The further the constitution drafting goes, the uglier the expected outcome becomes. Under the guidance of the military government, the drafting is far from being democratic or fair. The Interim Charter allows General Prayuth Chan-Ocha, the Chief of the National Council of Peace and Order (NCPO), something like total control over the appointment of the Constitution Drafting Committee (CDC). The pro-military CDC then designs the constitution that does not respect the majority’s will and discourages the public from participating in the drafting process. This only confirms the public’s fear that the NCPO, who seized power in May, lacks either understanding or sincerity in restoring peace and democracy to the country as claimed.
Can those who once sabotaged democracy restore it? The Interim Charter designates the Constitution Drafting Committee to prepare the draft constitution under the supervision of and recommendation from the NCPO, the National Reform Council (NRC), and the general public. The CDC has 36 members. The NRC nominated a chairman and twenty other members. Five each were nominated from the National Legislative Assembly (NLA), the NCPO, and the cabinet. Since many were veteran legal and political science scholars, no one doubts the CDC’s expertise. But their political motivation remains questionable. Because the NCPO is serving as the cabinet and Prayuth appointed the NLA and the NRC, only coup d’état supporters were chosen to the committee. Most CDC members appear ultra-conservative and moralistic. The CDC Chairman, Professor Borwornsak Uwanno, for example, despite his fame from drafting the 1997 Constitution, one of the most democratic constitutions in Thailand, has been criticized lately for his emphasis on rule by ethical persons and his distrust of majority rule. He had served in the National Legislative Assembly after the 2006 coup d’état and might even have helped draft the 2006 Interim Charter for the junta. Other CDC members are known for close associations with the elite faction, notably the military and the People’s Democratic Reform Council who staged the anarchic demonstration last year to pave way for military intervention. From the composition of the CDC, one could foresee the anti-democratic vibe will flow into the upcoming constitution.
According to the Interim Charter, the basic framework of the upcoming constitution is that, first and foremost, the constitution must design a democracy “compatible with the Thai context.” This mandate puzzles and alarms the public at the same time. What and who defines this Thai context? This clause will probably give leeway for the CDC not to adhere to the universal standard of democracy. Prayuth, the NCPO leader and the Prime Minister, has already reflected that Thais, in their orientation towards democracy, learn too much about liberties and too little about duty. He wished Thais stopped asking for individual’s rights and sacrifices and worked more for the “greater interest of the nation.” His conclusion undermines the significance of rights and liberties, essential elements of democracy.
Other frameworks provided in the Interim Charter include creating effective anti-corruption mechanisms, strengthening the rule of law and ethics, building a fair and sustainable economy, avoiding populist policies, and upholding fundamental principles of the new constitution. These vague objectives share a common goal to entrench the elite minority’s control and prevent elected politicians, particularly the Shinawatra network, from regaining power.
Hypocrisy has never been more obvious. In the past six months, Prayuth has spent almost 300,000 million Baht to “stimulate the retracting economy and relieve the poor’s problems.” This spending was identical to Yingluck’s, but economists kept silent. It seems that populism is in the eyes of the beholder. Only Thaksin’s initiatives are evil and shall be avoided.
The fight against corruption is also similar. The National Anti-Corruption Commission (NACC) has been hunting Yingluck and her peers relentlessly. But cases indicting the Democrat party, the elitist party, sit idle for years. Not only did the NACC refuse to investigate any claims related to the NCPO, but it also defended the junta despite several corruption scandals. Thus, together with the call from the anti-Thaksin faction to permanently ban politicians convicted of corruption, the anti-corruption mandate is only a pretext to prohibit the elite’s enemy from re-entering politics. The NACC’s favoritism will neither eradicate corruption nor strengthen the rule of law.
At this moment, the highlight of the drafting process is the design of the new political system. Election is compulsory, but the CDC, the NRC, and the NCPO are trying their best to ensure that civilian politicians shall not stray from their wishes. Ideas spring up daily. Many will be rejected but some might be adopted.
