Constitutional reform, legal consciousness, and citizen participation in Thailand

Cornell International Law Journal

Volumn 40, Issue 2, 2007, Pages 455-476

  Munger, Frank ^a  

^a NONE

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EID: 36748998883     PISSN: 00108812     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (111)

1. I am grateful to Professor Valerie Hans for the opportunity to present this material and to learn from the distinguished scholars who attended the Conference which she organized. I would like to thank Robert Albritton, David Engel, Kevin Hewison, Fiona Haines, and Simon Singer for helpful conversations about material in the paper. I offer particular thanks to my two research assistants at Cornell University, Nuanchan Singkran and Poonrit Kuakul, for translations of Thai newspaper reports and for guidance in reading them, and to my New York Law School research assistant Cory Blitz for assistance with internet research. This material is based in part upon work supported by the National Science Foundation under Grant No. 0454690. Any opinions, findings, and conclusions or recommendations expressed in this material are those of the author and do not necessarily reflect the views of the National Science Foundation.
2. Sherry Martin, Legal Consciousness and Political Socialization, paper delivered at the Cornell Law School Conference on Citizen Participation in East Asian Legal Systems, September 22-23, 2006;
3. Judge Rakwon Jang, The Law Reform Process in Korea, paper delivered at the Cornell Law School Conference on Citizen Participation in East Asian Legal Systems, September 22-23, 2006;
4. Masahiro Fujita, Planning for Lay Participation in Japan: Ideas from Research, paper delivered at the Cornell Law School Conference on Citizen Participation in East Asian Legal Systems, September 22-23, 2006.
5. CONSTITUTION OF THE KINGDOM OF THAILAND, B.E. 2540 (1997).
6. CORNELL INT''L L.J. 455 (2007)
7. PASUK PHONGPAICHIT & CHRIS BAKER, THAILAND: ECONOMY AND POLITICS 417-418 (2d ed. 2002).
8. Coup d'etat in Thailand, BANGKOK Post, Sept. 20, 2006, available at http://www. bangkokpost.net/breaking_news/breakingnews.php? id=113027;
9. Bill Barnes & Amy Kazmin, 'Empire Strikes Back' As Thai Army Moves In, FIN. TIMES, Sept. 20, 2006, at 8.
10. Amy Kazmin, Investors Express Hope on Economic Benefits From Bloodless Coup, FIN. TIMES, Sept. 21, 2006, at 9 (reporting that there had been 17 previous coups);
11. PHONGPAICHIT & BAKER, supra note 4.
12. Coup d'etat in Thailand, supra note 5.
13. SALLY ENGLE MERRY, HUMAN RIGHTS AND GENDER VIOLENCE: TRANSLATING HUMAN RIGHTS INTO LOCAL JUSTICE 215-17 (2006).
14. The King has always been and remains an ambiguous figure-formally almost powerless but, in truth, revered beyond all others, as a person and institution, and holder of the trump cards. PAUL HANDLEY, THE KING NEVER SMILES: A BIOGRAPHY OF THAILAND'S BHUMIBOL ADULYADEJ (2006). In 1992, following a bloody rebellion against the last military coup, the King required the leaders of the military and the rebellion to prostrate themselves before him and demanded that a resolution be reached.
15. Kevin Hewison, Introduction: Power, Oppositions, and Democratisation, in POLITICAL CHANGE IN THAILAND: DEMOCRACY AND PARTICIPATION 1, 2 (1997).
16. The military who conducted the recent coup formed a Democratic Reform Council with the King as its nominal head. Coup d'etat in Thailand, supra note 5.
17. Ammar Siamwalla, Globalisation and its Governance in Historical Perspective, in SOCIAL CHALLENGES FOR THE MEKONG REGION 13-22 (M. Kaosa-ard & J. Dore eds., 2003).
18. THE WORLD BANK, GLOBALIZATION, GROWTH AND POVERTY: BUILDING AN INCLUSIVE WORLD ECONOMY (World Bank Policy Research Report #23591) 24-25 (2002).
19. See, e.g., Ute Piper & Lance Taylor, The Revival of the Liberal Creed: The IMF, the World Bank, and Inequality in a Globalized Economy, in GLOBALIZATION AND PROGRESSIVE ECONOMIC POLICY 37, 38-39 (Dean Baker, et al. eds., 1998).
20. ANTHONY GIDDENS, THE CONSEQUENCES OF MODERNITY 21, 45 (1991).
21. Id. at 63.
22. MERRY, supra note 8, at 139-51 (describing this process in specific conflicts between traditional and rights-generated forms of social participation in five different societies).
