Another constitution for Thailand?

"Though 'junta' is committee, is not really what is mean

One person's endless nightmare is to other perfect dream

Is order when are doing all just what you tell them to

And freedom of the press is freedom to agree with you!"

--this

Thailand is currently preparing for a referendum on the new constitution, scheduled for 7 August. The proposal represents the finalisation of a process of constitutional change initiated by the military government which took over in May 2014. During this period, the nation has been ruled by the military-dominated National Council for Peace and Order and the National Legislative Assembly under the interim charter; neither body is elected. 

I have written before about the military government's plans for the electoral system, some of which were put in the draft. However, the issues with the draft do go further than the issues with the electoral system. It contains provisions that appear designed to allow substantial military control over the government, and certain elements are a regression on the previous constitutional arrangements.

Thailand's constitutional problem

As I have written before on my previous Thailand post, the country has had persistent problems with political stability. Thailand has had twelve successful coups since the establishment of a constitutional monarchy in 1932, most of which have resulted in new constitutions.

The below image shows all the Constitutions of Thailand since the 1970s. Coups normally install interim constitutions, providing for appointed legislatures with few or no protections for human rights. Updated, democratic, constitutions are then written by the coup leaders, though often slowly.

Thai constitutions since the 1970s (own image)

This process has led to frequently interrupted civilian government, and to generally highly unstable government in the country. Up until the 1997 Constitution, an electoral system that encouraged factionalised and weak political parties also contributed to a highly unstable political system.

Following the promulgation of the 1997 Constitution, the populist, somewhat leftist Thai Rak Thai party emerged on the political scene, led by businessman Thaksin Shinawatara. It contested its first election in 2001. Partially thanks to the new electoral system, which encouraged national, broad-based parties, Thai Rak Thai secured 248 of 500 seats; by far the strongest result for a single political party in Thai political history. The party was able to build on this to win a comfortable majority of seats in the 2005 election; 375 of 500.

This has created a serious conflict between opponents of and supporters of the Thai Rak Thai party and its predecessors, and supporters of the opposition. The opposition has proved relatively unsuccessful electorally, but opponents of the government have been able to use military coups to overturn what they see as a corrupt government.

The new constitution

As has been the case for all Thailand's democratic constitutions, a parliamentary system of government is provided for. However, the Thai monarch remains as head of state, as is normal for a constitutional monarchy.

The first thing in the document is, indeed, provisions dealing with the monarch, who is to be "enthroned in a position of revered worship" and "shall not be violated". Based on the three most recent versions of the Constitution, this appears to be standard practice in Thai constitutions. This would seem to be related to controversial lese-majeste laws restricting criticism of the monarchy.

There is also a section dealing with rights and freedoms. These provide for the right to presumption of innocence, prevention of self-incrimination, and other standard rights in relation to criminal law. The provision on freedom of speech, however, has the caveat that it may be restricted "by virtue of the provisions of the law specifically enacted for the purpose of maintaining the security of the State, protecting the rights or liberties of other persons, maintaining public order or good morals of people, or safeguarding the health of the people". Provisions of this sort restricting freedom of speech are hardly unusual internationally, or in Thailand for that matter. Various other rights, such as freedom of association and travel, have similar caveats.

The 'Duties of the State' section sets out various roles that the Thai government must play. These can be quite specific: for example, the government is prohibited from selling more than half of utilities to the private sector. The government must also provide public healthcare and free education for children for twelve years.

Government provisions

The Constitution provides for a bicameral parliament, consisting of a House of Representatives and Senate. The House of Representatives is the larger, elected House, with five hundred members. It is elected using mixed-member proportional representation, as was hinted at by the drafters of the constitution. 70% of the House is elected in single-member districts using the plurality system. Voters only cast votes for the single-member districts; there is no separate party-list ballot paper, as was in place under the previous system.

The remaining members are chosen from closed party lists, in a manner designed to compensate for the disproportionality caused by the single-member plurality system. The total number of members for each party is calculated based on the votes cast for the party, and the seats each party has won in constituencies are subtracted from this figure. Remaining members are elected from the closed lists. 

While such specific details of an electoral system may seem unusual to entrench in a constitution, this also appears to be standard Thai constitutional practice. What is more unusual about the electoral system is that there is specific provision for voters to cast a vote against all candidates. If this 'against all' option receives the most votes in a district, a by-election is required in which all candidates who ran in the original election are disqualified from contesting.

What is the value of such a provision? Well, the anti-Thai Rak Thai/Thaskinite opposition political parties often boycott elections as a protest tactic. They did this in 2006, as part of the leadup towards the coup of that year, and in 2014, which had a similar outcome. 

If there is an election boycott, under this constitution, it will be possible for districts in the South, an area that traditionally opposes the government, to constantly fail to return members of the House. As 95% of members of the House are required to convene a session, it would be theoretically possible for a boycott to render Thailand ungovernable. This has happened in the past despite the lack of this provision, though it is now entrenched and stricter than it was.

The House sits for a four-year term, though it can be dissolved by decree of the monarch early (there is no specific provision for this action being taken on the advice of the Prime Minister or Cabinet, though this is also standard Thai constitutional practice). 

One of the other unusual procedures mentioned in this constitution is the procedure of choosing a Prime Minister. Section 88 states that each party nominating candidates must put forward a list of three candidates for the post before an election. However, it is somewhat unclear as to whether this means that the Prime Minister must come from one of these lists. 

