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Buddhist Constitutionalism in Thailand: When Rājadhammā Supersedes the Constitution

  • Eugénie MÉRIEAU (a1)
Abstract

This article adds nuance to the classical account depicting Thailand as a secularized country by documenting how Buddhism informs constitutional thought and practices in contemporary Thailand. Throughout the twentieth century, Buddhist discourses have been used to bypass constitutional provisions in the name of ‘dhamma’ through the reliance on the rediscovery of the doctrine of the dhammarāja (the righteous King). In the early twenty-first century, a second rebirth of the discourse of the dhammarāja led to a further devaluation of the constitution as the supreme norm. The principles of a righteous King (totsapitrājadhammā) were reconceptualized as a functional equivalent to constitutionalism – as constraining the King’s power. This article first examines how modern lawyers used Buddhism as the vehicle to import Western constitutional ideas into the Siamese polity while reconstructing them as part of a royal legacy through the doctrine of the Ten Royal Virtues. It then turns to an analysis of the ever-increasing enshrinement of Buddhism in successive Thai constitutions since 1932. It concludes with an account of the politicization of the righteous King doctrine and its impact on constitutional practices.

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Post-doctoral fellow at the Alexander Von Humboldt Chair of Comparative Constitutionalism, University of Goettingen, Germany, held by Professor Ran Hirschl. I wish to thank Ran Hirschl, Benjamin Schonthal, Dian AH Shah, Khemthong Tonsakulrungruang, Barend J Terwiel, Piyabutr Saengkanokkul, and the anonymous reviewers for comments on an earlier draft, as well as the Centre for Asian Legal Studies, National University of Singapore, for funding this project.

Note on transcription: this article adopts the Royal Thai General System of Transcription (RTGS), with a few exceptions, namely Thai names and the following words: rājadhammā (Duty of the Righteous King), dhammarāja (Righteous King) and totsapitrājadhammā (Ten Royal Virtues of the Righteous King). Thai names have been romanized based on their most widely used romanizations. Rājadhammā and totsapitrājadhammā are romanized from Pâli instead of Thai, for purposes of further cross-national comparisons on these concepts. According to the RTGS, they should be romanized as rachatham, thammaracha, and totsapithrachatham.

Note on translation: translations are mine, unless otherwise indicated.

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1. According to the official 2015 census, over 90% of Thais are Buddhists. The next most-professed religions are Islam and Christianity, both yielding very low numbers of followers, with about 4% Muslims and 1% Christians. See National Statistical Office, ‘Report on Population Characteristics: The 2015-2016 Survey of Population Change’ (National Statistical Office 2016) <http://web.nso.go.th/en/survey/popchan/data/2015-2016-Full%20Report.pdf> accessed 27 July 2018. This official count however obscures the complex nature of practices identified as ‘Buddhist’, and these often include elements of Brahmanism, as well as spirit and ancestor-cults, either analyzed in terms of ‘syncretism’ or ‘hybridity’. See Kitiarsa, Pattana, ‘Beyond Syncretism: Hybridization of Popular Religion in Contemporary Thailand’ (2005) 36 (3) Journal of Southeast Asian Studies 461 .

2. The Buddhist calendar was in fact introduced by King Rama VI or Vajiravudh or Wachirawut (r. 1910-1925) as part of his nationalist resistance against Westernization. Ishii, Yoneo, ‘Church and State in Thailand’ (1968) 8(10) Asian Survey 864, 866 .

3. Fuwongcharoen, Puli, ‘“Long Live Ratthathammanūn!”: Constitution worship in revolutionary Siam’ (2018) 52(2) Modern Asian Studies 609, 624 .

4. For a detailed explanation, see ibid.

5. King Rama VI (r 1910-1925), a fervent Buddhist, created the motto, drawing inspiration from the British.

6. See Vella, Walter F, Chaiyo! King Vajiravudh and the Development of Thai Nationalism (1st edn, University of Hawai’i Press 1978) 140 .

7. For a comparative perspective on the matter see Thomas Larsson, ‘Monkish Politics in Southeast Asia: Religious disenfranchisement in comparative and theoretical perspective’ (2015) 49(1) Modern Asian Studies 40.

8. See ‘Thai cave boys ordained in Buddhist ceremony’ (BBC News, 24 July 2018) <www.bbc.com/news/world-asia-44933744> accessed 31 July 2018.

9. Suthep Thaugsuban was ordained as a monk at the Thai Sai Temple in the Surat Thani Province on 15 July 2014 and left the monkhood on 28 July 2015.

