Comment on the Drafting of the Constitution

Gothom Arya, Institute of Human Rights and Peace Studies, Mahidol University

Normally in democracy, the powers are divided into legislative, executive, and judicial powers. But in Thailand we inherit more of the old
system. The powers-that-be, i.e. part of the executive (the armed forces) and the judicial powers are performing their duties in accordance with the constitution and in the name of the Monarch. We claim to be a democratic regime with the Monarch as the Head of the State. But each time the powers-that-be perceive a real or imagined threat to the Nation or Monarchy, for instance the communist or the corruption threats, they jettison the democratic regime and declare themselves the defenders of the Nation and Monarchy.

The advent of Thaksin is seemingly perceived as a threat. So, the judicial power acted first and many times. But Thaksin may be similar to Peron whose legacy, as a phoenix party or a ghost personality, appears too difficult to be killed politically. So the army had to intervene and it did so twice in the past ten years. At present, the army hopes its absolute power will do the job. But again, the judicial power or its network is given the task of creating a legal framework that will prevent ‘the return to the situation before the coup d’état’, in other words to the situation where Thaksin’s associates hold some powers. Preventing this from happening is perhaps the bottom line in the writing of the new constitution.

When the Borwornsak commission wrote the aborted draft constitution, there was an alleged last-minute request to add a clause about a strategic committee that would have power over an elected government in cases of crisis. The draft followed the request but was nevertheless rejected because, according to Borwornsak, the powers-that-be wanted to stay longer. A similar request came to the open when the Council of Ministers made the recommendation number 16 to the Constitution Drafting Committee headed by Meechai. The Council recommended that there be a transition period of half-way democracy (to be understood that the army would still hold some political power).

There are two crucial points that would make it difficult for the constitution to be approved in the referendum. One point is the inclusion of a power over the elected government, be it in the form of a strategic committee or a more subtle strategic master plan to be enforced by the judicial power. The other point is the stipulation that makes any amendment to the constitution next to impossible. Such stipulation appears in the first draft.

I would like to suggest that there be another question in the referendum: In case the draft fails to pass, which constitution, year 1997 or 2007, should be quickly updated and promulgated anew? This would be fair as the public should know what will be the alternative should the draft constitution be rejected.

Constitution Draft Comment

Luc Stevens, United Nations Resident Coordinator

The United Nations strongly supports and encourages inclusive mechanisms for the development of constitutions. Constitutions that are
drafted by elites or the establishment, at best often do not last very long, and at worse can contribute to further social turmoil and conflict.

Thailand’s latest attempt at a constitution should be measured against this yardstick. The latest draft must be considered within the framework of internationally recognized norms for democratic governance. What exactly is this lofty ideal? Is there really any recognized standard for democracy? Yes, there is.

Democracy is one of the universal and indivisible core values and principles of the United Nations. It is based on the freely expressed will of people and links closely to the rule of law and the exercise of human rights and fundamental freedoms. Democratic governance means that our human rights and freedoms are respected, promoted, and fulfilled by states and institutions, allowing each and every one of us to live with dignity and freedom.

Article 21(3) of the Universal Declaration of Human Rights captures the central bond between human rights and democracy. It states that “the will of the people shall be the basis of authority of government; this shall be expressed in periodic and genuine elections.” In other words, the people’s voice must provide meaningful guidance to their elected government and not simply treated as nuisance that must be tolerated to appease international and domestic critics. Democracy has real meaning; a short-changed democracy is not a democracy at all.

Democracy enables economic and social policies that are genuinely responsive to citizens’ demands and supports them in achieving their aspirations. The aspirations of everyone, everywhere. Democracy is not a hollow promise. It is neither Eastern nor Western, Northern or Southern, rich or poor. Its values apply equally to developed economies as to emerging ones. Democracy embodies the highest ideals of justice, equity, inclusiveness and accountability. It is universal. It encourages innovation and creativity and peace. In our lifetime, democracy has become an articulated ideal of the international community and its fundamental principles must be safeguarded.