The provision on choosing the Prime Minister states that "the House of Representatives shall complete its consideration and approval of a person suitable to be appointed as Prime Minister as selected from the nominees having the qualifications and not falling under the prohibitions under Section 160 including who appear in the lists presented according to Section 88". It is not clear whether this means only people who appear on the lists are permitted to serve as Prime Minister, though later provisions suggest that this is the case.

There is an eight-year term limit on the office of Prime Minister, a relatively rare provision in parliamentary countries. The government is responsible to the House of Representatives, with 20% of MPs being required to initiate a confidence debate.

As said before, the parliament is bicameral. The other house is the Senate. With the 1997 Constitution, this house became an elected one; previous democratic constitutions providing for bicameralism had made the Senate appointed by the King. It would be elected on a non-partisan basis, however, with restrictions on political advertising.  Under the 2007 Constitution, this was changed to have half the Senate appointed, and half of it elected.

This draft goes the whole way, and provides that the entire Senate shall be appointed by the King. There is no specific provision that the Prime Minister or Cabinet should be consulted, and I am unsure whether this is standard practice for the Senators appointed prior to 1997 and following 2007. The Senate, however, only has power to delay legislation; for financial bills, forty days. Other bills may be delayed for two hundred and forty days, but the House majority retains the authority to present bills for Royal Assent after this period. Following presentation for Royal Assent, the monarch may refuse to sign the bill: he can be over-ridden by two-thirds of the members of both Houses of parliament.

Amending procedures have changed somewhat from the 2007 post-coup constitution. This Constitution could be amended, with public consultation, by a majority of both houses (apparently sitting in joint session). The draft Constitution requires that this include 20% of the members of parties without representation in the Cabinet (i.e. non-government parties), and a third of the appointed Senate. This will make amendment likely impossible without Democrat support. For a constitution with such specific provisions, and in a country where there is such a sharp partisan division, this provision appears put in place to entrench very specific laws.

Transitory provisions-the devil in the detail

The most contentious provisions of this constitution are those at the end; the so called 'transitory provisions'. These are provisions that are not meant to be permanent, but to enable the transition from military rule to democratic rule.

For a start, the unelected National Legislative Assembly will remain the national legislature until new elections are held. These elections can only be held after legislation governing a wide variety of issues is passed, including laws on the prevention of corruption, laws on criminal procedure for dealing with politicians, and laws detailing the appointment of the Ombudsman. These laws may take up to 240 days to consider. There is then a further 150 days until elections must take place.

Furthermore, the first Senate will be appointed by the King on the advice of the National Council for Peace and Order, the military junta governing the country at present. The Senate may, for its first term, force a joint sitting if the House is voting on any bill designed to acquit government employees from crimes or 2/3 of the Senate vote that a bill seriously affects the justice process.

The provisions for choosing a Prime Minister from the lists submitted before the election is somewhat confused in the transitional provisions. Apparently, the National Assembly may, with a 2/3 majority, choose a person not on the lists. This would suggest that the lists drawn up before the election are, under normal circumstances, binding on the parties and that people outside the lists may not serve as Prime Minister.

What does this mean for the future of Thailand?

This constitution has some clear advantages, at least for democratic stability, over previous iterations of the document. The new electoral system will be advantageous towards the Democrat Party, true, but only insofar as it will provide the party with more proportional representation. This may mean that the successor to the Thai Rak Thai party that will no doubt contest this election will have to form a more inclusive coalition than is normal. This may reduce the chances of a serious conflict between the government and opposition, and thus a coup. However, the closed list nature of the electoral system will prevent parties becoming weak and factionally divided.

The appointed nature of the Senate, especially its initial appointment by the junta, means that it will substantially delay action by any civilian government: important, seeing as all laws made by the junta government are considered to be constitutional by the transitory provisions. The constitution will also be much more difficult to amend than previously, partially thanks to the appointed Senate, and partially thanks to the provisions requiring opposition parties to support any change. Organic laws, those that deal with political parties, procedures of the Constitutional Court and choosing Senators (amongst other matters) must be approved by a joint sitting, giving the appointed Senate substantial control over these matters.

However, the former coup leaders having influence over future civilian governance is not unusual in Thailand. Many transitions to democracy under new constitutions have involved 'tutelage' periods, in which the democratic government shared power with the former coup leaders. And yet, this did not make the Constitutions more durable. Depressingly, this constitution may simply end up lasting only a few years.

One new provision that has been included that could potentially improve the durability of this Constitution is the introduction of local assemblies, with vaguely defined but seemingly meaningful powers. While local assemblies are not automatic (they are only to be implemented "according to the will of people in the locality"), they do have the power to "govern and provide public services and activities for the benefit of people in the locality". Furthermore, there is a responsibility on the central government to "ensure that a local government organisation has revenue of its own by organising an appropriate tax system or tax collection system".

Such provisions have the potential to reduce the winner-take-all nature of the central government, and allow areas that strongly support the opposition to make decisions over their own policies. Nonetheless, there are issues; the vague nature of determining the will of people in the locality, for example, could lead to the national government refusing to introduce any local assemblies. Previous Constitutions contained similar language in relation to local assemblies, though were more vague on provisions for the duties of said assemblies and the need for the national government to allocate taxes to them.

On August 7, the referendum will take place. The restrictive nature of laws on campaigning, combined with the fact that a rejection of the draft will only push elections back, makes it likely that the draft will be accepted. While there are some encouraging signs that the new draft will make conflict less likely, it will be very difficult to get Thailand out of coup culture. There is only so much any constitution can do alone.