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Good Governance in the Treaty-Making Process and Its Democratic Dilemma

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Good Governance in the Treaty-Making Process and Its Democratic Dilemma Maurer School of Law: Indiana University Digital Repository @ Maurer Law Theses and Dissertations Student Scholarship 2012 Good Governance in the Treaty-Making Process and its Democratic Dilemma Wanaporn Techagaisiyavanit Indiana University Maurer School of Law, [email protected] Follow this and additional works at: https://www.repository.law.indiana.edu/etd Part of the International Law Commons, and the International Relations Commons Recommended Citation Techagaisiyavanit, Wanaporn, "Good Governance in the Treaty-Making Process and its Democratic Dilemma" (2012). Theses and Dissertations. 71. https://www.repository.law.indiana.edu/etd/71 This Dissertation is brought to you for free and open access by the Student Scholarship at Digital Repository @ Maurer Law. It has been accepted for inclusion in Theses and Dissertations by an authorized administrator of Digital Repository @ Maurer Law. For more information, please contact [email protected]. GOOD GOVERNANCE IN THE TREATY-MAKING PROCESS AND ITS DEMOCRATIC DILEMMA Wanaporn Techagaisiyavanit Submitted to the faculty of Indiana University Maurer School of Law in partial fulfillment of the requirements for the degree Doctor of Juridical Science May 2012 Copyright © 2012 Wanaporn Techagaisiyavanit iii Dedication In memory of my grandfather, Surin Liengsomboon, who had a profound passion for education and superior knowledge. (1923 - 2006) iv Acknowledgements I wish to personally express my gratitude to Professor Sarah Hughes, my dissertation chair, for her constant encouragement and guidance. This dissertation would not have been successfully completed without her dedication and kind support, which played a big part in helping me overcome the difficulty I had from the very beginning. I also owe my deepest gratitude to Professor Susan Williams, whose classes had consistently provided me with perceptive inputs, and helped me put my dissertation together. Her understanding and personal care are very much appreciated. My thanks as well go to Professor Christiana Ochoa and Professor Donald Gjerdingen for their patience and direction. I would also like to thank Manit Jumpa, Professor of Law at Chulalongkorn University, who so generously shared his time and knowledge regarding the structure and substances of the Thai Constitution. I am also profoundly grateful to the Royal Thai Government for providing me with a full financial support throughout my years of study, and Thailand, my beloved home country. I am additionally thankful to Assistant Dean Lesley Davis and the International Graduate Program for making Indiana University Maurer School of Law such a wonderful experience that allowed me to share and cultivate my knowledge with other fellow students. I also wish to offer my regards to my parents, Akasit and Arada Techagaisiyavanit, for unconditional love and unending support. A further note of thanks goes to my cousin, Sadachai Nitayalumpong, who has always given me the courage to fulfill my dream. And lastly, I wholeheartedly thank my fiancé, Kyle Fyr, whose care and support has inspired me to complete the project. v Wanaporn Techagaisiyavanit Good Governance in the Treaty-Making Process and Its Democratic Dilemma The emergence of Thailand’s treaty reform has not only brought change to its legal landscape, but also significant social, political and economic implications within the governing process. While it is political and social in the sense that the mechanisms introduced under Section 190 of the 2007 Constitution (treaty clause) are intended to secure greater accountability and transparency in the public administration through the increased involvements of the public and the institutional branches, the economic dimension derives from the fact that this provision directly deals with the scope of the executive’s authority in the conduct of international relations, trade and investment upon which domestic economy depends. This new approach makes perfect sense, especially from the liberal democracy perspective which believes in the restriction of government power. Nevertheless, these implications in which the effectiveness and responsiveness of government function have been substantially undermined come with a new dilemma and challenges which also pose threats toward the principle of democracy and its implementation. This dissertation hopes to provide a middle ground for Thailand’s treaty model through the exploration of the relationship between legal and political disciplines in the maintenance of the good governance principle and practice. In the derivation of the treaty model, the study draws out two important arguments to secure the government administration’s effectiveness, (i) the cultural component in which various democratic theories concerning the mechanism of public participation are examined to maximize the political role of the public, and (ii) the structural component in which the separation of vi powers principle is addressed in relation to creating the proper roles and functions of the legislature and judiciary in the foreign affairs context. The comparative study of the surveyed countries’ treaty practices, which reveals the executive’s central foreign affairs authority, the legislative manner of control and the application of judicial limits, is also used in order to help determine the scope of the public, legislature and judiciary involvements in the treaty process along with these two important components. The study opens up a new meaning of democracy in which practicality is the focus of its adoption. The proposed treaty model will not only carry out this important principle, but will also continue to operate as both the people’s safeguard against the encroachments of their interests and as the machinery that promotes a quality administration. Therefore, the research concludes that, while the current legal and institutional arrangements of the treaty clause are found inadequate to effectively respond to socio-political and economic challenges, the proposed treaty reform can become an important platform for a more ambitious model of the future. ___________________________________ ___________________________________ ___________________________________ vii Table of Contents Title page ............................................................................................................................. i Acceptance page ................................................................................................................. ii Copyright page ................................................................................................................... iii Dedication .......................................................................................................................... iv Acknowledgements ..............................................................................................................v Abstract .............................................................................................................................. vi Table of Contents ............................................................................................................. viii Introduction ..........................................................................................................................1 Chapter I: Good Governance in the Treaty Process and Problems in Democracy .....6 I. Introduction ..............................................................................................................6 II. Towards Political Changes ......................................................................................7 III. Establishing “Strong Democracy in Foreign Affairs ...............................................9 A. Good Governance and Democracy in the Thai Constitution ...........................10 i. Defining “Good Governance” ...................................................................10 ii. Defining “Democracy” .............................................................................11 iii. Good Governance in Relations to Democracy ..........................................13 B. A Move Forward: Democracy and Good Governance in Foreign Affairs ......14 i. Thailand’s Treaty-Making in the Historical Context .................................14 ii. The Tradition: Executive as the Authoritative Treaty-Maker ....................15 iii. Against the Conventional Practice .............................................................16 IV. Problems in the Democratic Treaty-Making Process ...........................................20 A. Challenges in Practice: Obstruction to Internal and External Affairs .............20 i. Internal Weaknesses: Ineffective and Unresponsive Administration .......20 ii. External Weakness: The Impact on the Economy and Foreign Relations 23 B. Challenges in Principles: Obstacles to Good Governance and Democracy .....31 V. Conclusion ..............................................................................................................32 Chapter II: The Political Character of Thailand ..........................................................35 I. Introduction ............................................................................................................35 viii II. The Evolution of the Thai Politics: From the Struggle for Power to the Struggle for the People .....................................................................................................................36 III. Political Structure under the 2007 Constitution .....................................................43
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