Law and Kingship in Thailand During the Reign of King Chulalongkorn

Front matter

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Law and Kingship in Thailand During the Reign of King Chulalongkorn

AND AND AND AND AND A

Chapter 2: The Legislative Function

A. The Early Period: Privy Couneil and Council of State

B. The Later Period: The Legislative Council, Provincial Legislative Powers, and the Legislative Function During the Regency

1. The Legislative Council

2. Provincial Legislative Powers and the Legislative Function During the Regency

3. Comparisons with the Parliamentary System

Chapter 3: The Judicial Function A. Transformation of the Judiciary 1. Historical Perspective

2. Structural Reorganization of the Judiciary under King Chulalongkorn a. The Early Period b. The Ministry of Justice and the Bangkok Courts c. The Ministry of Justice and the Provincial Courts vii ix

B.

3. New Laws and Procedures for the Thai Judiciary

Implications of the Change

1. Unification and Extension of the Centralized Judiciary

2. The Distinction between Civil and Criminal Law

3. Appeals

4. Exercise of the Judicial Powers of the King Notes

Chapter 4: Rights of Private Citizens A

B.

C.

D.

E.

Social Legislation Suits Against Government Officials

The Right to Fair Treatment by the Judicial and Penal System

Rights of Speech The Right to Representation in Government Notes

Chapter 5: Conclusion Bibliography viii

74 77

79 82

85 91

95 95 100

103 110 113 116

119 125

ACKNOWLEDGMENTS

This study of the changes in Thai law and kingship during the reign of King Chulalongkorn originated largely as a result of the encouragement and guidance of Professor David Joel Steinberg, formerly on the History faculty at the University of Michigan and now Assistant to the President of Brandeis University. Professor Steinberg urged me to bring together my study of law and Thai historyina description of the transformation of Thailand during the late nineteenth and early twentieth centuries as seen from a legal point of view. With his assistance, and the assistance of others, I undertook to write an essay based for the most part upon those royal enactments from 1873 to 1910 which seemed to me most crucially to affect the executive, legislative, and judicial functions of the king and the rights of private citizens. An earlier draft of this study served as my master's thesis in South and Southeast Asian Studies at the University of Michigan.

I am deeply indebted to the late Paul G. Kauper, Henry M. Butzel Professor of Law at the University of Michigan, who shared with Professor Steinberg the task of supervising this project from its inception. I feel very fortunate to have had throughout my research the benefit of Professor Kauper's insights and broad understanding of comparative constitutional systems. Like so many other people who studied under him, I shall always value the memory of his wisdom, his dignity, and his great kindness.

Ajaan Nidhi Aeusrivongse, my instructor and friend, was enormously helpful to me in reading and analyzing the Thai texts and placing them in proper historical perspective. Ajaan Nidhi, who is a member of the History faculty at Chiengmai University, generously gave many hours of his ix time to discuss these matters with me. Although my conclusions may not necessarily be the same as his in each instance, it is impossible for me to imagine what shape this study would have taken without his suggestions, his criticisms, and his creative insights into the history of the period.

Professor David K. Wyatt of Cornell University provided me with valuable assistance at the beginning of my research, by recommending and helping me to obtain certain important books and documents. Professor Wyatt later read and helped me to revise the completed manuscript as well.

Professor John K. Whitmore of the History Department at the University of Michigan gave me a great deal of help in revising the earlier draft of my study. Under his supervision I rewrote much of the material dealing with the period before King Chulalongkorn's reign.

I am also grateful to Professor Alton L. Becker, Director of the Center for South and Southeast Asian Studies at the University of Michigan, for reading and helping to arrange for the publication of this essay. Both Professor Becker and Professor L.A, Peter Gosling, the previous Director of the Center, encouraged and assisted me throughout my joint program of law and area studies. Mr. John Musgrave, Southeast Asian Bibliographer at the University of Michigan, was very generous in helping me to obtain certain materials which I used in this project and in reading and critieizing the completed manuscript. Mrs..Jennifer Broomfield endured my last-minute changes without complaint and typed the entire essay for publication.

My parents throughout this period, as always, were a source of warm support and encouragement. It has been a special pleasure to me that they have shared my fascination with Thailand during the past years and have made it the subject of their own interests and explorations.

