IV. Thai Legal Consciousness and Participatory Governance
Proposals to introduce lay judging in Korea and Japan on an experimental basis are intended to strengthen the legitimacy of courts that are perceived as elite, authoritarian, and non-transparent. These experiments in lay participation appear to he responsive to broader social changes in the two democracies, namely deepening liberal democratic values. The proposals for symbolic participation in the legal system through the presence of a handful of lay judges suggests not only a demand for participatory representative institutions of governance but also the importance of courts and, by inference, the transparent rule of law. Courts matter where the rule of law matters. Where legitimacy is grounded in something other than participatory representation and the rule of law, courts are unlikely venues for such symbolic reforms.
Thailand's recent history of popular support for monarchy, authorita?rian civilian or military rulers, and parliamentary democracy is puzzling for scholars attempting to understand the importance of law and democracy. In many respects, Thailand's repeated return to authoritarian rule is more like the experience of its authoritarian neighbors, Singapore, Malaysia, and Indonesia than the more advanced democracies of Korea and Japan. Yet the public's assumption that many of the principles of the 1997 Constitution will be retained, together with a history of popular move?ments for social justice and a legal profession that is both increasing rap?idly in size and has at times defended human rights, suggests a continuing opening for participatory governance.
In this part of the article, I consider evidence bearing on the aspects of Thai legal consciousness most relevant to citizen participation and the rule of law. High quality surveys of public opinion now available in Thailand provide some help in identifying key elements of legal consciousness,57 and a recent analysis of this data examines the breadth and strength of support for democratic institutions and acceptance of control by laws, procedures, and institutions created through democratic processes.58 Data from the 2001 Asian Barometer survey shows Thai citizens' strong preference for democracy over all other forms of government.59 For example, 83.8 percent said that democracy is always preferable to authoritarian forms of government.60 Although Thai express a strong preference for democracy, the meaning of "democracy" cannot be taken for granted, nor can support for participatory representative institutions and the rule of law, assumptions that might be made safely in a survey conducted in the United States or Europe. Just a few decades ago, historian David Wyatt reported that some rural people thought that the Thai words for democracy and constitution were the names of members of the King's family.61
In 2001, about 70 percent of Thai surveyed could name at least one specific characteristic of democracy and 25 percent two or more. Most frequently mentioned were protection of freedom and civil liberties (38% of the 70% or 28% of all surveyed), equality (10.5% of all surveyed), and individualism (7.7%).62 There was little support for "Asian values" such as social responsibility or communalism.63 More important for the future of western-style liberal democracy, there was little evidence that the Thai associate democracy with political and participatory elements that Western conceptions take for granted.64 Indeed, there was strong support for abolishing opposition parties.65 Overall, 76 percent said diverse views made society chaotic, and 45 percent said they should not have to tolerate views that differed sharply from their own.66 These views, combined with a strong belief in traditional civil liberties such as freedom of speech, yield a complex picture of independence and intolerance, direct majoritarian democracy, and rejection of the conflict and contention of party politics and representative democracy.67
While parties and party politics face great skepticism in Thailand, the highly popular 1997 Thai Constitution provided for direct participation in many ways-extending electoral democracy to local government, providing for public participation in administrative decision-making, and direct referenda by petitions" The constitution mandated non-partisan oversight to protect the people's rights (including rights to participate).69 Yet inclusion of constitutional provisions guaranteeing the right to participate must be reconciled with seemingly contradictory tendencies. For example, Thai cit?izens gave mass support in recent elections to the authoritarian Prime Min?ister Thaksin Shinawatra, and later apparently approved the bloodless military coup that sidelined him in September 2006.
