempts by
the conservatives to preserve their political hegemonic status, that is, ‘the paternalistic,
hierarchical order [under the Thai-ness ideology], embodied in the durable [conservative-
military] alliance’.41
The ‘demand-supply’ conflict resulted in the popular uprising in 1973 against the
military government led by Sarit’s successor, Thanom Kittikachorn, causing violence, acts of
vandalism and deaths. Growing demands for liberal democracy together with King
Bhumibol’s intervention to halt violence forced Thanom to step down and flee the country.
The incident eventually created a constitutional understanding that a permanent, authoritarian
rule under the guise of the TSD is no longer possible after 1973, but the possibility of coup is
still relatively high even today.42 Between 1973 and 1997, the country oscillated between (a)
military rules espousing the TSD; and (b) civilian governments together with liberal
democracy. When perceiving a challenge against their status quo posed by the progressive
forces notably the pro-democracy student movements during the 1970s and the rise of the
electoral democracy between 1988 and 1991, the military generally invoked ‘the Schmittian
justification’, that is, the threat to Thai-ness, accusing liberalism of engendering
fragmentation and political instability, to justify a coup d’état at the expense of the
development of parliamentary democracy. Before 1997, interim constitutions issued after a
military takeover normally contained provisions largely similar to M-17 to ensure the
rightists’ status quo and interests, namely the Constitutional Charters of 1972 (Section 17),
1976 (Section 21), 1977 (Section 27) and 1991 (Section 27). The coup culture—the
hegemony of Thai-ness discourse—in Thailand accordingly confirms the domination of the
Schmittian sovereign as fact in the Thai public law landscape. Yet, a constitutional
understanding fostered in the 1970s means that coup leaders must promise the restoration of
electoral politics and liberal democracy.
My examination on the rising tension between the TSD and liberalism above asks us
to think of assumptions underpinning the demand-supply conflict. Despite the different
political standpoints, it is at least obvious that the success of both perspectives needs what
Hanna Lemer calls ‘a societal consensus regarding shared norms and values that underpin the
state’.43 A successful implement of liberal democracy visibly requires members of a society
to, by and large, adopt what Rawls’s standpoint of reasonable person—a person who
believes in the value of liberalism, respects other individuals as end-in-themselves, and
prepares to accept criticisms of others on his/her political views.44 Likewise, a shared belief
in ‘homogeneity’, i.e., ‘the shared public civic identity’, is essential for the realisation of the
Schmittian approach.45 Ostensibly, the coup culture signifies the absence of the former
perspective of consensus in Thailand. But, as the processes of liberalisation and

40
Immanuel Kant, Critique of Practical Reason (Mary Gregor (tr), Cambridge
University Press 2015), p 33
41
Matthew Wheeler, ‘Thailand Struggles to Break Out of The Cycle of Unrest’
(International Crisis Group, 10th August 2016) <https://www.crisisgroup.org/asia/south-east-
asia/thailand/thailand-struggles-break-out-cycle-unrest> accessed 12th September 2016.
42
See Thongchai Winichakul, ‘The Changing Landscape of the Past: New Histories
in Thailand Since 1973’ (1995) 26 Journal of Southeast Asian Studies 109, p 101.
43
Hanna Lerner, Making Constitutions in Deeply Divided Societies (Cambridge
University Press 2011), p 28.
44
Richard Bellamy, Rethinking Liberalism (Pinter 2000), ch 10; John Rawls, Political
Liberalism (Columbia University Press 2005).
45
Lerner, Making Constitutions, p 28.
 10

