The drafts have been composed under a questionable framework set by the Constitution of the Kingdom of Thailand (Interim) B.E. 2557 (2014), by drafting teams known for their conservative views, and in an environment in which freedom of speech and scope for public participation were severely curtailed. As such, they were never expected to be exemplary.
Yet, even with low expectations, the latest draft has shocked many. Its encroachments on established principle and democratic gains are broader and deeper than was expected. And many of the new mechanisms proposed seem clearly unfit for their stated purposes.
One of the areas in which encroachments were most unanticipated is that of rights. It was expected there would be some encroachments in this area, especially with respect to freedom of speech and assembly, as some perceive that unrestrained exercise of these rights has contributed to conflict over the last decade. But the scope of the changes made has far exceeded expectations, affecting almost all rights and also general principles.
Perhaps the biggest change in this area is the reconceptualization of many entitlements not as rights but as the subject of state duties. So, for example, instead of people having a right to access state information, the state has a duty to disclose public information. And instead of communities having a right to participate in the preservation and exploitation of natural resources, the state has a duty to ensure that local communities are involved in the implementation of, and benefit from, state-led preservation efforts and the use of natural resources. This change marks a fundamental shift in thinking, with the people perceived not as active, entitled and able citizens, but as passive recipients of state benevolence.
A similar shift in the way the people are thought of, not as active and able but as in need of assistance, can be seen reflected elsewhere in the draft with scope for political participation and monitoring by citizens considerably weakened, and small groups of elites within the courts and independent organisations given extensive powers to restrain elected bodies.
Even in areas identified by drafters as strengths, such as its ability to address corruption, the draft has major flaws. It has done away with many positive institutional design measures adopted in 1997 and 2007 that aimed to prevent corruption by reducing its returns, such as the double ballot electoral system. It has also narrowed the range of actors who can initiate and determine anti-corruption proceedings. Given the difficulty and disruptiveness of dealing with corruption after it has occurred, and the fact that those tasked with preventing corruption are also vulnerable to corruption, these changes seem unwise.
And, while the draft has sought to strengthen other anti-corruption measures, the fitness of many of the changes is questionable. For example, given that courts and independent organisations have faced significant difficulties in carrying out and gaining acceptance for the narrower anti-corruption roles given under past constitutions, it is difficult to imagine how they will cope with the broadened role with which they would be entrusted.
Notably, the draft is not entirely without strengths. It makes some potentially very positive changes, such as clarifying interactions between independent organisations and broadening appeal rights for those convicted by the Supreme Court’s Criminal Division for Political Office Holders. It also contains some interesting new ideas, such as that of a Senate that is neither elected on the same basis as the House of Representatives nor directly appointed, though the election mechanism needs to be better defined and almost certainly altered.
Overall, though, strengths are outweighed by flaws. And to argue the draft should be passed and its flaws addressed later is impractical due to the very high amendment threshold set.
Importantly, at this stage the draft is not yet final. Already significant amendments, some clearly positive and some very negative, have been mooted.
It is also not certain it will be adopted. Under amendments to the Interim Constitution passed in 2015 the final draft must be put to a referendum at which it must receive the votes of 50 per cent of all eligible voters (not just those who vote) if it is to become law.
If the draft passes, it is probable (but not certain due to interim powers retained by the junta) that there will be a return to elections in 2017 or 2018. But this should not be confused with a return to full democracy — the powers of the people will still be very limited. It should also not be confused with a return to normalcy — conflict is likely to remain high.
Unfortunately, if the draft fails, it is not yet clear that the outcome will be any better.
Sarah Bishop is a PhD candidate in Thai Law at the ANU College of Law, The Australian National University.