Further qualifying Thai support for democracy is the trust in tradi?tional, non-partisan, and undemocratic institutions. The Constitutional Court is the institution that enjoys the most trust-over 82 percent of respondents.70 Other non-partisan governmental agencies also have gained trust. The military is trusted by 80 percent of the respondents, however, second only to the Constitutional Court.71 By contrast newspa?pers, parties, and NGOs receive low ratings, even lower than the much?
feared police.72
The apparently contradictory tendencies of Thai popular support for different forms of government may be explained in part by a pronounced difference in the perceptions, and legal consciousness, of two important groups in contemporary Thai society. Albritton and Bureekul argue that there is a pervasive split between two groups of Thai citizens characterized by three overlapping differences: urban and rural, more educated and less educated, and "modern values and "traditional" values.73 Driving the differences, they argue, is acceptance or rejection of traditional values. The survey measured acceptance of traditional values by the respondent's agreement with the importance of obedience to parents, a hiring preference for friends and relatives, family interest taking precedence over the individ?ual, the loss of face by a male who works for a female boss, the belief that elders should resolve disputes, and the idea that husbands should per?suade daughters-in-law to obey their mother.74 Acceptance of traditional values was in turn highly correlated with low respect for minority rights, high trust in social and political institutions, and weak support for the rule of law.75 Not surprisingly, embracing traditional values was more characteristic of rural Thai, while rejecting traditional values and embracing "modern" values was strongly associated with urban residence and more education.76 Albritton and Bureekul point out that apparently there is an ironic concluding twist to the tale of two democracies. While a modernizing bourgeoisie should in theory be the vanguard of participatory representative democratization, precisely the opposite seems to be true in Thailand. Urban, educated Thai now seem to mistrust democracy precisely because rural Thai embrace it uncritically and without expectation of controlling their corrupt political representatives.77
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Footnotes
57. The Asian Barometer describes itself as "an applied research program on public opinion on political values, democracy, and governance" encompassing survey data from twelve East Asian political systems and live South Asian countries on "citizens' attitudes and values toward politics, power, reform, and democracy in Asia." Sec gener?ally, The Asian Barometer, available at http://www.asianharomcter.org/newenglish/ introduction/ (last visited Nov. 17, 2006).
58. Sec generally, Robert Albritton & Thawilwadce Bureekul, Developing Democracy under a New Constitution in Thailand (2004), available at http://www.asianbarometer. org/newenglish/publications/workingpapers/no.28.pdf (last visited Nov. 18, 2006) (dis?cussing the Asian Barometer data drawn from a survey conducted in 2001).
59. Id. at 15 and Table 2.
60. Id. at 45.
61. Id. at 10.
62. Id. at I I and Table 1.
63. Robert Albritton & Thawilwadee Bureekul, Social and Institutional Supports for Plural Democracy in Eight Asian Nations: A Cross-National and Within-Nation Analysis, 16(2005), available at http://www.asianbarometcr.org/newenglish/publications/worl<ing papers/no.3l.pdf (last visited Nov. 19, 2006).
64. For example, few respondents mentioned parties, elections, or parliamentary decision making. Id. at 14.
65. Id. at 16-17.
66. Id. at 19.
67. The meaning of an apparently strong preference for democracy over other forms of government is also tempered by the fact that about fifty percent would prefer eco?nomic development to having a democratic government. Id. at 16.
68. Id. at t8-19.
69. In addition to creating a non-partisan constitutional court and administrative courts, the 1997 constitutional created a non-partisan National Election Commission and a non-partisan National Counter Corruption Commission. Constitution Of the Kingdom or Thailand, 136 et seq. and 297 et seq.
70. Alhritton & Thawilwadee, supra note 58, at 27, fable 10.
71. Id. at 28.
72. Id.
73. Id.at 22-26, 29ff.
74. Sec id. at 43 (Appendix 1).
75. Acceptance of the rule of law is defined by level agreement with seven proposi?tions: government should decide what can he discussed; government leaders should he followed like heads of a family; judges should defer to the executive; political leaders should be able to ignore procedures; with support, a leader should ignore minority views; it the country is in difficulty, it is OK to disregard laws. Id.at 43 (Appendix 1).
76. Id. at 22-26.
77. Id.at 23. |
