Expert Opinions on Law and Politics: The Constitutional Referendum 7 August 2016

Post-Referendum Thailand, Inclusive Dialogue Now More Than Ever

Luc Stevens, United Nations Resident Coordinator

In the past month, numerous Thai analysts have provided insights into why the junta’s draft constitution passed the national plebiscite, why it was rejected in certain areas of the country, and how to assess the meaning of the national vote. The United Nations has been very clear for some time, voicing concerns over the restrictive environment that framed the referendum campaign period. Through legislative acts, NCPO Orders and other measures assessed by UN experts and agencies as falling short of Thailand’s inter- national commitments, the military government prevented a full and open national discussion on the draft constitution. In so doing, the military prevented itself from deeply understanding the needs and wishes of the Thai people. History and global experience tells us that one-sided constitutional processes fail to achieve objectives of national unity and, where often needed, reconciliation. National reconciliation remains elusive in the current environment.

The acceptance of the draft constitution by 61% of slightly more than half the eligible Thai voters who cast a ballot should not be interpreted as a mandate for the military to maintain expansive restrictions on freedoms of expression, opinion and assembly. The junta government has previously warned of the perils of first-past-the-post majoritarian rule. The August referendum’s results, a product of an unbalanced and restrictive campaign and education process, speak to a divided society more than an overwhelming mandate. The junta should move forward in a measured manner, recognizing the contributions that can be made by all Thais from across the diverse political, social and economic spectrum.

To be sure, the drafting of organic laws and other administrative measures to implement the constitution create new opportunities for Thailand to pursue a determined process of inclusive dialogue. We must not confuse dialogue with negotiation, debate or political elbowing where zero-sum strategies re-enforce hostility and confrontation. Dialogue requires credible people moving to the uncomfortable middle, encouraging an alternative to exclusion and one-sidedness as not only possible, but necessary. These people must encourage increasingly diverse voices to participate in a process of listening to better understand the Thailand that Thais want to create in future, one that respects all people’s rights, everywhere and at all time.

Such meaningful dialogue creates safe spaces to listen, appreciate differences and move toward a future vision of the country that truly leaves no one behind. Within these spaces, we can listen to each other deeply with intent to understand why others see things differently and, importantly, to be changed by what we learn.

Dialogue is not easy, but it is very necessary. And a constitution written and passed under conditions of non-inclusion and repression cannot achieve the longevity the country desires without a process of dialogue. Without dialogue, Thailand’s socio-political conflicts will not be resolved and the country’s growing social, political and economic inequality will not be reduced. Now is not the time for the junta to put on triumphant airs or for the opposition to block conciliatory efforts, but rather for all parties to demonstrate more humility and commitment to dialogue, to listening.

For these efforts, the United Nations stands ready to support efforts for inclusive dialogue, to bring diverse Thai voices together for the better future they can create together.

Comments on the Thai Referendum Results

Jon Ungphakorn, Executive Director of “iLaw”

The results of the Thai referendum on August 7th show that almost 60% of eligible voters participated, with 61% voting to approve the military junta’s new draft constitution (39% voting against) and 58% agreeing to the proposal to allow junta-appointed senators to join elected representatives in choosing the Prime Minister during the first five years of the new constitution (42% disagreeing). Spoilt ballots made up 3% of the total.

While there were no indications of irregularities in the vote-counting, the referendum could not be considered either “free” or “fair” for the following reasons:

1) Voters were given no indication of what would happen if there was a majority vote against the draft constitution. It could only be assumed that the junta would simply draft another constitution, not necessarily more democratic in nature, and that elections would inevitably be further delayed. So there appeared to be no real choice for voters.

2) Voters were provided with very little factual information on the content of the draft constitution by the authorities concerned. Very few voters had access to the actual draft (although it could be downloaded online). Hard copies were provided to educational institutions and libraries but not to individual voters. Instead, each household received a pamphlet summarising the merits of the draft constitution from the point of view of the Drafting Committee.

3) The supplementary question was phrased in an indirect way, making it difficult to understand or interpret the full meaning of the question.

4) The Government assigned and trained many thousands of volunteers throughout the country to visit communities and explain only the merits of the draft constitution.

