Constitutional Reform, Legal Consciousness, and Citizen Participation in Thailand

Studying the prospects for citizen participation in the legal systems of Asian societies reminds us of the unique nature of the liberal European American legal system, and how important its historical and cultural antecedents are to the establishment of its particular forms of citizen participation and empowerment.⁹⁶ The effects of political and legal institutions depend upon the symbolic and social resources that a society offers. Juries function because courts work in certain ways in Europe and the United States. The impact of lay judges on popular perceptions of courts is important where courts themselves arc regarded as playing an important, if complex, role in protecting democratic values. The unique virtue of a liberal legal system is that it is perceived as supporting democracy (by guaranteeing the rules of democracy) while also acting independently of majoritarian or popular justice. An independent judiciary can protect individuals against abusive officials or an abusive public. The very independence of liberal legal institutions often makes them appear remote and sometimes unpopular. Lay participation is one mechanism that arguably helps close the gap between judicial independence and popular legitimacy.

The preconditions for citizen participation arc not met, however, where the law seems irrelevant to everyday practices of redressing injustice perpetrated by other citizens and government officials. Legal consciousness is one aspect of globalization. Legal consciousness linking the legitimacy of governmental institutions to citizen participation cannot develop unless rights and participation appear to be good bets. For some-prinmarily those benefiting from globalization-they often are. Others who have not benefited from globalization may not perceive their rights and participation the same. Our brief look at Thailand shows that the effects of globalization are more complex than such a simple economic or social calculus could predict. A large majority of Thai trust traditional authorities and mistrust conflict resolution through partisan political institutions. For them, traditional authority may seem to be the only thing that works. The context is critical. Global development creates a motive for change, but existing institutions and available resources shape the direction of change. It is hard to imagine common people, who may perceive themselves marginalized by the politics of development and globalization, investing legitimacy in criminal juries where the military and police are trusted to take care of the nation but are often perceived to be lawless. It is equally difficult to imagine common people investing legitimacy in civil juries and lay judges where ordinary citizens do not think law offers a meaningful solution for conflict.

And what about Thailand's "September surprise?" The unexpected military coup placed hopes for constitutionally-grounded citizen participation in Thailand's political and legal systems in a new light as old patterns reappeared. Many saw the hand of the King behind the military coup and a general vote of "no confidence" in democracy by the traditional elite. This discouraging perspective, although supported by the evidence of contact between coup leaders and the King prior to the coup, may overestimate the power of such traditional elites to veto democracy for the foreseeable future. An alternative, institutional perspective would emphasize instead a cyclic pattern caused by the rivalry among competing groups with power to veto each other's designs for long-term hegemony. A proposition called Arrow's Theorem, which emphasizes the effects of competing, non-overlapping majorities, is well-known among theorists of legislative decision making, and might explain why neither democracy nor extreme authoritarianism prevails for long in Thailand.⁹⁷ Although majorities oppose corruption, favor economic development, and embrace democracy, they are non-overlapping majorities that are often divided on other issues. Thus, rural and urban Thai oppose corruption but are divided on questions of economic development and, for now, democracy. Urban middle class and traditional elites, such as royals, bureaucrats, and the military, agree on stability but are often at odds about corruption and democracy. Rural Thai have been courted by the King's development projects but often seem to have different views of democracy and corruption, though they are rarely in open conflict because the King is revered and royal influence in politics is seldom made public. Yet, this perspective also seems to condemn Thailand to a stalemate that is inconsistent with the rapid economic and social change that Thailand has experienced over the past half century.

A third interpretation is that the coup does not signal a return to cyclic instability at all. Although the initial deadline set for restoration of constitutional democracy has passed, coup leaders have publicly acknowledged the importance of expectations unleashed by the 1997 Constitution. It is difficult to imagine that these leaders will reject principles such as individual liberties, non-partisan anti-corruption institutions, and a constitutional court, which are so strongly embraced by a large majority of the people. Placing genuine political control in the hands of elected representatives will be contentious, although restructuring the power of the elected Prime Minister will be the most difficult task. All agree on corruption control, but the gap is wide between the populism of the rural majority and the preferences of urban Thai for pliable electoral politics responsive to aspirations of the middle class. Nevertheless, if Thailand's constitutional restoration includes more effective guarantees of civil and political liberty, then electoral politics, fueled by Thailand's successful economic development, is likely to continue to grow in importance, and Thailand's political and legal systems will evolve along a new, as yet, unpredictable path where the social and political rights of the majority will become an increasingly important focus in the effort by the government to achieve stability and legitimacy.

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