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. 

Why does the Thai junta want MMP?.

Thailand is currently under the rule of a military junta, following a coup in 2014 against the government of Yingluck Shintawara. The coup is nothing especially unusual for Thailand, which has had 19 attempted coups, 13 of which have been successful.

The military government has said that they intend to return Thailand to democracy eventually: although they have not provided an exact date, it is expected that it will happen later this year, or next year. One of the key tasks that the junta has stated needs to take place before democracy is introduced is writing a new constitution.

Since the constitutional monarchy was introduced in 1932, Thailand has had seventeen constitutions and charters. Charters are documents set up to provide a basis to temporary military governments, and normally have been used for two or three years at a time. Constitutions have been more permanent, but none have lasted especially long.

The current constitution was drawn up and promulgated in 2007, following a coup in 2006. It provides, like all the other democratic constitutions, for a parliamentary system of government with a constitutional monarchy. A bicameral system was established, as had existed in the previous Constitution; however, the Senate was not able to remove ministers, and half of it was appointed. The House of Representatives was the premier house; it was directly elected, through a mixed-member majoritarian electoral system. Oddly, the exact provisions of the electoral law are enshrined in the Constitution.

Formally, the Prime Minister and the remainder of the Cabinet are appointed by the King; however, a no-confidence motion from the House can remove Ministers. This is similar to other constitutional monarchies, such as Australia and the United Kingdom. However, for various reasons (including the popularity of the King, and lese-majeste laws banning criticism of him) the King has had a more influential role than other constitutional monarchies.

The key factor in the two recent coups has been the governments of Thaksin Shinawatra and his sucessor and sister Yingluck Shinawatra (many female leaders in Asia have been related to former male leaders, such as Prime Minister Indira Gandhi of India or President Park Geun-hye).

Thaksin came to power following the Asian Financial Crisis of the late 1990s. He was an influential businessman, and formed a political party called Thai Rak Thai (Thais Love Thais). At the 2001 election, his party won 248 seats in the 500 member House of Representatives, a near majority, off 40.6% of the vote. This result was part of a growing trend of Thai politics towards consolidation of the party system, as the below graph shows.

As you can see, the 2001 election represented the largest share of the votes for the top two parties since vote shares became available, and probably before that. This is off the back of three subsequent increases.

Exactly why this is the case is unclear. However, Thailand's usage of a different electoral system may account for some of this. Just before the 2001 election, Thailand switched from a pure multiple non-transferable vote system to a mixed-member majoritarian system, with first-past-the-post used in the local districts. 

Shugart and Carey (1995) provides a rank-ordering of electoral systems based on the importance of the personal vote. The issue with this is that the rank-ordering places substantial emphasis on how parties nominate candidates and the ease of getting on the ballot, and information on this factor is unavailable. 

As a result, the switch to MMM would be likely to reduce the incentive to cultivate a personal vote. This could be expected to lead to party labels becoming more important in elections, and thus could be expected to lead to stronger, more disciplined parties. I do not have many cases to directly compare the Thai experience to, seeing as the MNTV system is relatively rare. However, the replacement of Taiwan's MMM system, which used the single non-transferable vote in multi-member districts for the local tier, with a MMM system that used single-member plurality in the local tier led to what was a multi-party system consolidating into a two-party system.

After the election, the Thai Rak Thai party merged with the New Aspiration Party, which had won 36 seats. This gave Thai Rak Thai a majority in the House of Representatives. Thaksin was thus able to implement a populist electoral platform, introducing subsidies for health care and petrol, constructing large amounts of new infrastructure, and low-interest loans for farmers.

Thaskin's policies proved popular, and he won a landslide victory at the 2005 election. His party won 377 seats, and approximately 62% of the vote. Thai Rak Thai dominated in the north and northeast of the country; this area is populated with poorer farmers, who would be most responsive to Thaskin's handouts. The infrastructure projects funded by his government allowed Thai Rak Thai to poll strongly in wealthier Bangkok. However, the south of the country was still dominated by the opposition centre-right Democratic Party. This region gave the Democrats half of their seats in the single-member districts alone.

The Thai Rak Thai majority was the first for any party in Thai history. The election also represented a peak of political consolidation, as 85% of votes were cast for the top two parties. Thaskin had been the first elected Thai prime minister to serve a full term in office.

However, all was not smooth for Thaskin. He faced allegations of corruption after his family sold shares in a telecommunications company following legislative changes that allowed the shares to be sold to a foreign owner. He denied claims of corruption, but, after protests against his government began, he decided to call an election in order to test his support.

While the election was called, the major opposition parties decided to boycott it, claiming that they were unfair and that Thailand needed constitutional reform before a fair election could be held. As a result, the elections were only contested by the Thai Rak Thai party, and a number of small unidentified parties.

