Constitutional Struggles and Polarised Identities in Thailand: The Constitutional Court and the Gravitational Pull of Thai-Ness upon Liberal Constitutionalism

Abstract

This article interrogates Thailand’s struggle between two conflicting constitutional identities, the identities of Thai-ness and liberal democracies, by examining how the Constitutional court implicitly and explicitly formulates and utilises both identities in its decisions from 2014 to 2020. Our analysis of these decisions shows that, instead of negotiating or synthesising the competing identities as the literature on constitutional identity envisages, the Thai court adapts the generic liberal democratic identity to defend and reassert the incumbent dominant identity of Thai-ness. The court drains liberal constitutionalism of its intrinsic substance while tactfully preserving and then lending its global legitimacy to bolster the local identity of Thai-ness. As a result, the liberal democratic identity is manipulated and pulled to gravitate towards the opposite value of Thai-ness. This unequal co-option between the polarised identities, we argue, depicts the current constitutional struggle in Thailand and marks the unique identity of Thai-style constitutionalism.