My wife, to whom this essay is dedicated, was its first cause and its final editor. More than she may realize, this study owes its existence to her.

Chapter 1 Changing Theories Of Royal Authority, Law, And Government

A.Theories of Law and Kingship

Until the era of King Rama V, the Thai conceptions of law and of kingship were interrelated to an extraordinary degree. The predominant position of the king as creature, creator, and protector of the legal system was a concept which persisted into the middle of King Chulalongkorn's reign when it, like many other traditional assumptions, was challenged and to some extent reshaped by revisionist thought. Despite the broad sweep of reform under King Chulalongkorn, however, many of the traditional ideas and practices were retained. If any monarch wielded absolute power or played the ancient role of paternalistic and benevolent ruler, surely it was King Chulalongkorn at the height of his reign. And yet, during this very apotheosis of absolute rule, ideas crept in, were tolerated, were even encouraged and promoted by the ruler himself, which challenged the centrality of the king to the Thai legal system. In a curious way, the very transformation of Thai law which measured the height of absolute power also marked the beginning of a separation of the two concepts of law and kingship, a process which would ultimately lead to the termination of the absolute monarchy in June 1932.

The unusual historical predominance of the traditional Thai king, both legally and politically, derived not from a single conception of law and kingship, but from a synthesis of several different and sometimes contradictory conceptions which entered Thai society over the course of several centuries. Perhaps the earliest form of kingship was the patriarchal monarchy of which there is evidence dating from the kingdom of Sukhothai in the thirteenth and fourteenth centuries. This earlier theory was cast in familial terms, with the monarch ruling his small but independent kingdom like a wise and benevolent father. The king was not yet the distant, semidivine figure which he was to become. In theory and in legend he was accessible to the people and ready to aid in the settlement of disputes among members of his "family":

In the gateway of the palace a bell is hung;

if anyone in the kingdom has some grievance

or some matter that is ulcerating his entrails and troubling his mind, and wishes to lay it before the king, the way is easy: he has

only to strike the bell hung there. Every

time King Rama Khamheng hears this appeal, he interrogates the plaintiff about the matter

and gives an entirely impartial decision.

Subsequent conceptions of Thai kingship were more explicitly Indian in origin, entering Thai society by way of the Khmer empire on the one hand and the Mon people on the other. The Khmer influence, increasingly apparent in the development of the kingdom of Ayutthaya, made of the king a more distant and stern figure, identified in theory with the Hindu gods Shiva and Vishnu, surrounded therefore with Hindu ritual, advised in the mysteries of the sacred law by his own Brahmin legal experts, and bearing towards the people the relationship of master to servant rather than father to child. ^ This was the concept of king as Devaräja, the awéinspiring and god-like figure who so impressed European visitors to the Thai court in the seventeenth century. 3 This form of kingship led to the characterization of the Thai monarch as chao chiwit, or "Lord of Life," with a theoretically absolute power of life and death over his subjects.

The stern and forbidding image of the king as Devaräja mingled to some extent with Buddhist conceptions of kingship which came to Thai society through the influence of the Mons. The Mon people of southern Thailand and Burma, strongly influenced by Theravada Buddhism, had transformed many of the Hindu precepts of law and kingship into a less forbidding theory of royal authority. 4 It was probably from them that the Thai concept of king as idealized ruler was drawn. According to this theory the king was to promote the teachings of the Buddha and to conform his own behavior to the ethical principles which the Buddha had articulated. The Devaräja conception in Thailand was thus reformulated in a most significant way during the Ayutthaya period:

The Brahmanical concept of the Devaräja, the king as god, was modified to make the king the embodiment of the Law, while the reign of Buddhist moral principles ensured that he Should be measured against the Law. The effect of this transformation was to strengthen the checks which, in the Khmer empire, Brahmans had attempted to exercise against despotic excesses of absolute rule. 9

Central to the king's function as upholder of the sacred law was the Thai thammasat, a form of legal code derived from the Hindu dharma-Sastras as restated by Mon legal specialists. The thammasat set forth the history of the world and man, the evolution of laws, and the origin of kings. It defined the relationship between the individual and the state and prescribed the norms by which the ruler should be governed in his actions. It contained legal precepts by which the relations between people were to be regulated, together with certain inter - pretations which those precepts had inspired through the years. The thammasat was, in short, the fundamental statement of royal law and legitimacy in traditional Thailand.