In normal cases, election boycotts involve electors not turning up at the polls at all. However, Thailand gives voters the option of voting for 'no candidate' by ticking a box at the bottom of their ballot paper. In cases where only one candidate ran for election, the election would still be run, and a candidate would need support from 20% of registered voters. This would not be such a dramatic threshold for Thai Rak Thai MPs to win in most parts of the country. However, in the south, there were seven constituencies where Thai Rak Thai did not win 20% of the vote, and a further fourteen where the Thai Rak Thai candidate won less than 25%.

In these constituencies, the election boycott could be expected to lead to the Thai Rak Thai candidate not reaching the threshold. On election day, however, Thai Rak Thai lost forty seats, which had to be filled through by-elections. Even after these by-elections had been held, in which candidates alleged to be Thai Rak Thai 'dummies' filed in most seats in order to avoid the 20% absolute support threshold, another fourteen by-elections were needed.

However, at this point, the Constitutional Court upheld a complaint by the opposition that the elections were unconstitutional. Thaskin's cabinet decided not to contest this, and called elections for October of that year; just one month away. Democracy in Thailand would not last that long.

In the night of the 21st of September, military forces entered Bangkok and took control over the institutions of government. Thaskin was in New York at the time, intending to give a speech to the United Nations. The military government introduced new, strict security measures, but promised that democracy would be re-introduced 'in a year'.

The junta did, actually, keep their promise. After a year of heavily restricted political activity, a referendum was held in August 2007 on a new constitution. The patterns of voting followed traditional Thai patterns, with the South voting yes, and the North voting mostly no. 58% voted Yes, thus meaning parliamentary elections could be held later that year. Some changes were made to the electoral law; multi-member constituencies, elected using the multiple non-transferable vote, were used for some of the district tier seats. The number of party-list seats was reduced to eighty, and they were elected in ten-member districts.

Elections to the Representatives were scheduled for December. Thai Rak Thai had been banned, along with Thaskin from the country, so those who supported it needed a new political party. The new party formed was called the People Power Party, and was led by former Governor of Bangkok Samak Sundaravej. The Democrats were not dissolved, and contested the election. No other major forces entered the race, thus meaning that, to some extent, Thailand was back to where it started.

In the end, People Power won the election, securing 233 seats in the 480 member assembly; slightly short of a majority, but it would be expected that they would form the government. The Democrats won 165 seats, the conservative Thai Nation Party won 37 seats, and the moderate Motherland Party won 24. No other parties won more than ten seats.

What is interesting about this election is that the party vote was actually very close. Statistics conflict, but the People Power-Democrat gap was very narrow either way. The large lead for People Power in the seat totals was due to their substantial lead in the district seats, where the People Power vote was mostly the same; however, the opposition was more heavily split. There were only eighty proportional seats. This will become important later.

People Power formed the government, and Sundaravej became Prime Minister. However, he was opposed by the military, which still held substantial sway in Thai politics. In September 2008, he was found guilty of accepting payment from the private sector while in the office of Prime Minister: he hosted a number of cooking shows, for which he was paid. He was replaced by Somchai Wongsawat, a relation of Thaskin. 

However, his term was also short-lived. In December 2008, the People Power Party was banned for vote-buying and other corruption. At the time, there were massive public protests against the government, and protests for the government. Following the banning, the coalition partners of the People Power Party and some dissident People Power MPs formed a coalition with the Democrats, allowing Democrat leader Abhisit Vejjajjva to become Prime Minister.

Vejjajjva's government was opposed by the newly formed Pheu Thai Party, which was led by former Prime Minister Wongsawat. This group had the support of the 'National Front for Democracy against Dictatorship', also known as the Red Shirts, which led protests against the Vejjajjva government calling for new elections.

One of the actions of the Vejjajjva government was a change to the electoral law. The number of party-list proportional representation seats was increased to 125, out of a 500 member legislature. Allocation was also changed to a nationwide level. The district tier was changed to single-member plurality only. These changes could be expected to advantage the Democratic Party, which had been substantially stronger in the party-list tier than in the districts.

The House was dissolved in 2011, and elections were called for July. Pheu Thai were led into this election by Yingluck Shinawatra, the sister of Thaskin. Vejjajva stayed as Democrat leader. Thai polls, as rare as they were, gave Pheu Thai a comfortable lead over the Democrats.

On the day, Pheu Thai won 265 seats in the 500 member House, a fairly comfortable majority. They won 48% of the party list vote, fairly close to a majority. The Democrats won 159 seats, and 39.6% of the party list vote; the electoral system still disadvantaged them, as this was only 31.8% of the seats. This was probably due to them only getting 32.3% of the district vote.

Oddly, the smaller parties were less represented in the proportional tier than in the districts. The Thai Pride Party, a populist party formed by former Thai Rak Thai members, received 11% of the vote in the single-member districts, and 29 out of 375 seats. However, they won only 3.9% in the party-list tier, and five seats. The National Development Party won 15 seats in the districts and 4.6% of the district vote, but only 2.8% of the party-list vote.