democratisation have become contending forces proponents of the Phor Kun-style leadership
cannot negate, there has, in turn, been a growing absence of consensus vis-à-vis the rule by
the Phor Kun military officer.46 The tension between these competing assumptions was
confirmed by another popular uprising against the military dictatorship in May 1992 and the
colour-coded crisis in the mid-2000s.
By the late 1970s, the military and the conservatives noticed the decline of the
communist threat. They also realised that a growing concern of popular democracy expressed
through the 1973 uprising and economic changes made an extreme totalitarian regime
unacceptable. Hence, the compromise was made between them and the growing awareness of
the Western-style democracy amongst the urban middle-class. The new semi-liberal 1978
Constitution allowed the conservatives to play an active role in politics by permitting the
military to be appointed as the PM and senators. Meanwhile, the constitution allowed the
lower House to be elected by the people. The former army chief, Prem Tinsulanonda, was
chosen by the House of Representatives as the PM in 1980. Prem negotiated with the leftists,
and encouraged them to return ‘home’ without any charges. He enjoyed large support from
the bureaucrats, the military and the people. Prem dissolved Parliament in 1988. After the
general election, a civilian coalition government was formed by Chatchai Choonhavan.
Despite leading Thailand to double-digit economic growth rates, Chatchai’s
government infamously reaped large benefits from infrastructure projects. The urban middle-
class joined by the royalist-conservatives, who thought that the country’s extreme exposure to
Western-style democracy again contributed to widespread corruption, accordingly revoked
their support for the government. Chatchai’s attempts to reduce the military’s ability to
determine foreign policy and their control over Thailand’s frontiers further made the
government more vulnerable as they posed a great challenge against the Thai-ness
conceptions of political stability and authority. The military eventually overthrew Chatchai
and declared martial law in 1991, citing corruption scandals and nepotism.
Nevertheless, unlike their processors, a growing concern for popular sovereignty
(though with some suspicion toward its extreme exposure) since the 1970s made the 1991
junta unable to permanently ensconce their rule via a coup, and forced them to organise a
general election within a year. The period of the 1990s also showed that the public, the
media, international opinion, and a substantial effect on a nation's economy acted as a check
to emergency powers. The 1991 junta was criticised by the media for exploiting the state
apparatus for their own benefits, while the prosperous economy was weakened by the Gulf
War and foreign governments’ warning to avoid a coup-ruled nation. After Suchinda
Kraprayoon, the coup leader, was designated by a majority of MPs as PM, another
demonstration led by the urban middle-class reoccurred in May 1992. Clashes between the
people and the soldiers instigated violence, acts of vandalism and deaths, which enormously
decreased Suchinda’s legitimacy. King Bhumibol intervened to prevent the country’s
fragmentation. He summoned Suchinda and the protest leader, asking them to compromise.
The violence suddenly elapsed, and Suchinda resigned.
The significance of the 1992 incident is that it encouraged the middle-class to realise
the need to halt Thailand’s vicious cycle, oscillating between elections, street protests, and
invocations of emergency powers.
5. The background of the colour-coded political crisis
Experiencing the 1992 Black May incident, the Thai middle-class ultimately called
for political reform and a new constitution, leading to the draft of the new 1997
Constitution—the People’s Constitution. The people were able to widely participate in
creating the new 1997 Constitution. Its drafting assembly consisted of 76 members elected