The centrality of the thammasat to the Thai system of law and kingship was reaffirmed by King Chulalongkorn's ancestor, the founder of the Chakkri dynasty. In the first years of the Bangkok period the law of the previous Ayutthaya period had been used in the new capital. Itis said, however, that King Rama I ordered a thorough revision and purification of this traditional body of law after a famous lawsuit came before him in 1804 on a petition for his final judgement. A woman known as Amdaeng Pom sought to divorce her husband, Nai Bunsri, who resisted her suit and alleged on appeal that she herself had been guilty of adultery with one of the judges. King Rama I determined that the divorce had properly been granted under the law as it then existed, but he believed it unfair to allow a woman to obtain a favorable decree whenever she requested a divorce, without any inquiry into allegations of misconduct on her part.6 Believing that the provision requiring such a result was symptomatic of a number of defects and inequities which had crept into the legal system over the years, Rama I established a Royal Commission to examine and revise the entire corpus of Thai law. The result of their efforts, completed in 1805, was known as the Law of the Three Seals, representing in the eyes of its creators a return to the purity of the thammasat itself. 7

The Thai thammasat, as restated in the Law of the Phree Seals, elaborated considerably upon the format of the Manu dharma-$àstra, the Hindu code from which it was indirectly derived. Although the traditional Indian texts contained eighteen law titles concerning litigation, the Thai version consisted of 39 such chapters, or laksana. Among the subjects of the different laksana were, for example, laksana rap fong, the law for receiving plaints, laksana phua mia, the law of husband and wife, laksana that, the law of slavery, and laksana phayan, the law of evidence. Ten of the laksana dealt with procedural matters, while the remaining 29 concerned topics of substantive law. 8

The Thai thammasat also differed from the Hindu Sästras in that it reflected the strong influence of Buddhist philosophy and cosmogony. The Hindu Code of Manu was the word of Brahmä himself, creator of the world, as it had been transmitted to his offspring, the legendary Manu, and then to ten Sages who preserved the teachings for mankind. 9 In the Thai- Mon version, on the other hand, Manu was a counselor to the first monarch in the history of the world. King Mahäsammata,

a Bodhisattva, had been elected to rule by primitive men when they found it necessary to choose a leader from among themselves in order to settle their disputes. The king could interpret but not create the law, and it was Manu's role to be raised into the heavens until he reached the wall surrounding

the world. On this wall were carved the sacred laws which Manu read and recounted to King Mahäsammata. These laws became, in the Thai version, the foundation of the thammasat. 10

Whereas Hindu theory would emphasize the divine foundation of the rule of kings, the Thai thammasat described a King of Righteousness, a Great Elect, who followed certain precepts of just rule and abided by the ten kingly virtues: almsgiving, morality, liberality, rectitude, gentleness, selfrestrietion, non-anger, non-violence, forbearance, and non-obstruction. 11 The king was to study the thammasat with care and observe the four principles of justice: to examine

the propriety and quality of all work performed for him; to protect and promote those who were honest; to obtain royal revenues by just means alone; to maintain the happiness and prosperity of his kingdom.12 The king was not divine, but if he ruled according to the principles of righteousness he could become recognized as a Chakkraphat (chakravartin), a Universal Sovereign possessing great power and moral influence throughout the world. 13

In theory, therefore, the thammasat should have served as a limit upon the exercise of absolute power by the Thai kings. Although the king could not be restrained by any law of man, his power was subject to the moral authority of the thammasat itself, and he was bound to observe the rules and precepts contained in it, In fact, however, there was no formally constituted class or group in Thai society which could enforce these rules against the king. The Devaräja concept of kingship, with its air of mystery, aloofness, and ritual, together with the Theravada Buddhist concept of the king as an embryonic Buddha, combined to create a theory of kingship which could indeed lend substance to claims of unchallengeable and absolute power. 1

