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Restraining Arbitrary Power in Thailand: the Sociological Approach in Examining the Rule of Law

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Restraining Arbitrary Power in Thailand: the Sociological Approach in Examining the Rule of Law RESTRAINING ARBITRARY POWER IN THAILAND: THE SOCIOLOGICAL APPROACH IN EXAMINING THE RULE OF LAW PORNSAKOL PANIKABUTARA COOREY A THESIS SUBMITTED IN FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF JURIDICAL SCIENCE FACULTY OF LAW UNIVERSITY OF NEW SOUTH WALES APRIL 2010 PLEASE TYPE THE UNIVERSITY OF NEW SOUTH WALES Thesis/Dissertation Sheet Surname or Family name: COOREY First name: PORNSAKOL Other name/s: PANIKABUTARA Abbreviation for degree as given in the University calendar: SJD School: LAW Faculty: LAW Title: Restraining arbitrary power in Thailand: The sociological approach in examining the rule of law Abstract 350 words maximum: (PLEASE TYPE) The primary objective of this thesis is to develop and use a new framework to examine the existence of the rule of law in Thailand. Many writers believe that Thailand is a nation which lacks sufficient constraint on the exercise of arbitrary power. These writers often blame the judiciary and other key institutions for not curbing corruption and other forms of abuses of power. While each writer adopts a different approach in analysing the rule of law, their views are almost always taken out of context and do not tell the entire story. This is considered as inadequate, as these views often fail to appreciate the core sociological aspects of the rule of law. It is these core sociological aspects which are considered as essential to understanding the way the rule of law operates in Thailand. Without a proper understanding of the traditions and culture of Thailand, it is misguiding to simply transplant the classic view of the rule of law and compare its key institutions in an ad hoc way. History has shown that more often than not the process generally does not work. A more rigorous analysis is required. This thesis explains and adopts the new approach in examining the rule of law in Thailand. This approach examines the key influences of the rule of law in light of its sociological context. It looks beyond the judiciary and other independent institutions and into various areas of social science. Particularly, the level of independence and performance of each major court in Thailand is examined, followed by a comprehensive evaluation of selected independent constitutional institutions. These institutions are then considered in light of other sociological influences on the rule of law in Thailand. Such influences include: social values, political culture, religion, the King and the military. Other external influences such as Asian values and globalisation are also considered. These influences are something that has never been explored before. In saying this, the new approach – the sociological methodology differs considerably from past attempts to analyse the existence of the rule of law in Thailand and concludes contrary to popular belief. Declaration relating to disposition of project thesis/dissertation I hereby grant to the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or in part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all property rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. I also authorise University Microfilms to use the 350 word abstract of my thesis in Dissertation Abstracts International (this is applicable to doctoral theses only). …………………………………………………………… ……………………………………..……………… ……….……………………...…….… Signature Witness Date The University recognises that there may be exceptional circumstances requiring restrictions on copying or conditions on use. Requests for restriction for a period of up to 2 years must be made in writing. Requests for a longer period of restriction may be considered in exceptional circumstances and require the approval of the Dean of Graduate Research. FOR OFFICE USE ONLY Date of completion of requirements for Award: THIS SHEET IS TO BE GLUED TO THE INSIDE FRONT COVER OF THE THESIS TABLE OF CONTENTS ACKNOWLEDGEMENTS i ABSTRACT iii LIST OF SELECTED ABBREVIATIONS v PRELIMINARY vi CHAPTER 1 INTRODUCTION 1 1.1 Passage 1 1.2 The fiction is really a fact 1 CHAPTER 2 THE RULE OF LAW - A NEW APPROACH 6 2.1 Introduction 6 2.2 The fiction is really a fact 7 2.3 The anatomical approach 8 2.3.1 What is the anatomical approach? 8 2.3.2 Exporting the rule of law: An illusory belief 10 2.3.3 Anatomical reform: A narrow focus on the judiciary 14 2.3.4 “Law in society” and not “law and society” 18 2.3.5 What anatomical reformers do not know, is what matters 23 2.3.6 Anatomical reform in Thailand 28 2.3.7 Has anatomical reform succeeded in Thailand? 