Since the change from absolute to constitutional monarchy in 1932, the political history of Thailand has been characterized by what numerous academics call the “vicious circle of Thai politics” (wong chon oobat) – a cycle of coups d’état; interim constitutions; new constitutions; elections and coups. This vicious circle encompasses the so-called “constitutionalization cycle” (comprising of interim constitutions, selection of drafting committees, new constitutions and elections). Five such cycles have occurred since 1932.
The 22 May 2014 coup by Army Chief Gen. Prayuth Chan-Ocha starts a sixth cycle. The military abolished the 2007 Constitution which had been drafted under its own auspices after the 2006 coup against then-hugely popular Prime Minister Thaksin Shinawatra. Soon after, a transitory constitution will be drafted by a handful of men handpicked by the junta. Its main features will be the curbing of political liberties and the organization of repression over dissent in order to stabilize the coup.
Thailand had 18 Constitutions and 12 successful coups since the end of the absolute monarchy in 1932. A Thai Constitution lasts in average 4.5 years and there is a coup every 6.8 years. In Thailand, coups d’état followed by constitution-making is a common means of seizing and consolidating power. Hence, once in power, new power-holders seek to entrench their preferences and interests in a new Constitution.
The 2006 coup-makers supervised a constitution-drafting process that led both to an inflated bureaucracy and a reduction in the power of elected politicians. The 2007 Constitution created several judicial or semi-judicial organizations to check on the exercise of power by elected politicians, notably the National Anti-Corruption Commission, the Election Commission, the Ombudsman and, on top of it, the Constitutional Court. Independent organizations were also tasked with appointing half of the Senate.
However, the 2007 Constitution-drafters were unable to create a fully bureaucratic regime. Under popular pressure, they had to abandon the idea of a fully appointed senate of experts, as well as a constitutional provision mandating bureaucrats to exert special powers in times of crisis. The resulting system created by the 2007 Constitution was a juristocracy, bestowing de facto veto powers to judges while providing for free and fair elections to be regularly held under the control of the judiciary.
This strategy is best analyzed by Ran Hirschl’s theory of judicialization of politics for ‘self-interested hegemonic preservation': old and unaccountable elites threatened by democratization delegate the mission to safeguard their interests against elected politicians to unelected judicial or semi-judicial bodies. That is how, over the course of an eight-year period, the most popular party in Thailand was dissolved twice (2007 and 2008) while five of its elected prime ministers were deposed either by military coups (2006 and 2014) or Constitutional Court ruling (2008 and 2014).
Although the judiciary proved efficient at constraining the exercise of state power by successive elected governments of pro-Thaksin parties, it could not prevent them from repeatedly winning elections. In the eyes of the elites that empowered the judiciary to insulate their own interests from democratization threats (through the 2007 Constitution), the system was not providing enough insurance and its resilience was questioned. The 2007 Constitution, although enacted under martial law after a military coup, proved being too ‘compromising’ with electoral politics to assure continued military-bureaucratic domination over Thai politics.
Hence, the 2014 coup-makers are likely to go further than in 2006 in the constitutional entrenchment of their preferences. They are likely to disguise the military-bureaucratic regime they intended to create in 2006 into a ‘corporatist democracy’ or ‘organic State’ (Linz 2000), that will, under cover of ‘people’s participation’ or even ‘participatory democracy’, lead to a soft dictatorship of the “Deep state” over the “apparent state”.
The Deep State in Thailand
In Thailand, the State and the government are two separate entities. Existing literature usually equates states and governments, or consider the former the structure within which the agency -governments- evolve. However in many electoral authoritarian regimes, when the state is not subordinate to the political government and/or when the military is not under civilian control, static dualities prevail.
The existence of dual structures of governance in non-Western countries has been the subject of empirical studies which usually trace the dual state to an elite-driven transplant of Western electoral democracy in the absence of historical colonial rule, such as Turkey. As Ersel Aydinli puts it :
“This [the existence of a dual structure of governance] seems to occur when an existing state tradition precedes the introduction of more democratic “government”actors and practices. Since a subordination of the existing state establishment to a democratic governance often takes considerable time to consolidate, there may emerge a dual structure, in which the state appears (in varying degrees) as distinct and autonomous from the government.”