46
Harding, ‘Emergency powers with a moustache’, pp 300, 312.
 11

from each province, and 23 qualified scholars; numerous nation-wide public hearings were
conducted.
The 1997 Constitution was later drafted with a nationwide public consultation. The
so-called ‘People’s Constitution’ intended to strengthen the legal-rational administration and
public participation from the civil society sector. It innovatively created ‘independent
government agencies’ (‘IGA’) responsible for checking the compliance of the government
with the requirement of the constitution, in particular, the Constitutional Court, the
Administrative Court, the Election Commission, the Ombudsman, and the Anti-Corruption
Commission. The constitution also contained a provision aimed at preventing future coups
d’état. Anyone knowing of an attempted coup could ask the Attorney General to conduct an
investigation before lodging a motion before the Constitutional Court for ‘a cessation
order’.47 Political parties contravening this provision would be dissolved. It also intended to
enhance the direct political role of the people, notably by granting people eligible for voting
to directly propose a drafted legislation and to lodge a complaint requesting Senators to
impeach corrupt politicians).48
By encouraging both stable politics and nationwide political participation, the 1997
Constitution facilitated the rise of Thaksin Shinawatra’s electoral pluto-populist regime in
2001, and fostered a politically active citizenry even at the grassroots level.49 Thaksin’s
populist set of policies—notably, universal healthcare coverage, village-managed
development funds, and debt moratorium for agriculture—has attracted the poor in vast
numbers. He was re-elected in 2005.
This changing constitutional landscape significantly provoked anxiety among some
conservatives who, in turn, harshly accused Thaksin of corruption, nepotism, cronyism, and,
most importantly, disloyalty to the throne. In other words, based on the Thai-ness ideology,
the latter has long been stigmatised as the ‘un-Thai’. The tension between the conservatives
and Thaksin also led to the decline of the latter’s popularity among a large number of Thai
middle-class. For the bourgeoisies, Thaksin’s regime engendered ‘money politics’ and ‘a
tyrant majority’. Many of them also believed that Thaksin sought to change Thailand into a
republic. The conservatives took this opportunity to form an alliance with the middle-class,
which later led to the formation of ‘the Yellow Shirts’ or the People's Alliance for
Democracy (‘PAD’). Most of the supporters were MPs of the liberal-conservative Democrat
Party (‘DP’), some conservative elites, and upper middle-class in Bangkok and the South.
They used the discourse, ‘Thaksin sells the Nation’ (i.e., Thaksin is corrupt), as their key
rallying slogan. For the Yellow camp, a coup d’état and the reintroduction of the TSD are
justified on the basis of the need to preserve national unity under the Thai-ness ideology.
Despite anchoring the provision aimed at preventing another coup, the 1997 Constitution
failed to prevent Thaksin from being eventually ousted in a bloodless coup d’état in
September 2006—the country was once again administered under the regime of TSD. Like
its processors, the junta cited a threat to Thai-ness posed by the ‘Thaksin regime’ to justify
their actions.
Yet, rather than facilitating peace and unity as the Thai-ness ideology intends, many
scholars criticise the coup for instead deepening a conflict between ‘traditionalism’ and
‘modernity’.50 Owing to Thaksin’s popularity and the rise of liberal forces from 1992

47
Section 63
48
See Borwornsak Uwanno and Wayne D. Burns, ‘The Thai Constitution of 1997:
Sources and Process’ (1998) 32 University of British Columbia Law Review 227.
49
See Michael K. Connors, ‘Liberalism, authoritarianism and the politics of
decisionism in Thailand’ (2009) 22 The Pacific Review 355, pp 366-370.
50
See essays in Pavin (ed), “Good Coup” Gone Bad.
 12

onwards, the coup led to the rise of ‘the Red Shirts’ or ‘the United Front for Democracy
against Dictatorship’. The ‘UDD’ has been supported by pro-Thaksin politicians, rural
masses especially from the North and the Northeast, some urban poor, and many leftist
intellectuals (though many of them declined to support Thaksin). They renounce putsches,
and vie for popular democracy together with greater economic, social, and political
opportunity. Apart from the Red and Yellow Shirts, there are a largely increasing number of
well-educated, liberal middle class and intellectuals, who strongly advocate the commitment
to the rule of law and democracy.
Overall, between 2006 until present, Thailand has been plagued by a series of
confrontations between the Red and the Yellow, causing occasional mass demonstrations,
uses of violence and almost unbridgeable polarisation. If using John Rawls’s terms, this so-
called colour-coded political crisis exposes a tension between those denying and advocating
liberal, reasonable comprehensive doctrine.51 Given the deepened demand-supply conflict, a
return to military authoritarianism, unlike in the pre-1992 context, is more hardly
countenanced, yet, the conservative scepticism towards liberal democracy and
constitutionalism still remains.
6. The Thai-ness ideology in the 21st century: a consideration in the context of the
Kelsenian-Schmittian debate
Following the 2006 coup, the 2007 Constitution was drafted. The new constitution
ostensibly contained provisions which embroiled the judiciary, especially the Constitutional
Court, in core controversial political issues, thus affecting the contour of Thai-ness during the
politically tumultuous periods.52 Under the 2007 Constitution, the Constitutional Court
comprised eight judges: three supreme court judges and two administrative ones were elected
by the Assembly of Supreme Court judges and Administrative Court judges respectively,
while two qualified experts in law and two in politics had to be approved by the Senate.53
However, unlike the 1997 Constitution which established a fully and directly elected Senate
with 200 members, 76 Senators under the 2007 Constitution were directly elected from all
76 provinces in Thailand, including Bangkok, while the other 74 were chosen by the
committee, comprising the President of the Constitutional Court, the Chairmen of the
Election Commission and of the State Audit Commission, and two other judges from the
Supreme Court and the Administrative Court. Senators under both constitutions held a six-
year term. As Mérieau observes, appointed Senators were normally conservatives or Thaksin
critics, and played a vital role in ensuring that the Constitutional Court was ‘insulated’ from
evil politicians like those of Thaksin’s camp, and that its judges were made accountable to
Thai-ness.54 The 2007 Constitution further put the Constitutional Court president in a
committee responsible for appointing members of the IGAs.55 In terms of its power, the
Court was empowered to dissolve any political party, the activity of which threatened a
constitutional monarchy and/or national security or if one of its executive members commits
election fraud, and to ban its executive members from any elections for five years.56 It further
held power to dismiss politicians, i.e., MPs and the members of the cabinet, if found abusing
their power or have a conflict of interest.

