Thailand’s so-called 'judicial crisis' of 1991-92 centred on the controversial figure of Pramarn Chansue, and his tussles with the appointed government of Anand Panyarachun following the 1991 military coup. The then justice minister stood accused of political interference in the appointment of senior judges, in a pivotal episode in the recent history of the Thai judiciary. Pramarn eventually emerged triumphant from the crisis and became a very powerful supreme court president thereafter, but there were numerous sub-plots involved (including a dramatic attempted murder case featuring a famous architect), and the debacle led directly to the separation of the Office of the Judiciary from the Ministry of Justice a few years later. The chapter will use Thai language and interview sources to examine and analyse an episode that was hugely important, but has scarcely been dealt with academically by either Thai or international scholars.

For centuries, Buddhism was said to be the main source of law in Buddhist kingdoms in mainland Southeast Asia, as seen in the prevalence of the cult of Dhammasastra. But what is Buddhist about these Buddhist laws? Buddha had never taught a legal code, only dhamma and vinya for monastic life, so the relationship between Buddhism and law is not straightforward. Dhamma itself is cosmic law. Vinya is a monastic code of conduct. This chapter aims to explore how the three types of ‘law’, dhamma, vinya, and Buddhist law, related with one another in ancient Siam. How did Buddhism shape legal, and political, arrangement in Siam? More importantly, when the service of Buddhist law officially came to an end in the early 20th Century, is there any residue of the idea left in the modern legal thought and culture of today Thailand?

Robert Lingat argued that in Siam’s traditional legal system, based on an Indian model, law was based on custom and morality, encoded in texts descended from the Indian dharmasastra, and the king was primarily an enforcer and could legislate only within these codes. In the mid-20th century, Prince Dhani Nivat adopted this argument in his construction of a theory of moral kingship for the ninth reign. The argument thus became sacrosanct. However, there is little evidence of dharmasastra-thammasat in Siam—only one ambiguous reference in 500 years of history and no text found, compared to hundreds in Myanmar. Meanwhile there is strong evidence of royal law-making back to at least the 15th century. Laws were made by royal decree or by court judgements handed down by the king or his deputy. Law codes were compiled and preserved by royal scribes, and enforced in a system of courts with the monarch at its apex. The Thammasat that heads the Three Seals Law (the collection of old laws assembled in 1805) is very different from those in Myanmar and elsewhere. The first part appears to be copied from a Myanmar source, but the codification of customary and moral principles, which forms 90 percent of the Myanmar texts, is completely missing. Instead the latter part of Thai Thammasat is an index to the whole Three Seals Law. This must have been compiled in a relatively late recension of the whole code, probably in the late 17th or 18th century. Appreciating the royal role in law-making offers a better understanding of the late Ayutthaya state, and a different perspective on Siam’s legal tradition.

The Thai Civil and Commercial Code expressly prohibits the creation of trusts except when provided for by specific legislation. To date, there is only one such piece of legislation: the Trust for Transactions in the Capital Market Act of 2007. However, the history of trusts in Thailand dates back to the late 19th century, and whilst the separation of legal and equitable titles does not sit well with the Code’s legal or intellectual framework, it is possible to provide a coherent explanation of its historical development through the lens of legal pragmatism.This chapter investigates the journey of trust law in Thailand, which runs in parallel with the country’s expansion of international trade and its industrial modernisation. It traces the historical judicial treatment of English common law trusts and the more modern regulatory attempt to integrate statutory trusts into the Thai legal system. Whilst both avenues demonstrate a highly adaptive and pragmatic approach to this imported equitable creature, they appeal to different legal and public policy considerations. With the Draft Bill on Trusts for the Purpose of Personal Asset Management having received cabinet approval in 2018, Thailand now stands at an important juncture for the development of its future trust law regime.

It will be useful before we proceed further to orientate the reader briefly as to the existing literature on Thai legal history. It should be stressed that this subject has a rich literature, but it is spread over the last 300 years and is in at least three languages (Thai, English, and French). This review contains only the major items and is not intended as a complete list, but rather as a starting point for further research.

As a final comment on the outcomes of Thailand’s legal history, this chapter begins with a seemingly bizarre incident that occurred during Thai street protests in March 2010. Tens of thousands of rural demonstrators splashed their own blood on Bangkok’s public buildings to curse the ruling government and its legal and political institutions. An explanation of the demonstrators’ controversial actions is found in their reaction against efforts of the central Thai ruling elite over the past century to modernize Thai law, rationalize its religious administration, and eliminate rival systems in outlying regions. These efforts, in turn, are placed in the context of a centuries-old tradition of law, kingship, and religious purification through which Thai rulers centralized their power and demonstrated their legitimacy. The street protests in 2010 represented a failed attempt by rural workers simultaneously to claim their place in the Thai nation and to challenge its hegemony, to assert their rights under modern law, and to invoke pre-modern legal norms and identities.

In 1855 Siam signed the Bowring Treaty with Britain, the first of 15 unequal trade treaties with nations around the world. The treaties introduced to Siam extraterritoriality, or consular jurisdiction over foreign subjects in exclusion of Thai authorities’ jurisdiction, using specially established consular or international courts staffed by foreign judges. As well documented and discussed elsewhere, this extraterritoriality led to the pressure for the country to modernise its legal system and introduce legal codes modelled on codes in civil law countries such as France, Germany and Japan. Much less examined is the quiet and latent influence of common law during this important juncture of the country’s legal history. This chapter looks at some of the leading British lawyers in Siam who, following the abolition of the international court, sat in the Supreme Court of Siam, or Dika Court, as members of the ‘Committee of the Supreme Court’, an equivalence of modern day judges. The chapter examines their legal backgrounds, their legal careers in Siam, and their role as Supreme Court judges. As the chapter traces through their work, our inquiry reveals a fascinating dynamic of common law legal reasoning and principles in a civil law, code-based jurisdiction. This investigation into the role of these British judges during the formative years of Siam’s newly established legal system, often understated and unexplored in academic literature, is crucial for a more complete understanding of the country’s process of modernisation.

In its post-1932 legal history, the constitutional stability, Thailand has been seeking for, has been harshly convulsed by the conflict between the traditional concept of authority and political stability which underpins the so-called ‘Thai-style democracy’ (‘TSD’) and increasingly sturdy demands for liberal democracy and constitutionalism, culminating in ‘colour-coded politics’ which started in 2006. The conflict between the ‘Yellow’ and the ‘Red’ ideologies resulted in a number of military coups, installing the TSD and the abolition of electoral politics. Thailand’s constitutional graveyard can then be seen as constitutional saṃsāra—the cycle of repeated birth and death. Based on this saṃsāra metaphor, I ask: To what extent do the irresistible and continuous rise of liberal demands and the trends of constitutionalism, modernisation, and democratisation in contemporary Thai legal history challenge the TSD? In other words, I examine how ‘modern innovations’ challenge Thailand’s constitutional saṃsāra and the attempt to halt it, that is, the imposition of constitutional nirvana. I answer this question by assessing the competing theories of law and politics (normativism vs anti-liberal realism), the concepts of ‘institution’, and the concept of the state of exception. I also use Hans Kelsen’s and Carl Schmitt’s theories/approaches to law and politics which have been transplanted into the Thai soil to theorise my answers.