This paper will examine the collision between Kelsenian and Schmittian ideas in relation to Thailand’s contemporary colour-coded crises. The application of the Kelsen-Schmitt debate in the Thai context exemplifies the declining dominance of the Schmittian idea. Though the “Yellow-shirt” faction in Thai politics is still capable of engineering a military coup—the exercise of sovereign decisionism in the Schmittian sense – such hegemony and ability are declining due to the rise of pro-democracy movements calling for placing political power under the control of a liberal-democratic constitution. Overall, the Thai case reveals the growing need to ‘liberalise’ and ‘institutionalise’ the Schmittian idea, especially by resorting to the Kelsenian legal-technical mechanism, the Constitutional Court. Meanwhile, to move the Kelsenian liberal-democratic project forward, there is also a growing need to resort to Schmitt’s idea of political struggle.
Focusing on India, I analyse long-running friction between the national and state governments over their constitutional powers to investigate abuses by the military. The national government argues that states cannot inquire into unlawful violence by soldiers. The Manipur government demurs, citing its duty to manage public protest against the military’s misdeeds. I also look at ongoing litigation challenging extrajudicial killing by the military.
I argue that attempts to hold domestically-deployed troops accountable in India carry lessons about the resilience of constitutional-democratic norms. They suggest that constitutional retrogression can be ameliorated by constitutional review, public protest, and the constitutional division of power between national and sub-national governments. However, such gains tend to be minimal and ad hoc. Both in principle and practice, the executive branch remains committed to the authoritarian practices it was empowered by legislation to pursue.
Different types of regimes face distinct political challenges, perceive and define political protest differently and develop unique measures to manage their political crises.
This paper first identifies three distinct approaches to political protest: a security-based approach, a rule-based approach, and a rights-based approach, and then uses Hong Kong, Taiwan and Mainland China as case studies to explore the relationship between political protest and regime type.
After the death of Mao Zedong in 1976, the Chinese Party-State initiated a legal revival that raised many hopes of an eventual transition to rule of law, conceived in terms of a global constitutional model. In recent years, however, the leadership has increasingly rejected the values underpinning rule of law and relied on controlling society through arbitrary measures. Drawing on Fraenkel’s 1940 concept of the Dual State — a duality of coexisting normative and prerogative states, established to normalise ‘emergency’ exemptions from legality – I discuss the global implications of, and outline possible responses to, China’s current prerogative state revival