23. "Stakeholder participation" is described as a principal goal in the most recent World Bank country dialog monitor on Thailand that reports on World Bank funded country development programs. THE WORLD BANK, THAILAND-WORLD BANK GROUP PARTNERSHIP COUNTRY DIALOGUE MONITOR: JANUARY 2004-JUNE 2005 (2005). The report praises Thailand's "emphasis on governance and decentralization" and urges further effort to improve the "quality of government services, right-size the government bureaucracy, increase the competency levels of public sector employees, and promote democratic governance."
24. Amartya Sen argues that there is an important link between the realm of formal institutions such as democracy (and presumably other forms of participation that increase responsiveness) and quality of life. In turn, enhancement of fundamental qualities of life (health, education) leads to faster more equitable economic development because individuals are able and motivated to participate to the full extent of their capacities. AMARTYA SEN, DEVELOPMENT AS FREEDOM 15-21 (1999).
25. See, e.g., Peter Manus, Sovereignty, Self-Determination, and Environment-Based Cultures: The Emerging Voice of Indigenous Peoples in International Law, 23 WIS. INT'L L. J. 553, 592-96 (2005).
26. MERRY supra note 8, at 90-91.
27. See generally Randall Peerenboom, Social Networks, Civil Society, Democracy, and Rule of Law: A New Conceptual Framework, in THE POLITICS OF AFFECTIVE RELATIONSHIP: EAST ASIA AND BEYOND 249 (Hahm Chaihark &Daniel Bell eds., 2004).
28. ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA (Bruce Frohnen ed., Henry Reeve, C.B. trans., 2004) (1889).
29. See id. at 73-79.
30. See Robert A. Kagan, Adversarial Legalism: The American Way of Law (2003).
31. See, e.g., Marc Galanter, Bhophals, Past and Present: The Changing Legal Response to Mass Disaster, 10 WINDSOR Y.B. ACCESS TO JUST. 151 (1990).
32. The modern development of the due process clauses in the Fifth and Fourteenth amendments of the U.S. Constitution is a powerful institutional legitimator of citizen participation in adjudications. Notably, the Supreme Court's decision in Goldberg v. Kelly, 397 U.S. 254 (1970) guaranteed the right to participate in adjudication of one's property rights to the most poor and deeply subordinated members of society-welfare recipients. Yet how did it change outcomes, legal consciousness (of recipients), or U.S. culture? Increasing number of individual adjudications soon led to complex codifications of rules which, in practice, proved to be no less arbitrary and manipulable. The legal consciousness of welfare recipients tilted less toward empowerment than increasing recognition of need for the expertise of a legally trained advocate. While Goldberg recognized the growing significance of entitlements in modern society, it made entitlements a symbolic political target of conservatives. A conservative Congress eventually pushed for elimination all federal welfare entitlements. Thus, Goldberg, and related cases establishing a constitutional right to participation in adjudication, contributed to unexpected institutional consequences: increasing cost, complexity, subordination of lawyers, and ultimately declining political support for entitlements. How's that for a bummer of a message about participation?
33. See generally Tom R. Tyler & Yuen J. Huo, The Overall Influence of Social Motives on Decision Acceptance, in TRUST IN THE LAW: ENCOURAGING PUBLIC COOPERATION WITH THE POLICE AND COURTS 76-96 (2002)
34. reprinted in PROCEDURAL JUSTICE: VOLUME I 143, 157 (Tom R. Tyler ed.) (2005).
35. This is a premise of the experimental introduction of lay judging in Korea and Japan. See supra note 2.
36. See Frank E. Reynolds, Dhamma in Dispute: The Interactions of Religion and Law in Thailand, 28 LAW & SOC'Y REV. 433, 442 (1994).
37. Id. at 442-43.
38. Id. at 441.
39. See id. at 441-43.
40. Phongpaichit & Baker, supra note 4, at 411-414 et seq.
41. Id. 430-436.
42. See Chantana Banpasirichote, Civil Society and Good Governance: A New Chapter in Thailand's Political Reform?, in 1 DEMOCRACY AND CIVIL SOCIETY IN ASIA: GLOBALIZATION, DEMOCRACY AND CIVIL SOCIETY IN ASIA 213, 225 (Fahimul Quadir & Jayant Lele eds., 2004).