Following the election, Yingluck was appointed Prime Minister, after forming a (seemingly unnecessary) coalition with the Thai Pride and National Development parties. Her government followed similar policies to the previous Thai Rak Thai/People Power governments, and, unsurprisingly, faced the same protests that those same governments had faced.

One of the most controversial initiatives of Yingluck's government was an attempted amendment to the 2007 constitution. As constitutions go, the Thai one was at that time was relatively easy to amend. It required only an absolute majority vote of both houses, and a public hearing. Yingluck wanted to bring back a fully elected Senate, and passed it through the normal process. However, the Constitutional Court found that the reform was unconstitutional, on the basis that it had been changed while it was passing through the legislature.

2014 saw more political violence, as activists from both sides of politics sparred over the government's record. Political figures from both sides of the divide were killed and injured, and Yingluck, desperate to regain control over the situation, called an election in February 2014. However, this did not go so well. As in 2007, the opposition boycotted the election, but this time the security situation had deteriorated to the extent that the Electoral Commission was unable to hold the election at all in a substantial number of constituencies, and that in some seats, candidates did not nominate at all.

The election was invalidated by the Constitutional Court, however, as it had not been held on the same day in all areas. Weeks later, Yingluck was stripped of her office as Prime Minister over the transfer of a military official, and was replaced by the Deputy Prime Minister.

At this point, the military decided to take control over the government. On 22 May 2014, the military held meetings between the leaders of  the civilian parties. When the talks failed, General Prayut Chanocha informed the meeting that he had to seize power, and ordered the military to once again take control over government.

Once again, the military said that their control over government would be purely temporary, and that they would restore democracy at some point. They introduced a new interim constitution, which starts by saying that Thailand has a "democratic regime of government" before enshrining an appointed legislature and giving the poetically named "National Council for Peace and Order", the executive under the new regime, the power to decree anything they wished. Decrees would immediately become constitutional upon introduction.

So, what does this have to do with MMP?

For those of you who are desperate to hear about MMP, this is the part where it becomes important. The Constitution Drafting Committee has been working on a new constitution since the coup, and one of the things that they have suggested is a new electoral system for Thailand.

The option that has been most mentioned is a mixed member proportional representation system. Now, there is nothing unusual about this electoral system, and it has been proposed for many nations recently during electoral reform processes. However, your author cannot help but be a bit suspicious of the proposal when it comes from a military junta. So, the question is, what would be in it for the military if the MMP proposal was introduced?

The military are clearly no fans of the Thaskinite governments. As a result, it would make sense for the military to introduce an electoral system that disadvantaged these parties. While the Democrats deny such a connection, it is generally considered that they are closer to the military than the Thaskinites. It would also be an asset to the military government if the new electoral system would advantage the Democrats.

Below are the results of the 2011 election under various forms of MMP. From left to right; all parties with 5% of the vote allowed to win proportional representation seats, all parties with 5% or one constituency seat, all parties with 3%, and all parties with 3% or one constituency seat. The final column is the actual results of the election.

Click on the image for a larger size

My careful readers will note that the total number of seats is higher under all of the MMP systems. This is because of a feature of MMP called 'overhang'. Under most versions of MMP, a party which wins more seats in the districts than it is entitled to by the party-list calculation keeps those district seats, and the legislature is enlarged to compensate. With a 5% threshold, only Pheu Thai and the Democrats are entitled to the proportional representation seats, and therefore all 56 districts won by parties outside these two are overhang.

There is one consistent trend, if you look at the percentages. The Democrats always have a higher percentage of seats under a MMP system, because of their higher share of the party-list proportional representation vote. This gain mostly comes from the smaller parties, which are no longer able to boost their seat totals through the PR tier.

It is evident that the Democrats perform better in a nationwide ballot, so it is evidently clear that increasing the importance of the party-list ballots through mixed-member proportional representation would be good for them.

Another key advantage of MMP for the military is a likely increase in political fragmentation, and a weakening of the party system. MMP would make it easier for small parties with nationwide support to enter the House of Representatives. This would likely lead to a fragmented party system, as there would be less incentive for parties to merge.

An increase in political fragmentation would be advantageous to the military for one key reason; it would weaken the influence of civilian governments against the military, as they would be less stable without regular parliamentary majorities. It could be said that this is a good thing, as it means that the populists need to look for consensus more. However, it is clear what the military gets out of the arrangement.

All of this does not mean that mixed-member proportional representation would not necessarily be a good idea for Thailand. In my view, it would be a good idea to encourage consensus in what is evidently a heavily divided political culture. However, it is also evidently clear that the advantages for the military are very clear in implementing MMP, and the specific proposal will warrant very close examination in the context of the other constitutional features.