5) Campaigning against the draft constitution was not allowed. Under the Referendum Act of 2016 Section 61 it became illegal to make any public comment on the draft constitution of an “untruthful”, “abusive”, “aggressive”, “obscene”, “seditious”, or “coercive” nature “intended to influence voters to vote one way or another, or to abstain from voting”. This offence carries a prison sentence of up to ten years. In practice anyone distributing materials to the public criticising the draft constitution was liable to be arrested, and at least 42 pro-democracy activists were arrested and charged with the offence. At the same time at least 19 public meetings to discuss the draft constitution were banned or closed down by authorities.

Despite the unfairness of the referendum campaign, the overall results of the referendum were extremely disappointing and a constituted a bitter blow for democracy advocates in Thailand.

In a sense, the repressive military junta itself (called the National Council for Peace and Order, or NCPO) might seem to have been validated by the majority vote, together with the draft constitution, which gives very limited political space to elected representatives from various political parties in future governments, and which ensures that the military will have a continuing grip on political power for the foreseeable future.

“Thailand Votes By Public Referendum To Make Its Government Even Less Accountable To The People”; “Standing Up for Less Democracy”; “Thailand votes to Axe democracy”; “In a ‘bizarre’ referendum, Thailand votes on a hybrid democracy” – These are examples of headlines from the international press.

I personally believe that the referendum results reflect some very serious problems that remain in Thai society:

First of all, the political divide or split within Thai society between the royalist pro-establishment and the “red-shirt” anti-establishment activists and communities continues as before, but with the latter groups now weakened by mass arrests, tight controls and the escape to exile of key leaders since the military coup in 2014.

This is reflected in the referendum results in 20 northern and north-eastern provinces where there were majority votes against both the draft constitution and the supplementary question. Nevertheless, the “no” votes in these two regions were substantially less than in the comparable 2007 referendum.

With no concessions having been made by the military and the bureaucracy to either pro-democracy or “red-shirt” sectors of society, the likelihood of future political conflict and bloodshed remains high as long as a fully democratic system of government remains out of reach.

Secondly, it cannot be denied that there is now a high level of political apathy in Thailand, especially among the younger generation of eligible voters and the professional classes. This is ac- companied by declining support for democratic principles and even substantial support for what the military junta has been doing. The junta’s constant propaganda war against “corrupt” politicians seems to have been quite effective, paving the way for General Prayuth Chan-Ocha to remain Prime Minister even after the elections. This situation is the polar opposite of the situation in May 1992 when there was a successful mass uprising led by students, intellectuals and the business sector against attempts by General Suchinda Kraprayoon, the military strongman, to gain nomination as Prime Minister after the democratic elections that took place following the 1991 military coup.

While the future for democracy may look bleak following the referendum results, the future for the military itself, if it takes a leading role in future governments as expected, does not look so rosy either.

Even with strong support from the bureaucracy and pro-establishment sectors of society, any future coalition government led by General Prayuth will inevitably face increasing internal conflicts and public discontent if it continues with present NCPO policies.

For a start the “anti-populist” policies of the military will inevitably result in a deterioration or dismantling of state welfare programmes, especially the extremely popular universal health insur- ance program introduced by exiled former prime minister Thaksin Shinawatra, the hero of the “red- shirt” movement and nemesis of the present military establishment. This will lead to widespread discontent and protests.

Secondly, present policies of evicting communities from state-owned land, and for supporting new mega projects in rural communities (such as coal-fired power plants) against local opposition will inevitable increase discontent and opposition from rural communities and their NGO supporters. In addition, the inevitable coalition government brought about by the new constitution will force the two main rival political parties to be unwilling partners in the same government and may well lead to chronic internal conflicts. Finally, unless the next government can improve the economic situation of low-income populations, there will be growing mass discontent with the government which cannot be controlled by present strong-arm methods.

In the end, further changes in government and a more democratic process of drafting a new constitution may become inevitable, and the military may find it safer to withdraw behind the scenes.

It is to be hoped that during future lessons learned about the consequences of the referendum results, there will be increasing recognition within Thai society that military government is not the right answer for a peaceful and just society and that a fully democratic system of government, de- spite its shortcomings, is the best system for people of different political views and economic and social interests to live together in peace.

