Making Space for Non-Liberal Constitutionalism in Free Speech: Lessons from a Comparative Study of the State of Free Speech in Ethiopia and Thailand

Abstract

Just as Bruce Ackerman posited the rise of constitutional democracies in the world, Fareed Zakaria outlined a chilling aspect of it in the name of the parallel rise of illiberal democracies. The rise of illiberalism in emerging democracies can best be demonstrated in their draconic stance on free speech. In particular, in States such as Ethiopia and Thailand, the protection afforded to freedom of expression is markedly different from the protection of freedom of expression in liberal societies. Both Thailand and Ethiopia formally embrace liberal constitutional norms including freedom of speech. Nevertheless, both States continue to fall far behind in terms of the protection afforded to political speech in liberal democracies. Although the manifestations of the illiberal impulses in these States may vary, they demonstrate functional equivalence in terms of the similarities of how they respond to speech related offences. Despite these illiberal tendencies, however, there is also an interesting normatively appealing constitutional structure of these polities. The basic and underlying ideals of their normative constitutional architecture rests on a non-liberal model of constitutionalism which is distinct from the liberal model of constitutionalism. Both Ethiopia and Thailand provide interesting comparative study of free speech in non-liberal polities. The independent existence of both States and their distinctive historical contingencies help to illuminate the embedded socio-political, historical and ideological factors that inform their stance on free speech. This article argues that a non-liberal constitutionalism in free speech can be defended taking into account the various historical contingencies and political realities of both states. However, the article posits that this normative constitutional architecture has to be compatible with common principles of free speech norms drawn from international and comparative law. By doing so, it tries to explain discourses in non-liberal constitutionalism and the various historical and socio-political factors that drive such normative constitutional architecture.