I. BUDDHISM, LAW AND KINGSHIP: PROLEGOMENA

Thailand is a predominantly Buddhist country,Footnote ¹ and one of the only few in the world to have the Buddhist calendar as the official calendar.Footnote ² Thailand’s twentieth constitution, entered into force in 2017, is officially named The Constitution of Thailand, Buddhist Era 2560 (2017 Constitution). Its official visual representation, embodied in the Democracy Monument in Bangkok, consists of a ‘thick accordion-style codex called “Samutthai” and placed on a two-tiered golden pedestal tray’;Footnote ³ the Samutthai evokes the Buddhist scriptures, while the two-tiered golden pedestal tray is associated with the King.Footnote ⁴ Buddhist Kingship also informs Thailand’s official motto – ‘Nation, Religion, and King’Footnote ⁵ – and the white colour on the Thai flag represents the purity of the Buddhist faith.Footnote ⁶ National holidays correspond to Buddhist celebrations, and Buddhism is part of public life, in schools, government offices and state ceremonies. Thailand is also one of the few countries in the world where monks are denied the right to vote.Footnote ⁷ Thai men are traditionally expected to ordinate as monks (buat) as they reach adulthood. They are also expected to take the robe for ‘purification’, to apologize through merit-making, or to show their gratitude. For instance, in July 2018, the members of a junior football team who were trapped in a flooded cave – an incident which garnered worldwide attention – enrolled into a temple for nine days to pay homage to one of the cave divers who lost his life during the rescue operation.Footnote ⁸

Thai politicians and public figures also routinely temporarily enter monkhood to ‘disappear’ after being enmeshed in highly contested politics such as military coups. Suthep Thaugsuban, the leader of protests leading to the 2014 military coup, entered a temple for more than a year after General Prayuth Chan-ocha seized power on 22 May 2014.Footnote ⁹ A few months before the 2006 military coup, Bowornsak Uwanno, then Secretary-General of the Cabinet, resigned from his post to enter monkhood, only to resurface after the coup.Footnote ¹⁰ This practice is reminiscent of the early times of absolute monarchies, where – in order to ‘escape’ murder or injury in uncertain succession processes – potential heirs to the throne sought shelter in Buddhist temples. In the early nineteenth century, Prince Mongkut spent twenty-seven years of his life as a monk in various temples throughout the country while his half-brother Nangklao, later referred to as Rama III, was king. Mongkut left the monkhood only to ascend to the throne in 1851 upon the death of Nangklao. Later referred to as Rama IV, the ‘modernizing monarch’,Footnote ¹¹ Mongkut initiated a reformist Buddhist movement, Thammayut, that remains very close to the monarchy until today.

A century later, in 1956, King Bhumibol, who reigned for seventy years as Rama IX, was ordained as a monk in Wat Bowornwiwet in the heart of the old Bangkok, followed in 1978 by his son, then Prince Vajiralongkorn. During the month of October 2017, the cremation of King Bhumibol heavily disrupted the life of Bangkokians in the name of sacred Hindu-Buddhist traditions. The Hindu-Buddhist coronation ceremony of King Vajiralongkorn is expected to follow thereafter.

Buddhism’s influence on Thai law has fluctuated over the centuries. As far back as the fourteenth century, inscriptions showed references to a corpus of law called the Thammasat,Footnote ¹² probably a Buddhist derivation of the Hindu Laws of Manu, themselves part of the wider dharmasastra literature, or treaties on dhamma.Footnote ¹³ According to the Hindu tradition, the dhamma – thamma in Thai – was a natural, eternal and immutable law revealed by Brahma to Manu.Footnote ¹⁴ To Buddhists, if dhamma is not directly, as in Hinduism,Footnote ¹⁵ a ‘divine given’, it still is a transcendental law acting as the source of all law, as exhibited by the tale of the flying ManuFootnote ¹⁶ told in the later Siamese Phrathammasat. According to the Phrathammasat, the law of dhamma is revealed on the walls of the universe to a flying Manu, advisor to the King. The Phrathammasat, which featured as the first book of the Three Seals Code, an early nineteenth century compilation of edicts and laws promulgated throughout the Ayuthayan and early Bangkokian eras (fourteenth to eighteenth century, and late eighteenth to early nineteenth century, respectively),Footnote ¹⁷ opened with an invocation of the three Jewels (Buddha, Dhamma, Sangha). The eleven articles of the Phrathammasat served as an index for the whole Three Seals Code and a ‘source of authority’ for all its laws.Footnote ¹⁸

Westernization of Thai law, initiated during the second half of the nineteenth century, led to a progressive abandonment of references to dhamma as a source of law. The Three Seals Code was replaced with Western secular codes drafted with the help of foreign advisors. The first Constitution of Siam (Interim 1932 Constitution), enacted on 27 June 1932 following a revolutionary overthrow of the absolute monarchy under the leadership of young officers educated in secular France, did not mention Buddhism. Yet subsequent constitutions progressively added direct or indirect references to Buddhist principles, Buddhist Kingship, or Buddhism as a religion. As this de-secularization process appeared to remain minor – Buddhism is still not recognized as the state religion – most scholars of comparative constitutionalism have considered Thailand as a secularized country.Footnote ¹⁹ This article gives nuance to this classical account by showing how Buddhism has informed and continues to inform constitutional thought and practices through the doctrine of Buddhist Kingship.

