On the Horns of a Dilemma

Thai public intellectuals don’t seem to love and care for the people much these days. They facilely compare the Thais to chicken (I’m still puzzled why Thai people are compared to “chicken in the basket” instead of “chicken in the coop,” unless they have already had their throats cut and been plucked and boiled. But never mind. Basket is all right. Cock-a-doodle-do!) and sometimes to buffaloes (connoting stupidity and being led by the nose or even ridden by the Knight of the Third Wave—a well-known sobriquet of Prime Minister Thaksin Shinawatra. ¹ Uhhh…)

However, as a thinking Thai buffalo, I think Prof. Thirayuth Boonmee, ² in rashly comparing us to buffaloes, might have overlooked the “horns.” I mean a huge pair of “horns” that is throttling the throat of the nation and the Thais at present.

Let me start a discussion about Prime Minister Thaksin Shinawatra’s asset-hiding case, now being tried by the Constitutional Court, by challenging two major conceptions that have dominated public debate on this issue so far.

1) I disagree with the view that the case of Prime Minister Thaksin represents a conflict between the rule of law and realpolitik (the latter labeled by Prof. Thirayuth as the principle of “Sri Thanonchai [legendary Thai folk trickster] Science,” namely, the “Thai-Thai” way of cunningly talking one’s way out of any damning situation).

That’s too easy. I instead see this case as essentially reflecting a deep conflict, or the horns of a dilemma, between two key political concepts, Liberalism and Democracy, both of which are embodied in our current “political reform” Constitution.

2) I don’t agree that people should not “pressure” the Constitutional Court in the case of PM Thaksin.

I’d rather follow the opinion of Prof. Chaiwat Satha-anand ³ that not only should people “pressure” the Constitutional Court, but they must also shake, criticize, submit petitions to, or even hold a demonstration to make the Constitutional Court aware of their opinions.

These can be done in so far as people’s opinions are expressed openly, diversely, and freely, and, most important of all, the independence of the Constitutional Court to perform its duties is not constrained. It will even help elevate the quality of public debate on the issue to a more sophisticated level (instead of just flying flags or paying group visits and presenting bouquets of flowers to the PM to show moral support).

 This is what people should do if they consider the Constitutional Court their own independent organ and institution, something that belongs to the people, to be commonly held and cherished by them, rather than a monopoly of the mere dozen legal and political science experts who comprise that judicial body. Otherwise the Constitutional Court will turn into a legal-political technocratic institution above and beyond any intercourse with, or any dissenting or critical voice from, the people and hence devoid of any sense of belonging to them.

This is in accordance with the principle that “as one of their beloved possessions, the buffaloes gotta have the right to scold it!”

Isn’t it right that a Constitutional Court that isolates itself from the people and forbids any pressure from society would not be as desirable as one that is independent and yet receptive to public criticism, thereby making it possible for people to feel a sense of affection for and ownership of it?

Let me return to my first argument about the principles of Liberalism and Democracy.

The principle of Liberalism aims to limit state power. It does not permit those who hold state power to use it arbitrarily and absolutely, unconditionally and without limit for the interests of any particular person or group. The exercise of state authority must therefore be under the rule of law as well as under the control and oversight of the judiciary and other independent public bodies.

The principle of Democracy, on the other hand, aims to distribute state power to ordinary citizens so they can take part in the legislative and decision-making process concerning public issues, either directly or indirectly, through their elected representatives, instead of assigning those issues to, or letting them be monopolized by, bureaucrats, traditional leaders, or technocrats.

The 1997 “political reform” Constitution embodies both these principles. Regarding the principle of Liberalism, the Constitution provides for the establishment of a number of independent public organs to check and control the conduct of politicians in office and the state bureaucracy, such as the Constitutional Court, the Election Commission (EC), and the National Counter Corruption Commission (NCCC).

As for the principle of Democracy, the Constitution lays down various provisions for popular participation in the exercise of state power, for example, community rights to local natural resources (Articles 46, 56), the right to gain access to public information (Article 58), the right to public hearings (Article 59), the right of ordinary citizens to initiate legislation through the House of Representatives (Articles 170, 335(4)) or to launch an impeachment against high political and bureaucratic office holders through the Senate with the backing of 50,000 signatures (Articles 304-305), local self-government (Article 282), a referendum to be held on the initiative of the Cabinet (Article 214), and so on.

Because the pre-existing state structure and political system have been conducive to the monopolization and centralization of power by politicians and the state bureaucracy, the Constitution attempts to redress the balance by giving tremendous authority to the new independent public institutions to check and balance the power of the former. Consequently, the past few years have witnessed the indictment and actual removal from office of several high-ranking politicians and bureaucrats, from a Director General, a Minister of the Interior, and a Senate Speaker, to maybe even the Prime Minister himself.