10. He resigned on 6 June 2006 to enter monkhood. The coup took place on 19 September 2006. He was appointed Secretary-General to the King Prajadhipok’s Institute in December 2006. Also, in late 2017, Bowornsak took the robe once again, after being appointed head of the Law Reform Commission by the head of the military junta. From 30 November 2017 to 10 December 2017, he led a group of 99 people to be ordained as monks in a temple in Bihar, a state in the Northeast of India.

11. See for eg Dabphet, Siriporn, ‘State and Religious Ideology in Nineteenth-Century Thailand’ in Haneda Masashi (ed), Secularization, Religion and the State (The University of Tokyo Center for Philosophy 2010) 53 .

12. Griswold, AB and na Nagara, Prasert, ‘A law promulgated by the King of Ayudhyā in 1397 AD’ (1969) 57(1) Journal of the Siam Society 109 . The ‘stele 38’ on thief (silacharuek kotmai laksana chon) was discovered in 1930 in the Sukhothai province. See also Lingat, Robert, ‘La conception du droit dans l’Indochine hînayâniste [The conception of Law in Hinayana Indochina]’ (1951) 44(1) Bulletin de l’Ecole française d’Extrême-Orient 163, 182 .

13. During the first century AD, the Mons adapted the Hindu Code of Manu and replaced its Hindu references with Buddhist references. The Mons were the first Buddhist people in the Indochina Peninsula. They created the Dvaravati civilization, on the territory of present-day Thailand. See Lingat, Robert, ‘Pour un droit comparé indochinois [For a Comparative Indochinese Law]’ (1995) Études, Faculté de droit de Saigon 29, 32 , in (2005) 15 Aséanie 149, 152. The scope of the influence of the Hindu Code was probably exaggerated by Robert Lingat, although a relative influence is undeniable. Andrew Huxley, ‘Buddhism and Law – The View from Mandalay’ (1995) 18 Journal of the International Association of Buddhist Studies 47.

14. According to Vedic literature, the dhamma is a form of natural law revealed by Brahma to Manu, the first King of humanity. It is ‘a body of immutable rules, which are operating exactly as physical laws of a cosmic world, acting their part mechanically, punishing transgressors automatically, rewarding those obeying them by the same mechanical process. It is the collection of these eternal, transcending rules, that is called Dhamma, and it was revealed by Brahma, the Self-Existent Being, to Manu, a semi divine being, and from Manu to ancient Sages, who in their turn made it known to mankind through abridged versions, called dharmasāstras, or treatises on Dharma’. See Lingat, Robert, ‘Evolution of the Conception of Law in Burma and Siam’ (1950) 38(1) Journal of Siam Society 9, 10 .

15. Buddhism rejects the principles of Hinduism and most notably the Vedas, but is still imbued with them. On the relation between Buddhism and Hinduism, see Desai, Santosh N, ‘Ramayana - An Instrument of Historical Contact and Cultural Transmission Between India and Asia’ (1970) 30(1) Journal of Asian Studies 5, 56 .

‘Historians tend generally to place the Hindus and Buddhists of ancient India in totally separate categories. The tendency has been to emphasize the spiritual and doctrinal difference between them, without a proper realization of the fact that the Buddhists of ancient India also were a part and product of Hindu culture.’ Desai further notes that ‘[t]he Buddhists of ancient India rejected untouchability, Brāhmaṇa claims to pre-eminence and ritual pollution. But this applied only to the monks and monasteries. A lay Buddhist continued to live in the Hindu cultural milieu as do the Jains of present India. Moreover, some of the most well-known Buddhist scholars like Aśvaghoṣa, Nāgārjuna, Asaṅga, and Vasubandhu were Brāhmanas. Although they adopted and interpreted the teachings of Buddha, culturally they subscribed to the Hindu tradition’ (Desai, fn 2), and that ‘[t]hey had drawn considerably upon Hindu myths, legends, and traditions. Most tales of Buddha’s past lives, known as the Jātaka stories, are in fact rooted in ancient Hindu folklore. The Rāma story was, therefore, as much a favorite of the Buddhists as of the Hindus’.

16. See Lingat, ‘La conception du droit’ (n 12) 167. See also Huxley, Andrew, ‘When Manu met Mahāsammata’ (1996) 24 Journal of Indian Philosophy 593 .

17. See the excellent translation provided by Chris Baker and Pasuk Phongpaichit. Baker, Chris and Phongpaichit, Pasuk (trs), The Palace Law of Ayutthaya and the Thammasat: Law and Kingship in Siam (Cornell University Press 2016).

18. Baker and Phongpaichit (n 17) 13.

19. Hirschl, Ran, ‘Comparative Constitutional Law and Religion in Asia’ in Tom Ginsburg and Rosalind Dixon (eds), Comparative Constitutional Law in Asia (EE Publishing 2014) 315 .