According to classical understandings of Buddhist Kingship, the primary duty of ancient Siamese Kings was to teach and uphold the Buddhist teachings on dhamma. An early written reference to such function can be found in the Ramkhamhaeng inscription of Sukhothai, presumably dating from the end of the thirteenth centuryFootnote ²⁰ . It is often thought that Siamese Kings were no legislators, but merely strict authorized interpreters of dhamma; their law-making power was tightly constrained by the need to conform to the Thammasat.Footnote ²¹ They could only issue rulings on particular cases in their capacity as judges and arbitrators, but these did not have the permanent and general character of law.Footnote ²² In an authoritative lecture attended by King Bhumibol in 1946, Prince Dhani Nivat once stated:

Likewise, powers of ancient Siamese Kings were understood as constrained by the doctrine of the dhammarāja (the righteous King).Footnote ²⁴

This article aims to show how the Buddhist doctrine has been used to bypass constitutional provisions in the name of a superior ‘dhamma’ through the reliance on the rediscovery of the doctrine of the dhammarāja (the righteous King) from the second half of the twentieth century onwards. It first examines how modern lawyers used Buddhism as the vehicle to import Western constitutional ideas into the Siamese polity while reconstructing them as part of a royal legacy through the doctrine of the Ten Royal Virtues.

II. BUDDHIST KINGSHIP AND CONSTITUTIONAL THOUGHT

During the Westernization of Thai Law, Buddhist terminology served as a root for neologisms related to the ‘import’ of modernity, and most notably tham (dhamma). The word dhamma is a Pâli word. It comes from the Sanskrit root ‘dhr’, ie, ‘holding things together’ – ‘dharma is the way in which one maintains everything’.Footnote ²⁵ Dhamma is not just a reference to the idea of truth, but also to law, or to social, political, religious, family or cosmological norms.Footnote ²⁶ In modern Thai, tham is now used for abstract terms related to politics, law, and knowledge in general, as well as founding binary oppositions, such as the difference between nature and culture, or between the abstract and concrete. The following neologisms were built on the root tham: khwamchoptham (legitimacy), khwamyuttitham (justice), or khwampentham (equity, justice), and most notably, ratthathammanun (constitution).

In 1932, the People’s Party had named the Interim 1932 Constitution the ‘law of procedure for the administration of Siam’ (phrarachabanyat thammanun kan pokkhrong phaendin).Footnote ²⁷ This terminology relied on the word thammanun, ‘rule of procedure’, used in Siam during the Ayuthaya period. Following the advice of Prince Wan Waithayakon who referred to the sacred character of the document,Footnote ²⁸ the word ratthathammanun, which in Sanskrit means ‘the dhamma of the Land’, replaced the word thammanun in the Permanent 1932 Constitution.Footnote ²⁹ The name change was also accompanied by a complete shift of focus in the preamble, from being people-centered to being King-and-Buddhism-centered. The new preamble stated:

The Ten Royal Virtues (totsapitrājadhammā) are an omnipresent theme of Buddhist texts. Applying to the righteous Buddhist King dhammarāja, it is said to derive from the Buddhist JatakaFootnote ³¹ and to have been embodied by King Ashoka of India.Footnote ³² The mythical origin of Siamese ancient law, as accounted for in the Phrathammasat, is linked to the need of upholding totsapitrājadhammā. Indeed, Manu (Manosara), the very composer of the legal treatise, was counselor for the great elected King (Mahasammata). In that capacity, he worked towards the full realization of the Ten Royal Virtues. According to the translation provided by Chris Baker and Pasuk Phongpaichit:

In the Siamese literature, the Ten Royal Virtues were posited as guiding principles for kings as early as the fourteenth century in the Book of Three Worlds written by King Lithai.Footnote ³⁴ According to the Book of Three Worlds, the King must not desire wealth or propriety but make his people benefit from it;Footnote ³⁵ he must not destroy life, cheat, lie, steal, exploit, commit adultery, or drink alcohol;Footnote ³⁶ he must be prepared to sacrifice his own personal comfort, his name and glory, and even his life, in the interest of his people;Footnote ³⁷ he must be sincere in his intentions, and not deceive his public;Footnote ³⁸ he must be mild-tempered;Footnote ³⁹ have a simple life, control his impulses, do not indulge in luxury;Footnote ⁴⁰ do not succumb to revenge;Footnote ⁴¹ promote peace and prevent war;Footnote ⁴² be able to support difficulties and insults without being angered;Footnote ⁴³ and never be an obstacle to the fulfillment of his people’s interests.Footnote ⁴⁴