33 2.4 Some implausible views against the rule of law in Thailand 35 2.4.1 Implausible views 35 2.4.2 Some theoretical implausible views 35 I 2.4.2.1 The rule of law serves too many purposes 35 2.4.2.2 The rule of law is necessary for liberal democracy 40 2.4.3 Some policy implausible views 43 2.4.3.1 The rule of law is necessary for foreign investment 43 2.4.3.2 The rule of law serves the interests of the ruling elite 46 2.4.4 How plausible are the theoretical and policy views? 50 2.5 A new approach 50 2.5.1 Why do we seek it? What is it? How do we achieve it? 50 2.5.2 Why do we seek the new approach? 51 2.5.3 What is the new approach? 55 2.5.4 How do we achieve it? 58 2.6 Conclusion 62 CHAPTER 3 THE JUDICIARY AND OTHER INDEPENDENT INSTITUTIONS 63 3.1 Introduction 63 3.2 The fiction is really a fact 63 3.3 The judiciary 64 3.3.1 Courts of Justice 65 3.3.2 Constitutional Court 74 3.3.3 Administrative Courts 92 3.3.4 Performance of the Thai judiciary 102 3.4 Other independent institutions 104 3.4.1 Election Commission 105 3.4.2 National Anti-Corruption Commission 112 3.4.3 Office of the Auditor General 118 3.4.4 National Human Rights Commission 124 3.4.5 Ombudsman 133 3.4.6 Performance of the constitutional institutions 139 II 3.5 Conclusion 140 CHAPTER 4 KEY INFLUENCES ON THE RULE OF LAW IN THAILAND 142 4.1 Introduction 142 4.2 The fiction is really a fact 143 4.3 Political influence on the rule of law 145 4.3.1 Introduction: Political influence 145 4.3.2 Democracy and the rule of law 147 4.3.3 Democracy in Thailand: Thai-style democracy 148 4.3.4 Imperfect democracy and the delay of the rule of law 150 4.3.4.1 Vote buying and patron-client relationship 151 4.3.4.2 Conflicts of interest 153 4.3.5 Political reform through constitutional reform 155 4.3.5.1 Participatory democracy 156 4.3.5.1.1 Public participation in natural resource management 157 4.3.5.1.2 Public participation through decentralisation 159 4.3.5.1.3 Other citizen participation in participatory democracy 161 4.3.5.2 Right to information and freedom of expression 164 4.3.5.2.1 Official Information Act (1997) 165 4.3.5.2.2 The role of the media and censorship 167 4.3.5.3 Qualification of politicians and conflicts of interest170 4.3.6 Conclusion: The will to reform politics 172 4.4 Military influence on the rule of law 173 4.4.1 Introduction: Military influence 173 4.4.2 The Thai military as a professional soldier? 175 III 4.4.3 Military role and the rule of law: Past and present 176 4.4.3.1 Coup 177 4.4.3.1.1 The first coup 179 4.4.3.1.2 The later coups 182 4.4.3.2 The declining of military coup and the rise of “going behind the scenes” 187 4.4.3.3 The exploitation of the professional soldier 191 4.4.4 Conclusion: The future of military role and the rule of law 193 4.5 Class, culture and its influence on the rule of law 194 4.5.1 Introduction: Class and cultural influences 194 4.5.2 Social classification 195 4.5.2.1 Background 195 4.5.2.2 The rise of middle class 197 4.5.2.3 Different social classes and the rule of law 198 4.5.3 Social norm and value 202 4.5.3.1 Patronage relationship 202 4.5.3.2 Respect for those who are superior 204 4.5.3.3 Social harmony 207 4.5.4 Conclusion: Negative influence by class and culture 209 4.6 King’s influence on the rule of law 210 4.6.1 Introduction: The King’s influence 210 4.6.2 Background of the traditional Thai King and the link to a modern kingship 211 4.6.3 Why is the King so influential in Thai politics? 213 4.6.4 The King and his role in constitutional monarchy 216 4.6.4.1 King’s influence on the legislative power 217 IV 4.6.4.2 King’s influence on the executive power 219 4.6.4.2.1 Prerogative to appoint the Prime Minister (14 October 1973) 221 4.6.4.2.2 Asking for a royal government (April 2006) 225 4.6.4.3 King’s influence on the judicial power 227 4.6.5 Conclusion: Unprecedented royal institution 231 4.7 Religious influence on the rule of law 232 4.7.1 Introduction: Religious influence 232 4.7.2 Buddhism and the rule of law 233 4.7.2.1 The rule of law and the law of Buddhism 235 4.7.2.1.1 General Buddhist teachings: The true nature of phenomena and the law of uncertainty (in supporting equality before the law) 235 4.7.2.1.2 General Buddhist teachings: The law of karma (in encouraging the limit of power) 237 4.7.2.1.3 A specific teaching for Buddhist rulers: The Buddhist political theory 240 4.7.2.1.4 The Buddhist political theory and folklore 243 4.7.2.2 The rule of law and the role of sangha 244 4.7.2.2.1 The direct role of the sangha in influencing the rule of law 245 4.7.2.2.2 The indirect role of the sangha in influencing the rule of law 246 4.7.3 Hinduism and the rule of law 248 V 4.7.4 Islam and the rule of law 250 4.7.5 Conclusion: Religion as a base of the Thai rule of law 251 4.8 Conclusion 252 CHAPTER 5 ASIAN VALUES, GLOBALISATION
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