The Risks and Opportunities of Fragile Mandates

James Ockey, Associate Professor and Honours Coordinator, University of Canterbury

On August 7, 2016, the authoritarian military government held the long promised referendum on a new constitution. Despite intensive efforts by the government to get out the vote, turnout was less than sixty percent. Although the referendum passed, with some sixty-one percent voting in favor, in all, less than thirty-four percent of eligible voters supported it, due to the low turnout. Even more alarming, from a military government point of view, the opponents outnumbered supporters in the Northeast, the most populous region of Thai-land, and in the South, where government legitimacy is a key to winning the battle against a separatist insurgency.[1] In addition, the leaders of both major political parties, the nearest thing to elected leaders under the coup government, made public their opposition to the draft, and immediately on passage, the courts deemed the constitution deficient, insisting on changes to a key section.[2] In short, while the military government may have a mandate for its constitution, it is a very fragile mandate, at best.

A fragile mandate, of course, is easily lost, putting the roadmap at risk, and potentially under- mining attempts at reconciliation and at defeating the insurgency in the South. On the other hand, a fragile mandate can be preserved, even strengthened, if care is taken as the country moves along the mapped out return to democracy. Indeed, attempts to strengthen the mandate if undertaken with care, could facilitate reconciliation and improve the chances for successful democratization.

Between now and the 2017 election, the government will be writing a series of organic laws that will set important conditions for democratic institutions, including the political parties. That can be done aggressively, seeking to undermine existing political parties, their organizations and their memberships, and in the process undermining the fragile mandate. Or it can be done in cooperation with political party leaders, beginning the important process of rebuilding positive relationships with party leaders. Joint meetings between government and party leaders can also begin building reconciliation among competing parties. Consultation with local politicians and opinion leaders in any reorganization of local government would enhance cooperation and strengthen the fragile mandate at a wider level, and further encourage reconciliation. Beginning the process of strengthening cooperation, consultation, and reconciliation is crucial to developing habits that will lead to successful democratization.

Striving to strengthen the mandate is also important to civil-military relations, and to the security of Thailand.  In a thesis written at the National Defense College, General Prayuth Chan-o-cha rightly noted the rising importance of “MOOTW”, military operations other than warfare, for the Thai military in an era of rapid globalization.[3] Such operations include counterinsurgency, development and humanitarian assistance, and disaster relief. Success in MOOTW depends on good relationships with politicians and ordinary people. Thus developing habits of cooperation also provides direct benefits to the military in carrying out future missions.

A fragile mandate presents both risk and opportunity. In a time when reconciliation is also fragile, the risk is great, with an outbreak of violence possible.  Rebuilding relationships is challenging. It may be much easier to proclaim a mandate and simply proceed without consultation. In the short term, it may also be more efficient.  Yet short term challenges must be undertaken to engrain the habits of consultation and cooperation necessary to maximize the chances of long term success. Stepan and Linz[4]  argued that democracy is only consolidated when “actors in the polity become habituated to the fact that political conflict within the state will be resolved according to established norms.”  Beginning that habituation process immediately will both preserve the fragile mandate and enhance the chances of a successful transition.

[1] Bangkok Post 11 August 2016

[2] Nation 29 September 2016

[3] Prayut Chan-o-cha, “Kanprap botbat khong kongthap Thai phua rongrap phaikhuk khwamrupbaebmai” [Roles and Responsibilities Reform of the Royal Thai Armed Forced Against the Non-traditional Threats [sic]]. Bangkok: National Defense College, 2007

[4] “Toward Consolidated Democracies,” Journal of Democracy 7 (April 1996), p. 160

A view on 7 August Referendum

Kasit Piromya, a Thai diplomat, Democrat Party politician, and former Foreign Minister of Thailand

The positive outcome of the 7 August national referendum on the Draft Constitution and on the additional question pertaining to the ad-hoc Senate during the first 5 years after the coming into force of the Constitution must be taken within the existing political context.