43. See id. at 229.
44. Phongpaichit & Baker, supra note 4, at 436-39;
45. Prudhisan Jumbala & Maneerat Mitprasat, Non-governmental Development Organizatins: Empowerment and Environment, in POLITICAL CHANGE IN THAILAND: DEMOCRACY AND PARTICIPATION 195, 214-15 (Kevin Hewison ed., 1997).
46. CONSTITUTION OF THE KINGDOM OF THAILAND, §§ 282-90.
47. Id. §§ 56, 59.
48. Id. § 60;
49. see also id. § 76 ("The State shall promote and encourage public participation in laying down policies, making decision on political issues, preparing economic, social and political development plans, and inspecting the exercise of State power at all levels.").
50. See id. §§ 297-302.
51. See id. §§ 276-80 (describing the administrative court); see id. §§ 255-70 (describing the Constitutional court).
52. Id. § 304.
53. See Andrew Harding, SOUTH EAST ASIA, 1997-2003: Two CASE STUDIES ON POLITICS OF LAW AND DEVELOPMENT 14 (2003), available at http://www.law.uvic.ca/seals/forums//attachment.php?attachmentid=6.
54. Vichai Ariyanutaka, Sophistication of Dispute Resolution in Special Courts: A Perspective from Thailand, in LAW, DEVELOPMENT, AND SOCIO-ECONOMIC CHANGES IN ASIA (Naoyiki Sakumoto et al. eds., 2003).
55. The Judiciary of Thailand, Section 3.1 The Courts of First Instance, available at http://www.judiciary.go.th/eng/thejudiciary.htm#t3.
56. Id.
57. Id.
58. PASUK PHONGPAICHIT & CHRIS BAKER, THAILAND'S CRISIS 118-19 (2000).
59. James Klein, Public Participation and Hearings in the New Thai Political Context, in LEGAL FOUNDATIONS FOR PUBLIC CONSULTATION IN GOVERNMENT DECISION-MAKING (Kenneth Haller & Patcharee Siroros eds., 2003).
60. See generally CONSTITUTION OF THE KINGDOM OF THAILAND.
61. See Klein, supra note 49, at 122-29.
62. Frank Munger, Culture, Power, and Law: Thinking About the Anthropology of Rights in Thailand in an Era of Globalization, N.Y. L. REV. (forthcoming 2007).
63. Martin, supra note 2.
64. See id.
65. See DAVID ENGEL & FRANK MUNGER, RIGHTS OF INCLUSION: LAW AND IDENTITY IN THE LIVES OF AMERICANS WITH DISABILITIES (2003).
66. Id. See chapter four for examples, narratives of persons with disabilities about social injustice included discourses of religion, the market, or family obligations as well as a variety of discourses about rights.
67. The Asian Barometer describes itself as "an applied research program on public opinion on political values, democracy, and governance" encompassing survey data from twelve East Asian political systems and five South Asian countries on "citizens' attitudes and values toward politics, power, reform, and democracy in Asia." See generally, The Asian Barometer, available at http://www.asianbarometer.org/newenglish/introduction/ (last visited Nov. 17, 2006).
68. See generally, Robert Albritton & Thawilwadee Bureekul, Developing Democracy under a New Constitution in Thailand (2004), available at http://www.asianbarometer. org/newenglish/publications/ workingpapers/no.28.pdf (last visited Nov. 18, 2006) (discussing the Asian Barometer data drawn from a survey conducted in 2001).
69. Id. at 15 and Table 2.
70. Id. at 45.
71. Id. at 10.
72. Id. at 11 and Table 1.
73. Robert Albritton & Thawilwadee Bureekul, Social and Institutional Supports for Plural Democracy in Eight Asian Nations: A Cross-National and Within-Nation Analysis, 16 (2005), available at http://www. asianbarometer.org/newenglish/publications/workingpapers/no.31.pdf (last visited Nov. 19, 2006).
74. For example, few respondents mentioned parties, elections, or parliamentary decision making. Id. at 14.
75. Id. at 16-17.
76. Id. at 19.
77. The meaning of an apparently strong preference for democracy over other forms of government is also tempered by the fact that about fifty percent would prefer economic development to having a democratic government, id. at 16.
78. Id. at 18-19.
79. In addition to creating a non-partisan constitutional court and administrative courts, the 1997 constitutional created a non-partisan National Election Commission and a non-partisan National Counter Corruption Commission. CONSTITUTION OF THE KINGDOM OF THAILAND, § 136 et seq. and § 297 et seq.
