New King, Deep State: Thailand

On October 13, 2016, King Bhumibol passed away. His son, Vajiralongkorn, ascended the throne on December 1, 2016. In stark contrast to what had been feared, the transition went smoothly – the king made only gradual and limited changes in the composition of the Privy Council and maintained his president, Prem Tinsulanonda, in a remarkable display of continuity with his father’s reign. With the help of the military government of Prayut Chan-o-cha, who seized power in the May 22, 2014 coup d’etat, the new king revised, then promulgated, the Kingdom of Thailand’s 20th Constitution on April 6, 2017.

Upon ascending the throne, the new king made it clear that he intended to rule as a neoabsolutist king, in close alliance with the military, and under the shield of authoritarian law.

A New, Neoabsolutist King

Absolutism came late to Siam. At the end of the 19th century, King Chulalongkorn traveled to Europe where he became rather impressed with Napoleon III’s authoritarian constitution. He asked for an English summary and tried to replicate it for his own kingdom – his article 2 stated that “the King has absolute power; there is nothing above.” Although his constitutional project was aborted, King Chulalongkorn managed to consolidate his power, centralize government around his person, and turn himself into an absolute sovereign. Later, the Empire of Japan’s Meiji Constitution, inspired by the 19th century reactionary constitutions such as that of Prussian King Frederick William IV, provided the very model for early 20th century Asian constitutionalism. The Meiji Constitution proclaimed the emperor’s sovereignty, not the people’s, and gave him full powers – while strict lèse-majesté laws protected him from criticism.

A sense of the neoabsolutist nature of the regime inaugurated last year by King Vajiralongkorn can be grasped through an analysis of the ceremony accompanying the king’s promulgation of the kingdom’s 20th constitution. The king chose April 6, 2017, the anniversary of the founding of the Chakri dynasty, to promulgate the new text. This choice was made in order to better link royalty and the constitution, and to symbolically re-enact the myth of “granted constitutionalism.” The myth holds that Thailand entered into the era of constitutionalism and democracy on December 10, 1932 through the benevolent granting of a constitution to the people of Siam by King Rama VII – not through the revolutionary overthrow of the absolute monarchy by the People’s Party on June 24,1932. 

In a royal palace room filled with golden regalia and tapestry, the ceremony brought together ambassadors, members of the ruling junta and the constitution-drafting committee, privy councilors and other high-ranking officials. While they all stood in lines for two hours in their suffocating uniforms, the king sat on his imposing golden throne. Without uttering a single word, he signed the three gold-plated copies of the constitution, folded in the traditional format of the Three Seals Law. The copies had been offered to him on a golden bowl by a kneeling and bowing officer – as the king is too sacred to be given an object from hand to hand.

From the 2017 Thai Constitution, only the preamble – which embodies the “spirit” of the text – was read aloud. It referred to King Rama VII’s “original” granting of the “first” Constitution of Siam in December 1932. The myth of “granted constitutionalism,” according to which sovereignty lies with the King, was enshrined in the text. Apart from the preamble, at the time the king signed, nobody knew what exactly was in the body of the text. Indeed, the king had in the previous weeks asked for revisions to be made by a committee specifically appointed for that purpose, and the resulting text had not been disclosed to the public. There is no better hint at royal sovereignty than the exercise of the king’s constituent power.

Meanwhile, Prayut Chan-o-cha, the country’s military dictator, kneeled down in front of Vajiralongkorn: his rule was then legitimized, and associated with the monarchy. The king sat still: he was not constitutionally required to swear an oath of upholding the constitution, specifically because he is the one granting it. His authority is not constituted by the constitution, it is constitutive of the constitution – the monarchy’s institutional body preexists the law. In this symbolic endeavor, the king resembled his father. Yet associating the entire Chakri dynasty to the birth of Thai constitutionalism as a whole constituted a rewriting of history that his father wouldn’t probably have dared to do.

Another event showed the unprecedented daring of the new regime when it comes to rewriting history to establish the king’s sovereignty. A few days after the ceremony, a historical plaque commemorating the 1932 revolution in front of Ananda Samakhom Hall was replaced by a plaque glorifying the monarchy. The revolutionary note, “Here, on 24 June 1932, at dawn, the People’s Party instituted the first Constitution of the country, for the betterment of the nation” became the conservative “Loyalty and love for the triple gems – everybody’s heart must be pure because the King is kind; that is how the State prospers.” The original plaque, which had been inaugurated in 1936 after the abdication of King Prajadhipok, marked the exact place where the People’s Party members had gathered to launch a coup that would overthrew one of the last independent absolute monarchies of the world.

It is widely believed that the plaque was removed on the orders of the king or his entourage, as the removal coincided with the deployment of royal guards to the site. This shows not only that the legacy of the 1932 revolution remains highly subversive, but also that the question of the origin of Thai constitutionalism is considered by the king and his allies as key to regime survival: is it King Rama VII, or the 1932 revolutionaries, who anchored Siam into modernity? The regime is obviously attempting to rewrite history to wipe out the 1932 revolution from collective memory. In so doing, the king’s sovereignty becomes an historically unchallenged fact – as natural as can be.