The Book of Three Worlds also presented additional twelve virtues (chakravativat) to which a King-chakravatin (Universal Ruler) must conform.Footnote ⁴⁵ On top of these twenty-two virtues, four commandments (rachasangkahawatthu) were added.Footnote ⁴⁶ Together, the practice of the twenty-six virtues allows the King to be considered as a bodhisatva or coming Buddha (last incarnation of the Buddha before the Awakening).Footnote ⁴⁷ According to Buddhist doctrine, society’s order depends on the very Buddhist virtue of his King. In the words of Buddha:

The totsapitrājadhammā was also referred to in the preamble of the Palace Law, dated second half of the fifteenth century,Footnote ⁴⁹ which opened with a mention of the Ten Royal Virtues.Footnote ⁵⁰ Thus, adding a reference to totsapitrājadhammā in the 1932 Constitution’s preamble aimed to anchor Thai constitutionalism in the legal tradition of the absolute monarchy. Furthermore, the ‘system of absolute monarchy under the [Buddhist] principles of the ten royal virtues of the righteous King (totsapitrājadhammā)’ referred to in the preamble borrows its formulation from the formulations of ‘constitutional monarchy’ used at that time by the drafters of the Interim 1932 Constitution. Pridi Panomyong referred indeed to the ‘system of monarchy under the Constitution’ (kasat tai ratthathammanun).Footnote ⁵¹ The seemingly anecdotal drafting of the Permanent 1932 Constitution in fact reflected a wider reconceptualization of the principles of a righteous King (totsapitrājadhammā) as a functional equivalent to constitutionalism.

Indeed, the Ten Royal Virtues of the righteous King (totsapitrājadhammā) were to be retrospectively considered by post-1932 constitutional lawyers as principles constraining the King’s exercise of power under the absolute monarchy equated with a specific form of democracy. From the 1940s onwards, royalist historians and lawyers started to build a royalist doctrine associating the Ten Royal Virtues with ancient constitutionalism. The first core text was a lecture by Prince Dhani Nivat published in 1947. It explained how Siam had always been ruled by a dhammarāja – a righteous King, limited in his exercise of powers by the adherence to Buddhist principles – the Thammasat being then equated with an ancient constitution. ‘The Thammasat, the Inspired Lore, which was the work supposedly of a superior agency, a Constitution in fact which was not to be tempered with even by the highest in the Land.’Footnote ⁵²

The doctrine spread in Thai history handbooks as well as academic works. The dhammarāja doctrine became part of dominant constitutional thought proper during the 1960s and 1970s. In the 1960s, prominent lawyer Seni Pramot made the claim that the thirteenth century Ramkhamhaeng inscriptionFootnote ⁵³ was Siam’s first constitution; as a result, Siam Kings had never exercised arbitrary power.Footnote ⁵⁴ In 1976, highly respected Supreme Court judge Thanin Kraivichien published The Thai Monarchy according to the Democratic System of Government.Footnote ⁵⁵ In this book, Thanin argued that in thirteenth century Sukhothai, fourteenth to eighteenth century Ayuthaya, and current Bangkok periods, the power of kings was limited by two constraints, akin to constitutional limits: totsapitrājadhammā or the Ten Royal Virtues and the anekchonnikon samosonsommut or the King’s election – the King being elected by his subjects. Furthermore, according to Seni and Thanin’s handbooks, the King is endowed with ‘residual powers’ inherited from customs pre-existing the introduction of constitutionalism. These customs have been conceptualized in the works of the most prominent constitutional lawyers of the 1990s as royal customary law (nittirachaphrapheni) comprising the Ten Royal Virtues (totsapitrājadhammā).

In the 1980s, prominent jurist Bowornsak Uwanno, co-author of Thanin’s 1976 book, stated in his public law handbook that there never was arbitrary power nor absolute monarchy in Siam, because of the limits imposed on the King by the Ten Royal Virtues.Footnote ⁵⁶ In 1986, another prominent jurist, Thongthong Chantarasu, published a handbook on the King’s constitutional powers, building on the doctrine of totsapitrājadhammā and residual powers of the nittirachaphrapheni. Footnote ⁵⁷

In the 1990s, in the context of the movement to ‘reform Thai politics’, coupled with the Asian financial crisis and the renewed interest in the doctrine of totsapitrājadhammā, a new constitution was adopted. It focused on the fight against corruption and created a myriad of independent watchdog agencies and constitutional organs with powers to act against politicians.Footnote ⁵⁸ It was also Thailand’s most democratic constitution to date, as both chambers of parliament were elected, and the prime minister had to be an elected member of the lower house. It incorporated the notion of ‘good governance’.Footnote ⁵⁹

