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.

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The more things change: analysing the 2014 Thai Interim Constitution

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In August, a new Thai constitution was introduced for the 18th time in 82 years. Jam Kraprayoon assesses the latest incarnation and suggests that although this constitution is similar to its predecessors in many ways it goes much further to secure the power of the new military junta.

Thailand has had twelve coups since the end of absolute monarchy in 1932. While categorised as a constitutional monarchy like Britain, it has been marked by recurring political and constitutional upheaval. Professor Chai-anan Samudavanija labels this continual process the ‘Thai political cycle’. The cycle begins with the suspension of the old constitution through a military coup, often prompted in recent years by a prerogative to reduce corruption, leading to a new constitution being enacted. Elections are held and time passes until a new perceived crisis leads to another military coup and another constitution. This pattern makes distinction between temporary and permanent constitutions largely semantic rather than actual – in Thailand all constitutions are temporary.

Constitutions in Thailand do not normally provide neutral rules to regulate political participation and competition among groups (The 1997 iteration, also known as the ‘People’s Constitution’ proved so far to be an exception rather than the rule). Instead they are tools in maintaining the power of those who write them. The country has had eighteen constitutions in the last eight decades, most promulgated to legitimate the authority exercised by the then-dominant political forces. Accordingly, most post-coup constitutions reflect the interests and intentions of the ruling junta. The 2014 interim constitution drafted by the military junta, the National Council of Peace and Order (NCPO), is no exception.

In many ways the 2014 interim constitution is simply another iteration of what has been witnessed before. This can be seen throughout the constitution; Section 6 which calls for the establishment of the National Legislative Assembly (NLA), a fully appointed legislative body, has precedent in past constitutions including the more recent 2006 and 1991 post-coup charters. Another recurring article, Section 16, restricts votes of no confidence on the junta-occupied cabinet, which from a legal perspective effectively suspends the parliamentary system. Section 48, which gives amnesty to ‘all those associated’ with the May 22 coup, is another frequent feature of post-coup constitutions. These articles echo basic political and legal needs faced by many past coup-makers in the country, specifically, the need to push through legislation and receive impunity from ‘illegal acts committed before, during, or after [the coup]’.

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