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Licensed Unlicensed Requires Authentication Published by De Gruyter January 20, 2021

The Relationship Between a Kelsenian Constitutional Court and an Entrenched National Ideology: Lessons from Thailand and Indonesia

Rawin Leelapatana EMAIL logo and Abdurrachman Satrio Pratomo
From the journal ICL Journal

Abstract

Hans Kelsen was a pro-democracy Austrian jurist, who, owing to his Jewish ancestry, was forced to flee to the United States of America after Adolf Hitler’s rise to power. His well-known theory of centralised constitutional review has not only influenced the design of many constitutional courts in Western Europe. It has also expanded to other parts of the world, including Thailand and Indonesia. Having determined to break with their authoritarian pasts, these two Southeast Asian countries decided to establish a Constitutional Court (in 1997 in Thailand and in 2003 in Indonesia), to consolidate their democratic transition as well as to safeguard democracy from attack. This decision inevitably brought the liberal-democratic assumptions underlying Kelsen’s model into competition with entrenched national ideologies traditionally exploited by political power holders and the military to preserve their hegemony – Thai-ness in Thailand and Pancasila in Indonesia. In contrast to Kelsen’s original theory, both these ideologies advocate strong leadership, national harmony and social hierarchy. This paper explores the extent to which the ideological hegemony of Thai-ness and Pancasila affects the performance and jurisprudence of the Thai and Indonesian Constitutional Courts respectively. An alternative understanding of the implementation of the Kelsenian-style Constitutional Court in the absence of its facilitative conditions will ultimately be proposed.


Corresponding author: Rawin Leelapatana, LLB (Chulalongkorn University), LLM and PhD (Bristol); Lecturer, Faculty of Law, Soi Chula 42 Phayathai, Chulalongkorn University, Wang Mai, 10330Bangkok, Phathumwan, Thailand. E-mail:.
Some parts of this paper are developed from Rawin Leelapatana’s unpublished PhD thesis, ‘The Kelsen-Schmitt Debate and the Use of Emergency Powers in Political Crises in Thailand’, submitted to the University of Bristol in 2018 as well as Abdurrachman Satrio’s article, ‘A Battle Between Two Populists: The 2019 Presidential Election and the Resurgence of Indonesia’s Authoritarian Constitutional Tradition’ published in the Australian Journal of Asian Law. We would like to give our special thanks to Professor Andrew Harding, Professor Theunis Roux, Dr Yaniv Roznai, Dr Khemthong Tonsakulrungruang, Yordan Nugraha, Frans Middelkoop, and Simon Partridge for their helpful comments.
Published Online: 2021-01-20
Published in Print: 2021-02-23

© 2020 Walter de Gruyter GmbH, Berlin/Boston

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