To be clear, the United Nations does not sanction one specific model of government, but promotes democratic governance as a set of universally held values and principles that brings greater participation, equality, security and enhanced human development. The United Nations’ commitment to these values has deep roots in the United Nations Charter. The Charter’s opening words – “We the peoples” – reflect the fundamental principal of democracy, that the will of the people is the source of legitimacy of sovereign states. The Universal Declaration of Human Rights adopted by the UN General Assembly in 1948 further expresses that the people shall be the basis of the authority of government. Over the years we have seen a global acceptance of democracy as a collective value and principle.

So what does this have to do with Thailand’s latest draft constitution? Everything. It is against these fundamental values that the most recent constitutional draft must be assessed. The document must reflect structural elements that support and further the goals of democratic governance as has come to be defined by the community of nations. It must not denigrate the capabilities of voters and it absolutely must give sovereignty to the people without exception. It is therefore up to the Thai people to judge and decide whether their draft constitution reflects these values.

The United Nations supports constitutional drafting based upon inclusive participation by all walks of life and viewpoints. It is only through processes of diverse dialogue that constitutions can be written that create effective conditions for national reconciliation. The United Nations stands ready to assist the Thai people, regardless of affiliation, to realise this goal.

The Revenge of the Bureaucratic Polity: Technocratic governance by “good people” trumps democratic governance by “bad politicians”

Dr. Michael H. Nelson, Senior Research Fellow, German-Southeast Asian Center of Excellence for Public Policy and Good Governance (CPG), Faculty of Law, Thammasat University

In democratic systems, collectively binding decisions ideally are supposed to be the responsibility of governments elected by the polity’s
sovereign, the people. Often, this is an unrealistic assumption that overlooks the role of bureaucrats and technocrats (and, of course, lobby groups) in policy formation, and it is certainly not what the current constitution-drafters in Thailand have in mind. They rather try to perfect a certain aspect of the 1997 Constitution, which “instituted an elite notion of democracy that sought to limit the powers of elected representatives”. [1]

Expressions such as “custodial democracy” (Thitinan Phongsudhirak) or “elite rule with elections” (Ajarn Panat) reflect more accurately how the political system might look like after the military will have ended their direct rule. Here, we have a case of what Merkel (2004) has called a “domain democracy” [2] in which democratic structures and rules exist only in a relatively small sector of the political order.

In the specific case of Thailand, politicians have not only not yet been able to establish themselves as superiors vis-à-vis the military (the traditional issue of civil-military relationships), they have also not been able to do the same vis-à-vis the civil service, its bureaucrats and technocrats, and a wide circle of professional experts dealing with policy issues. One is reminded of an analysis Max Weber wrote on the Germany of 1917, stating that the military and civilian bureaucracy enjoyed an “enormous superiority” (ungeheure Übermacht) [3] vis-à-vis the politicians. Until today, the Thai equivalents have not managed to see the “added value” (if any) that political parties and politicians – the “disturbing element in the traditional scheme of things” [4] – might bring to the operation of the country’s political system, that is, above what these three groups claim they can achieve alone in serving “the nation and the people.” In the 2014 military coup, these most powerful sub-groups of the aphichon (often translated as “traditional elites”) have joined forces in order further “to limit the powers of elected representatives.”

The junta has made its respective intentions quite clear: Its powers will end (more or less) not with the next elected government, but only four years (perhaps more) after the latter will have started its work. It would thus be a misunderstanding to assume that the elections scheduled for July 2017 will indicate increased democracy. That’s not the plan of the junta and neither its elite-technocratic collaborators (or should one call them “accomplices”?). Rather, the elections will be the beginning of what the military and its friends call a “transition period.” During this time, the junta wants the government to act largely like an elected executive committee whose main task would be to take part in the implementation of the junta’s policy agenda (“reforms”). In the 2015 draft constitution (prepared under Borwornsak Uwanno), this approach was embodied by the much-criticized National Strategic Reform and Reconciliation Committee, and its auxiliary mechanisms. This committee was supposed to be operational for five years, but could under certain circumstances work for ten years. In essence, this institutional set-up would have created a policy-making structure in parallel and even above the elected government, thereby achieving the elite’s long-standing goal to reduce the weight of voters and their representatives in governing the country.