51
John Rawls, Political Liberalism (Columbia University Press 2005), p xvi.
52
Ran Hirschl, ‘The New Constitutionalism and the Judicialization of Pure Politics
Worldwide’ (2006) 75 Fordham Law Review 721, p 721.
53
Sections 204 and 206
54
Eugénie Mérieau, ‘Thailand’s Deep State, Royal Power and the Constitutional
Court (1997-2015)’ 46 Journal of Contemporary Asia 445, pp 457-458.
55
See Part 11
56
Section 237
 13

According to Dressel, Piyabutr and Mérieau, the growing involvement of the judiciary
in politics results from the decline of the legitimacy of the military takeover in the context of
the ongoing processes of liberalisation and democratisation (i.e., the rise of the demand-side
perspective).57 Accordingly, an alternative mode of justification becomes requisite for the
military to preserve their hegemonic political status quo (i.e., the supply-side perspective).
Owing to such a condition, they subsequently observe that personalistic authority (i.e., a
person-based authority to decide on a political crisis based on the Thai-ness ideology) needs a
legal-rational legitimacy bestowed by the judiciary, that is, the Constitutional Court. Given
the fact that despite the rise of the Yellow Shirts and the 2006 military coup, the Thaksin
camp was still able to win the 2007 and 2011 elections by landslide, especially in the ‘Red’
regions, the Constitutional Court’s role in maintaining the hegemony of the traditional
conceptions of political stability and authority, according to these scholars, has become even
more prominent. In their articles, Dressel and Mérieau largely cite verdicts rendered by the
Constitutional Court between 2008 and 2014, whereby Thailand was convulsed by protests
organised by both the Yellow and the Red Shirts, to justify their arguments. I will start with
the Yellow Shirts protests against the Thaksin-back government (the ‘Red’ faction), and then
vice versa.
• The Yellow Shirts protests against the ‘Red’ government
In December 2007, Thaksin’s proxy political party—the People’s Power Party
(‘PPP’)—won the general election. Samak Sundaravej and his successor, Somchai
Wongsawat, became PM in January and September 2008 respectively. Regarding their
governments as Thaksin’s puppet, the PAD reassembled. During their premiership, both PMs
declared an emergency in September and November 2008, citing threat to state
administration, the economy, national integrity, and democracy. Nevertheless, Anupong
Paochinda, the army commander, refused to stage a coup d’état to deal with political
instability. Both declarations of emergency ended after the Constitutional Court had
dismissed Samak and dissolved the PPP.
The Yellow Shirts protest against Samak which began in May 2008 culminated in the
occupation of the Government House in central Bangkok on 26 August 2008, forcing Samak
to declare a state of emergency on 2 September. On 9 September, the Constitutional Court
chose to intervene to stop a crisis by rendering a verdict based on complaints lodged by the
Election Commissions and 29 members of the Senate, accusing Samak, who at the time also
acted as a presenter of two television cooking shows, for violating the constitutional
provisions banning the PM from being employed by a private sector. The Court unanimously
considered his activity as the work of an ‘employee’, thus violating constitutional conflict of
interest provisions. The verdict seemed to temporarily ‘pacify’ the Yellow Shirts protesters,
leading to the abrogation of the emergency declaration by Somchai.
However, as a brother-in-law of Thaksin, the Yellow Shirts sill occupied Somchai’s
Government House, demanding him to resign. Anupong even explicitly demanded Somchai
on television to dissolve Parliament and rearrange a general election.58 On 24 November, a
convoy of the PAD proceeded to illegally occupy the country’s two international airports in
Bangkok; an emergency was again declared on 27 November. Just as in September, Anupong
refused to comply with the ‘Red’ government’s order to restore order. During the height of a
tense stand-off between the two conflictual parties, the Constitutional Court chose to decide a