When the term ‘good governance’ entered Thailand in the 1990s, it had first been transliterated before being translated into Thai. Several translations coexisted for a short time, until the word thamma-phiban, formed on the root dhamma, was finally established as the official translation.Footnote ⁶⁰ In accordance with the neologism that made it enter Thailand, good governance was associated with dhamma:

The ‘thamma-phiban’ version of ‘good governance’, defined in moralistic terms, as a tool to fight corruption,Footnote ⁶² advocated against the political, therefore making it perfectly suited to the postpolitical institutions of the new constitutionalism.Footnote ⁶³ Its usefulness was considered inferior to the concept of totsapitrājadhammā: ‘It is also an opportune moment to make it known worldwide the profundity of dasarājadhammā and its superiority over the western concept of good governance.’Footnote ⁶⁴

Likewise, the concept of ‘Rule of Law’ became a major topic in Thai constitutional discourse during the 1990s. Its importation gave birth to two competing neologisms: ‘nititham’, formed on ‘niti’ (law, rules) and ‘dhamma’ (law) and ‘nitirat’, formed on ‘niti’ (law, rules) and ‘rat’ (state). The word ‘nitirat’ has a positivist connotation, when ‘nititham’ is linked to the idea of dhamma. During the debate on the 2007 Constitution of Thailand Footnote ⁶⁵ the term nititham was chosen over nitirat specifically for its Buddhist connotation.Footnote ⁶⁶ Following the enactment of the 2007 Constitution, the words nititham and thamma-phiban spread, notably among state organs. The Office of the Constitutional Court published with abundance on this theme.Footnote ⁶⁷ In the 2017 Constitution, thamma-phiban is extensively referred to, as well as nititham, while the word nitirat is omitted.Footnote ⁶⁸ Over the course of the 1990-2010s, both Rule of Law (nititham) and good governance (thamma-phiban) had become associated with the reign of dhamma.

Meanwhile, the secularist overtones of the competing word nitirat had been accentuated through its appropriation by a group of constitutional lawyers calling for reforms of the relationship between the Monarchy and the Constitution. In the 2010s, seven prominent law professors from the Thammasat University in Bangkok, calling themselves Nitirat, had become active on the doctrinal front, opposing the Buddhicization of constitutional thought through the dhammarāja doctrinal discourse and advocating for a rehabilitation of the initial constitutional ideas of the People’s Committee (Khana Rasadon), to whom their name referred.Footnote ⁶⁹ In their two most controversial moves, the Nitirat jurists called for the reform of the lèse-majesté law and proposed that the King be required to swear an oath of loyalty before the Constitution, not before the dhamma. Although they gained wide support among Thaksin supporters in the Northeast and the educated youth in Bangkok, their proposals were officially rejected by all politicians from the majority and the opposition.Footnote ⁷⁰

III. BUDDHISM IN CONSTITUTIONS: THE KING AS UPHOLDER OF RELIGION(S)

The Interim 1932 Constitution, by the People’s Committee, did not make any reference to Buddhism at all. Although its drafter, Pridi Panomyong, was Buddhist, he was also a Socialist revolutionary educated in militant secularist France,Footnote ⁷¹ which might explain its exclusion of references to Buddhism in the first draft. The People’s Committee seemed to have adopted a stance of indifference towards Buddhism,Footnote ⁷² although at some point it considered plans to ‘democratize’ the Buddhist Sangha.Footnote ⁷³ On 10 December 1932, the Permanent 1932 Constitution, drafted in close collaboration with the monarch, King Prajadhipok,Footnote ⁷⁴ introduced Buddhism in the constitutional text for the first time, in the provision related to the King: ‘The King must be a Buddhist, and the upholder of religion(s) (sasanuphathamphok).’Footnote ⁷⁵

In Thai, it is difficult to know whether religion here is singular or plural. ‘Religion’ in this context is presently translated as being plural, but this interpretation can be disputed. In Thai, the singular is distinguished from the plural only based on context. Many elements point toward a singular interpretation of this article as it appeared in December 1932. First, the word sasanuphathamphok was used in singular in the 1889 aborted constitutional project of King Chulalongkorn, the father of King Prajadhipok, as part of article 3(5) ‘The King is the upholder of Buddhism’ (penphutthasasanuphathamphok). Footnote ⁷⁶ By contrast, a plural interpretation might refer not only to Buddhism, but other religions professed in Thailand, most prominently at the time Islam, and Christianity. Understood either way, this provision makes nonetheless the King a dhammarāja as upholder of religion(s). Since then, the wording of this article never changed, unlike both provisions guaranteeing non-discrimination based on religion on the one hand, and religious freedom of all Thais on the other hand. In the Permanent 1932 Constitution, it stated that ‘[a]ll Siamese people, regardless of social status or religion, are under the protection of this Constitution’Footnote ⁷⁷ and that ‘[a] person shall enjoy full liberty to profess a religion (sāsana) or cult (lathi), and shall enjoy liberty to perform rites according to his own belief, provided that it is not against the duty of Thai citizen and contrary to public order or good morals of the people’.Footnote ⁷⁸

Both dispositions survived in the following constitutional texts, with minor changes. In the 1949 Constitution,Footnote ⁷⁹ the word ‘creed’ or ‘sect’ (nikai) appeared along religion (sāsana) and cult (lathi) in the article on religious freedom. Meanwhile, a second paragraph was added, as follows:

The Permanent 1932 Constitution and 1949 Constitution abided by standard freedom of religion normsFootnote ⁸¹ while giving special recognition to Buddhism through the article on the King. These features became the basis of Thailand’s subsequent constitutional developments.