The military junta was able to provide a situation of stability after a decade of upheavals. The military leadership was perceived by the public for its dedication, hard work and selflessness. The military was also successful in creating the public perception and belief that politicians were the causes of all social-ills and sources of massive corruption.

Comments and views forthcoming from political quartets were therefore perceived to be of self-serving; and outright selfish nature. There was thus no credibility to their disposition and views expressed.

The military junta held on to the banning of activities by all political parties. But even if there were to be full freedom of expression and public access, the views of political parties on the Constitution and the additional question at the end would not have had much impact or inroads into the minds and awareness of the general public because their credibility was really lost and they had not been able to recoup the reputation and reform themselves.

With political parties neutralized, the military proceeded with quiet but extensive, nation-wide “political education” to convince the public to go along with the draft constitution and the additional question.

The turnout was satisfactory. There was no coercion, no environment of fear. The positive out- come rendered legitimacy to the ruling regime and the public hope of a better future for all.

The Thai public wanted the country to move on with the leadership and stability provided by the military at least for the next five years.

It can thus be said that the Thai people are not in a hurry to return to the situation of politics as usual and are not yet inclined to take risks with politicians again and so soon.

Can a referendum under military rule be democratically acceptable?

Michael H. Nelson, a Senior Research Fellow at the German-Southeast Asian Center of Excellence for Public Policy and Good Governance

In his standard introductory text on elections and referendums, Michael Gallagher writes that scholars “analyze the referendum as an institution within the framework of representative democracy”.[1] Yet, Thailand has conducted only two referendums in her history, both of which took place when military dictators were in power and wanted to “legitimize” the constitutions drafted under their tutelage. As one could expect, the first referendum in 2007, following on the coup of 2006, was neither free nor fair.[2] Yet, the current military rulers outperformed their predecessors by a large margin. They systematically suppressed any possibility for anti-constitution information to reach remotely significant numbers of voters. At the same time, the military government used all its powers and administrative mechanisms to propagate the virtues of the draft constitution prepared by the Constitution Drafting Committee. When a member of the formally “independent” Election Commission (EC) suggested that they could print a brochure outlining both the positive and the negative aspects of the draft, he was swiftly reprimanded. Afterwards, the EC supplied all households of voters with yet another booklet praising the draft constitution, while it failed to print and distribute the critical views produced by the New Democracy Movement, the Nitirat group of Thammasat University law lecturers, or the NGO iLaw. Therefore, Forbes headlining an article “Thailand’s Military Junta Rigs Constitutional Referendum”,[3] or Asia Sentinel[4]  calling the referendum “farcical” were quite accurate assessments of the referendum procedure.

Given that this procedure bizarrely deviated from what one would normally expect from such an exercise in direct democracy, one could perhaps have assumed that the result would meet with universal rejection by all political groups in Thailand, except for the power holders, and those who voted “Yes,” obviously. Yet, this did not happen. Even prominent activists, such as Sombat Boonngamanong, were so stunned by the clear result in favor of the constitution that they rather wondered why it was so different from what they had expected. Sombat was quoted as having said, “I was astounded. … I didn’t think it would come into effect so I hadn’t really paid attention to it. Now, I’m seriously studying the draft”.[5] Sombat was certainly not alone in his flawed prediction. Nirmal Gosh noted that, “Most political insiders on the eve of the election, believed the draft constitution would be narrowly rejected”.[6] Piyaporn Wongruang, writing in The Nation newspaper, then demanded that the “pro-democracy sup- porters” should demonstrate their democratic minds by accepting the result of a referendum that took place in the most undemocratic circumstances imposed by a military dictatorship. These “pro-democracy supporters” should respect “the vote in a spirit of tolerance”,[7] although this tolerance had been entirely absent during the referendum period, which saw a sustained crackdown on almost all public utterances against the draft constitution.