The Meechai draft of 2016 does not have an equivalent chapter. However, as part of the fundamental state policies, Article 61 stipulates that the state should determine a national strategy for the country’s development. This should then serve as a framework for the preparation of all other plans. Since determining the national strategy needed a specific law, Article 263 in the transitory provisions of this draft stipulates that it is the current Cabinet’s task to prepare such a law within 90 days after the constitution becomes effective, and then move on to formulate the national development strategy within one year. Consequently, it will be the military junta and its civilian helpers that will determine a 20-year national strategy plan that any elected government must follow. In fact, this law had already been in the making by a committee of the earlier National Reform Council, a task that since its dissolution has been transferred, under the same leadership, to the National Reform Steering Committee.

At this point, a draft of the National Strategy Act awaits to be proposed to the Cabinet. It extends on Article 157 of the Meechai draft that states that the elected government’s policy declaration to Parliament must comply with the state duties, the fundamental state policies, and the national strategy plan. Subsequently, the National Strategy Committee would monitor, examine, and evaluate the politicians about in how far they implemented the national strategy. [5]

Article 65 of the German Basic Law states that, “The Federal Chancellor shall determine, and be responsible for, the general policy guidelines.” Based on the draft constitution presented by Meechai Ruchuphan, an equivalent stipulation in the Thai constitution would read, “The [unelected] aphichon technocrats shall determine the general policy guidelines, while the [elected] prime minister and his/her Cabinet are responsible for their implementation.”

[1] William A. Callahan, “The Discourse of Vote Buying and Political Reform in Thailand”, Pacific Affairs 78 (1) 2005, pp. 95-114

[2] Wolfgang Merkel, “Embedded and Defective Democracies”, Democratization 11 (5) 2004, pp. 33-58

[3] Max Weber, “Parlament und Regierung im neugeordneten Deutschland (Sommer 1917)”, in Max Weber: Gesammelte Politische Schriften, Potsdam: Institut für Pädagogik, Universität Potsdam (Internet edition.), 1999 [1917], pp. 126-260

[4] John L. S. Girling, Thailand: Society and Politics. Ithaca and London: Cornell University Press, 1981

[5] See Prachachat Thurakit, 21 Feb. 2016; The Nation, 23 Feb. 2016.

Can a new constitutional design pave the way towards democracy in Thailand?

Dr. Same Varayudej, School of Law, University of New England, Armidale, NSW, Australia

Over eight decades ago, Thailand took a giant leap towards a democratic transition on 24 June 1932 when the People’s Party (คณะราษฎร), consisting of an elite group of civil servants, princes, army officers and young intellectuals, staged a bloodless coup d’état, demanding a change of government from an absolute monarchy to a constitutional monarchy. Determined to avoid any bloodshed, His Majesty King Prajadhipok (Rama VII) agreed to the abolition of absolute monarchy and the transfer of power to the constitution-based system of government by signing a temporary constitution on 27 June 1932. [1] This constitution marked the arrival of Thailand’s modern political constitutionalism – the idea that government can and should be legally limited in its powers. Since then, Thailand has gone through a vicious cycle of 21 military coups and coup attempts followed by 19 constitutions and numerous revolving door governments.

On 29 January this year, the Constitutional Drafting Committee (CDC) chaired by Mr Meechai Ruchupan has unveiled the second draft constitution to the Thai public since the National Council for Peace and Order (NCPO) (คณะรักษาความสงบแห่งชาติ) declared a military takeover in May 2014.

If this draft with some minor amendments is endorsed by the referendum scheduled to be held in July this year, it will be promulgated as the 20th Constitution of Thailand. The draft constitution has been dubbed by Mr. Meechai as the ‘anti-corruption constitution’. Shortly after the first charter draft completed by Dr Borwornsak Uwanno and other members of the Constitution Drafting Committee in July last year, many people were convinced there would be an election sometime this year. However, we went back to square one after the CDC draft was rejected by the 247-member National Reform Council in September 2015 with 135 opposed, 105 in support, and seven abstentions. Thus, an important question arises as to whether the so-called Meechai’s draft constitution that will be tough on corruption by politicians is going to be accepted by the majority of Thai voters at the referendum. The answer to this important question essentially depends on whether the majority of Thai citizens will perceive the draft constitution as being a democratic or an undemocratic constitution.