Regardless of the temporal power which a Thai king might wield, however, he was subject like any other being to the workings of thamma, or dharma, a concept basic to the philosophy of the thammasat. It was believed that certain immutable rules operated in the moral universe just as the laws of physics operate in the natural universe. These inexorable rules of moral behavior existed above the sometimes arbitrary actions of individuals or their rulers, meting out rewards and punishments in a transcendental system of justice. The workings of thamma were the essence of the sacred laws which Manu had learned and passed on to mankind. The concept of thamma, or dharma, has been explained in the following terms by a leading western historian of Indian and Thai law:

In external terms, dharma is the action which, provided it is conformable to the order of things, permits man to realise his destiny to the full, sustains him in this life, and assures his well-being after death. By its own virtue that act produces a spiritual benefit for him who has performed it, which will necessarily bear fruit

in the other world. Conversely, an act contrary to dharma, called adharma, necessarily involves a sanction, a "fall" for the one who does it, which will strike him in his future existence if not actually in his present life. "Destroyed, Dharma destroys; protected, he protects": so says Manu (VIII. 15). In internal terms, dharma signifies the obligation, binding upon every man who desires that his actions should bear fruit, to submit himself to the laws which govern the universe and to direct his life in consequence. That obligation constitutes his duty: and that is a further sense

of the word. 19

The principle of thamma, or dharma, provides one explanation for the limited capacity of the traditional Thai monarch to create permanent laws. 16 The king had no theoretical power to legislate but merely to issue commands which would protect the people and preserve the principles of the thammasat. As chief judge, the Thai king could also declare the law when disputes of the people came to him on petition. In theory, however, these edicts and judicial decisions had no permanent force. They were always subject to revision or reversal by later rulers. The collection of king-made law was known as rachasat, in contrast to the thammasat itself. Rachasat was for the most part temporary law, binding on the people because of the power of the king, but lacking the inviolability and permanence of the thammasat. Conceivably a king could, by royal edict, oppose the very essence of the thammasat, but such deviations and impurities, it was believed, would not last long. A later monarch, like Rama I in his revision of the legal corpus, would inevitably restore the law to its proper and permanent form. Such restorations were inevitable because of the inexorable workings of the thamma which would sooner or later destroy all unjust laws:

Commands of kings can only endure if they are in conformity with Dharma, and not because of the absolute power of kings, but because of the transcending nature of the rule of dharma which is underlying them. Rulers are auxiliaries of Dharma. The true law-givers are Manu and those inspired Sages who have revealed Dharma once for all.17

Despite the theoretical inability of traditional Thai kings to enact permanent laws, it has been observed that certain royal decrees did in fact attain the status of legislation which was preserved as part of the sacred code. The Thai thammasat records not only the fundamental precepts attributed to Manu (known as munla-at, or mula-attha) but also those rules of law which were outgrowths (sakha-at, or sakha-attha) of the fundamental precepts. These outgrowths came into existence as Thai kings interpreted and elaborated the sacred law.

The decrees were strictly speaking rachasat, yet they could acquire a permanent and respected status if they conformed sufficiently to the sacred law. By a formal process, royal enactments could be incorporated into the very text of the thammasat:

A procedure is expressly provided for the transformation of a royal decision into a rule oflaw. They must be stripped of the features which gave rise to them, and reduced in abstract terms to the concise form of the precepts of the law. They could then be added to the text of the dhammasattha itself under the relevant rubric. 19

The remarkable legislative activity of King Chulalongkorn was perhaps anticipated by this embryonic law-making capacity of the traditional Thai kings. In so far as the royal decisions and decrees were themselves thamma, they could be abstracted

and integrated into the corpus of Thai law. In so far as the

laws departed from thamma, they became a nullity when the power of their creator ended.

This distinction between temporary and lasting laws may reflect what one anthropologist has described as a fundamental dualism in the Thai social order. On the one hand there is "merit" which is gained through selfless acts, particularly acts by rich or powerful men such as kings. Such meritorious acts are characterized by their effectiveness and their permanence. On the other hand, there is "power," which may also lead to short-term success but which, because of its amoral character, will lack the permanence of truly meritorious acts. The products of power, without the presence of merit, will in time be destroyed. 20 This analysis applies as well to the enactments of the Thai kings. By virtue of their extraordinary power, the kings could command almost any short-term result they might wish, but unless their edicts were supported by selfless and meritorious purposes, as delineated in the thammasat, they would not least. Despite the opportunity for arbitrary and capricious behavior there was thus a certain stability and justice in the traditional system of rule:

Though power blurs the clear edges of cosmic justice, one may think of justice lagging behind, like a court with a clogged calendar, in exacting punishments and awarding compensations.

