This electronic thesis or dissertation has been downloaded from Explore Bristol Research, http://research-information.bristol.ac.uk Author: Leelapatana, Rawin Title: The Kelsen-Schmitt debate and the use of emergency powers in political crises in Thailand General rights Access to the thesis is subject to the Creative Commons Attribution - NonCommercial-No Derivatives 4.0 International Public License. A copy of this may be found at https://creativecommons.org/licenses/by-nc-nd/4.0/legalcode This license sets out your rights and the restrictions that apply to your access to the thesis so it is important you read this before proceeding. Take down policy Some pages of this thesis may have been removed for copyright restrictions prior to having it been deposited in Explore Bristol Research. 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The Kelsen-Schmitt Debate and the Use of Emergency Powers in Political Crises in Thailand Rawin Leelapatana A dissertation submitted to the University of Bristol in accordance with the requirements for award of the degree of Doctor of Philosophy in the Faculty of Social Sciences and Law School of Law 2018 Abstract Carl Schmitt and Hans Kelsen were prominent jurists during the Weimar Republic who engaged in the debate on the nature and use of emergency powers in a political crisis of liberal democracy (‘PCLD’). As a liberal, Kelsen advocated a law-based response to an emergency situation together with the narrow interpretation of emergency powers and constitutional review, whereas as an anti-liberal conservative, Schmitt called for legally unconstrained emergency decisions by the sovereign to exclude ‘enemies’ causing a political crisis. This thesis considers how this debate might apply to Thailand. In post-absolutist Thailand after 1932, the conflict between the pro- democracy and the conservative factions reflected the PCLD, and resulted in military coups together with martial law supported by the suspension of liberal democracy viewed as a threat to the nationalist-conservative tradition known as Thai- ness and other uses of emergency legislations by the government of both factions. Though the royalist-conservative, later known as the ‘Yellow’ faction, still holds the upper-hand in politics given its ability to engineer a coup—the invocation of sovereign authority in the Schmittian sense—such hegemony and ability have been declining in recent years due to the struggles for a commitment to liberal constitutionalism, including the fuller implementation of the Kelsenian project in 1997. The application of the Kelsen-Schmitt debate in the Thai context accordingly exemplifies an aspiring democracy struggling against the declining hegemony of the Schmittian idea. It then reveals what I call the binary-star conception of emergency powers which shows the gravitational pull between the increasing need to liberalise and institutionalise the Schmittian idea, especially by resorting to a Kelsenian legal-rational legitimacy, and the growing need to resort to Schmitt’s idea of political struggle to move the Kelsenian liberal- democratic project forward. Such pull suggests an alternative normative perspective for reading Kelsen and Schmitt—‘pragmatic hybrid’ which comprises the ideas of ‘the paradoxical friction’, the politics of ‘defective co-optation’, and ‘the fragile equilibrium’. The application of the Kelsen-Schmitt debate in Thailand then directs us to reassess their theories of law and politics, the conception of authority to invoke emergency powers, notably the competing conceptions of institution (i.e., the tension between legality and law) and the state of exception, their debate on the scope of emergency powers in political crises, the conception of legal and political accountability for the invocation and use of emergency powers, and the agony of heteronomy. It ultimately suggests reconsidering the theoretical structure underlying Kelsen’s and Schmitt’s models, including the function of liberalism in their debate. To my beloved maternal grandmother, Nuansri Author’s declaration I declare that the work in this dissertation was carried out in accordance with the requirements of the University's Regulations and Code of Practice for Research Degree Programmes and that it has not been submitted for any other academic award. Except where indicated by specific reference in the text, the work is the candidate's own work. Work done in collaboration with, or with the assistance of, others, is