In a recent research study which analysed a sample of 138 constitutions between 1974 and 2011, it has been found that over half of theses constitutions did not significantly improve levels of democracy in the countries that adopted these constitutions for three years. The reason, according to the study, is that “most of these countries did not incorporate broad public consultation which…is so vital for the democratic outcomes of constitutions.” [2] The authors of this empirical study, Todd A Eisenstadt, A Carl LeVan, and Tofigh Maboudi, concluded that “the best insurance against authoritarian backsliding in fledgling democracies…is a broad-based, participatory constitution-making process with extensive, direct citizen input.” [3] This means constitution making can no longer be confined exclusively to the domain of ‘high politics’ and negotiations among elites who draft texts behind closed doors since open and inclusive participatory constitution making has increasingly become one of the main criteria of a legitimate democratic process.

For instance, the 1997 South African Constitution is the successful outcome of inclusive and prolonged negotiations and consultation with the public as well as elected parliamentary representatives that were carried out in light of the injustices of the country’s previous undemocratic apartheid regime. The context and challenges of democratic constitution making in the South Africa illustrated the importance of a democratic constitution-making process which ‘is critical to the strength, acceptability, and legitimacy of the final product’. [4]

Does the second constitutional design stand a better chance of being passed in a referendum? Most legal commentators and politicians of the major political parties generally expressed a pessimistic view that the second draft of the CDC is unlikely to be passed in the referendum scheduled in July this year. The main reason is that they commonly regard the second draft of the constitution as being flawed and undemocratic, since, firstly, the Prime Minister can be an unelected outsider (draft section 154) and the members of the Senate are not directly elected by the people (draft section 102); secondly, the electoral system under the draft is intentionally designed by the drafters to produce a weak coalition government (draft sections 78, 84(4)) and thirdly, the executive branch of government will be subject to strong judicial review and oversight of the Constitutional Court and anti-corruption agencies such as National Counter-Corruption Commission, the Election Commission and the Auditor General (draft sections 96(10), 139, 231 para. 3), 215 and 265 (on ethical standards)). In the past decade, the Constitutional Court and independent agencies were openly engaged in the political process of the Parliament, and the constant checks of the government political policy by the court and independent bodies has been perceived as potentially jeopardising the balance of the separation of powers. Under the second draft, the Constitutional Court is equipped with a special power in time of crisis to rule over the contentious issues arising from the former Article 7 of the 2007 Constitution (draft section 207) and its decisions are is final and binding on the National Assembly, Councils of Ministers, Courts and other State organs (draft section). [5]

The second draft has been strongly opposed by the Pheu Thai Party and the pro-democracy movement, like UDD (United Front for Democracy Against Dictatorship) since they are of the view that the constitutional drafting process in Thailand is mostly a direct result of a military coup and thus the process lacks legitimacy without broad-based participation of Thai people from the beginning of the drafting process. Furthermore, unlike the drafters of the 1997 and 2007 conventions, the 21 members of the CDC were appointed by the NCPO to preserve its own interests and to prevent a future elected government from executing the popular mandate. Finally, the NCPO has recently made a highly controversial proposal calling on the CDC to consider a constitutional clause whereby the NCPO members could be appointed senators to serve a fiveyear term during the transitional post-election period. This proposal has been viewed by critics as a mechanism designed to allow the NCPO to stay in power for another five years after the next election so as to scrutinise the work of the government and to check the popularly elected House of Representatives. [6]

In summary, it is reasonable to maintain that the current CDC’s top-down and exclusive drafting process is unlikely to pave the way for Thailand to return to a democratic given that this is a top-down process that has so far followed a ‘hybrid’ constitutionalism that mixes some democratic features of liberal constitutionalism with those of an authoritarian constitutionalism. [7] In order to break up such a vicious cycle of political crises and military coups, Thailand needs an urgent constitutional, political and socio-economic reform with inclusive people’s participation and consultation to curb the political and economic power concentrated in the traditional elites, including the military leaders and bureaucrats, capitalists and bankers, who have maintained their dominance in the Thai politics and government administration since the Siamese Revolution of 1932. There must be genuine and effective decentralisation of the political power to the grass roots level, including labour unions, urban workers and poor famers living in the rural areas, with a view to enhancing a strong and sustainable democratic culture and equality of people in the Thai society.

