Published online by Cambridge University Press: 28 May 2021
In its post-1932 legal history, the constitutional stability, Thailand has been seeking for, has been harshly convulsed by the conflict between the traditional concept of authority and political stability which underpins the so-called ‘Thai-style democracy’ (‘TSD’) and increasingly sturdy demands for liberal democracy and constitutionalism, culminating in ‘colour-coded politics’ which started in 2006. The conflict between the ‘Yellow’ and the ‘Red’ ideologies resulted in a number of military coups, installing the TSD and the abolition of electoral politics. Thailand’s constitutional graveyard can then be seen as constitutional saṃsāra—the cycle of repeated birth and death. Based on this saṃsāra metaphor, I ask: To what extent do the irresistible and continuous rise of liberal demands and the trends of constitutionalism, modernisation, and democratisation in contemporary Thai legal history challenge the TSD? In other words, I examine how ‘modern innovations’ challenge Thailand’s constitutional saṃsāra and the attempt to halt it, that is, the imposition of constitutional nirvana. I answer this question by assessing the competing theories of law and politics (normativism vs anti-liberal realism), the concepts of ‘institution’, and the concept of the state of exception. I also use Hans Kelsen’s and Carl Schmitt’s theories/approaches to law and politics which have been transplanted into the Thai soil to theorise my answers.