The Thai Constitutional Essence: Constitutional Identity as a Framework for Constitution-Making in Thailand

Abstract

This article examines the concept of constitutional identity- a crucial theory in comparative constitutional law. It analyzes whether a constitutional identity exists in Thailand, how it manifests, and if it can be synthesized into a framework for future projects of constitution-making in Thailand.

Constitutional identity is a theoretical and philosophical concept that encompasses the fundamental characteristics and core values held under the constitution of a state. These values and characteristics, in turn, give rise to constitutional institutions and mechanisms. Constitutional identity can appear at the most abstract and universal level, as well as at a level specifically tied to the context of a particular state. According to most analyses of Thailand’s constitutional identity, the universal and the Thai aspects of constitutional identity are in intense conflict. Therefore, constitution drafters must attempt to reconcile the differences between these two aspects by building consensus and legitimacy through public participation to discover the true and final constitutional identity. At minimum, the generic constitutional identity should be accepted as part of Thailand’s constitutional identity. However, this article also argues that the conflicts found within the Thai constitutional identity are often actually of political or ideological nature. When it comes to the constitution itself, there might only be two clear points of constitutional identity that are distinctly Thai, differing from the generic constitutional identity: (1) the incorporation of ethics and morality as part of the constitutional system, and (2) the allocation of resources for fairness through constitutional rights and freedoms.