However, this newly created and untried power, coupled with an inclination to rigidly interpret the letter of the law, sticking fast to legal technicalities, has resulted in a marked tendency toward the use of excessive power on the part of some independent public institutions themselves. In fact, they may eclipse and suppress the political will of the people as expressed through majority rule and arguably become an autonomous and all-powerful legal-political technocracy in their own right. Hence the dissenting voices against the Election Commission’s short-circuited rulings, without due judicial process, disqualifying certain MP and Senate candidates for alleged cheating in the elections. This led to several rounds of repeated voting and a resultant furor among voters in many constituencies; violent protests even erupted in various places in the aftermath of the latest elections for the Senate and the House of Representatives. In another instance, a barrage of criticism has been directed at the National Counter Corruption Commission and the Constitutional Court for their alleged misinterpretation and misapplication of the constitutional provision for the public disclosure of assets and liabilities of individuals holding political office. There are suspicions as well that some independent public institutions have been used by rival political parties and individual politicians to seek revenge on one another.

On the other hand, the implementation of various Democracy-inspired provisions of the Constitution allowing for greater popular participation in the exercise of public power is still hampered and delayed bythe absence of follow-up legislation, the unpreparedness of implementing mechanisms, and a lack of co-operation and facilitation by a state bureaucracy that is traditionally authoritarian and overcentralized in both structure and organizational culture. The resulting sluggish, inconsistent, and ineffective enforcement of these democratic provisions of the Constitution makes people feel rather powerless in the new political system, especially at the national level, as well as estranged from the independent public organs. At the very least, it is by no means clear to them how these new constitutional mechanisms of check and balance of power are important or relevant to their interests, and whether they have any real stake in them.

Others find themselves on the “horns” of this same dilemma. The overthrow and subsequent trial on charges of corruption of former President Estrada of the Philippines and the Indonesian parliament’s censure and possible impeachment of President Wahid on charges of corruption and inefficiency both reflect conflict between the principles of Democracy (the political will of the people as expressed by a majority vote) and Liberalism (the limitation, check, and balance of power of state rulers).

In Thailand, these principles are colliding head on in the asset-hiding case of Prime Minister Thaksin.

Any society, including Thailand, that is still experimenting with Liberal Democracy must learn gradually from its own mistakes and deviations until it finds its own proper balance between the principles of Liberalism and Democracy. However, these cases of conflict involve not only two abstract political science concepts, but have a basis in concrete social reality.

 In the Philippines, the urban and rural poor sided with former President Estrada, despite his being a cheat, because he had at least pushed ahead with land reform, while the urban middle classes in general and the business class in particular strongly opposed him. In Indonesia, the largest Muslim organization among the rural population steadfastly supported President Wahid, whereas the urban middle classes, intellectuals, students, and businessmen were fed up to the back teeth with his inefficiency, inconsistency, flip-flopping, and inert inaction in the face of crisis.

In the Thai case, people’s organizations are impressed with PM Thaksin’s willingness to take on and pressure government agencies, giant state energy enterprises, and mafia groups in certain localities on their behalf. The poor are attracted by his social welfare policy and economic-stimulus spending schemes that extend benefits to the grass-roots level. Big Thai capitalist groups, debtor and creditor alike, are ecstatic with his measures to cushion their businesses with public money and credits against the effects of the long economic recession, shrinking export market, stagnant domestic consumer and stock markets, and capital outflows. NGOs and communitarian public intellectuals admire the position he has taken in some of his addresses questioning, challenging, and criticizing the mainstream economic development line and calling for a more independent, self-reliant alternative amidst economic globalization.

On the other hand, as Prof. Thirayuth himself has analysed, “some businessmen, members of the elite, bureaucrats, and state-enterprise executives, who dislike too fast a change and stand to lose if grass-roots people are to get a greater share of the budget, tend to support the Democrat Party.”

The most interesting group, however, are the middle classes, long the real partner in an ongoing public dialogue Prof. Thirayuth has conducted through his occasional mass-mediated personal press conferences. Yet they were noticeably skipped by Thirayuth in his latest press conference. Why? Where have they gone?

I think if we read between the lines, the middle classes have not gone anywhere but are actually the “buffaloes” Prof. Thirayuth tried to caution against practicing the principle of “Sri Thanonchai Science” and urged to increase their power of knowledge. The middle-class buffaloes turn out to be the main social group facing the “horns” of a dilemma and thus being confused, hesitant, and hypocritical.

On the one hand, they don’t want any big capitalist group to monopolize state power in order to unfairly and corruptly seek advantageous business deals for the benefit of themselves and their cronies (hence the black flags in support of the NCCC’s fair and equal investigation of state-power holders in accordance with the principle of Liberalism).

On the other hand, they are so anxious about economic fluctuations resulting from globalization that they pin all their hopes on the magic feats of the “Knight on the Black Buffalo” (hence the yellow flags and the campaign that has gathered four hundred thousand signatures so far to declare the sovereign will of the majority in accordance with the principle of Democracy).

Right at the center of the current “Thaksin Fever” lies a confused and hesitant herd of Thai middle-class buffaloes facing their own “horns.”

Kasian Tejapira
Kasian Tejapira is an assistant professor in political science at Thammasat University and a weekly columnist for Matichon Daily. This column appeared on 7 July 2001. It was translated by Mukhom Wongthes, free-lance translator, essayist, and researcher with the Five Area Studies Project, with editorial assistance from Kasian Tejapira.

Kyoto Review of Southeast Asia. Issue 1 (March 2002). Power and Politics