Itis clear, however, that in the short run the power of the king was supreme to preserve the law, to interpret the law, and to create new law. There was no Parliament free to act as a legislative counterbalance. There was no tradition of a strong and independent judiciary which might create a system of common law. There was no Magna Carta standing between king and subjects as a symbol of the rights and liberties of individuals which could be enforced against an unjust king. In short, the essence of the law was the king himself. The law was a justification of kingship, and the king was the interpreter and creator of law, limited only by the moral constraints enumerated in the thammasat and by the belief that the rules of thamma would eventually work their retribution upon unjust acts.

This, then, was the tradition of law and kingship which was challenged and to some extent changed during the era of reforms over which King Chulalongkorn presided. As political pressures from the colonial powers on Thailand's borders became more intense, as western ideas of government came increasingly to influence the Thai elite, the traditional assumptions were called more and more into question. King

Chulalongkorn's father, King Mongkut, had already found

it necessary to exercise his legislative powers more actively than had his predecessors. There was a suggestion of new thoughts about royal legitimacy as well in King Mongkut's revision of the traditional ceremony of allegiance to the

king. Instead of accepting passively a unilateral pledge

of loyalty from his officials and court, King Mongkut

made the ceremony bilateral by offering his own pledge as sovereign to be loyal to his subjects. 22 Hints of change,

of new theories and ideas, were in the air. Significantly, these ideas reached the king and the elite before they reached the people. For this reason it was possible for the king to seize the initiative, to act decisively not only to forestall colonial intervention but to prevent public disenchantment with the traditional system of absolute rule.

An essay by Prince Phitchit Prichakon entitled "A Consideration of Justice [thammasan winitchai]" written in 1885,exemplifies the transition from traditional Thai and Indian legal theory to newer ideas which were often influenced by western thought. 24 Prince Phitchit was a brother of King Chulalongkorn and served as a member of his Privy Council and later as Minister of Justice. Unlike many princes of his and later generations, however, he was not sent to Europe for his education. For this reason, perhaps, his ideas of justice were more strongly rooted in the traditional than was true in the case of his brothers and nephews. Nevertheless, his essay was a conscious attempt to formulate a system of naturallaw, implying some form of social compact between the modern king and his subjects based upon the ancient concept of thamma.

Prince Phitchit in his essay observed that "thamma" was linked to the Thai word "thamniam ," which meant custom or tradition. It was from thamniam, or custom, that a system of law was formed. To be precise, there were four thamma which acted as a foundation for the social activities of all people and which served as a basis for their well-being and contentment. The king, therefore, could enact laws based upon these four thamma in order to ensure their protection within the kingdom and thereby provide for the welfare of his people. The four thamma to which Prince

Phitchit referred were:

(1) The providing of food and sustenance. The king could enact any law which would assure adequate food and clothing for his people.

(2) The creation of plenty or abundance. The king could enact laws which provided for times of war or famine when men could not produce food for themselves.

(3) Equality and fair treatment. In men's necessary dealings with one another, particularly in the area of trade and commerce, laws should protect against the taking of unfair advantage.

(4) Peacefulness and protection from danger. The king could protect his people by means of military strength from dangers both external and internal.

The power of the king to create law, according to this scheme, would seem to arise out of four basic rules of nature which were made apparent through ancient social customs and usage. This theory alone represented a considerable shift from the broad power of the absolute monarch to enact any law necessary to protect the vague and generalized precepts of the thammasat. In addition, Prince Phitchit's treatment stressed to an unusual degree the role of the common people both as beneficiaries of all proper laws and as source of the legal system itself, for it was by their customary practices that the four thamma were revealed.

Prince Phitchit observed that the four thamma were constantly threatened with destruction by the four evils or prejudices: illicit desires, hatred or anger, fear, and ignorance. The role of the king was to protect the four thamma from transgressions, both direct and indirect, through the rewards and punishments which he meted out. By articulating and publicizing a fair system of law and justice, the king made known to all his subjects their rights and duties towards one another. He thereby constructed a permanent framework for the settlement of disputes and a body of rules for the conduct of the people's affairs.