80. Albritton & Thawilwadee, supra note 58, at 27, Table 10.
81. Id. at 28.
82. Id.
83. Id. at 22-26, 29ff.
84. See id. at 43 (Appendix 1).
85. Acceptance of the rule of law is defined by level agreement with seven propositions: government should decide what can be discussed; government leaders should be followed like heads of a family; judges should defer to the executive; political leaders should be able to ignore procedures; with support, a leader should ignore minority views; if the country is in difficulty, it is OK to disregard laws. Id. at 43 (Appendix 1).
86. Id. at 22-26.
87. Id. at 23.
88. Further, the Asian Barometer data for other countries included in the survey suggest that the same pattern exists in many developing Asian societies, namely the existence of two cultures (and perhaps two ideals of democracy or rule of law) characterized by modern versus traditional values, urban versus rural cultures, more education and western acculturation versus less education and traditional acculturation. Albritton & Bureekul, supra note 58.
89. David Engel, Globalization and the Decline of Legal Consciousness: Torts, Ghosts, and Karma in Thailand, 30 LAW & SOC. INQUIRY 469 (2005).
90. Id. at 469, 502.
91. Peter Jackson, Withering Centre, Flourishing Margins: Buddhism's Changing Political Roles, in POLITICAL CHANGE IN THAILAND: DEMOCRACY AND PARTICIPATION (Kevin Hewison, ed., 1997).
92. Frank Reynolds, Dhamma in Dispute: The Interaction of Religion and Law in Thailand, 28 LAW & SOC'Y REV. 433 (1994).
93. Philip Hirsch, The Politics of Environment: Opposition and Legitimacy, in POLITICAL CHANGE IN THAILAND: DEMOCRACY AND PARTICIPATION (Kevin Hewison ed., 1997).
94. See also Philip Hirsch, Environment and Environmentalism in Thailand: Material and Ideological Bases, in SEEING FOREST FOR TREES: ENVIRONMENT AND ENVIRONMENTALISM IN THAILAND (Philip Hirsch ed., 1996).
95. Jumbala & Mitprasat, supra note 36.
96. See also BRUCE MISSINGHAM, THE ASSEMBLY OF THE POOR IN THAILAND (2003).
97. See Missingham, supra note 84, at 38-41.
98. See generally, id. at 38-41.
99. See Roundup: Thai King Criticizes Current Political Mess, PEOPLE'S DAILY ONLINE, April 26, 2006, available at http://english.peopledaily.com.cn/200604/26/eng20060426_261157.html#.
100. Id.
101. See generally Susan M. Darlington, The Ordination of a Tree: The Buddhist Ecology Movement in Thailand, 37 ETHNOLOGY I, Winter 1998;
102. Philip Hirsch & Larry Lohmann, Contemporary Politics of Environment in Thailand, 29 ASTON SURVEY 439 (1989).
103. Pasuk and Baker use this term to describe one of the relatively educated and well to do groups that make up the middle class in Thai society. Pasuk Pongpaichit & Chris Baker, Power in Transition: Thailand in the 1990s, in POLITICAL CHANGE IN THAILAND: DEMOCRACY AND PARTICIPATION 32-35 (Kevin Hewison ed., 1996).
104. Jumbala & Mitprasat, supra note 36, at 196.
105. See generally HUMAN RIGHTS WATCH 2006 REPORT ON THAILAND, available at http://hrw.org/ english/docs/2006/01/18/thaila12251_txt.htm;
106. THE ASIAN HUMAN RIGHTS COMMISSION REPORT, available at http://www.ahrchk.net/ pr/mainfile.php/2006mr/356/.
107. Specific charges of corruption have included deals that favored members of the Prime Minister's family, but corruption reached as far as the non-partisan National Election Commission and led to the invalidation of an election. For a discussion on Thaskin's money policies see Pasuk Phongpaichit & Chris Baker, THAKSIN: THE BUSINESS OF POLITICS IN THAILAND 197-224 (2004).
108. See Klein, supra note 49.
109. Id. Klein describes skillful disrespect for the right to participate in government decision making: narrow interpretation of prior law, perfunctory hearings without significant effect, SLAPP litigation against critics of private development, resulting riots and demonstrations outside government offices. Where the power of government officials and private power-brokers has been seriously challenged, violent reprisals are not unknown.
110. See generally Bernadette Meyler, The Trials and Tribulations of the English Jury: Some Lessons for Emergent Systems of Lay Participation, paper delivered at the Cornell Law School Conference on Citizen Participation in East Asian Legal Systems, September 22-23, 2006.
111. See generally KENNETH ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES (1970) (establishing the principle of "Arrow's Theorem").