20. According to the translation provided by Barend Jan Terwiel, ‘Lord Ram Khamhaeng was master and overlord over all the Tai. He was the teacher who taught all the Tai to understand merit and the dhamma rightly.’ The veracity of the stone inscription, which was discovered by then Prince Mongkut in 1833, is discussed. For a translation and discussion see Terwiel, Barend Jan, The Ram Khamhaeng Inscription, The fake that did not come true (Ostasien Verlag 2010).

21. This common view held most notably by Robert Lingat is disputed by authors such as Andrew Huxley, Chris Baker, and Pasuk Phongpaichit. See Baker and Phongpaichit (n 17) 31 and Huxley, Andrew (ed), Thai Law: Buddhist Law, Essays on the legal history of Thailand, Laos and Burma (White Orchid Press 1996).

22. Lingat, ‘Evolution’ (n 14) 9.

23. Nivat, Prince DhaniThe Old Siamese Conception of the Monarchy’ (1947) 36(2) Journal of Siam Society 91, 99 .

24. ibid 94.

25. Rocher, Ludo, ‘Hindu Conceptions of Law’ (1978) 29 Hastings Law Journal 1283, 1285 .

26. ‘[T]here is nothing higher than dharma ... Verily, that which is dharma is truth [satya].’ Brhad Aranyaka Upanisad 1.4, 11-14, fn1 in Tambiah, Stanley J, World Conqueror and World Renouncer, A study of Buddhism and Polity in Thailand against a Historical Background (CUP 1977) 22 . See notably Davis, Don R, ‘Hinduism as a Legal Tradition’ (2007) 75(2) Journal of the American Academy of Religion 241 .

27. Interim Constitution of Siam BE 2475 (adopted on 27 June 1932) (Interim 1932 Constitution).

28. Radio speech by Prince Wan Waithayakorn, 3 October 1932. Quoted in Vishnu Khruangnam, Kotmai ratthathammanun [Constitutional Law] (Nitibanyakan 1987) 20. See also Wan Waithayakorn, ‘Coining Thai Words’ in Wan Waithayakorn Foundation, Withayathat Phra-ong Wan [Prince Wan’s Vision] (Wan Waithayakorn Foundation 2001).

29. Constitution of Siam BE 2475 (adopted on 10 December 1932) (Permanent1932 Constitution).

30. Permanent 1932 Constitution, preamble.

31. Jory, Patrick, ‘The Vessantara Jataka, Barami, and the Boddhisatta-Kings: The Origin and Spread of a Thai Concept of Power’ (2002) 16(2) Crossroads: An Interdisciplinary Journal of Southeast Asian Studies 36 .

32. Tambiah, Stanley J, World Conqueror and World Renouncer, A Study of Buddhism and Polity in Thailand against a Historical Background (CUP 1977); McClish, Mark, ‘King rājadharmā’ in Patrick Olivelle and Donald R Davis (eds), The Oxford History of Hinduism: Hindu Law: A New History of Dharmaśāstra (OUP 2018) 257 . See also Swearer, Donald K (ed), The Buddhist World of Southeast Asia (SUNY Press 2010) 72 ; Schonthal, Benjamin, ‘Formations of Buddhist constitutionalism in South and Southeast Asia’ (2017) 15(3) International Journal of Constitutional Law 709 .

33. Baker and Phongpaichit (n 17) 38.

34. King Lithai reigned over the Sukhothai Kingdom from 1347 to 1368. He wrote the Book of Three Worlds (Thaiphumi Phraruang), the founding religious-political text describing Buddhist cosmology and the King’s duties. For an English translation, see Reynolds, Frank E and Reynolds, Mani B, Three Worlds According to King Ruang: A Thai Buddhist Cosmology (Asian Humanities Press 1982). An earlier translation had been published in French in 1973. Georges Cœdès and Charles Archaimbault, Les Trois Mondes [The Three Worlds] (Presses de l’Ecole Française d’Extrême-Orient 1973).

35. Dana (generosity, charity).

36. Sila (high morality).

37. Parcage (sacrifice).

38. Ajjava (honesty and integrity).

39. Maddava (kindness).

40. Tapa (austerity).

41. Akkodha (the absence of envy, of revenge).

42. Avihimsa (non-violence).

43. Khanti (patience, tolerance, understanding).

44. Avirodha (non-obstruction).

45. The King must love and feel compassion for his subjects equally; adhere to and maintain dhamma, judge affairs with justice and equity, and rapidity; listen to the advice of philosophers and act according to the advice; abstain from committing five types of sin (bap), ie, do not kill, do not steal, do not commit adultery, do not lie, and do not drink alcohol; feel compassion and no envy for the wealth and work of the people; collect taxes but never increase them; give to those in need so that they can do some commerce without interests; distribute wealth to civil servants; rule in judicial cases with great care and attention to detail; honour Brahmins and philosophers; distribute prizes and honours to those who helped them. See Sawaeng Boonchalermwiphat, Prawatisat kotmai thai [The Thai Legal History] (10th edn, Winyuchon 2007) 90–96.