Pragmatic authors not suspected of having pro-coup leanings, of course, were not prepared to reject the result either. Thitinan Pongsudhirak, for example, stated that “pro-democracy” groups must heed the result, though he did also say, “This referendum was not free and fair”.[8] His argument in favor of accepting the result, it seemed, rested on the assumption that any substantial anti-draft campaign would have done nothing significantly to change the outcome of the referendum. This was so because the 50 million “eligible voters knew enough about what the polls stood for,” simply because they had lived under military rule for more than two years already, and thus had taken in a sufficient amount of information about what was at stake. Thus, the great majority of voters who went to the polls (in contrast to the number of eligible voters), “approve[d] a military-inspired constitution that codifies longer-term military supervision of Thai politics” (ibid.). “Thai voters are not ignorant imbeciles lacking education who cannot see and speak for themselves. Thai voters may know exactly what they are doing” (ibid.). As a “Bangkok businesswoman told The New York Times, ‘It is better than politicians running the country. It’s good to have the military babysitting the government for the next five years’”[9].

In sum, among the Thai population, there currently is no active majority for a democratic form of government. What we have witnessed in the referendum vote, instead, is a conscious consolidation of authoritarian structures, an acceptance by a majority of citizens of their disempowerment, including a substantive reduction of their role as the genuine sovereign of the Thai political order. Panat Tasneeeyanond put it aptly when he spoke of a “system of elite rule with elections” (Prachatai, 2 March 2016). This is what the active part of the Thai voters in their majority wanted, and it is what the 2016 Constitution gives them. It is thus not an exaggeration to say that the referendum result represents a “historic defeat”[10] of Thai democratic political culture in general and of democratic political forces in particular.

[1] Gallagher, Michael. 2014. “Elections and Referendums.” In Comparative Politics. Third Edition, ed. By Daniele Caramani, pp. 173. Oxford: Oxford University Press.

[2] Nelson, Michael H. 2011. “Looking Back Before the Election of 2011: Thailand’s Constitution Referendum and the Election of 2007.” European-Asian Journal of Law and Governance 1 (1):49-74.

[3] Bandow, Doug. 2016. “Thailand’s Military Junta Rigs Constitutional Referendum, Wins Vote for Continued Authoritarian Rule.” Forbes, 7 August 2016.

[4] Asia Sentinel. 2016. “Junta Wins Thailand’s Farcical Election.” 8 August 2016.

[5] Kasamakorn Chanwanpen. 2016. “Dismayed ‘Vote No’ camp takes stock and wonders what next.” The Nation, 18 August 2016.

[6] Gosh, Nirmal. 2016. “Revenge of the Conservatives in Thailand.” Blog, The Straits Times, 8 August 2016.

[7] Piyaporn Wongruang. 2016. “Political rift can be healed by faith in the road ahead.” The Nation, 19 August

2016.

[8] Thitinan Pongsudhirak. 2016. “Let Thai electorate be referendum winners.” Bangkok Post, 12 August 2016.

[9] Hutt, David. 2016. “Thailand’s Junta Cements Control as Voters Approve New Constitution.” World Politics

Review, 9 August 2016.

[10] Pravit Rojanaphruk. 2016. “After historic defeat, fractured opposition unlikely to challenge junta.” Khaosod English, 23 August 2016.

”Thailand’s Referendum Results: A Vote for (Fragile) Stability”

Prajak Kongkirati, an Assistant Professor at the Faculty of Political Science, Thammasat University, Thailand, and, Visiting Fellow with the Thailand Studies Programme at ISEAS – Yusof Ishak Institute

On 7 August, the draft of Thailand’s 20th constitution was approved in a contentious but peaceful referendum. According to the Election Commission of Thailand 16.82 million people voted in favour of the draft while 10.60 million rejected it. The turnout was relatively low with only 59.4 per cent of eligible voters casting their ballots, compared to 57.6 per cent in the 2007 referendum and 75 per cent in the 2011 General Elections.

There are two reasons for the overwhelming vote for the draft. First, the voter turnout in the North- east, stronghold of the Red Shirts and Pheu Thai party, was low. Many perceived the referendum to be unfree and unfair, and believed that the military would remain in power regardless of the outcome. Second, there was no splitting of votes among Democrat Party’s supporters despite Abhisit Vejjajiva’s, the opposition party leader, rejection of the draft. In essence it may be argued that the majority of Thais voted for the draft in hope of a return to normalcy and stability. The junta successfully persuaded voters that the military was needed to stabilise the country during this “transition period”. Voters also believed that the semi-authoritarian regime guided by the military would prevent the recurrence of street politics and violence that engulfed Thailand in recent years.

