Twelve months ago a Thai army junta under General Prayuth Chan-ocha declared martial law and took over the government of Thailand. Since then the junta’s five-part structure of governance supposedly has been working towards new elections by February 2016. This goal is now made unlikely, not least because the military government has deferred to a growing insistence on putting the newly drafted constitution to a referendum.
The whole project is at risk of falling apart because the junta has no understanding of how to go about securing the popular legitimacy of a constitution.
The interim structure of governance built last year by the National Council for Peace and Order (NPCO) – the junta – comprises, in addition to itself and the cabinet, the National Legislative Assembly (NLA), the National Reform Council (NRC) and the Constitution Drafting Committee (CDC). Not surprisingly the junta chose the bulk of the nominees to these bodies.
During the past few months, the CDC has been drafting a new constitution. It submitted the draft to the NRC for debate in late April and the NRC responded the following week. The NRC will decide whether to adopt the final draft in August.
What is in the draft constitution?
Among its provisions are:
the establishment of a mixed-member proportional system of voting for the House of Representatives, which amounts to an adjustment of past practice such that the system more closely resembles the German model of proportional representation, but with an “open” party list
a provision for a non-elected person to be appointed prime minister in certain circumstances
a change in the Senate so that only a little over a third of members would be elected (one from each of the 77 provinces).
Sixty-five senators would be selected from among former high-ranking state officials, such as military leaders and permanent secretaries, and by legally registered professional organisations and people’s organisations such as labour unions and agricultural co-operatives from among their members. The remaining 58 senators would be selected from “respected experts from various areas such as education, public health and natural resources"’. Except in the cases of selections by specified organisations, no mention is made of who the selectors would be (while under the previous constitution this was clearly stated).
In a defence of the draft constitution, a member of the CDC, Lieutenant General Navin Damrigan, revealed other contentious recommendations:
to involve the Senate much more deeply in legislative processes
to prohibit a member of the House of Representatives from crossing the floor to vote against the government
to allow a representative to remain as such even though s/he may cease to be a member of his or her the party at the time of being elected
to remove the scope for ministers to remove permanent heads of government departments.
How have Thais responded?
A regular Bangkok Post commentator, Associate Professor Thitinan Pongsudhirak, had this to say of the published draft constitution:
Its overarching design is to codify a ‘good society’ and ‘clean politics’ in Thailand by stipulating minute provisions for good governance and enforce morality and ethics into politics in a nitpicking fashion.
… The current draft reads less like basic constitutional principles and more like a code of moral conduct, backed by ethical procedures, for Thai citizens and their representatives.
In a similar vein, another regular commentator, Akira Achakulwisut, wrote:
The problem is this father-knows-best attitude runs … throughout almost the entire document.
In late April it became clear that there was considerable argument between the CDC and the wider NRC. Since that time opposition to various aspects of the draft constitution has become louder, not only within Thailand - notably on the part of the NLA - but among commentators abroad (see, for example, What’s wrong with Thailand’s new constitution?).
It is clear that the two major political parties, the Democrats and Pheu Thai, are very critical. However, they have not been able to debate the CDC’s draft because of the continuing limitation on the right of assembly and the junta’s bellicosity.
There is opposition, too, from a body representing multiple social organisations, the Political Development Council. It especially objects to the draft’s inclusion of two extra-parliamentary bodies designed to enable the army and others responsible for the new constitution to enforce progress in the reforms it mandates. On May 11, local government officials came out against the draft.
Such criticism is indirectly criticism of the junta, which is also seen as responsible for declining economic growth. Opposition is emerging broadly, even from powerful business leaders.
Criticism of the draft constitution has been added to continuing opposition, especially within the media, to censorship. This includes the closure of the radio station of the United Front for Democracy against Dictatorship (the "redshirts”). Under section 44 of the interim constitution, the junta and indeed junior military officers can ban media reports and even close down media outlets.
To make sure that citizens are deterred from taking to the streets in protest, the NLA recently passed legislation to introduce what are, for Thailand, strong restrictions on public gatherings, in the unlikely event that Prayuth lifts the ban on political assemblies of more than five persons.
Martial law lifted, but section 44 is worse
Section 44 effectively replaces martial law, which was lifted after 11 months. It vests wide powers not in the NCPO - as was the case under martial law - but in the head of the junta, now also the prime minister. These powers are effectively unlimited.
Under Section 44, the Bangkok Post reports that Prayuth has:
the unfettered right to exercise the powers of the executive, legislative and judicial branches for security and in the national interest.
The UN High Commissioner for Human Rights described this as “more draconian than martial law”, saying it bestows “unlimited powers” on the prime minister “without any judicial oversight at all"’. The Bangkok Post reported:
The section 44 order allows soldiers to continue to make arrests of people deemed to endanger national security and hold them for seven days without a court warrant, and also to ban media reports judged harmful to the national interest.
In recent weeks increasing attention has been given to the merit of putting the draft constitution to a referendum. The CDC itself has unanimously voted for a referendum. While the NLA will now consider a change in the interim constitution to allow for a referendum, such a decision would by no means mandate it.
Warnings are being expressed by various commentators, including former Democrat prime minister Aphisit Vejjajiva, that if the people are not properly consulted they will respond with collective inertia and a collapse of any sort of governance.
If the draft were put to a referendum and rejected, months of discussion within the junta’s governance structure would be wasted. It has been argued that to avoid a protracted hiatus the referendum should present the people with a choice – between the proposed draft and the constitution of 1997 or of 2007 (preferably the former). Evidently the bill when presented to the NLA will include provision for what should be done if the draft constitution is rejected.
The constitution drafters have reflected a military conviction that governing has to be codified to constrain democratic processes. While the monarch has been able in the past to influence the course of coups and the return to national elections, that influence has become less palpable with the fading of the more senior members of the royal family from view. But the influence of the palace surely endures.
The NCPO presumably has a definite position on the succession and on the place of the monarchy in the Thai polity, as well as an understanding with the palace about how to fill the vacuum being created as senior members of the royal family retire from public life. It is hard to see that democratic processes will be promoted however the relationship between the military and the palace develops.