46. The four commandments are as follows: (1) The king should care about the development of production; (2) The King should look after the needs of the people; (3) The King should strive to be loved; and (4) The King should use gentle language to be loved. Sern Sirikasibhandra, ‘Le pouvoir royal à la Thaïlande [Royal Power in Thailand]’ (PhD dissertation, University of Caen 1940) 27.

47. Cœdès and Archaimbault (n 34) 94.

48. Woodward, FL, Davids, Caroline AF Rhys and Hare, EM (trs), The Book of Gradual Sayings (Anguttara-Nikaya), or More-Numbered Sutras (OUP for the Pali Text Society 1932) 85 ; also quoted in Christine Gray, ‘The Soteriological State in the 1970s’ (PhD thesis, University of Chicago 1986) 30.

49. It is generally agreed that the Palace Law was composed under the reign of King Trailokanat (r. 1448-1488). See the discussion in Baker and Phongpaichit (n 17) 77.

50. See translation provided by Baker and Phongpaichit (n 17) 77.

51. Pridi Panomyong, ‘Kanpokkhrong thi mi kasat yu tai kotmai [The administrative system with the Monarchy under the Law]’ in Bang rueang kiaokap kan kotang khana rasadon lae rabop phrachatipatai [Some elements about the establishment of the People’s Committee and the Democratic System] (Nitiwet 1972). I am grateful to Kasidit Ananthanathorn for this reference.

52. Prince Dhani Nivat (n 23) 98.

53. Barend Jan Terwiel (n 20).

54. Seni Pramot, Kotmai Samai Ayuthaya [The Laws of Ayutthaya] (2nd edn, Winyuchon 2016) 144.

55. Kraivichien, Thanin, Phramahakasat thai nai rabop phrachatipatai [ The Thai Monarchy according to the Democratic System of Government ] (1st edn, Ministry of Education 1976).

56. Uwanno, Bowornsak, Kotmai mahachon Lem 2 [ Public Law Volume 2 ] (5th edn, Chulalongkorn 2007) 145 .

57. Tongthong Chandransu, ‘Phraracha-amnat khong phramahakasat nai thang kotmai ratthathammanun [A Constitutional Legal Aspect of the King’s Perogatives]’ (LLM thesis, Chulalongkorn University 1986).

58. See Ginsburg, Tom, ‘Constitutional afterlife, The continuing impact of Thailand’s postpolitical constitution’ (2009) 7(1) International Journal of Constitutional Law 83 .

59. Connors, Michael K, ‘Article of Faith: The Failure of Royal Liberalism in Thailand’ (2008) 38(1) Journal of Contemporary Asia 143 .

60. Bidhya Bowornwathana, ‘Importing governance into the Thai polity: competing hybrids and reform consequences’ (2007) 8(2) International Public Management Review 1 <http://journals.sfu.ca/ipmr/index.php/ipmr/article/view/30/30> accessed 2 July 2018.

61. Uwanno, Bowornsak, Ten Principles of a Righteous King and the King of Thailand (Chulalongkorn 2006) 47, 75 .

62. ibid 47.

63. See Eugénie Mérieau, ‘Thailand’s Deep State, Royal Power and the Constitutional Court 1997-2015’ (2016) 46(3) Journal of Contemporary Asia 445; see also Ginsburg (n 58).

64. Uwanno, Ten Principles (n 61) 47.

65. Constitution of Thailand BE 2550 (adopted on 24 August 2007) [2007 Constitution].

66. Khemthong Tonsakulrungruang, ‘Buddhist politics and Thailand’s dangerous path’ (New Mandala, 15 January 2016) <www.newmandala.org/buddhist-politics-and-thailands-dangerous-path> accessed 18 May 2018.

67. Office of the Constitutional Court, San ratthathammanun phaitai lak nititham nai kanpokkhrong rabop phrachatipatai an mi phramahakasat pen pramuk [The Constitutional Court under the Rule of Law in the System of Democracy with the King as Head of State] (Bangkok Constitutional Court 2013) 571.

68. Thamma-phiban is quoted twice in the preamble, once in the title on ‘State policies’, while Nititham is referred to in the general provisions and the title on ‘Rights and liberties’.