The referendum result not only endorses the constitution, but also shores up the Prayuth govern- ment’s legitimacy to rule. It demonstrates, among other things, that Thailand is still politically divided and reconciliation remains beyond reach. The Upper North, Northeast and the Deep South voted against the constitution while the rest of the country supported the junta-sponsored “political blue- print” which aims to entrench the power of the military and unelected elite at the expense of political parties and the popular will of the electorate.

In all likelihood the upcoming elections, promised to take place by late 2017 or early 2018, will see an unelected Prime Minister chosen by the military to lead an unstable and weak coalition gov­ernment. Political stability will depend upon the balance of power between the military and various political parties; a balance that may be all too easily lost.

The military’s new constitution will radicalise the democracy movement

Dr. Oliver Pye, Department of Southeast Asian Studies, Institute of Oriental and Asian Studies, Bonn University

The military’s new constitution is a blatant attempt to perpetuate their control over Thailand’s political system. Key changes compared to the 1997 “People’s Constitution” are those that increase the power of unelected bodies and that legitimate coups and other interventions against an elected government. Unelected members of the Senate will in future decide on key positions in the state, including judges on the constitutional court, and officials on the anti-corruption, election and state audit commissions. This shows two things: that the military and the forces supporting them are decidedly anti-democratic and that they are scared that if they were to allow free elections, a party representing the Thaksin camp and the aspirations of the redshirt movement would win.

The referendum, on the other hand, was held in order to shore up the legitimacy of the military regime. I would argue that while the result did not factually achieve this, it has been perceived to have done so, and so has indirectly boosted the image of the regime for the time being. Thitinan Pongsudhirak, for example, takes the 60% yes vote as proof that the Thai public endorses the military’s involvement in politics and that they “are tired of street protests.“ This comfortably ignores that there was only one opinion permitted on television, in the press and in the streets: that to vote yes would be the best for Thailand. There was no free debate, campaigning was illegal and punishable with up to ten years imprisonment. A combination of one-sided propaganda, intimidation and repression only man- aged to deliver 60% of a 60% turn-out – not so impressive. For those opposed to the military regime and its constitution there were three possible tactics to be taken in the referendum: vote No, boycott the referendum as illegitimate or vote Yes in the hope that a return to elections would see a return of a Thaksin-near party to power and a later reform of the constitution. In fact, only 36% of the electorate voted Yes, 24% voted No and 41% didn’t vote or boycotted the referendum. If some of the Yes votes were tactical and some of the abstentions an active boycott, this would suggest that the military regime has the support of one third of the population at best.

For the pro-democracy forces and the redshirt movement, the question is now how to develop astrategy that can be successful under the new constitution. Before the 2014 coup, there was a division of labour whereby the redshirts would be mobilised to ensure electoral victory for the Pheu Thai Party. This strategy is now dead. In the unlikely event that a new party representing the Thaksin camp would win a new election, the government would be paralysed by the military’s grip over the state apparatus. The hopes of some commentators that a compromise could be reached between the two sides that would ensure a gradual return to “normal” democratic procedures have been dashed by the constitution. Back-door negotiations have led to nothing.

Strategy needs to be based on analysis, and a starting point is to depart from the modernisation model of democracy. In its contemporary form of “good governance, this starts with shopping list of bourgeois democracy: free elections without vote-buying; the state is a neutral executive of the legislative which is counter-checked by the judicative; the military should be “professional” and not get involved in politics; courts should be independent and politically neutral; the media should be independent and politically neutral etc. This is seen as the norm, to which modern states are either evolving or towards which they need to be nudged. In this model, Thailand is an aberration from this everlasting and true model of democracy. This is usually explained in cultural terms: for the right wing as a justification (“Thais love their King”, “Thais don’t yet understand democracy fully”) or for liberal democrats as an explanation (“endemic corruption”, “pre-modern continuities”).

But what if Thailand is not an aberration? What can Thailand tell us about the state, the relation of democracy to economic development and class formation, about political movements, about strategy and tactics, about bourgeois democracy in general?