[1] Judith A Stowe, Siam becomes Thailand: A Story of Intrigue, University of Hawaii Press, 1991, p. 25.

[2] Todd A Eisenstadt, A Carl LeVan, and Tofigh Maboudi, ‘When Talk Trumps Text: The Democratizing Effects of Deliberation during Constitution-Making, 1974-2011’, American Political Science Review 109 (2015), p. 592.

[3] Todd A Eisenstadt, A Carl LeVan, and Tofigh Maboudi, ‘Can constitutions improve democracy? Sometimes, but not always’, The Constitutional Unit (28 September 2015), at https://constitution-unit.com/2015/09/18/canconstitutions-improve-democracy-sometimes-but-not-always/.

[4] Vivien Hart, ‘Democratic Constitution Making’ United States Institute of Peace, Special Report (13 July, 2003), p. 12, at http://www.usip.org/publications/democratic-constitution-making.

[5] It has recently been reported that due to strong criticisms of this special power, the CDC has decided that such power will not reside with the Constitutional Court alone. Rather, it will be up to the court, the heads of the three branches of government and independent organisations to decide jointly which measures or rules should apply whenever no constitutional provision is applicable to a particular case. See Kasamakorn Chanwanpen, ‘CDC reduces power of charter court “for crises”’ The Nation (online), 9 March 2016, at http://www.nationmul timedia.com/politics/CDC-reduces-power-of-charter-court-for-crises-30281113.html.

[6] Attayuth Bootsripoom, ‘Selected senators issue could sink new charter draft’, The Nation (online), 10 March 2016, at http://www.nationmultimedia.com/politics/Selected-senators-issue-could-sink-new-charter-dra-30281208.html.

[7] Albert H Y Chen and Hongyi Chen, Constitutionalism in Asia in the Early Twenty-First Century (2014) 35.

January 2016 Second Draft Constitution

Paul Chambers, Faculty of Law, Chiang Mai University, and CPG Senior Research Fellow

The January 2016 unveiling of Thailand’s latest draft constitution occurred amidst growing suspicions within Thai civil society about the
intentions of the document’s authors. The charter draft, like the 2015 one, represents a reactionary retrenchment back to diminished political space. From looking at it, one would assume that its chief author, Meechai Ruchupan, was attempting to raise his 1991, un-amended, “Frankenstein’s creature” constitution from the dead. So what is wrong with the latest “Frankenstein’s creature”?

The 2016 draft first compels parties to each propose three names for Prime Minister. Such candidates need not be elected. The proposed electoral system would fuse plurality and proportion list voting into a single ballot. This mixed member apportionment (MMA) system is unfavorable to the largest parties which have won the most party list votes. In Thailand, the largest parties have been pro-Thaksin such as Puea Thai: MMA would diminish their electoral winnings.

Second, it calls for an unelected Senate based upon the selection of Senators from twenty groups, including the military. The Senate’s ability to veto bills from the elected Lower House ensures that decisions emanating from representative democracy are cancelled.

Third, the draft makes the judiciary democratically unaccountable while courts and associated agencies can eject elected politicians at their whim. Legal technocrats supported by the armed forces become inordinately powerful.

Other changes include a silence on the rights of communities with regard to decisions on natural resource management – locals are only allowed to passively participate in such decisions. In addition, in the chapter on Local Administration, there is no mention of central and regional administration – a silence which could affect the right to decentralization.

Finally, a provisional charter clause allows the National Council for Peace and Order (NCPO) military junta to maintain dictatorial authority (Article 44) until after the next election when a new cabinet is sworn in to office. There is also speculation that a provision for a “crisis panel” mind be appended to the charter draft, following recommendations by the military-dominated National Legislative Assembly. Such a panel would be filled with military and police officers, as well as court justices and might be empowered to seize power in a “crisis.”

Ultimately, the bitter pill of weakened democracy inherent in Meechai’s “Frankenstein’s creature” constitution may be too un-palatable for Thais to pass in a referendum. If they fail to do so, the current ruling junta might impose a more repressive alternative charter or simply cling to power. While the devil is in the details, there is still no light at the end of the tunnel in Thailand’s unending cycle of constitutions.