While the Turkish case was widely explored, the Thai case was overlooked by foreign and Thai scholars alike, even though it is perhaps an even better example of the dual state theory. In Thailand, the state establishment comprises appointed senators, judges and experts appointed in oversight bodies such as the Constitutional Court, the National Anti-Corruption Commission, the Election Commission, the Ombudsmen, as well as the Legal Reform Commissions and other state-funded think tanks. They maintain a powerful influence on state affairs, effectively dominating the polity over political government through informal, non-institutional as well as formal, institutional means.
The Deep State, also called “traditional elites” network, the inner state, the ‘network monarchy’ (Mc Cargo 2005), the old establishment or the ‘ammat’ in Thai, is the recognized enemy of the pro-Thaksin forces. The Deep State opposes the visible or apparent state constituted by the elected government for the purpose of self-interested hegemonic preservation. Its agents seek any possible ways to maintain the unaccountable power centers from where they derive their resources.
Since the 1980s, to maintain its organization threatened by both international and domestic pressures for democratization, the Thai Deep State has resorted to military coups legitimized by “political crisis”. By creating, then sustaining low-intensity political crisis and finally presenting the bureaucratic-military regime as a solution to the crisis, the Thai Deep State has managed to preserve its role and status in the Thai polity.
The 2006 and 2014 coups applied this coup-making model. Both were staged for the very preservation of the Deep State itself. They constituted an attempt by the military-judicial alliance (under royal patronage) to prevent Thailand from moving beyond the dual state polity and becoming a full electoral democracy (liberal or illiberal). The 2006 and 2014 coups were the outcome of a concerted set of actions by the courts, civil society interest groups together with the military. In both cases, a set of court decisions led to the institutional crisis that paved the way for the coups.
The 2006 coup
In 2001, Thaksin Shinawatra was elected on a program benefitting business elites and poor farmers, and was supported by the old establishment. He implemented his program and, in 2005, was subsequently reelected in the biggest landslide in Thai history. Meanwhile, his authoritarian and arrogant style alienated him with that same old establishment, together with those sympathetic to the establishment in the electorate. He was labeled as corrupted and republican by opponents and middle classes in Bangkok, who launched massive protests in 2005 to oust him, calling for the King to appoint a Prime Minister to replace him.
Thaksin called snap elections on April 2, 2006. The elections were later annulled by the Constitutional Court. New elections were scheduled for October same year, that would have undoubtedly returned Thaksin to power. The military, led by General Sonthi Boonyaratglin, staged a coup on 19 September 2006 and declared martial law. A Constitution-drafting assembly was set up and the Constitution approved by a slim margin in a 2007 referendum.
The 2014 coup
In 2011, Yingluck Shinawatra, younger sister of Thaksin, was triumphally elected as Prime Minister. However, she could not implement her program of revising the Constitution to democratize the mode of selection of senators (half-appointed by a body of 7 judges under the 2007 Constitution) due to opposition from the Constitutional Court.
In November 2013, the Constitutional Court ruled that the vote by parliamentarians of the Senate selection mode was unconstitutional; some parliamentarians who voted in favor of making the Senate elected were later indicted by the National Anti-Corruption Comission for abuse of power.
Meanwhile, Yingluck was the target of various judicial attacks: one for attempting to make the Senate a fully-elected body, another one for the mismanagement of a rice-subsidy programme, and a last one for transferring a senior civil servant to an inactive post. This latter case led to Yingluck’s dismissal by the Constitutional Court.
Before that, the Constitutional Court had annulled the elections of February 2, 2014 arguing that it was not being held on the same day throughout the Kingdom. The opposition party had participated in forcibly preventing voting (by closing polling stations) in some constituencies. Elections were tentatively scheduled for July 20, 2014, but the army led by Prayuth Chan-Ocha suddenly staged a coup on 22 May 2014.
In 2006, as in 2014, the coup was staged after elections were won by pro-Thaksin forces and cancelled by the Constitutional Court and before the date set for new elections which would have returned pro-Thaksin forces to power. In both cases, the courts created a political vacuum (no legislature, no executive) facilitating the army’s power seizure.