Finally, a few weeks later, the junta issued an order criminalizing any communication with three designated enemies of the regime living abroad: Pavin Chachavalpongpun, political scientist at the University of Kyoto; Somsak Jeamteerasakul, former historian at the University of Thammasat; and Andrew MacGregor Marshall, a Scottish journalist. All three are very active on Facebook, with hundreds of thousands of followers, and are under the threat of lèse-majesté. By this order, the military junta made them officially the triumvirat of the deconstruction of the hegemonic royalist discourse that ties the king’s sovereignty to democracy and constitutionalism. Such a deconstruction poses a direct threat to the regime.

Somsak is one of the most influential historians of anti-royalist hegemonic discourse on history. His book The History We Just Invented is a critical account of how Thai history has been rewritten to fit a pro-royalist narrative, and how the 1932 revolutionaries were turned into criminals, and their action into the root causes of all problems of contemporary Thailand. When he posted an analysis of the plaque removal on his Facebook account, six people among the many who shared it were imprisoned and charged with lèse-majesté.

This is reminiscent of another event. On the very first days of his ascension to the throne, as usual, BBC published a factual biography of the new king. It attracted more than 3,000 “likes” and was widely shared on social media. However, among those who shared it, a young activist, Pai Dao Din, was arrested and jailed on grounds of lèse-majesté and computer crime for sharing the post. He was sentenced to two-and-a-half-years of imprisonment in August 2017 after “confessing to his crime.” In practice, did the new king give the order to prosecute either those who shared his BBC biography or an academic post about the 1932 plaque removal?

Some commentators would argue that the Thai lèse-majesté law, which punishes any threat, insult, or defamation against the king, queen, regent, and heir to the throne by three to 15 years imprisonment, has nothing to do with the king – in fact, King Bhumibol even criticized it. Yet, its widespread use is a common attribute of absolutist and neoabsolutist monarchies. The Thai lèse-majesté law is today the harshest in the world, and is even more severe than it was at the time of the Siamese absolute monarchy, where the maximum sentence was seven years.

Immediately after the death of King Bhumibol, there was an unprecedented surge in the number of cases being filed under lèse-majesté. Besides the cases already mentioned, lèse-majesté condemnations have been handed down on a regular basis throughout the year, with sentences up to 35 years for Facebook posts. The new regime – king and military – is moving forward in its symbolic, hermeneutic war, the aim of which is the association of constitution with royalty rather than people.

A New Constitution: The Entrenched Dual State

Like its predecessor, the 2007 constitution, the 2017 text organizes a system  referred to as elite self-interested hegemonic preservation, whereby entrenched elites – the military, the monarchy, the bureaucracy – can retain their power and status whenever threatened by democratization and the rise of elected leaders, mostly thanks to the reliance on courts and independent constitutional organs. Indeed, the Constitutional Court has, with the help of independent organs such as the Election Commission and the National Anti-Corruption Commission, the means to overthrow elected leaders, dissolve political parties, veto legislation before and after promulgation, and void constitutional amendments on both formal and substantial grounds. The tools of militant democracy are, in this case, used to thwart democratization. Meanwhile, an array of judicial and quasi-judicial bodies specializing in the fight against corruption can easily remove and initiate both criminal prosecution and civil liabilities against unwanted elected leaders, as was the case with Thaksin Shinawatra and his sister Yingluck.

In practice, the Constitutional Court can almost initiate a case suo moto (“on its own motion”) – the Constitution provides an individual the unfiltered right of petition before the Court and no locus standi (“standing”) is required. Put simply, an individual does not need to demonstrate connection to and harm from the law or action challenged to support their participation in a case.

The Senate, a body fully appointed by the military junta for a five-year term, can impeach elected politicians and ban them from politics for five years. It also participates in the appointment of the prime minister, who does not need to be an elected member of parliament. Meanwhile, the National Strategy Committee, composed of 35 people appointed by the junta, can take over any elected government that does not righteously implement the committee’s 20-year National Plan.

Ministers will have to bow to high-ranking civil servants, especially permanent secretaries, as they can be prosecuted for not listening to them. The relationship between the elected government and the unelected civil service is reversed as compared to Max Weber’s ideal-type of bureaucracy. The state, in Weber’s analysis, is composed of a neutral bureaucracy implementing the government’s policies. In the case of Thailand, when governments are elected, the bureaucracy, both civil and military, remains independent – the monarchy, the military, and the judiciary are de facto, de jure, or both, independent from the government. This phenomenon has been studied for Thailand and given several names – such as bureaucratic polity, or deep state. Most commentators would agree that political science concepts of the state do not grasp the nature of the Thai state (along with many other so-called “hybrid” regimes). Indeed, the judiciary is fully independent, but acting in a very politicized way; the government is fully limited, yet it is not liberal.

This set of paradoxes is explained by the fact that in the Thai case, there are two states: the one represented by the government (the “visible” or “normative state”), and the one represented by the bureaucracy and the monarchy (the “deep state” or “prerogative state”). With Vajiralongkorn’s ascension to the throne, the deep state is made more visible, but no less effective. Actually, under the new king, the deep state has seemed to grow and institutionalize further.

