The new draft charter for Thailand is well-intentioned but problematic. It stems from a mistrust of the electoral process and will keep Thailand reliant on appointed and non-elected political leadership.
THE long wait since Thailand’s last coup in May last year has been focused on hopes for a new Constitution and consequent elections.
The military junta, which calls itself the National Council for Peace and Order, appointed a 36-member committee to draft a new Constitution.
This was released a week ago for debate. The draft is being deliberated on by a host of committees in the National Reform Council (NRC) before it is sent to the Cabinet and the junta for final changes in July. Political parties will not have a direct say over it.
But a look at the draft for a new charter shows that those hoping it would bring an end to a military-led administration and a return to democratic rule will be disappointed.
Instead, the draft charter is proving to be more of the problem than the answer.
Just what is wrong with the draft charter, which is the longest law of the land since constitutionalism replaced absolute monarchy in 1932?
For one thing, it is top-down and misdirected. Its premise is to keep elected politicians and political parties weak, stipulating all sorts of checks on elected representation in favour of appointed sources of power. This goes against the desire for Thailand to be governed on the basis of a popular mandate from the people in free and fair elections.
With too many checks, there is no balance in constitutional design. Thailand’s draft charter is likely to lead to political tension and confrontation – precisely what it was crafted to eliminate and prevent.
THE current draft Constitution indicates that the pendulum is swinging further back in time.
A brief look at the history of Thai constitutionalism will show that it has made steady progress in a topsy-turvy fashion.
From the late 1940s to the 1990s, Thai Constitutions featured an appointed Senate as a counterweight to the elected Lower House, while military strongmen took turns at the helm.
By the 1990s, economic development and the end of the Cold War meant that military rule came to be frowned upon. In 1991, vibrant civil society groups overthrew a military dictatorship that had seized power.
The newly awakened electorate then demanded direct civilian rule and an exit from the “money politics” that had trapped Thailand in a vicious cycle of recurrent coups and Constitutions, with corrupt elected governments in between.
The result was the reform- driven, inclusive and popular 1997 Constitution. It mandated a fully elected Senate, a prime minister who had to be an elected Member of Parliament, and a clutch of accountability-promoting independent bodies, such as the election and anti-graft agencies.
The 1997 charter worked as intended – until it collided with the political party machine, vast wealth and personal networks of Thaksin Shinawatra.
Thaksin has won all of Thailand’s polls in the 21st century, either directly or by proxy. In his heyday just over a decade ago, he shrewdly deployed vested interests and loyalists to penetrate and capture the inner workings of the institutions set up under the 1997 Constitution.
He was deposed in a coup in September 2006 by factions uneasy with his populist rule, and effectively forced into exile.
After that coup, Thailand’s constitutional pendulum swung the other way. It tended towards having more appointed members, away from the reforms towards democratic election so sought after in the mid-1990s.
When a new Constitution came into place in 2007, a year after the coup, the upper chamber became half-appointed and half-elected. The executive branch was weakened. The judiciary gained more authority at the expense of elected representatives. It became easier for the courts to dissolve political parties and ban politicians.
These changes were not enough to put down the Thaksin challenge, as his proxy parties and nominees kept winning at the polls, partly because the opposition Democrat Party was ineffectual. The Thaksin party machine’s overwhelming victory in July 2011, led by the Pheu Thai party under his sister Yingluck Shinawatra, set the stage for the latest putsch in May last year, when the military seized control following months of street protests against Yingluck’s government.
Latest draft charter
THE draft charter should thus be seen as the latest incarnation of Thai Constitutions that have tended to swing between embracing electoral democracy and curtailing its power.
In this proposal, only 77 of 200 senator seats in Parliament are to come from elections, one per province. Unspecified committees in each province are to first come up with a list of 10 qualified candidates for voters to choose from.
The remainder are to be drawn from occupational fields, dominated by active and retired civilian bureaucrats and military generals.
The premier need not be elected: the Lower House can choose an extra-parliamentary political player as premier with a two-thirds majority, as opposed to an MP candidate who would require a simple majority.
To prevent a return of the Thaksin juggernaut, a prime minister who has served two consecutive terms would have to skip one election before he or she can re-enter the premiership fray.
And in a move to ensure that coalition governments comprise small parties and individual MPs rather than big parties, election candidates no longer have to belong to a political party.
In yet another twist, Article 7 indicates that the Constitutional Court is to be the final arbiter of issues and claims made by other relevant state agencies.
Both the judiciary and the bureaucracy are also given more authority, at the expense of democratic institutions empowered by elections.
Dissecting the intent of the charter
TO BE fair, the 36 members of the Constitution Drafting Committee have tried their best to foster and enforce a kind of democratic rule different from the past.
They genuinely want to get rid of corruption and bring about good governance. Their four principle objectives are laudable: to focus on citizen empowerment, eradicate corruption, promote social justice, and bridge and heal Thailand’s raw divide.
But the drafting committee is selected by the National Legislative Assembly (NLA), the NRC, the Cabinet and the military junta. The Constitution drafters may have been too driven by their zeal for the few “good people” to run the country on behalf of the rest.
The thrust of Thailand’s new Constitution appears to be driven by a mistrust of the electoral process, and by a belief that elected politicians are likely to be corrupt beings who will act against the public interest.
As a remedy, the democratic institutions inherent in the electoral system must therefore be defanged and placed under closer scrutiny. Not only are state agencies and the courts to perform the accountability-enforcing functions, but individual Thais also will have more leeway to take public officials to task for graft by collecting signatures for impeachment motions.
More alarmingly, a host of councils to promote “good” leaders are to be set up on the grounds of morality, ethics and good governance. How so and who are to select these council members remain undetermined.
In another unprecedented development, the coup-spawned NLA and NRC can still continue their work after electoral rule returns. Among the post-election councils will be a 120-member National Reform Steering Committee comprising members of the NLA and NRC, in addition to external experts.
What is the impact of the draft charter? As it stands now, it is unlikely to entice new talent and fresh faces to join politics and contest the next election because it demonises elected politicians and political parties.
The charter-in-progress also undermines efforts to build electoral democracy the hard way by nurturing democratic institutions that underpin popular rule. The corollary is that people are effectively prodded and forced to place more trust and dependence on unelected sources of authority.
What happens now is precarious. The draft Constitution is being debated and revised. It will have to be approved by the NRC and the junta. Cosmetic changes to the draft are likely to placate demands, but a wholesale makeover would require a complete rewrite.
A referendum may stymie it due to growing opposition, but the absence of a plebiscite will deprive it of popular legitimacy. If the draft is derailed, the whole process must start over, thereby delaying polls indefinitely. If it sees the electoral light of day, the Constitution will be controversial and deprived of legitimacy and public acceptance.
Either way, Thailand is not any closer to a return to democratic rule. Its interim caretaker period is becoming more indefinite than many have anticipated.
The writer teaches international political economy and directs the Institute of Security and International Studies at Chulalongkorn University’s Faculty of Political Science in Bangkok.