57
Björn Dressel, ‘Thailand: judicialization of politics or politicization of the
judiciary? in Björn Dressel (ed), The Judicialization of Politics in Asia (Routledge 2012); the
comment of Piyabutr Saengkanokkul and Eugénie Mérieau:
https://www.youtube.com/watch?v=byrrPxDfcLM
58
https://www.youtube.com/watch?v=Ms3m2_MCyxs
 14

petition by the prosecutor accusing Yongyut Tiyapairat, an executive member of the PPP, of
vote-buying in the December 2007 general election. By virtue of the 2007 Constitution, the
PPP was eventually dissolved, and its executive members were banned from any elections for
five years. The PAD declared a victory, whilst the military (as the Red Shirts believe) tacitly
persuaded former coalition parties to choose the DP leader—Abhisit Vejjajiva—as the PM in
December 2008. Abhisit, as I will later show, was strongly opposed by the Red Shirts, before
losing in a general election in 2011.
Thaksin’s younger sister, Yingluck Shinawatra, became the first Thai female PM in
August 2011. In 2013, her government attempted to pass an Amnesty Bill believed by the
Yellow camp as having an effect of immunising her brother from legal actions, causing
another political crisis. On 31 October 2013, the Yellow Shirts, refashioned as the People's
Democratic Reform Committee (‘PDRC’) and led by the former Democrat MP, Suthep
Thaugsuban, launched another mass protest. Yingluck decided to dissolve Parliament and call
for a general election in February 2014. Between February 2014 and May 2014, the
Constitutional Court again played a vital role in orchestrating the direction of Thai politics.
Before the 2nd February election, the PDRC ran anti-election campaigns; a number of
protesters attempted to interrupt the candidate registration process, accuding Yingluck of
exploiting the election process simply to legitimise her rule. No candidate registrations took
place in the strongholds of the DP in six southern provinces. The election was
problematically held, but Only 47.72% of voters exercised their right to vote; 16.69% were
vote-no ballots. The DP took this opportunity to lodge a petition before the Constitutional
Court, asking the judges to invalidate the election. They claimed that this election was an
effort by the government to unconstitutionally attain administrative power, and thus
contravened the 2007 Constitution. On 21st March 2014, the Constitutional Court judges
(ruled in 6 to 3 vote) that the election was unconstitutional and had to be annulled since
voting was not on the same day around the Kingdom.59
During this intense period, Yingluck also invoked emergency legislations—both the
Internal Security Act 2007 and subsequently the Emergency Decree on Public Administration
in State of Emergency 2005—around Bangkok, allowing the executive to arrest and detain
protestors and even dissolve demonstrations. However, similar to the events in 2008, the
military did not intervene to disperse the Yellow Shirts, whilst the Constitutional Court ruled
against a complaint of the Red Shirts leaders, asking the Court to dissolve the PDRC protest.
The Court certified that the anti-government rally was peaceful since it was an exercise of a
constitutional right to the freedom of expression enshrined in the 2007 Constitution. Later in
February, the Civil Court affirmed such ruling, and prohibited the government from
enforcing some of emergency powers, in particular, the dispersal order against the PDRC.
The situation got worse after the Red Shirts counteractively converged in Bangkok in
April. Yingluck was later accused of having abused of power, in illegally transferring the
national security advisor appointed by the previous government—the Yellow Shirts DP-led
administration, Thawil Pliensri. On 7 May 2014, the situation became more volatile after the
Constitutional Court ordered Yingluck and the other 9 ministers to step down.60
The above verdicts appeared to initially set off the dawn of a ‘political vacuum’.
Since a new government could not be formed, the military stepped in, claiming the necessity
to establish order. The army's commander, General Prayuth Chan-ocha imposed martial law
nationwide on 20th May 2014. The coup d’état was staged two days later—the 2007