Since coming to power, the king has sought to gain direct control over organs previously under some, at least formal, control of the elected government, such as the Crown Property Bureau and the Buddhist Supreme Patriarch. Both moves highlight a return to the 1960s – when King Bhumibol built his power through an alliance with military dictator Sarit Thanarat (who, as a matter of fact, also had ordered the plaque commemorating the 1932 revolution removed).

Is the same kind of strategy pursued by Vajiralongkorn toward Prayut? There seems to be no doubt about it. The unfolding question then becomes: is the symbiotic relationship between the army and the monarchy only a matter of interpersonal alliances and networks? It seems that networks alone fail to explain how the monarchy-military apparatus functions. Indeed, there was no specific “network” linking Prayut, Vajiralongkorn, and Prem, the president of the Privy Council, before the 2014 military coup – however, the institutions they belong to are interdependent: the alliance is institutional. 

However, trust seems to be frail. After the constitutional draft had been accepted in a referendum on August 7, the king requested changes to be made to several articles, especially regarding provisions on the appointment of regents so that he did not have to appoint a regent whenever he was abroad – and that when he did, he had full control over the process without the need to rely much on the military. (He spends most of his time in Munich, Germany, where he owns a home). Here, the monarchy has chosen to entrench its power through (authoritarian) legal reform, grasping some powers out of the elected government.

The dual state structure functions thanks to laws – essential components of this legal setting are the martial law, the lèse-majesté law, and the constitution. The 2017 constitution articulates the distribution of power between the two states, and the ultimate subordination of one to the other, the deep state being constitutionally mandated to take over in times of crisis. It also embeds the 2014 post-coup interim charter (very short and authoritarian, giving full power to the army) into its democratic-liberal framework (a long document starting with a catalogue of rights, providing for elections, legislatures, political parties, and governments, as well as watchdog bodies). For example, Article 44 of the 2014 interim constitution, granting full executive, legislative, and judicial powers to the head of the military, is now entrenched in Article 265 of the 2017 constitution. Another means of giving the military an “afterlife” under the permanent constitution and the return to civilian government is through the military’s appointment of independent organizations, such as election commissioners, before the expiry of the military government.

Thus, to answer a concern widely shared, in case the new king makes mistakes that could jeopardize the survival of the entire deep state, there are sufficient mechanisms to prevent the crisis from having wide repercussions on Thailand’s power structure, either with the Constitutional Court, or through the various bodies nominated by the army. Under the new constitution, extra-constitutional military coups are no longer needed as the military can stage coups through constitutional means – just like the Constitutional Court no longer needs to twist the constitution to stage judicial coups, as it has been empowered to overthrow elected governments based on a wide spectrum of legal grounds.

Conclusion: Elite Hegemonic Preservation

In May 2014, when the Thai army under the command of Prayut Chan-o-cha staged his military coup d’etat, there were two other military dictatorships in the world: in Fiji and in the Central African Republic. Today, Thailand is the only remaining military dictatorship in the world – what are its excuses? There is neither a civil war à la the Central African Republic nor ethnic tensions like in Fiji. These two countries managed to organize free and fair elections within a year after their coup d’etats. 

In Thailand, more than three years after the military coup, there is still no date for an election.

During these three years, there have been coup attempts in several other parts of the globe, most notably in Burkina Faso (2015) and in Turkey (2016). But nowhere has the army managed to seize power – the military has been sent back to the barracks under the pressure of people in the streets. In Burkina Faso as in Turkey, the population has gone against tanks to protest en masse in the capital city; and within a few days, the coups were buried (the African Union and the EU reactions might also have helped). In Burkina Faso, as in Turkey, the perpetrators of failed coups have been prosecuted.

Thailand (and the role of ASEAN) offer a very different picture. With one coup every 6.5 years on average, no military officer has ever been prosecuted for staging a coup. The 2006 and 2014 coups triggered reactions of support and encouragement from the people of Bangkok, who took to the streets to greet the military, offer them flowers and gifts, and take selfies with tanks. Within 24 hours, the coups were secure and a military officer was in charge; within a year or so, Thai people voted twice in favor of constitutions drafted under military supervision. A concept as misleading as that of “democratic coup d’etat” (whose only example would be the 1974 Portuguese Carnation Revolution) only survives thanks to Thailand and its dual state structure built around the alliance of the monarchy, the army, and, in a more prominent fashion over recent years, the Constitutional Court of Thailand.

Thailand is now the last military dictatorship in the world, and a neoabsolutist state with all the liberal attributes of the most advanced democracies, including a strong mechanism of constitutional justice, independent organizations, the independence of the judiciary, and so on. While neoabsolutism and military dictatorship are anti-liberal, judicialization of politics is somewhat liberal.

Is this oxymoron sustainable in the long term? In other terms, how sustainable is Thailand’s dual state structure? It seems that as it is, the system functions and has functioned in a mild form in the last decade. Whether it is the military, the monarchy or even the high-ranking bureaucracy “on top,” one thing is certain: the relationship is mutually beneficial.