Too many cooks? An analysis of the Thai Draft Constitution

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Last summer, this blog carried an analysis of the Thai interim constitution that was introduced following the coup d’etat in May. One year on, Jam Kraprayoon assesses the proposed permanent constitution that is due to be put to a referendum in January. He writes that the current draft suggests a shift away from elected officials to political appointees, ordinary citizens and local authorities and questions whether it will promote a more equitable political outcome.

Thailand’s ruling junta, the National Council for Peace and Order (NCPO) are currently engaged with a number of immediate challenges including restoring confidence in the economy and maintaining political quiet in the midst of protests from students and farmers. However, their longer-term plan appears to be progressing on schedule as the Constitution Drafting Committee (CDC) and the National Reform Council (NRC) press on with their mandate to promulgate a new constitution. The NRC is set to give a final vote on the draft in early September and a referendum on the constitution is planned for January.

David Streckfuss argues that the constitution, if passed, will glue into place an undemocratic political system and philosophy. In his view, terms like “participation” and “sustainable fairness” are simply buzzwords masking a straightforward attempt to promote the NCPO’s interests. While it is likely that this constitution will weaken the power of elected officials, this view understates the intricacies surrounding the drafting process, the ambiguous content of the charter and the corresponding uncertainty of its political impact.

The members of the CDC and the NRC are a fairly eclectic group of academics, bureaucrats, and members of civil society. Although the NCPO has both initiated the drafting process and selected the drafters, members of the CDC have been given considerable space to put forward their own ideas. In addition, they have made effort to involve the wider public, including the deliberative polling of eligible voters across the country. While it is unclear whether any substantive changes to the draft have arisen from these consultations, it cannot be said that the drafting process has been driven mainly by the NCPO. Looking closely at the actual content of the charter draft reveals a mix of distinct strains of political thought including participatory democracy, classical liberalism, and ‘enlightened technocracy’. It is not clear how these strains and their associated mechanisms will interact, both with each other and the existing political landscape.

The draft contains many provisions aimed at increased the roles and responsibilities of ordinary citizens in political life. This collection of mechanisms seems to derive from the ideals of ‘deliberative democracy’, and includes various non-electoral channels of political influence for the public. Organised groups of citizens have the right to introduce bills into legislature as well as to initiate resolutions to remove political officials from power including the PM. In line with this, the charter promotes decentralisation and local autonomy, something long overdue considering the Thai state’s extreme fiscal and political centralisation. Local administrative organisations are to be given enhanced taxation and public service provision capabilities along with a responsibility to encourage public participation in local decision-making (Section 211-16). This move towards participatory democracy has been coupled an emphasis on the obligation of the state to instil a proper notion of citizenship to the Thai people, the scope of which the charter leaves vague.

The document also includes arguably the most comprehensive set of civil, political and human rights seen yet in Thai constitutional history. Some notable elements outside the traditional liberal suite of rights include a provision for gender-based budgeting and the right of individuals to manage their natural resources and promote environmental justice. While laudable, given recent occurrences such as the proposal of an ultra-royalist candidate to replace standing members of National Human Rights Commission (NHRC) or the NRC plans to set up a controversial Media Council to oversee media ethics, de facto rights seem to be weakening even as de jure rights are to be enshrined. This raises the familiar accusation that Thai constitutions have done little to actualise the rights supposedly guaranteed by law.

Political commentators have tended to focus on portions of the draft concerning the numerous articles that limit the role of politicians and parties and increase influence of unelected bureaucrats. Firstly, the mixed-member majoritarian electoral system of the past has been replaced by a Germany-inspired mixed-member proportional system (MMP). Reformers and commenters suggest that this will increase the seat share of smaller parties at the expense of larger parties. However, Allen Hicken, modelling 2007 and 2011 election results under MMP rules, finds that smaller parties are do not actually receive large gains in seats. If regional and demographic links with the two major political parties, the Democrat Party and Puea Thai, remain stable then it is unlikely that there will be a return to the fragmented parliaments of the past. More significantly, the constitution includes many provisions that strengthen or establish constitutional bodies with substantial mandates to audit state finances, check human rights abuses, block legislation, monitor elections, and remove elected officials from office. The procedure for staffing these bodies is fairly complex but largely involves appointees from the military, universities and high-level civil servants – the ‘enlightened technocrats’. As a result, most of these bodies are completely unaccountable to the electorate. Also, this constitution opens the possibility of an unelected Prime Minister though election by the lower house with a supermajority. On a more democratic note, all PMs are now limited to two terms in office.

The strangest component might be the establishment of the National Reform Assembly and the National Reform Strategy Committee, armed with mandate to design a wide-range of reforms for all branches of government and every major policy area including education, public health, and macroeconomic policy. The proposals would be submitted to the Senate for approval (now also a largely unelected body). These bodies are set to operate for five years after the constitution is promulgated but its mandate can be extended by a vote from the public and the legislature. With such broad scope and capacity to set the policy and reform agenda, coupled with a lack of accountability, it becomes difficult to understand how these bodies will coexist with the normal legislative function of government.

The cumulative effects of this constitution suggest a shift away from elected officials to political appointees, ordinary citizens and local authorities. The proliferation of constitutional bodies and their overlapping responsibilities seemed destined to produce an incredibly convoluted policy-making process. With power dispersed in so many directions, it is unknown whether any coherent centre can hold. It is far from clear that this constitution will promote a more effective or more equitable political outcome, especially considering it does not address one of the most serious issues in Thai politics – the lack of civilian control over the military.

At 315 sections, the CDC and the NRC appear to have prized comprehensiveness over clarity. This ‘kitchen sink’ approach likely stems from the belief this charter represents the last best hope to save Thailand – a sort of deus ex machina via constitution. One would be wise to remember from Thailand’s own history that institutional design is not destiny. The 1997 constitution, now unironically referred to as the “People’s Constitution”, was originally designed to limit the influence of provincial politicians and promote the interests of the middle-class. Those drafters were unable to anticipate the most significant outcome of the reform – the rise of Thaksin and the TRT party. While the NRC may be confident that this constitution will rid Thailand of all its social and political ills, the rest of us have plenty of reason to be cautious. As the referendum date closes in, it becomes more important now than ever for both Thai and international observers to take a close look at the draft constitution.

About the Author

Jam Kraprayoon is a former Constitution Unit intern. He is from Bangkok, Thailand and is currently finishing up a BSc in Government at the London School of Economics . 

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