“In Absence of Universally Accepted Human Rights, Thailand to Face More Sanctions”

Kohnwilai Teppunkoonngam, Human Rights Lawyer

After World War II and the emergence of the United Nations, followed by the adoption of core international human rights instruments,
particularly the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICSCR), there is an international acceptance that Human Dignity and universally accepted human rights constitute customary international law and some of them are even jus cogens.

To ensure the effective application, some states provide an effective guarantee of Human Dignity and international human rights under their constitutions. Germany was one of the very first countries that embraced the concept of Human Dignity and international human rights in the constitution (in Germany, the constitution is called “Basic Law”). Firstly, the German Basic Law places Human Dignity at its heart and guarantees that it is inviolable, eternal and demands from state authorities to respect and protect it. This is stipulated in Article 1 (1) and Article 79 (3) of the Basic Law as follows.

Human Dignity shall be inviolable. To respect and protect it shall be the duty of all state authority. [Article 1 (1)]

Amendments to this Basic Law affecting […] the principles laid down in Article 1[…] shall be inadmissible. [Article 79 (3)]

Secondly, derived from Human Dignity, the universally accepted human rights are also placed at the heart of the Basic law. This is clearly shown in Article 1 (2) and (3) which read as follows.

The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and justice in the world. [Article 1 (2)]

The following basic rights shall bind legislature, the executive and judiciary as directly applicable law. [Article 1 (3)]

The concepts of “universality, inviolability, inalienation (along with interrelation)” of human rights have been guaranteed by several resolutions of the General Assembly and comments of the Human Rights Commission. This is why many international scholars and judges are of the opinion that international human rights have become customary international law and some of them, if not all, are jus cogens, therefore, bind all states. Henceforth, it is the states’ responsibility to respect, protect and fulfill international human rights and minimize the gaps in their application.

What about in Thailand? First and foremost, it is worth mentioning that Thailand is a party to the ICCPR, ICSCR, and many other key international human rights treaties. Therefore, international human rights bind Thailand both in form of treaties, customary international law, and jus cogens. Furthermore, the 1997 Constitution and the 2007 Constitution of Thailand used to provide protection of Human Dignity and human rights. Human Dignity once was protected under Section 4 of the two constitutions as follows:

“Human Dignity, rights and liberties of the people shall be protected.”

Furthermore, Section 28 paragraph two of both constitutions attempted to provide effective protection of Human Dignity and human rights recognized by the constitutions, providing that:

“A person whose rights and liberties recognized by this Constitution are violated can invoke the provisions of this Constitution to bring a lawsuit or to defend himself in the court.”

Sadly, neither the fundamental concept of Human Dignity under Section 4, nor the protection of Human Dignity and human rights under Section 28 are maintained in the new constitution draft supervised by Meechai. Considering the fact that Thailand is recurrently criticized by the international community for the violation of human rights, e.g. the numerous problems of human trafficking and forced labour, excessive censorship, putting civilians on trial in court martial.

When this problem is determined together with the lack of the current state’s will to uphold its responsibility to safeguard international human rights under the new constitution, all of us, be it either state authorities, business entities and normal civilians should be well prepared for more sanctions by the international community.

Veerawit Tianchainan, Founder and Executive Director Thai Committee for Refugees Foundation (TCR)

The new draft Constitution disregards many core human rights principles, which would derogate human rights’ records of Thailand further. The key principle in the Article 4 of the draft limits the protection of rights to only Thai citizens. This would jeopardize the protection and promotion of human rights based on its internationally recognized principles that they are the foundation of basic rights for all human beings without discrimination.

It would diminish the national, regional and international efforts of the previous government of Thailand to establish Thailand as the leading country with regard to human rights as demonstrated in Thailand held the chairmanship of UN Human Rights Council and its effort to join UN Security Council membership. From the regional perspective, we would see the challenges to promote and protect human rights of migrants, migrant workers, asylum seekers, refugees and stateless people in Thailand if the Constitution would only guarantee the rights of Thai citizens.

This would contravene the principles of international human rights laws ratified by Thailand and the regional instruments, namely, ASEAN Human Rights Declaration. This draft will proof itself to be one of the biggest test on the development of human rights movement in Thailand.