Wisanu Krue-ngarm, the Deputy Prime Minister, recommended establishing a body of constitution experts to help the government interpret the constitution before a conflict arises. On the electoral system, the NRC asked the CDC to eliminate the party list system and reduce the number of members of parliament. Moreover, Thais should separately elect MPs, the prime minister, and the cabinet. The CDC itself suggested that the constitution creates the Ethics Council to recruit “ethical persons” into public posts and establishes a new court to review public spending.
These proposals would leave post-coup Thailand with a smaller legislative and a chaotic executive. Infighting within the cabinet would prevent the prime minister from creating the solidarity required to run the country. The government may collapse at any time under the constant threat from several independent auditing bodies. These bodies, the so-called fourth branch of power, will weaken the majority while empowering the minority because they act as a haven for the anti-democracy faction to control the country under the disguise of expertise and ethical conduct. Meanwhile, the heart of Thailand’s crisis is still being ignored. The CDC is oblivious to the fact that elected politicians are subject to a disproportionate amount of scrutiny from unelected officials who are subject to no accountability at all.
Public participation also sparks contentious debate. The Interim Charter requires the CDC to engage the public in the drafting process. The CDC realizes that public participation could boost the much-needed legitimacy of the upcoming constitution. Thus, it plans to hold several small forums to solicit public opinions, but on an invitation-only basis. It cannot promise a referendum over the constitution, claiming that voting would cost more money and delay the general election.
The junta might just try to avoid public embarrassment if the vote is against its favor. In the aftermath of the 2006 coup, approximately 42 per cent voted no to the military-backed 2007 Constitution. Ironically, although the 2007 Constitution had never required a referendum for its amendment, the Constitution Court once struck down Yingluck’s attempt to amend the constitution partly because the government failed to hold a referendum.
But the greatest obstacle to public participation is on-going suppression by the government. As martial law is still in effect, participation appears limited and coercive. Those who refuse to join the reforms were summoned and forced to publicly pledge that they would cooperate in whatever activities the government requested. But when one activist spoke at the public forum held by the Election Commission, the observing army officers arrested him immediately. He was later charged with lèse majesté. The rule seems to be that citizens must speak when they are asked to and at the designated forum. Moreover, to maintain peaceful atmosphere, criticism or disagreement is not welcomed. This military-style participation renders the whole process a meaningless ritual.
So far, the behavior of the CDC and the government has raised more questions about the new constitution than they have answered. Why is the drafting process so slow? Five months have passed before the CDC held its first convention. The actual drafting commences after the New Year. Prayuth predicted that the election would not be held earlier than February of 2016. This statement disappointed many Thais. For comparison, Burkina Faso army seized power in October 2014 but agreed to reinstate democracy by 2015. The CDC also contemplates passing an amnesty to those who had involved in protests and riots. What will amnesty look like in the constitution? Will it prohibit the revolving door practice so that the NCPO, the NRC, the CDC could not run in the next election or take offices in those independent agencies they help create?
The constitution drafting process has suffered from several setbacks and will suffer more. The CDC is neither impartial nor sufficiently inclusive to create trust. The framework is vague and ambiguous. Proposals are radical. The most important law of the country will be drafted without input from its citizens. At best, this new constitution can only create a pseudo-democracy where elected representatives of the people find themselves paralyzed under the oppressive scrutiny of the network of experts, councils, and courts. The future cabinet will not be able to function unless they abide by the prepared guidance.
Since the Shinawatra party is likely to win an election as soon as democracy resumes, this sets the stage for a standoff, and later a political deadlock, and hence more anarchic demonstrations and military interventions. The vicious circle will not end. If the CDC is not willing to take into consideration the interests of all stakeholders, this new political order will never reconcile the nation and restore peace, let alone support democracy.
Khemthong Tonsakulrungruang is a constitutional law scholar in Thailand and a regular contributor to New Mandala.
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