69. They named itself ‘Nitirat – Nitisat pheua Rasadon’ (Juridical Science for the People) as a playful reference to both ‘Khana Rasadon’ (the People’s Committee who overthrew the absolute monarchy in 1932), nicknamed ‘Nitirat’ and ‘Nitirat’ (Rechtsstaat or Etat de droit). It must be brought to the attention of non-Thai readers that the spelling of Nitirat as Rechtsstaat differs from the spelling of Nitirat - the chosen Thai name of the jurists’ group. Their English-language name, ‘Enlightened Jurists’, does not echo the play on words conveyed in Thai. See also McCargo, Duncan and Tanruangporn, Peeradej, ‘Branding Dissent: Nitirat, Thailand’s Enlightened Jurists’ (2015) 45(3) Journal of Contemporary Asia 419 .

70. Mérieau, Eugénie, Les Chemises Rouges de Thaïlande [ The Red-Shirts of Thailand ] (IRASEC 2013) 121127 .

71. Pridi Panomyong, the intellectual leader of the 1932 overthrow and drafter of the Interim 1932 Constitution, was a fervent Buddhist, but also a fervent socialist.

72. Yoneo Ishii (n 2) 866.

73. McCargo and Tanruangporn (n 69) 637. These efforts materialized in the 1941 Sangha Act.

74. Mérieau, Eugénie, ‘The 1932 Constitutions of Siam, matrix of constitutional instability’ in Kevin Tan and Bui Ngoc Son, Constitutional Foundings in Southeast Asia (Hart Publishing 2019, forthcoming).

75. Permanent 1932 Constitution, art 4.

76. Phrarachakritsadika chabap 1 wa duai rachaphrapheni krung siam BE 2432 [1889 First Royal Decree on Royal Customs], art 3(5).

77. Permanent 1932 Constitution, art 1.

78. Permanent 1932 Constitution, art 13. This article bears close resemblance to the disposition on religious freedom enshrined in the 1889 Japanese Constitution.

79. Constitution of Thailand BE 2492 (adopted on 13 March 1949) (1949 Constitution).

80. 1949 Constitution, art 28.

81. Besides the influence of the Meiji Constitution on the Permanent 1932 Constitution, the article on rights and liberties also drew on ‘foreign constitutions’, whose assessment was probably also informed by Siam’s membership of the League of Nations. See ‘Assembly minutes, 34/2475, 16 November 1932, House of Representatives’ in Settabutr, Noranit (ed), Ekasan kanphicharana rang ratthathammanun 10 thanwakhom 2475 [ Documents pertaining to the examination of the draft 10 December 2475 (1932) Constitution ] (Thammasat 1999) 18 .

82. Constitution of Thailand BE 2511 (adopted on 20 June 1968) (1968 Constitution).

83. 1968 Constitution, art 44.

84. Constitution of Thailand BE 2517 (adopted on 7 October 1974) (1974 Constitution).

85. 1974 Constitution, art 54.

86. The words of Phra Kittiwuttho from the Mahatat Royal Temple in Bangkok were: ‘[Killing a communist] is like when you kill a fish to offer to a monk. There is certainly demerit in killing the fish, but then it is erased when the fish is placed in the monk alms’ bowl’. See Dubus, Arnaud, Buddhism and Politics in Thailand (IRASEC 2017) 19 . See also Keyes, Charles, ‘Political Crisis and Militant Buddhism in Contemporary Thailand’ in Bardwell Smith (ed), Religion and Legitimation of Power in Thailand, Burma and Laos (Anima Books 1978) 159 .

87. See Somsak Jiemteerasakul, Phrawathisat thi pheung sang [The history that was just invented] (6 Tula Press 2001); Thongchai Winnichakul, 6 tula leum mai dai cham mai long [the 6th of October cannot be forgotten nor remembered] (Fa Diao Kan 2016); Tyrell Haberkorn, ‘The Hidden Transcript of Amnesty: The 6 October 1976 Massacre and Coup in Thailand’ (2015) 47(1) Critical Asian Studies 44.

88. For instance, conservative intellectual Kukrit Pramot published an op-ed against the move in Matichon on 7 May 1991 in response to a column in Siam Rath published the preceding day urging Thai constitution-drafters to adopt Buddhism as the official religion.

89. Such as Monk Phra Mahanarin from the Sam Phraya Temple in Bangkok, later abbot at a Temple in Las Vegas.

90. Constitution Drafting Assembly minutes featured lengthy discussions on the question of making Buddhism the State religion. Members of the Constitution Drafting Assembly often referred to this demand being voiced prominently in public hearings held throughout the country, and the Constitution Drafting Committee considered an amendment making Buddhism the national religion. See ‘Raigan kanprachum khanakhammathikan phicharana rang ratthathammanun haeng racha-anyachak thai [Constitution Drafting Committee minutes]’ (9 June 1997) <http://library2.parliament.go.th/giventake/content_cons40-50/cons2540/pi400609.pdf> accessed 2 July 2018.