The military-judicial business of coup/constitution-making in Thailand
The 2006 and 2014 coups were the result of coordinated action by high-ranking bureaucrats (especially judges) and the army. Elite socialization in Thailand makes informal inter-branch cooperation easy – that is how the Thai Deep State works. Civilian and military bureaucrats study together at the National Defence College, a professional elite learning centre dedicated to promote nationalistic and royalist ideas to foster strong feelings of comradeship among its students and emotional identification with the Deep State. The highest bureaucratic institution of the country, the King’s Privy Council, governing high respect among National Defence College students, is mainly composed of former court presidents and army chiefs, most of them having studied at the National Defence College.
Against this background, the business of staging military coups has become some sort of a division of labor between two main pillars of the Thai Deep State, namely jurists and military officers, easily coordinated through the Privy Council and informal comradeship links formed at the National Defence College and other similar institutions.
Military junta needs jurists. Even in the state of exception, coup-makers try to ground the suspension of law in the juridical order; as modern authoritarian regimes always make efforts to ground their regimes in a legal order while often adding some traditional and charismatic legitimacy features to increase popular support (Linz 2000). The coup itself must derive its legitimacy from some sort of legal argument. Three conditions are usually referred to by coup-makers to legitimize a coup in Thailand.
Firstly, there must be a crisis with the following characteristics: some degree of public acceptance that the current constitutional order does not provide the adequate mechanisms for its resolution, together with the imminent risk of the crisis turning violent. Secondly, a legitimizing discourse must be in place, supported by elements of international democratic doxa and cemented by the designation of an enemy. And thirdly, a coup must have the support of the most powerful institutions in the country, namely the monarchy and the Privy Council.
First of all, there must be a crisis so that ‘normal circumstances’ can no longer be applied. Legality can be maintained thanks to invocation of extra-constitutional sources of law by jurists. State violence is made legal through the use of « derogatory laws » by jurists such as martial law. The military stages a coup d’état, jurists/justices legalize it through Constitution-drafting and jurisprudence, and finally military leaders are granted amnesty.
Secondly, there must be a legitimizing discourse and an enemy. Before the end of the Cold War, with assistance from the USA, the enemy was communism; the legitimizing discourse was based on the modernizing theory and the idea that a strong State and authoritarianism were needed to cope with rapid industrialization. It was believed that economic development would naturally lead to democratization.
Thirdly, the country’s most powerful institutions must support the coup. Failed coup d’Etat attempts against Thanin Kraivichien in 1977 and Prem Tinsulanond in 1981 are proof that when the monarch opposes a coup, the attempt fails. Former Supreme Court president Thanin Kraivichien and former Army Chief Prem Tinsulanond are two protégés of the King; and they are are among the most powerful Privy Councillors. They both yield high influence in the judiciary and in the army, respectively.
For the Thai Deep State, crisis is needed in order to legitimize a state of exception where both the military and the judiciary can overstep their powers to let the military-bureaucratic authoritarian regime develop under the cover of a democratic facade fed by an abundant Deep-State-shaped rule of law rhetoric.
Eugénie Mérieau is a fellow of the Southeast Asian-German Center of Excellence for Public Policy and Good Governance, Faculty of Law, Thammasat University in Bangkok and a lecturer of Southeast Asian public law at Sciences-Po in Paris. She graduated from Sciences-Po and is a PhD candidate at INALCO Paris. She is the author of “Red-shirts in Thailand”, Bangkok:IRASEC, 2013 (in French).
Chai-Anan Samudavanija, The Thai Young Turks, Singapore : Institute of Southeast Asian Studies, 1981, p.1.
 The first cycle starts with the 1932 coup; the second cycle with the 1947 coup; the third cycle with the 1977 coup; the fourth cycle with the 1991 coup and the fifth cycle with the 2006 coup.
Eugenie Merieau, Thailand’s juristocracy, in New Mandala, May 2014, accessible at http://asiapacific.anu.edu.au/newmandala/2014/05/17/thailands-juristocracy/
 Ran Hirschl, The Judicialization of Mega-politics and the rise of political courts, in Annual Review of Political Science, vol. 11, 2008, 93-118.
 Ersel Aydinli, “Governments vs States : decoding dual governance in the developing world” in Third World Quaterly, 31:5, 693-707 .
 See a special issue of Perspectives by the Heinrich Böll Stiftung on the Deep State in Turkey, in 2012 with contributions from Aysegul Sabuktay, Ahmet Sik, Aydin Engin among others.