In the late 1960s, Thai Buddhism was becoming more aggressive as a reaction to the spread of secular and anti-royalist communist ideas. From the 1968 ConstitutionFootnote ⁸² onwards, ‘actions against the nation, religion, and King’ were expressly prohibited;Footnote ⁸³ while, from the 1974 ConstitutionFootnote ⁸⁴ onwards, it also became a citizen duty to ‘preserve the nation, religion, and King’.Footnote ⁸⁵ Constitutional preambles stated that constitutions were aimed at the ‘protection’ of religion and the King. For instance, the preamble of the 1974 Constitution read: ‘The intention of this Constitution is to provide for the unity of the Thai people, the preservation of national independence, the protection of all religions and the worship of the King as Head of State and soul of the nation’. Although it mentioned ‘all religions’, Buddhism was the only religion understood as needing protection from communism at that time. Buddhist monks became increasingly politicized, with one famous monk stating in June 1976 that killing communists was just ‘a minor sin’, comparable to the killing of an animal to make an offering to a monk.Footnote ⁸⁶ In October of the same year, student activists who were labelled as communists were massacred inside and in the vicinity of Thammasat University in Bangkok.Footnote ⁸⁷

Following the defeat of communism by the successive military dictatorships, demands for democratization emerged, while Buddhist sentiments continued to mobilize the population. In 1991, in the context of the drafting of a new constitution, the idea that Buddhism should become the official religion of Thailand surfaced in the public debate. Most intellectuals rejected the demand as being too divisive.Footnote ⁸⁸ A first petition was submitted to the 1997-installed Constitution Drafting Committee (CDC) asking for official recognition of Buddhism as the state religion as well as the state’s promotion of observance and practice of religious principles.Footnote ⁸⁹ The petition sparked some enthusiasm among the public.Footnote ⁹⁰ The CDC reflected some of these demands, but did not establish Buddhism as the state religion. The resulting article, included in the title on ‘State policies’, provided:

In 2007, Buddhist groups again called for the establishment of Buddhism as the state religion. The coalition, under the name ‘Buddhism Protection Centre of Thailand’ (sun phitak phraphuttasasana haeng prathet thai) submitted a petition signed by 300,000 people to the CDC.Footnote ⁹² The Buddhist coalition argued that Buddhism was the national religion of the majority of Thais, and that the new constitution should be written so as to reflect the political reality. They did not aim for the title on state policy, but for the title on the King as upholder of religion(s). They proposed the following addition: ‘Thailand adopts Buddhism as its national religion. The King is a Buddhist and the upholder of religion(s).’Footnote ⁹³ Once again, the 2007 CDC resisted such demands. Yet, it agreed to reword the 1997 ‘State Policies’ constitutional disposition to add that Buddhism was a religion that the majority of Thais had professed for a long time. The provision read: ‘The State shall patronize and protect Buddhism, which is the religion long practiced by the majority of the Thai people.’

However, they rejected the proposed revision of the article regarding the King as upholder of religion(s). Ten years later, the article was modified in the 2017 Constitution as follows:

The article was controversial, but could not spark open controversy as discussion about the constitutional draft, especially critical comments, were criminalized by the 2016 Referendum Act.Footnote ⁹⁴ It angered the three majoritarian Muslim provinces of the deep south of Thailand, who overwhelmingly rejected the draft,Footnote ⁹⁵ although a large majority had always supported the army and endorsed the 2007 Constitution.Footnote ⁹⁶ A few days after the referendum, major terror attacks took place in the South, probably in retaliation against the adoption of the constitution. To ease tensions, a few weeks later, the National Council for Peace and Order (NCPO) issued a religious harmony order.Footnote ⁹⁷ It affirmed the state’s duty to protect and patronize not only Buddhism, but also Islam, Christianity, Hinduism-Brahmanism, and Sikhism, as well as Chinese Buddhism.