91. 1997 Constitution, art 73.

92. ‘Monks, supporters urge charter drafters to name Buddhism national religion’ The Nation (Bangkok, 14 February 2007). It was led by the Secretary General of the Buddhism Protection Centre.

93. Phasaphong Renumas, ‘Kho kithen bang prakan nai kanbanchu phuttasasana nai rang ratthathammanun 2550 [A few thoughts about the enshrinement of Buddhism in the Constitution]’ (Public Law Net, 28 May 2007) <www.public-law.net/publaw/view.aspx?id=1103> accessed 2 July 2018.

94. Phrarachabanyat wa duai kan oksieng prachamati rang ratthathammanun 2559 [Act on the Referendum for the Draft Constitution BE 2559] 2016 (2016 Referendum Act). Art 61 refers to ‘[a]nyone who disseminates text, pictures or sounds in newspapers, radio, television, electronic media or through any other means distorting the facts or being violent, aggressive, rude, inciting (sic) or threatening and aimed at preventing a voter from casting a ballot or enticing him to vote in a certain way or to abstain.’ Violators face heavy prison terms (up to ten years).

95. The provinces of Yala, Pattani and Narathiwat have rejected the draft with majorities of 60 to 65%.

96. In 2007, the three provinces had approved the military-backed draft constitution with the following results: 76% in Pattani, 74% in Yala, 77% in Narathiwat.

97. National Council for Peace and Order (NCPO)’s Head Order 49/2016, 22 August 2016.

98. Phrarachabanyat laksana pokkhrong khana song BE 2445 [Act on the Administration of the Sangha BE 2445] 1902 (1902 Sangha Act).

99. Yoneo Ishii (n 2) p 867. See also Jackson, Peter, Buddhism, Legitimation and Conflict, The Political Functions of Urban Thai Buddhism in the 19th and 20th Centuries (ISEAS 1989).

100. Phrarachabanyat khana song BE 2484 (1941 Sangha Act).

101. Phrarachabanyat khana song BE 2505 (1962 Sangha Act), art 7.

102. Phrarachabanyat khana song BE 2535 (1992 Sangha Act), art 7.

103. Thammayut was created in 1833 by King Mongkut. It is a minority sect, but it enjoys greater prestige as Mahanikai.

104. Duncan McCargo notes that ‘for seventy of the past eighty years, Thammayut monks have held the office of supreme patriarch’, with the last appointment of a Mahanikai monk dating back to the Sarit regime. McCargo, Duncan, ‘The Changing Politics of Thailand’s Buddhist order’ (2012) 44(4) Critical Asian Studies 627, 638 .

105. Sonthi Limthongkul made such accusations. See McCargo (n 104) 636.

106. Ukrist Pathmanand, ‘Nation, Religion and Monarchy in the fight against Thaksin’ (New Mandala, 13 August 2008) <www.newmandala.org/nation-religion-and-monarchy-in-the-fight-against-thaksin> accessed 18 May 2018.

107. Suluck Lamubol, ‘Understanding Thai-style Buddhism’ (Prachatai, 28 February 2014) <https://prachatai.com/english/node/3883> accessed 18 May 2018.

108. Among the ‘threats’ to Buddhist Kingship are the growth of an ultraconsumerist society, the pervasiveness of ‘money politics’, including in the monkhood, fears of republicanism and secularism, and the rise of militant Islam. Violence against Buddhists has escalated in the three Muslim southernmost provinces since 2004.

109. I borrow the term of ‘hyper-royalism’ from Thongchai Winnichakul. See Thongchai Winnichakul, ‘Trends in Southeast Asia: Thailand’s Hyper-Royalism: its past success and present predicament’ (Trends in Southeast Asia No 7, ISEAS 2016) <www.iseas.edu.sg/images/pdf/TRS7_16%20(002).pdf> accessed 2 July 2018.

110. ‘Assembly minutes, 36/2475, 25 November 1932, House of Representatives’ in Noranit Settabutr (ed), Ekasan kanphicharana rang ratthathammanun 10 thanwakhom 2475 [Documents pertaining to the examination of the draft 10 December 2475 (1932) Constitution](Thammasat 1999) 48.

111. ibid.

112. ‘On 5 May 1950, the Coronation Day, His Majesty King Bhumibol Adulyadej affirmed in His Accession Speech in front of the Grand Audience of venerable monks and Brahmins, members of the royal family, cabinet ministers, members of parliament, judges, military officers and civil servants that: I shall reign by Dhamma, for the benefit and happiness of all the Thai people.’ See Uwanno, Ten Principles (n 61).

