Frank Munger **
This essay was originally submitted to a workshop on Citizen Participation in East Asian Legal Systems held at Cornell Law School in late September 2006.1 If the Korean and Japanese proposals discussed at the Conference represent the most advanced experiments in citizen participation in Asian legal systems,2 Thailand's legal system, and its lack of citizen participation, may be more typical of the large majority of East and Southeast Asian legal systems, where the prospects for lay participation are bound up with globalization and progress toward democracy. These comments were inspired by Thailand's 1997 "People's Constitution."3 This remarkable constitution emphasized democracy, the rule of law, and citi zen participation at many levels and in many forms. The new constitution was widely believed to mark an end to popular tolerance for extra-constitutional military rule.4 The constitution, and the myth of its permanence, lasted nearly ten years.
On September 19, 2006, the Thai military seized power and repealed the constitution, taking particular care to note that the new constitutional court has been "terminated," although all other courts remained open.5 The coup is the eighteenth by the military since Thailand became a constitutional democracy in 1932, and it has dismayed those who had hopes for participatory representative democracy and the rule of law in Thailand.6 Of course, that hope always depended on more than the constitution itself. I lope for a government more responsive to popular will and to rights grew with the globalization of Thailand's economy, causing the simultaneous embourgeoisment and impoverishment of different groups of Thai, as well as a growing impatience with corrupt authoritarian military and civilian governments, and a shifting institutional and cultural context that supported a stronger demand for democracy. The constitution's demise in September 2006 did not destroy the potent forces that led to its adoption in 1997. Indeed, coup leaders promised a quick return to constitutionalism and to democracy purged of corruption, even though they disbanded Parliament and censored the media and internet after the takeover.7
The coup underscores an important point about western expectations for the establishment of rights and participation in developing Asian societies. Western governments and international agencies closely tied to western interests often advocate for transplanting western regulatory and judicial institutions to remedy market failures. Such transplants, once in place, may function in ways that are quite different from their western models. More importantly, advocates often promote transplants for particular political or economic interests, rather than as elements of reforms intended to achieve broader civic goals. This makes the 1997 Constitution all the more unique and important. Ideas about civic participation are conveyed and received in many different ways. As Sally Engle Merry observes in her study of the implementation of the Convention on the Elimination of All Forms of Discrimination Against Women, the final step in conveying western ideas about law and rights-translation into the vernacular-depends on many factors, including preexisting cultures and institutions, translators, the apparent risks and benefits of "taking on rights," and, more particularly, the right to participate in the political or legal system.8
The apparent coexistence of public approval for the military coup, overwhelming electoral mandate for the ousted prime minister, universal respect for the monarchy's moral leadership, and support for the coup illustrates the challenge for scholars attempting to understand the prospects for citizen participation in Thailand's political and legal systems.9 The explanation for this bewildering coexistence of institutional forms partially lies in Thailand's long history of authoritarian government. Yet as the evolution of constitutionalism in the 1990s demonstrates, democracy and citizen participation have taken root. Before the coup, Thailand showed signs of developing at least two cultures of democracy and participation-one highly westernized and one decidedly more traditional. Both embrace "democracy" but interpret its essence in different ways. Rather than viewing one of these cultures as resistant to globalization, rights, or development and the other as facilitating adaptation, we ought to view the emerging cultures of democracy as adaptations to the unequal effects of globalization on different social groups in Thailand. These multiple, distinctive interpretations of democracy and the rule of law reflect in part different responses to the unequal effects of globalization and modernization that greatly complicate the future for citizen participation in Thailand.
Contemporary, "third wave" globalization is as much about ideas as it is about the direct flow of material and financial resources.10 "First wave" globalization grew from the resource needs of industrialization and the expansion of global transport prior to the end of the nineteenth century, "Second wave" globalization during the mid-twentieth century.11 reflected the establishment of global financial institutions like the World Bank and the International Monetary Fund.12 By the end of the twentieth century, globalization depended on the flow of ideas and information that allowed multinational corporations to locate production and office facilities anywhere in the world. As a second-order effect, ideas about governance-in particular, concepts of participation and citizenship-are an important part of this flow.
The flow, historically from the global North to the global South, is more complicated now. Ideas, and the institutions they are intended to construct, may encounter established cultures and practices that leave little space for rivals, or greatly alter their meaning, creating a two-way flow.
A further dimension of this globalization of ideas is modernity. Sociologist Anthony Giddcns characterizes modernity by referring to two types of movement away from the traditional. According to Giddens, social space and time are no longer defined by the physical space and time in which one moves (disenibeddedness). Society also strives to become increasingly aware of itself through public and private systems of information control (reJlexivity).13 Greater mobility and interconnectedness made possible by technological progress permit individuals to understand themselves as part of a far wider range of contexts, ideas, cultures, and individuals than a century or even a few decades ago.