59
http://www.bbc.co.uk/news/world-asia-26677772
60
http://www.bbc.co.uk/news/world-asia-27292633
 15

Constitution was abrogated and martial law was maintained, and Prayuth later formed the
junta–the National Council for Peace and Order (NCPO).61
• The Red Shirts protests against the ‘Yellow’ government
The situation was totally different between 2009 and 2010 when the Red Shirts
launched their protests against the DP-led government. After the dismissal of Somchai,
Abhisit assumed the Premiership in December 2008. The UDD regarded Abhisit’s
government as undemocratic because his DP did not win a majority in an election and was
the conservative’s puppet. They organised two protests in mid-2009 and 2010. In 2010, as the
protests escalated causing injuries and deaths, Abhisit claiming threats to national integrity,
economy, and democracy, declared a state of emergency. The Constitutional Court refused to
quash the 2005 Decree, emphasising its importance for the maintenance of national security,62
whilst the military assisted the PM in dispersing the protestors in both years.
Dressel and Mietzner, and Mérieau outwardly criticise the Constitutional Court for its
bias as its judgements seemed to direct at purging the ‘Red’ camp, thus resulting in
‘politically-biased activism’ and even ‘political vacuum’ leading to the 2014 coup.63 With
respect to the ‘Cooking Show’ case, McCargo comments that it is absurd to think that
‘[h]osting a cooking show was … the kind of conflict of interest that could undermine the
nation’s economy, security or political integrity’. 64 In Somchai’s case, Dressel criticises the
Court for failing to clarify ‘questions about how vote-buying fit into the anti-democratic
behavior … [, and about] how to balance dissolving a party with the constitutionally
guaranteed freedom to form a party’.65 It was also doubtful whether the PDRC protest was
genuinely peaceful as their armed guards, just as the UDD hardliners in 2010, clearly
possessed and used lethal weapons against their Red Shirts opponents.66 According to Pavin’s
thesis, the simple reason why Samak, Somchai and Yingluck were ousted by the Court and
why their attempts to employ emergency powers were futile was just that they are conceived
as Thaksin’s cronies and therefore ‘traitors of the motherland’.67
To put these scholars’ thesis into the context of the Kelsen-Schmitt debate, the Thai
experience can be said to reflect the clash between Carl Schmitt and Hans Kelsen in a society
with various attempts by Thai anti-liberal (Schimittian) forces to persevere their hegemony in
an increasingly liberalised society, but one still lacking a long-established culture of liberal
constitutionalism (the element essential for the implementation of Kelsen’s theory).
Originally, the Schmittian approach inherent in the TSD, as I showed above, asserts that a
sovereign’s decisions during a political crisis are pure, in that, they are ‘powers of real life’
unconstrained by law that breaks down the iron cage of formal rationality to reconstruct a
pacified homogeneous unity.68 Yet, based on the aforesaid critiques, given dominant trends of
democratisation and liberalisation in the 21st century, the Thai case shows that proponents of
the Schmittian approach need to shift their focus from Schmitt’s a priori approach—a