According to mainstream commentators, the state should be neutral. Thailand shows us that it is not. The last ten years have seen a struggle by opposing power blocks over key sections of the state: police versus military, different factions within the military, the judiciary, the fight over who controls the royal institution etc. Thaksin, starting from a position of economic power (Shin Corp) and legislative power (control of parliament and government) attempted to translate his democratic mandate into securing key positions in other parts of the state apparatus. The non-elected “network monarchy” wanted to prevent this. It is no coincidence that interventions by the monarchy and the military started or became more strident as Thaksin intervened in the promotion politics of the military itself, advancing key allies at the expense of other factions. The Thai experience shows that real democracy cannot ignore the nature of the state, nor the power of the military and the question of what to do about it.

The new constitution does not mean that a thorough democratisation of Thai society is impossible. Three major events in Thai history led to democratic reform: the 1932 revolution, the 1973 uprising and the 1992 democracy movement. In each, mass movements changed the balance of forces and so could change the political “Überbau,” including the constitution. These movements were not restricted by electoral politics, but combined political aims with social demands. The democracy movement in Thailand will need to do the same again.

In the current hyper-royalist frenzy after the death of King Bhumibol, intimidation and repression, particularly the widespread use of Lèse Majesté, will more likely than not pre-empt open political resistance for the time being. In the longer term, however, several factors suggest that a mass movement for democracy could again be successful. The first is that millions of people have developed a thirst for democracy that is directly related to demands for social reforms. Thaksin’s popularity was founded on him delivering on these social aspirations, particularly the 30 Baht health scheme, credit for rural communities, the minimum wage etc. They have also learnt in practice that the state, the monarchy and the military are not neutral. Secondly, while on a high now, royalist ideology is waning. A future King Vijaralongkorn will not have the same mass appeal as his father, and looks likely to be a liability for a military regime that uses the monarchy for its legitimisation. Thirdly, Thai capital is still divided, and only one faction supports the military.

The new constitution, by precluding the electoral strategy, will radicalise the democracy movement. The movement would have to address the undemocratic nature of the state, the control of the media, corporate power and, particularly, the military. A lot will depend on the political leadership that will now emerge under conditions of military dictatorship.

The August 7, 2016 Referendum: Legitimizing the Junta

Paul Chambers, a visiting assistant professor of political science at the Uni- versity of Oklahoma. He has spent 20 years off-and-on in Thailand both teaching and researching. His research interests focus on civil-military relations in Southeast Asia; international politics of Southeast Asia; dictatorship and democratization in the Mekong Region; and the Political Economy of Less Developed Nations

It has become fashionable for military juntas seeking domestic and international legitimacy to use the tool of “constitutional referendum” to demonstrate that they have popular support for their prior and future actions. Examples include the referendums applied by military regimes in 2008 Myanmar and 2014 Egypt respectively, both of which legitimized a legal role for the military in politics while enhancing their powers.

Thai juntas have also utilized referendums to oxymoronically demonstrate their democratic char- acter. In August, 2007, a military junta which had ousted a democratically elected government put forward a referendum vote on a junta-endorsed charter. With the regime refusing to allow any cam- paigns against the vote and many Thais unsure what exactly the charter contained, the referendum passed 57.81 percent to 42.19 percent. Junta leaders then used the referendum to legitimize the 2006 coup, given that they could argue that most Thais had accepted a constitution through referendum which the military had backed. But such reasoning was turned on its head four months later when the pro-Thaksin People’s Power Party won a landslide electoral victory.

Fast forward nine years to the August 7, 2016 charter referendum. For months prior to the vote, the National Council for Peace and Order (NCPO) junta led a one-sided campaign indirectly in favor of the constitutional draft. Demonstrating draft opponents were invited to “attitude adjustment” or simply jailed. Contrary to junta pundits, there were in fact allegations of referendum vote buying. However, such claims were not investigated given that the junta refused to allow any independent election monitor. In the end, on the day of the referendum, many Thais who voted “yes” simply wanted a return to democracy no matter how defective it would be. The outcome saw the referendum pass slightly higher than the 2007 percentage: 61.35% to 38.65%. On the question of whether a non-elected Prime Minister could be selected by parliament (inserted into the referendum ballot at the last minute), 58.07 percent of votes were in the affirmative as opposed to 41.93%.