Access to information enhances control over our lives and influences how we see and understand ourselves. Public and private institutions have more information about us and process it through expert knowledge that links identity to behavior and policies. The rise of expert systems of knowledge is a key element of Gidden's modernity. What we have called globalization is in large part an intensification of both of the processes that Giddens describes, greatly extending boundaries of social space and time and subjecting more and more individuals to information control systems. Indeed, Giddens claims that "Im]odernity is inherently globalizing.?14
1. I am grateful to professor Valerie Hans for the opportunity to present this mate?rial and to learn from the distinguished scholars who attended the Conference which she organized. I would like to thank Robert Albritton, David Engel, Kevin Hewison, Fiona Haines, and Simon Singer for helpful conversations about material in the paper. I offer particular thanks to my two research assistants at Cornell University, Nuanchan Singkran and Poonrit Kuakul, for translations of Thai newspaper reports and for gui?dance in reading them, and to my New York Law School research assistant Cory Blitz for assistance with internet research. This material is based in part upon work supported by the National Science Foundation under Grant No. 0454690. Any opinions, findings, and conclusions or recommendations expressed in this material are those of the author and do not necessarily reflect the views of the National Science Foundation.
2. Sherry Martin, Legal Consciousness and Political Socialization, paper delivered at the Cornell Law School Conference on Citizen Participation in East Asian Legal Systems, September 22-23, 2006; Judge Rakwon Jang, The Law Reform Process in Korea, paper delivered at the Cornell Law School Conference on Citizen Participation in East Asian Legal Systems, September 22-23, 2006; Masahiro Fujita, Planning for Lay Participation in Japan: ldeas from Research, paper delivered at the Cornell Law School Conference on Citizen Participation in East Asian Legal Systems, September 22-23, 2006.
3. Constitution OF THE KINGDOM Or THAILAND, B.E. 2540 (1997). 40 CORNELL Int?L L.J. 455 (2007)
4. PASUK PHONGPAICHIT& Chris BAKER, THAILAND: ECONOMY AND POLITICS 417-418 (2d ed. 2002).
5. Coup d'etat in Thailand, BANGKOK Post, Scpt. 20, 2006, available at http://www.hangkokpost.net/breaking_news/breakingncws.php?id=113027; Bill Barnes & Amy
Kazmin, 'Empire Strikes Bach' As Thai Army Moves In, FIN. Toars, Sept. 20, 2006, at 8.
6. Amy Kazmin, Investors Express Hope on Economic Benefits From Bloodless Coup, FIN. MIMES, Sept. 21, 2006, at 9 (reporting that there had been 17 previous coups); Phongpaichit & BAKER, supra note 4.
7. Coup d'etat in Thailand, supra note 5.
8. SALLY LNGLE MERRY, HUMAN Rights and GENDER VIOLENCE: IRANSIATING HUMAN RIGHTS INTO LOCAL JUSTICE 215-17 (2006).
9. The King has always been and remains an ambiguous figure-formally almost powerless hut, in truth, revered beyond all others, as a person and institution, and holder of the trump cards. PAUL HANDI.EY, THE KING Never SMILES: A BIOGRAPHY OF Thailand's BHUMIBOL ADULYADEJ (2006). In 1992, following a bloody rebellion against the last military coup, the King required the leaders of the military and the rebellion to prostrate themselves before him and demanded that a resolution be reached, Kevin Hewison, Introduction: Power, Oppositions, and Democratisation, in POLITICAL CHANGE IN THAILAND: DEMOCRACY AND Participation 1, 2 (1997). The military who conducted the recent coup formed a Democratic Reform Council with the King as its nominal head.Coup d'etat in Thailand, supra note 5.
10. Ammar Siamwalla, Globalisation and its Governance in Historical Perspective, in SOCIAL CHALLENGES FOR THE MEKONG REGION 13-22 (M. Kaosa-ard & J. Dore eds., 2003).
11. The WORD BANK, GLOBAI.IZATION, GROWTH AND POVERTY: BUDDING AN INCI USIVE World ECONOMY (World Bank Policy Research Report #23591) 24-25 (2002).
12. See, e.g., Ute Piper & Lance Taylor, The Revival of the Liberal Creed: The IMF, the World Bank, and Inequality in a Globalized Economy, in GLOBALIZATION AND PROGRESSIVE ECONOMIC Policy 37, 38-39 (Dean Baker, et al. eds., 1998).
13. ANTHONY Giddens, The CONSEQUENCES OF MODERNITY 21, 45 (1991).
14. Id. at 63.
|This article is published with the kind permission of Frank Munger, Professor of Law at the New York Law School. This article originally appeared in Vol.40 2007 of the Cornell International Law Journal.