However, the Thai people generated the primary pressure for a more democratic constitution and for greater democratic participation. The new Thai Constitution reflects not only the influence of western institutions on Thai political leaders and intellectuals, but also mass public opinion that favored democratic reforms. Whether the specific institutional reforms comport with popular understandings of democracy is an important and debatable question. In Part VI of this article, I describe democracy as it is viewed through the lens of traditional Thai culture. For instance, domestic and international NGO workers and activists, who have worked for decades with rural communities to protect their way of life, have also influenced the perceptions and values of rural Thai by promoting a "bottom up" understanding of democracy.36 We are only beginning to understand the influence of both international and domestic advocacy on popular Thai values and legal consciousness.
In 1997, following protracted political struggle and with overwhelming public approval, a new constitution expanded individual and group rights, greatly extended popular participation in government, and created new institutions to insure accountability under law, including a politically independent constitutional court. The new constitution mandated participation in many different forms, including, for example, decentralization of power, fiscal control, and electoral democracy.37 It also guaranteed individual rights that characterize the constitution of a modern liberal state, the right to information, and the ability to participate in government decisions affecting the "quality of the environment, health and sanitary conditions, the quality of life or any other material interest concerning him or her or a local community ... as provided by law."38 Further, the constitution protected the right to "participate in the decision-making process of State officials in the performance of administrative functions which affect or may affect his or her rights and liberties, as provided by law."39 The constitution extended democracy to local offices and created an anti-corruption commission to ensure effective voting and make office holding easier for those who are not super-rich by attempting to reduce the importance of money in elections.40 The constitution also established major court reforms, creating administrative courts to oversee the vast entrenched bureaucracy and a Constitutional Court, a majority of whose members are non-political.41 Pro-participation reformers also demanded a provision for direct popular participation in oversight through a petition process that allowed 50,000 citizens to initiate both legislation and investigation of corrupt practices.42
Thailand's "People's Constitution," regrettably now repealed, represented the most extensive pro-rights, pro-participation public law reform in any emerging society, with the exception of South Africa.43 But the practical effect of reform continues to depend not only on officials' respect for citizens' individual and participatory rights, but also on Thai citizens' willingness to invoke them.
Assimilation of western institutions has affected the form of the Thai legal system, which has both civil and common law elements; however, the prevalence of code law, absence of citizen participation, and historically limited authority for judicial review suggest that civil law predominates. Specialized courts have existed for some time in the areas of tax, intellectual property and international trade, labor, and juvenile and family justice.44 Three of these, the Intellectual Property and World Trade Court, Labor Courts, and Juvenile and Family Courts empanel lay judges with career professionals.45 Lay judges are experts appointed for a term of years. In family court, at least one of the lay judges must be a woman.46 The forms of lay judging incorporated by the Thai courts are clearly one result of the growing influence of western ideas about law.47 In the areas of intellectual property, world trade, and labor, involvement with the global market may have accelerated these developments. Lay participation in specialized courts in Thailand is ripe for study.
The importance of citizen participation in governance and in the unfolding developments in Thailand, including lay participation in the legal process, remains a question. In other societies, elites have introduced lay participation in courts as a means of increasing the legitimacy of courts and other institutions of government. In Thailand, the 1997 constitutional reform sprang not from elites' concerns about the legitimacy of a government that served their interests, but from widespread concerns about a government that, at times, served neither elite nor popular interests due to corruption and the absence of effective democracy. Court reform was perceived as a mechanism of corruption control and rights enforcement, while democracy was achieved through an expanded electoral system and direct citizen participation in policy making. Thus, a careful reading of the 1997 Constitution suggests that courts were to assume the role of guarantors of good government and popular rights, but remained the domain of elites.48 Unsurprisingly, court reform in developing societies is typically a top down enterprise, and, characteristically, the domain of experts influenced by western values and ideas. Where this leaves courts and the rule of law in popular consciousness as sources of political legitimacy remain to be seen.