Now, what does ‘patronizing’ mean in constitutional terms? To answer this question, one must look at the history of the Sangha Act, which provides for the modes of regulation of the Buddhist Church. It must be noted in that regard that if the constitutional provisions seemed to provide for a stable relation between the King and the Buddhist Church, the regulation of King-Sangha witnessed significant variations as per the Sangha Act. The first Sangha Act was established by King Chulalongkorn in 1902, who sought to centralize Buddhism.Footnote ⁹⁸ It mandated that all monks be officially registered with the state. The second Sangha Act was promulgated by Phibun Songkhram in 1941 as a response to the demands of democratization of the Sangha made by monks.Footnote ⁹⁹ It created an organization based on the idea of the separation of powers, with an assembly, a cabinet and courts, on top of which sat the Supreme Patriarch (Somdet Phrasangkarat).Footnote ¹⁰⁰ The act was repealed in 1962. Sarit Thanarat removed the three organs and replaced them with a council of elders, from which the Supreme Patriarch had to be chosen. In the 1962 Sangha Act, article 7 gave the King discretionary power to appoint and revoke the Supreme Patriarch.Footnote ¹⁰¹ In 1992, the Sangha Act was once more revised. Article 7 removed the discretionary power of the King and replaced it with an appointment procedure that involved the Prime Minister submitting a name to the King for approval. However, the Prime Minister could only submit the name of the most senior member of the Council of Elders.Footnote ¹⁰² The Sangha thus gained more autonomy vis-à-vis the state, the King, and the Prime Minister. In practice, a convention emerged according to which power should be alternately held between representatives of the two Thai nikai or schools of Theravada Buddhism, Thammayut and Mahanikai. In practice, Thammayut monks close to the institution of the monarchyFootnote ¹⁰³ have dominated the history of the Supreme Patriarch office.Footnote ¹⁰⁴

In 2005, when Prime Minister Thaksin Shinawatra appointed Somdet Kiaw from Mahanikai as interim Supreme Patriarch in replacement of Somdet Phra Nyanasamvara from Thammayut, it was denounced as an usurpation of royal powers.Footnote ¹⁰⁵ Prominent monks, most notably Luangta Maha BuaFootnote ¹⁰⁶ joined the protest against Thaksin that ultimately led to his overthrow by military coup in 2006. Likewise, in 2013, Luangpu Buddha IssaraFootnote ¹⁰⁷ was an instrumental figure in the protests directed against Yingluck Shinawatra, ultimately dismissed by the Constitutional Court and a military coup in 2014. By promoting a model of governance seen as antagonistic to Buddhist Kingship, Thaksin (and Yingluck as being Thaksin’s ‘clone’) had been accused of disloyalty to the King and Buddhism. The increasingly aggressive Buddhist demands over the 1990s-2010s period can be explained by growing fears surrounding the perceived erosion of Buddhist KingshipFootnote ¹⁰⁸ linked to the rise of electoral politics, which in turn triggered a surge in hyper-royalism.Footnote ¹⁰⁹

IV. CONSTITUTIONAL PRACTICES: RĀJADHAMMĀ> CONSTITUTION

Buddhism most notably informs the Thai understandings of its constitutional identity based on Buddhist Kingship revealed in the idiom ‘Thailand is a democracy with the King as Head of State’, according to which the King is not bound by the constitution but by dhamma. Consequently, the King can override the provisions of the constitution in the name of justice (khwamyuttitham), a word also built on the Pâli root dhamma.

First, the King does not swear an oath to the constitution, but to dhamma, when he accedes to the throne. This question was one of the most controversial during discussions on the Permanent 1932 Constitution’s draft. One of the members of the People’s Committee asked the president of the CDC if the King should swear an oath to the new constitution as parliamentarians ought to do, and the president responded by invoking traditional custom according to which the King swears a Buddhist oath when acceding to the throne – and that it shall be sufficient.Footnote ¹¹⁰ Another member of the committee explained that ‘the King swears an oath to representations of Buddhist divinities, etc. Therefore, the text remains silent [on the issue of the oath to the Constitution]’.Footnote ¹¹¹

On his coronation ceremony, the new King Bhumibol Adulyadej did not swear an oath to the constitution. Instead, he promised to rule according to dhamma. He declared: ‘I shall reign by dhamma for the benefit and happiness of the Siamese people.’Footnote ¹¹² According to the King, Natural Law or Justice, embodied in dhamma, was a principle superior to the written constitution. To lawyers, he declared, on 7 August 1972, that ‘[t]he law is just a tool at the service of justice; therefore, one cannot consider it to be more important than justice; justice preexists to law and is superior to law.’Footnote ¹¹³

The next year, the King directly intervened in politics to force a discredited government to resignation and nominated a prime minister of his own choice. In 1973, massive demonstrations erupted to call for the resignation of Thanom Kittikachorn and his vice-prime minister Praphas Charusathien as well as a new constitution.Footnote ¹¹⁴ On 14 October, security forces shot protesters, killing hundreds of people and injuring thousands.Footnote ¹¹⁵ Students then sought shelter in the Royal Dusit Palace.Footnote ¹¹⁶ That night, King Bhumibol made the following announcement:

By this public announcement, the King had appointed as new prime minister one of his close aides, Sanya Thammasak, a King’s privy councilor and Thammasat University president, and a renowned lawyer.Footnote ¹¹⁸ In his law handbook, Thanin explained that this nomination was in fact the exercise of the King’s crisis powers: when the situation is critical, the King can use customary powers in violation of positive constitutional law. ‘When the country is in crisis, the King can put aside constitutional dispositions and act according to his own intuition.’Footnote ¹¹⁹

Following the King’s action, the ‘three tyrants’ – Thanom Kittikachorn, Narong Kittikachorn, and Praphas Charusathien – resigned and left the country. All members of parliament also resigned and a Constitution-Drafting Assembly was appointed to draft a new constitution.Footnote ¹²⁰ Members raised the question of the King’s crisis powers: was it desirable to constitutionalize such practice? Finally, constitution drafters decided to keep the King’s crisis powers in their uncodified state of constitutional custom in order to give maximum discretion to the King.Footnote ¹²¹ The constitution was promulgated in 1974.Footnote ¹²² Yet, in 1976, following the ‘Bangkok massacre’, the King once again appointed a prime minister of his own choice: Thanin Kraivichien, a Supreme Court judge and the very author of the theory of the King’s customary powers.Footnote ¹²³

Finally, in 1992, the King exerted once again his exceptional ‘power’ of direct nomination of a prime minister in times of crisis. It followed mass protests calling for the resignation of the military government of Suchinda Kraprayoon.Footnote ¹²⁴ The King granted an audience to both the leader of the protests, Chamlong Srimuang, and the prime minister Suchinda Krapayoon. Over the next few days, protesters dispersed, and Suchinda announced his resignation. The King then named Anand Panyarachun as prime minister. In his book, Thanin argued that this forced resignation was once again the King’s legitimate exercise of his crisis powers.Footnote ¹²⁵

Likewise, in the 1990s and 2000s, prominent Thai jurists analyzed royal interventions as the exercise of royal virtue mandated by the doctrine of dhammarāja. However, it is especially from 2006 onwards that the dhammarāja doctrine started to infuse dominant constitutionalist discourses with renewed intensity. It linked with another military-and-royally-sponsored discourse on ‘khon di’ or morally superior people, according to which ‘good people’ should have the right to dismiss and replace elected politicians considered as morally inferior.Footnote ¹²⁶ The successive overthrow of Thaksin and Yingluck, in September 2006 and May 2014 respectively, coincided with an intensification of the public use of the rājadhammā discourse, which ‘peaked’ a few months before the actual coups took place.

In late 2005, as Thaksin was facing mass protests, he dissolved the House and called for fresh elections, to be held in February 2006, which he believed would confirm him into power. Meanwhile, royalists had called for the appointment of a prime minister to replace Thaksin, arguing that the King’s political interventions in times of crisis were a customary practice in line with rājadhammā. They cited Article 7 of the Constitution: ‘[w]henever no provision under this Constitution is applicable to any case, it shall be decided in accordance with the constitutional practice in the democratic regime of government with the King as Head of the State.’Footnote ¹²⁷

After the election – which was boycotted by the opposition – the King dismissed the request, and asked the courts to step in instead on 25 April 2006.Footnote ¹²⁸ A few days later, the Constitutional Court annulled Thaksin’s reelection, and he was ousted in a coup in September of that year. A few months earlier, in June 2006, the Faculty of Law of the Chulalongkorn University had published a bilingual book, entitled Ten Principles of a Righteous King and the King of Thailand, under the supervision of Bowornsak Uwanno, on the sixtieth anniversary of his accession to the throne. It re-explored the theory of dhammarāja:

The underlying theory of the Ten Royal Virtues was that the constitution was not necessary as the King’s power was, since ancient times, already limited by the Buddhist principles of totsapitrājadhammā.Footnote ¹³⁰ In this authoritative text, the Ten Royal Virtues even became ‘conventions of the Constitution’ (thamniem patibat thang ratthathammanun), a neologism that once again formed on the root ‘dhamma’:

It followed the publication of another influential book on Royal Powers, which, although not relying directly on the dhammarāja doctrine, also advocated that royal powers should not be bound by the constitution.Footnote ¹³² A few months before the overthrow of Yingluck, the rājadhammā discourse was mobilized yet again. In November 2013, the agenda-setting research institute under the Thai Parliament, the King Prajadhipok’s Institute, organized his annual Congress on the theme of the dhammarāja. Three days of plenary sessions and parallel panels were devoted to the discussion of the contemporary relevance of the doctrine for Thai public law and politics. The foreword to the edited volume published after the Congress opens with the following words:

Papers dealt with the Indian King Ashoka and the Siamese King Chulalongkorn,Footnote ¹³⁴ the dhammarāja doctrine during the Sukhothai era,Footnote ¹³⁵ and the dhammarāja in the Thai system and its comparison with Plato’s Philosopher-King.Footnote ¹³⁶ Many papers argued that King Bhumibol Adulyadej embodied a modern dhammarāja.Footnote ¹³⁷ Two years before, the Constitutional Court had made the same argument. In its decision on the constitutionality of the lèse-majesté law, it had argued:

The Constitutional Court ruled that the lèse-majesté law, carrying jail terms of three to fifteen years for ‘whoever insults, defames or threatens the King, the Queen, the Heir-apparent or the Regent’, was appropriate and constitutional. Moreover, the Court argued that lèse-majesté was a necessary complementary article to the constitutional provision according to which Thailand’s King is sacred, inviolable and that no accusation can be made against him. Lèse-majesté was then made an integral part of sacred Buddhist Kingship.

The history of the revival of lèse-majesté in two waves from the 1960s and 1990s onwards mirrors the revival of the doctrine of the dhammarāja. As introduced by Chulalongkorn’s 1908 Penal Code, the maximum penalty for lèse-majesté was a seven-year imprisonment. In 1976, the maximum penalty was increased to fifteen years, while a threshold of three years was added. Together with the surge in hyper-royalism, the number of lèse-majesté cases soared in the 2000s, reaching unprecedented heights after the 2014 military coup. Since then, constitutional lawyers and Thai diplomats have increasingly started to defend the Thai lèse-majesté law by referring to its link with Buddhism.Footnote ¹³⁹ In 2016, Bowornsak equated defamation of the King to ‘blasphemy’ of the Buddha: ‘When the Thai King is unfairly criticized, most Thais feel like their own parent is being attacked and cannot accept it – much in the same way that Thais do not accept anyone demeaning the Buddha or even statues that represent him.’Footnote ¹⁴⁰

V. EPILOGUE

When King Bhumibol passed away on 13 October 2016, a major concern among Thai elites and commentators was Vajiralongkorn’s lack of personal capacity to embody the dhammarāja like his father, due to his personal behaviour. Since he ascended the throne in December 2016, King Vajiralongkorn made only a few direct uses of his power. In his two very first moves, in January 2017, he ordered the constitution and the Sangha Act to be revised.Footnote ¹⁴¹ The latter was amended to give full discretion to the King to appoint whomever he pleased as the Supreme Patriarch – it no longer required the most senior member of the Council to automatically become the Supreme Patriarch nor did it allow the Prime Minister to have a say in the appointment.Footnote ¹⁴² In July 2018, he revised the Sangha Act again.Footnote ¹⁴³ According to the new Act, the King has the right to nominate and dismiss all members of the Council of Elders (up to twenty monks). The rationale for the revision was to modify the Sangha Act procedures to bring it into conformity with the constitutional provision regarding the King as upholder of religion(s):

This example suggests that the current meaning attached to the constitutional disposition of ‘the King as upholder of religion’ is, at least for the current military government and the King, strictly singular, and refers indeed to Buddhism. Under the new reign, the King’s role as upholder of Buddhism is to be understood increasingly in terms of royal control and direct oversight.

The two revisions of the Sangha Act, in 2017 and 2018, accompanied, more than they preceded, the royal exercise of the prerogative to nominate and dismiss key monks. In February 2017, the King appointed as Supreme Patriarch Somdet Phra Maha Muniwong, eighty-nine years old, from the Thammayut order, over the candidate proposed by the Council of Elders according to seniority, Somdet Phra Maha Rachamangalacharn, also known as Somdet Chuang, from the Mahanikai order.Footnote ¹⁴⁵ In May 2018, Vajiralongkorn revoked the titles of several members of the Council of Elders, following their arrest by the police for corruption. These developments prove that the administration of Buddhism remains a key concern of the Thai monarchy under the new reign. Vajiralongkorn seeks, like his father, to embody for his people the figure of the dhammarāja: a virtuous Buddhist King whose powers do not primarily derive from the constitution.

Vajiralongkorn had chosen to promulgate the Twentieth Constitution on 6 April 2017, the day of the founding of the Chakri dynasty by King Rama I in 1782. The ceremony emphasized the idea that the new 2017 Constitution was a sacred royal ‘gift’: the Tipitaka-like Samutthai was placed on a two-tiered golden pedestal tray for the King to sign into law. A few days after the ceremony, it was discovered that a historical plaque commemorating the 1932 revolution and constitution was replaced by a same-size plaque glorifying the monarchy and Buddhism instead. In front of Ananda Samakhom Hall, the secular and revolutionary plaque that read ‘[h]ere, on 24 June 1932, at dawn, the People’s Party instituted the first constitution of the country, for the betterment of the nation’ was replaced by the Buddhist-royalist plaque that read: ‘[L]oyalty and love for the Triple Gems [Buddha, Dhamma, and the Sangha] – everybody’s heart must be pure because the King is kind; that is how the State prospers’.