indicated as such. Any views expressed in the dissertation are those of the author. Parts of this thesis are presented at several conferences, notably the ASLI conference in Taipei (2015), Manila (2017), Singapore (2017), Seoul (2018). SIGNED: ............................................................. DATE: .......................... Contents List of abbreviations List of abbreviations (citation) List of tables PREFACE CHAPTER 1: Conceptions of Emergency Powers in Political Crises: the Kelsen-Schmitt Debate in Weberian Perspective 1. Introduction 1 2. The ‘Weberian’ background to the Kelsen-Schmitt debate: modern politics and liberalism 3 2.1 Politics 3 2.2 The paradox of modernity and liberalisation: the basis of the PCLD 4 2.3 Weberian ethics underlying the Kelsen-Schmitt debate on emergency powers in the PCLD 6 3. The realms of ‘is’ and ‘ought’ underlying the Kelsen-Schmitt debate: the backbone of the competing models 9 4. Liberalism as the centre of Kelsen’s and Schmitt’s competing theories of politics: the norm-exception dichotomy 12 the Weberian perspective 4.1 Kelsen and the EoR: political compromise and autocracy 12 4.2 Schmitt and the EoC: political romanticism and political absolutism 14 4.3 Weber’s purposive-rational/instrumental type of action 16 5. The Kelsenian and Schmittian models of constitutional emergencies: institution, legality, law, and the SoE 16 5.1 Institution and the SoE: the legitimacy of legality vs the radical legitimacy of law 17 5.2 Kelsen’s project of authority: the legislative accommodation model of constitutional emergencies 20 5.2.1 Kelsen’s Pure Theory of Law: the doctrine of legal imputation in application 20 5.2.2 The constitutional court as the guardian of the politics of reconciliation 23 5.3 Schmitt’s sovereign authority: the anti-liberal realist mode 24 5.3.1 Schmitt’s Three Types of Juristic Thought: prioritising concrete factuality over abstract validity 24 5.3.2 The HoS as the guardian of the politics of exclusion 27 6. Key theoretical assumptions and asymmetry in Kelsen’s and Schmitt’s models 31 6.1 The assumptions underpinning the PoA 31 6.2 The assumptions underpinning Schmitt’s preferred model 34 6.3 Individualism/collectivism, scepticism, and hostility: the Weberian straight-line and the theoretical asymmetry 35 in the Kelsen-Schmitt debate 7. The Kelsen-Schmitt debate in Thailand? 38 7.1 From Weimar to Thailand 38 7.2 Theorising emergency powers in Thailand? 40 7.3 Beyond the Weberian instrumental rationality and dominant liberal democracy: theoretical framework 42 for synthesising Kelsen and Schmitt CHAPTER 2: Emergency Powers in Thailand in Historical Perspective 1. Introduction 45 Part 1: Emergency powers in traditional Thai constitutional/political theory 2. The Dhammaraja tradition: the basis of political stability and authority in Thailand 48 3. From the Dhammaraja tradition to Thai-ness 48 4. Emergency powers and political stability in Thai history: liberal democracy as a threat 50 Part 2: Emergency powers in Thailand between 1932 and pre-1997 5. Pridi Banomyong and liberal constitutionalism: the milestone for ‘Kelsen’ 55 6. Sarit Thanarat’s despotic paternalism: the Thai-style Schmittian model of constitutional emergencies 57 6.1 The 1947, 1957, 1958 coups: royal hegemony restored 57 6.2 The key features of despotic paternalism 59 7. The politics of gravitational pull and the King as the supreme arbitrator in times of crises 63 7.1 The pull of gravity between liberalism and authoritarianism: the internal perspective of the constitutional 64 emergency model 7.2 The King as the ultimate arbiter 67 8. Contestation and institutionalisation 68 Part 3: Emergency powers in Thailand and the colour-coded crises 9. The explicit adoption of ‘Kelsen’ in 1997 and Thaksin Shinawatra’s premiership 69 10. The ‘colours’ in Thailand: the external perspective of the constitutional emergency model 72 11. The 2007 Constitution: reinforcing Thai-ness in a deeply divided society 74 12. Emergency powers and the struggle between the Red and the Yellow factions 76 12.1 The PAD protests against the two Red governments in 2008 78 12.2 The UDD protests against the Yellow government 80 12.2.1 The 2009 Bloody Songkran incident 80 12.2.2 The 2010 Savage May 81 12.3 The PDRC protest against the Red government and the 2014 coup 82 13. From contestation to collision between the two forces 87 14. Conclusion 89 CHAPTER 3: Lessons from emergency powers in Thailand’s political crises 1. Introduction