113. Royal Speech to lawyers, 7 August 1972. This speech is regularly quoted in conferences, seminars, and courts. It was notably used on the 23 January 2017 by Bowornsak Uwanno in his seminar on ‘Legal State, King’s State’, which was held at Chulalongkorn University.

114. Thanom and Praphas had promised a new constitution since 1966. In 1973, Bangkok students started to write their own constitution. Following their arrest, a student contestation spread to several universities. On October 13, about 400 000 students protested in the streets of Bangkok. It remains the largest protest in Thai history.

115. See Kongkiratti, Prajak, Lae laeo khwankhleuanwai ko prakot [ And then the movement appeared ] (Thammasat University Press 2005).

116. The king and the royal family came down to meet them. Students prostrated in the Palace gardens.

117. Phrarachadamrat 14 tulakhom 2517 [Royal Speech, 14 October 1973]. Excerpt in Thai available at <www.khaosod.co.th/hot-topics/news_85981> accessed 7 July 2018.

118. Sanya Thammasak (1907-2002) was the President of the Supreme Court from 1968 to 1975; He was also the Dean of Thammasat University during the events of 14 October 1973.

119. Kraivichien (n 55) 58.

120. Grossman, Nicholas and Faulder, Dominic (eds), King Bhumibol Adulyadej: A life’s work (Millet 2012) 131 .

121. Kraivichien (n 55) 29.

122. The Constitution-Drafting Assembly was composed of about 2,500 members.

123. In August 1976, one of the ‘three tyrants’, Thanom Kittikachorn, returned to Thailand. His return sparked massive student protests. Security forces and far-right anticommunist paramilitaries (the Red Gaurs) attacked the protesters gathered in Thammasat University in the early morning, on 6 October. Cruelty unfolded, against student accused of being communists. On the night of 6 October, a military coup overthrew the civilian government of Seni Pramoj.

124. Following the coup by the ‘Committee for Maintaining Peace’, civilian Anand Panyarachun was nominated as prime minister. Elections were organized, but the new parliamentary coalition could not agree on a new prime minister. Suchinda Kraprayoon, one of the 1991 coup leaders, became Prime Minister. This move prompted massive protests in Bangkok. Chamlong Srimuang, former mayor of Bangkok, led the protesters from Sanam Luang to the Government House. Outbursts of violence erupted between security forces and protesters. Chamlong was finally arrested by police. On 20 May, while violence was still occurring in the capital city, the King appeared on television.

125. Kraivichien (n 55) 54; Bagehot, Walter, The English Constitution Paul Smith ed, 1st edn, CUP 2001).

126. Nelson, Michael H, ‘Political Turmoil in Thailand: Thaksin, Protests, Elections, and the King.’ (2006) 5(1) Eastasia 1; Nelson, Michael, ‘Thaksin Overthrown: Thailand’s “Well-intentioned” Coup of September 19, 2006’ (2007) 6(1) Eastasia 1.

127. 1997 Constitution, art 7 and 2007 Constitution, art 7.

128. Mérieau (n 63) 454.

129. Uwanno, Ten Principles (n 61) 98.

130. Here is how the author describes the Ten Royal Virtues: (1) Dana which means giving in a beneficial way, that is, providing things such as the basic necessities, or amisa-dana; giving knowledge and useful advice, or dhamma-dana; and forgiving those who deserve forgiveness, or apaya-dhamma; (2) Sila which means maintaining good conduct so as not to breach religious morals, laws and all ethical norms. This dasarājadhammā encompasses respect for religious principles, morals, rule of law and ethics as restraint for the King not to break any norms; (3) Pariccaga which means making selfless sacrifice for the greater good; (4) Ajjava which means loyalty, truthfulness and honesty as the Venerable Somdech Phra Vachirayanavongse explained: to have qualities of being truthful, free from deceit, honest to royal allies and kin as well as to all subjects without thinking of deceiving or hurting them unjustifiably; (5) Maddava which means being gentle and open-minded to reasonable advice and not being arrogant; (6) Tapa which means diligence in consistently performing the royal duties, leading a simple life, and restraining His mind from indulgence of sensual pleasure; (7) Akkodha which means not showing anger, not dwelling in hatred or vindictiveness against others, or in other words, being compassionate. Anger is a cause of misjudgment. If a King is not in anger, He can make judgments in a fair and unbiased manner; (8) Avihimsa which means not afflicting harm on others including animals and all living things, adhering to peace and tranquility for all, and not indulging Himself in His power; (9) Khanti which means being patient and persevering against all emotions, be they greed, anger, ignorance or may kind of suffering, and against abrasive words against Him, and maintaining calmness in His mind, composure, body and words; and (10) Avirodhana which means being steadfast in righteousness, not allowing any misdeeds, being just, rectifying those who do wrong and rewarding those who do right with justice.