61
http://www.bbc.co.uk/news/world-asia-27517591
62
Decision No. 9/2010
63
Björn Dressel and Marcus Mietzner, ‘A Tale of Two Courts: The Judicialization of
Electoral Politics in Asia’ 25 Governance: An International Journal of Policy,
Administration, and Institutions 391, pp 396-400; Mérieau, ‘Thailand’s Deep State’, p 459.
64
Duncan McCargo, ‘Competing Notions of Judicialization in Thailand’ (2014)
Contemporary Southeast Asia 417, p 430.
65
Dressel, ‘Thailand’, p 90.
66
https://www.youtube.com/watch?v=FxIAcvJsUSo
67
Pavin Chachavalpongpun, ‘The Necessity of Enemies in Thailand's Troubled
Politics’ (2011) 51 Asian Survey 1019, pp 1026-1027.
68
Schmitt, Political Theology, pp 15, 66.
 16

sovereign is he who decides on an exceptional political situation in order to preserve an a

priori supposition that the friend exists autonomously—to the a posteriori alternative—what
technique enables the sovereign authority to successfully remain hegemonic given the
growing irresistible wave of liberalisation? They can no longer simply focus on how to break
the iron cage. Instead, to ensure the hegemony of the Thai-ness ideology, a personalistic
authority needs increasingly to resort to the Kelsenian legalistic approach and mechanism—
the realm of normative oughtness and the Constitutional Court—to conserve its ‘moral high
ground’ as a more liberal and sustainable construct. I call this paradigm the Kelsenian-isation
of Schmitt. Nevertheless, as Thailand lacks the firmly entrenched tradition of liberal
constitutionalism, the realm of normativity is then fused by that of facticity (i.e., politics)
after the Court becomes ‘Schmittian-ised’. Thus, it is without doubt that Leyland called the
Constitutional Court ‘a lapdog’. 69
Given the high degree of polarisation in Thailand, a shift from the Kelsenian-isation
of Schmitt to the Schmittian-isation of Kelsen has nevertheless fostered dissatisfaction on a
massive scale among the Red Shirts. They normally identified the Court’s verdicts as double
standards. Likewise, such a shift was intermittently criticised by the pro-democratic, liberal
groups of public law scholars, especially the Nitirat unofficially led by Worajet Pakeerat,
who even suggested the abolition of the Constitutional Court.70 However, the rising role of
the pro-democracy forces then signifies that nowadays, the Thai-ness ideology can no longer
imply only the administrative and decision-making power wielded by strategic state actors,
but it also concerns a communicative power arising from the deliberating public sphere of
civil society.71 Thus, the Thai-ness ideology has to increasingly embrace John Locke’s
approach to politics which stresses the tensional relationship among law (Kelsen), extra-legal
emergency power (Schmitt) and popular judgment.72 Here, the generation of state power are
not legitimate solely because they are the coercive force of the state. Instead, a public
authority has to likewise regard the intersubjective public opinion/judgment fostered within
the societal public sphere. Locke also recognised the tendency that extraordinary power
might be used provided, in the view of those in authority, perceive a threat to the community,
but this power is then politically judged by the people (conceived as an empirical fact).73
Based on the Lockean approach, a public judgment that the exercises of coup powers or the
Schmittian-isation of Kelsen are tyranny can lead to violent resistance, something that no one
desires.74

69
See Peter Leyland, ‘Thailand's Constitutional Watchdogs: Dobermans,
Bloodhounds or Lapdogs’ (2007) 2 Journal of Comparative Law 151.
70
See Duncan McCargo, ‘Branding Dissent: Nitirat, Thailand’s Enlightened Jurists’
(2015) 45 Journal of Contemporary Asia 419.
71
Jürgen Habermas, Between Fact and Norms (Polity Press 1996), pp 36-39.
72
Leonard C. Feldman, ‘Judging Necessity’ (2008) 36 Political Theory 550, p 561.
73
John Locke, Two treatises of government: and a letter concerning toleration (Ian
Shapiro (ed), Yale University Press 2003), pp 96-97.
74
Ibid.