The concept of king as Chao chiwit, or Lord of Life, was conspicuously absent from Prince Phitchit's analysis. This was no monarch with absolute and arbitrary power of life and death over his helpless subjects. Rather, the

king was a figure who performed certain socially necessary tasks, whose legislative powers were defined by the basic needs of the people, whose system of law arose not from any sacred and mysterious source but from the nature and practices of men as socialbeings. "Traditional Buddhist thought was central to Prince Phitchit's analysis, but it served less to idealize the king as a future Buddha than to explain the necessity of fair laws for the protection of property and the public. well-being.

Prince Phitchit Prichakon, in his essay on justice, was a transitional figure. He was a member of the traditional elite dealing in an imaginative way with influential and alien ideas about the legitimacy of government under law.

A more dramatic and historically significant document was written only two years later by a group of eleven princes

and officials all of whom, unlike Prince Phitchit, had travelled or studied abroad. Among these men were three of King Chulalongkorn's brothers: Prince Phitthayalap, Prince Naret, and Prince Sawat, the last having just completed his legal studies at Oxford. 25 The document, presented to the king on January 8, 1887, was a petition proposing bluntly

that the present form of government be replaced by a parliamentary system under a written constitution.

The petition came near the end of a long period of quiet after the young king's initial flurry of reform, and was remarkable for several reasons. The very fact of its presentation to the king revealed the extent to which ideas of governmental change were current among the elite and tolerated by the monarch himself. The mildness of the king's reply was further evidence of his readiness to listen even to ideas which might challenge the very legitimacy of his rule. The petition also underlined the extremity of the danger to Thailand's security, threatened on both sides by the aggressive colonialist activities of England and France, and feared by the petitioners and the king to the extent that they were willing to consider radical internal changes.

The petition opened with the frank statement that

Thailand, as a country of little real power, was seriously threatened by countries of great power. Thailand, it was argued, should follow Japan's example and thoroughly Europeanize her government in order to protect against this threat. The European countries, despite their aggressive intentions, would not seize a weaker nation without some pretext to justify their warlike act:

(1) the pretext of humanitarianism --the invader would assert that its aim was to bring happiness and advancement to all men equally;

(2) the pretext that the backwardness of Asian countries could somehow hinder the European countries in their own advancement;

(3) the pretext that certain ineffective Asian governments were incapable of protecting the persons and property of Europeans and other Asians within their borders, a situation which could be rectified by the replacement of the local government with a colonial administration;

(4) the pretext of commerce --the European countries could assure their own development and prosperity by using the Asian countries as markets and as sources of valuable raw materials. The petitioners compared the logic of the Europeans to a familiar rule of Thai law: when a person who owned a rice field failed to put it to productive use, an outsider might be permitted to take over the field in the hope that he would prove more worthy of possession.

The petitioners criticised on a number of grounds the moderate reforms already begun by the king. Their criticisms may be grouped under three general headings: (1) A gradualist approach to reform would inevitably fail as a defense against foreign encroachments. Thailand could not merely adopt certain aspects of western advancement without making fundamental changes in her system of government, The gradualist approach had been tried in Japan and had failed. Superficial reforms, like the abolition of slavery or the establishment of a modern telegraph and postal system were inadequate to inspire respect among the European countries, and their sympathy or pity alone would not protect Thailand. (2) Thailand could no longer rely on her foreign trade or her natural resources as an inducement for amicable relations with the colonial powers. If anything, these factors would tempt the Europeans to seize Thailand rather than to respect her sovereignty. Existing treaties were likewise of little use, as the example of China clearly proved. Nor should Thailand feel secure in her geographical position as a buffer zone between the English and French colonies, for these countries would still try to seize as much territory and special advantage as possible. (3) Finally, Thailand could not depend upon the protection of international law as a deterrent against aggressive actions by the European powers. This law was intended to apply only to the "civilized" nations of the world and would surely fail if invoked by a country like Thailand against a country like England or France. Japan's rights as an equal and independent nation under international law had been recognized only after her government was completely transformed and westernized, and the same would be true in the case of Thailand.