IV. Legal Consciousness
The 1997 Thai Constitution mandated participation in many forms, but traditional Thai civic culture as described by Frank Reynolds does not emphasize participation so much as responsive authority. The question is: what forms of participation are valued and trusted by the Thai What effect has the opportunity to participate directly or indirectly (through representatives) had on perceptions of rights and the way "rights become active" in daily life
James Klein has noted that the 1997 Constitution facilitated popular participation in government on at least five different "levels," including (i) "cognizance" or consciousness of rights to participate, (ii) voting in elections, (iii) providing input into policy formulation, (iv) initiating oversight through appeal or litigation, and (v) direct participation by running for office.49 Provisions of the Constitution enhanced every level of participation. In 2003, the Thai government drafted a law giving effect to the new Constitutional rights to participate that elaborated citizens' rights to participate in administrative decision making.50 Notwithstanding the Constitution's emphasis on participation, Klein is not optimistic about the likelihood that the law will have any immediate effect on widespread resistance to public participation by administrative agencies themselves.51 An important question for the longer term is what value the Thai themselves place on these forms of participation, a fortiori, what appeal do more specialized forms of citizens participation have such as juries and lay judges
Law and society scholarship has drawn attention to interpretive processes that accompany involvement with law, referring to the mental states of those influenced by law as "legal consciousness." Social scientists who study juries or lay judges have known for some time that wealth, education, specific experiences, value orientations, or attitudes may be predictors of perceptions of injury or wrong doing and appropriate legal remedies. In contrast to studies of predictors of perceptions and actions of citizens participating in the legal process, research on legal consciousness embraces more than fixed attitudes or demographic indicators and considers a broad range of social action in everyday life contexts. Research on legal consciousness draws attention to cognition, the process by which individuals come to know the social world and give it meaning.52 One important conclusion reached through such research is that cognition influenced by law may affect an individual's self-perceptions, social relationships, and selection of interpretive frameworks for interactions in the everyday world, as well as one's interactions with formal legal institutions. Legal consciousness may not only influence individuals in "taking on rights" (to use Merry's suggestive phrase53) as a good bet or leaving them alone in interactions with authorities or power holders, but may also influence expectations for daily interactions with family and social intimates.54 Through such subtle and indirect effects on experience and perception law influences both deliberate choices and unselfconscious conduct that gives any form of authority or social order its meaning.55
Further, research on legal consciousness has suggested the importance of multiple discourses of interpretation that guide both perceptions of what is and of what ought to be.56 Where a discourse of rights prevails in individuals' narratives of social relationships and conflict, we might say that an ideology of legality has become established. Where other discourses are chosen to explain the occurrence or resolution of conflict, legal consciousness recedes in importance.
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Footnotes
36. Phongpaichit & Baker, supra note 4, at 436-39; Prudhisan jumbala & ManeeratMitprasat, Non-governmental Development Organizatins: Empowerment and Environment, in political change in Thailand: democracy and participation 195, 214-15 (Kevin Hewison ed., 1997).
37. CONSTITUTION OF THE KINGDOM OF THAIILAND, 282-90.
38. Id. 56, 59.
39. Id. 60; see also id. 76 ("The State shall promote and encourage public partici?pation in laying down policies, making decision on political issues, preparing economic, social and political development plans, and inspecting the exercise of State power at all levels.").
40. See id. 297-302.
41. See id. 276-80 (describing the administrative court); see id. 255-70 (describing the Constitutional court).
42. 1d. 304.
43. See Andrew Harding, Sound EAST ASIA, 1997-2003: Two CASE STUDIES ON Politics or LAW AND Development 14 (2003), available at http://www,law.uvic.ca/seals/ forums//attachment.php?attachmentid=6.
44. Vichai Ariyanutaka, Sophistication of Dispute Resolution in Special Courts: A Per?spective from Thailand, in law, development, and socio-Economic CHANGES IN ASIA (Naoyiki Sakumoto et al. eds., 2003).
45. The Judiciary of Thailand, Section 3.1 The Courts of First Instance, available at htip://www.judiciary.go.th/erg/thejtldiciary.htiii#t3.
46. Id.
47. Id.
48. Pasus Phongpaichit & Chris Baker, Thailand's Crisis 118-19 (2000).
49. James Klein, Public Participation and Hearings in the New Thai Political Context, in legal. foundations for public consultation in government decision-making (Ken?neth Haller & Patcharee Siroros eds., 2003).
50. See generally constitution of the kingdom or Thailand.
51. See Klein, supra note 49, at 122-29.
52. Frank Munger, Culture, Power, and Law: Thinking About the Anthropology of Rights in Thailand in an Era of Globalization, N.Y. L. Rev. (forthcoming 2007).
53. Martin, supra note 2.
54. See id.
55. See David Engel & frank Munger, Right of Inclusion : law and Identity in the Lives of Americans with Disabilities (2003).
56. Id. See chapter four for examples, narratives of persons with disabilities about social injustice included discourses of religion, the market, or family obligations as well as a variety of discourses about rights. |