Since the referendum, many academics and journalists (domestic and international) have claimed that the vote shows that the junta must indeed have acquired popular support and that perhaps many Thais who once supported Thaksin and Yingluck Shinawatra no longer do so. But these are mere guesses substantiated only by and based upon the adequacy of a junta-directed referendum with no independent monitoring whatsoever. Indeed, civil society groups who reluctantly agree with the ref- erendum’s results do Thai democracy a disservice by refusing to demand a review of the vote by an independent agency or ignoring that this was a military junta which went all out against the constitutional draft’s opponents prior to the August referendum.

As for the 2016 referendum’s consequences for Thai democracy in the future, it will assuredly give legitimacy to a leading opponent of pluralism, Thailand’s coup-happy military. As with the 2007 referendum, the 2016 referendum appears to vindicate the 2014 military coup in retrospect and, since the new constitutional draft enhances military prerogatives, it facilitates the entrenching of the military across Thai politics for years to come.

Ultimately, Thailand’s 2016 military-implemented referendum joins its earlier 2007 referendum and the referendums in Myanmar and Egypt as strategies designed to use voting by the people to both condone military seizures of power and also camouflage the extension of military incisions across democracy. The message is clear: Thailand’s military intends to stay in the spotlight of Thai politics.

Whither Rights?

Tyrell Haberkorn, a Fellow in Political and Social Change at the Australian National University

On 7 August 2016, the constitution drafted by the Constitution Drafting Committee (CDC) appointed by the National Council for Peace and Order (NCPO) was passed in a referendum vote in which approximately 60% of the electorate voted. Al- though the voting on the day appeared to take place without overt interference by the junta, the stringent prohibition on civilian debate on the lengthy and complicated draft, which has 279 sections, means that the referendum cannot be understood as free and fair. The prohibition was enforced by a series of arrests of student activists, journalists and human rights defenders who dared to try to make the content of the constitution accessible, distribute flyers or hold events for citizens to exchange ideas about the draft.

But why wouldn’t the CDC and the NCPO want citizens to talk about the constitution? If, as General Prayuth claims, the new constitution is the first step on the path back to democracy, wouldn’t public participation be of value?

There are perhaps many reasons why not, but one key reason is that this constitution is an instrument that rather than protecting the rights of citizens, provides a legal and constitutional gloss under which they can be stripped away. Dispossession of rights is woven across many of the articles, but the most important is in the final section of the constitution. Article 279 stipulates that “All announcements, orders and acts, including the performance of the National Council for Peace and Order or of the Head of the National Council for Peace and Order already in force prior to the date of promulgation of this Constitution or will come into force in accordance with Section 265 Paragraph Two, irrespective of their constitutional, legislative, executive or judicial force, shall be considered constitutional and lawful and shall continue to be in force under this Constitution. Repeal or amendment of such any announcement or order shall be made by an Act, except in case of the announcements or orders of the exercise of executive power in nature, the repeal or amendment shall be made by an order of the Prime Minister or a resolution of the Council of Ministers, as the case may be.”

In other words, the Orders and Announcements of the NCPO issued under martial law and the Orders of the Head of the NCPO issued under Article 44 of the 2014 Interim Constitution remain in place. These measures variously allow for arbitrary detention, trial of civilians in military courts, the establishment of secret prisons inside military bases, forced evictions and many other kinds of rights violations. They were issued at the executive discretion of General Prayuth and other members of the NCPO, and with the passage of the new constitution, they both remain in force and have been given an additional layer of legality and constitutionality.

What effect does the retention of orders drafted, debated and promulgated by a military junta have on the prospects of democracy? What does the retention of these orders do to the rights provisions present in the constitution? Do such orders have any place in a democracy? And if the answer is no, then is the constitution really a step on the path towards democracy, or merely one more way in which the NCPO aims to hold onto dictatorial power?

Avoiding these questions is precisely what the NCPO needed to prevent in the lead up to the referendum. This is not because they worried about the constitution draft not being passed, but because these questions go much deeper to the very legitimacy of the regime, or the lack thereof.