Constitutional Bricolage: Thailand's Sacred Monarchy vs. The Rule of Law by Eugénie Mérieau (review)

Thailand has long witnessed a succession of political struggles between the dominant royalist-military alliance and a progressive, pro-democracy movement. Despite the overthrow of royal absolutism in 1932, the royalist-conservative elites successfully managed to restore the political pre-eminence of the monarchy by launching a military coup in 1958. Since then, military takeovers have become a convenient means for the country's traditional elites to repress threats to the monarchy, including popular demands for the rule of law and political liberalization. However, it is misleading to conclude that the standing of the monarchy is exclusively maintained through brute force. Various legal techniques have also been exploited for this purpose—a phenomenon which is the central theme of Eugénie Mérieau's new book, Constitutional Bricolage: Thailand's Sacred Monarchy vs. The Rule of Law.

Mérieau positions the Thai monarchy in-between a "British-style" constitutional monarchy and a "Gulf-style" absolutist monarchy (p. 8). In her view, the Thai king's power to sanction, tacitly or otherwise, a succession of coups indicates that, unlike his British counterpart, he is not a mere figurehead. Nevertheless, the author notes that the royalist-conservative elites are reluctant to portray the country's most respected monarch, King Bhumibol, who gave his blessings to many coups during his reign between 1946 and 2016, as a "hands-on" ruler, preferring to depict him instead as a properly "constitutional" monarch (p. 8).

Given such oddities, the Thai constitutional apparatus can be best described as a Democratic Regime with the King as the Head of State ('DRKH'), and one which imports and adapts notions about the rule of law and constitutionalism to consolidate elite rule (p. 9). Mérieau demonstrates how the royalist-conservative elites borrow, distort, re-interpret, improvise, indigenize and mix concepts and doctrines on constitutional monarchy and the rule of law from a variety of sources, whether they be civil law, common law or local traditions, to solidify the DRKH (pp. 9–10, 21, 260). As such, this technique of "constitutional bricolage" challenges the orthodox view that the cause of Thailand's unstable democracy is rooted in what Mérieau argues is the absence of an entrenched rule-of-law culture (pp. 12–13).

Fundamentally, the DRKH reflects the "creative assemblage" of two patrimonial concepts: the Devaraja (Hindu God-like king) and the Dhammaraja (Buddhist righteous king) (pp. 23, 58–63). Their assemblage buttresses the king's status as the ultimate arbiter capable of intervening extra-constitutionally in times of crises (pp. 57, 167–73, 260). Mérieau goes on to show how the British essayist Walter Bagehot's thoughts on royal conventional rights have also been appropriated by royalists to defend the compatibility of the king's "extraconstitutional crisis power" and the rule of law. In particular, royalist scholars invoke Bagehot to reason that these royal discretionary powers during crises are rooted in the conventional rights of the constitutional monarch "to be consulted, to encourage, and to warn" (p. 144). Mérieau illustrates these assemblages in the context of King Bhumibol's decision to replace a military dictator with a more liberal prime minister in 1973, as well as his initiation of a new democratic Constitution in 1974 (p. 200).

Additionally, Mérieau explores how the royalist-conservatives have reinterpreted various foreign legal doctrines—such as the concept of a "granted constitution", John Austin's command theory of law and Hans Kelsen's concept of "revolutionary legality" (Chapters Two, Three and Six)—to justify the imposition of coups and authoritarian interim constitutions while repressing demands for a more robust rule of law, with the "monarchized" judiciary as their primary enforcer. Moreover, having branded the rule of law as an alien concept to Thailand which ignores the virtuality of morality, they also infuse it with Dhamma (righteousness) as embodied in the king (pp. 260–61).

Overall, Mérieau mainly examines how the royalist...