131. Uwanno, Ten Principles (n 61) 7.

132. Pramuon Rutnoseri, Phraracha-amnat [Royal Power] (Sumeth Rutnoseri 2005).

133. King Prajadhipok’s Institute (ed), Dhammaraja, 15 th Annual Congress , (King Prajadhipok’s Institute 2013), 5

<www.kpi.ac.th/media_kpiacth/pdf/M10_367.pdf> accessed 2 July 2018.

134. Mahinda Deegalle, ‘Visions of the Dharmaraja: Conceptualizations of “Just Ruler” in Theravada Buddhist Societies in South and Southeast Asia’ in King Prajadhipok’s Institute (n 133) 49.

135. Phruttisan Chumpon, ‘Khunatham pracham phracharuthai sukhothai thammaracha [Morality at the heart of Sukhothai Dhammaraja]’ in King Prajadhipok’s Institute (n 133) 79.

136. Kritsada Kaewklieng, ‘Thammaracha nai khanpokkrong rabop phrachatipatai khong thai lae rachaphrachaya khong Plato, Khwammuan lae khwamtaektang [Dhammaraja in Thai’s Democracy and Plato’s Philosopher King: Similarity and Differences]’ in King Prajadhipok’s Institute (n 133) 77.

137. ibid.

138. Constitutional Court of Thailand, Decision 28-29/2555 (10 October 2012), 11.

139. In 2016, the Thai official report submitted to the Human Rights Council of the UN in the framework of the Universal Periodic Review, argued that lèse-majesté existed to protect a specific faith ‘Thailand fully respects freedom of opinion and expression and freedom of assembly as they form basic foundation of a democratic society. However, freedom of expression shall be exercised in a constructive manner and does not insult any faith or belief system, be they religions or main institutions’, National Report, Universal Periodic Review (A/HRC/WG.6/25/THA/1, 12 February 2016), para 116.

140. Uwanno, Bowornsak, Lèse-majesté: A Distinctive Character of Thai Democracy amidst the Global Democratic Movement (KPI 2009) 34 .

141. Constitution of Thailand BE 2560 (adopted on 6 April 2017) (2017 Constitution); Phrarachabanyat khana song BE 2560 [Act on the Sangha BE 2560] 2017 (2017 Sangha Act).

142. Art 7 of the 2017 Sangha Act nevertheless provides for the countersignature by the Prime Minister, but without power to ‘advise’ the King on a suitable candidate as stated in the earlier version of the law.

143. Phrarachabanyat khana song BE 2561 [Act on the Sangha BE 2561] 2018 (2018 Sangha Act).

144. ibid. The rationale is provided in an addendum to the 2018 Sangha Act.

145. On top of being from the Nikai order, Somdet Chuang is also considered to have ties to the Dhammakaya movement, which is allegedly associated with Thaksin. On the nomination of the new Supreme Patriarch, the Prime Minister Prayuth Chan-ocha explained that he had advised the King to do so, denying that the King had exercised discretion in the matter. See Khemthong Tonsakulrungruang, ‘Restoring Thailand’s spiritual realm’ (New Mandala, 20 February 2017) <www.newmandala.org/restoring-thailands-spiritual-realm> accessed 18 May 2018.

146. McClish (n 32).

* Post-doctoral fellow at the Alexander Von Humboldt Chair of Comparative Constitutionalism, University of Goettingen, Germany, held by Professor Ran Hirschl. I wish to thank Ran Hirschl, Benjamin Schonthal, Dian AH Shah, Khemthong Tonsakulrungruang, Barend J Terwiel, Piyabutr Saengkanokkul, and the anonymous reviewers for comments on an earlier draft, as well as the Centre for Asian Legal Studies, National University of Singapore, for funding this project.

Note on transcription: this article adopts the Royal Thai General System of Transcription (RTGS), with a few exceptions, namely Thai names and the following words: rājadhammā (Duty of the Righteous King), dhammarāja (Righteous King) and totsapitrājadhammā (Ten Royal Virtues of the Righteous King). Thai names have been romanized based on their most widely used romanizations. Rājadhammā and totsapitrājadhammā are romanized from Pâli instead of Thai, for purposes of further cross-national comparisons on these concepts. According to the RTGS, they should be romanized as rachatham, thammaracha, and totsapithrachatham.

Note on translation: translations are mine, unless otherwise indicated.

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Asian Journal of Comparative Law
  • ISSN: 2194-6078
  • EISSN: 1932-0205
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