In anticipation of Thailand’s referendum on its draft constitution, I had a conversation with two constitutional experts, Tom Ginsburg and Khemthong Tonsakulrungruang, about its process and content, as well as the possible political consequences of the referendum. The referendum is set to take place on 7 August 2016.
Given that a modern constitution is expected to be not just a fundamental law but also a social contract amongst citizens, how successful is the draft Constitution in addressing the underlying divisions in Thai society?
The main problems here are not the text of the draft constitution itself but the process of its production. The drafting process was not open and there was active intimidation of opponents to the draft. There has been several high profile arrests of those who advocate against the draft. Criticism of the draft has been deemed distribution of false information, an offence according to Section 61 of the Referendum Act B.E. 2559 (2016). Draft copies of the text have not been effectively distributed so there has been no chance for a full deliberation. While constitution-building processes can sometimes bring about reconciliation of opposing factions, this one has not done so because of a lack of meaningful dialogue.
One of the mechanisms the draft constitution emphasizes is education. The preamble speaks of education and one of the duties of the Thai people is compulsory education and training (Section 50). Section 54 ties national education to discipline and national pride, while Section 67 emphasized Theravada Buddhist education. These provisions suggest a top-down approach toward civic education.
We note that a constitutional text itself can do little to reconcile people who are deeply divided. This particular draft does not have a tone of reconciliation. Although the word is mentioned in the preamble, there is also reference therein to “people who ignored or disobeyed administrative rules, corrupted or distorted power, etc.” This seems to take the tone of blaming people.
The bottom line is that it is ultimately the political party system and its operation that will determine whether reconciliation can occur.
Is the draft Constitution helping or hindering to address the conflict in Southern Thailand? Are there any implications to the peace process?
In terms of the southern conflict specifically, we note that Section 67 requires the state to protect not only Buddhism but also other religions. This would include Islam, and thus would provide a textual basis for some outreach to the southern Thai community. In addition, the draft Constitution speaks of the duty to preserve local culture, and provides a framework for decentralization. Section 70 provides that the state shall protect and encourage Thais of all ethnicities to live freely and in peace in accordance with their tradition and culture as long as their choice does not violate public order or good morals. Though vague, this could perhaps imply that minorities can enjoy some level of self-determination.
This indicates that there may be the possibility of greater autonomy for residents of the south with regard to matters of most importance to them. The draft Constitution does not, however, go so far as to set up an internal autonomous region along the lines of the Bangsomoro in the Philippines or Aceh in Indonesia.
Is the draft Constitution ensuring basic freedoms for its citizens? If not, what are the likely implications and consequences to Thailand’s political and cultural context?
The draft does contain a long list of human rights on paper, as well as a set of state duties and policies that implicate basic freedoms. Some of these have been reorganized relative to earlier drafts and it is unclear what the consequences will be.
Of course, in the end, rights protection is only as good as the institutions that are set up to protect them. This draft brings back the National Human Rights Commission, a creation of the 1997 Constitution that has functioned well in some periods. So that is a good sign. There are, however, some concerns. The language in Section 67 about preventing the desecration of Buddhism could be abused by an overly aggressive enforcement mechanism, and in any case, seems to respond to a non-existent problem.
There also seems to be some risk of abuse of the provisions on emergencies. While the King may issue an Emergency Decree on the decision of the Council of Ministers, with appropriate approvals by the National Assembly, the Constitutional Court can only hold that the emergency is unconstitutional if it obtains a two-thirds vote. More importantly, there are no special provisions for approval of declarations of martial law under Section 176. The King seems to be able to do so without approval of the National Assembly.
How is the draft Constitution likely to change governance in Thailand? What are the implications to the electoral system, the election of the Prime Minister and the appointed Senate, in particular?
The draft reflects some features from Thai constitutional tradition, such as a distrust of political parties. The independent institutions and the judiciary are relatively strong and the distrust of parties is most evident in the non-partisan Senate. The selection procedure for the Senate will be resolved by organic law but seems better than earlier versions which allowed direct appointment. If the Senate is to do its job of effectively checking the elected branches, banning people with previous relevant experience (Section 109(9)) seems overly harsh. It might be wise to allow senators to have a second term to gain experience.
A small point, but we were unsure of the reason behind Section 88 which allows parties to nominate up to three potential prime ministers. This seems to encourage intra-party rivalries, though of course the parties are free to only nominate one. The idea may be to generate a large number of candidates, who will be winnowed down by Section 159, which requires 10% of the House to nominate a prime ministerial candidate. This stage seems to allow for some deal-making in the House. It may also seek to push toward a consensus candidate. At the end of the day, though, a party or coalition with a majority can make sure its leader is prime minister.
The draft contains several lists of duties for government. The preamble, Chapter V on the Duties of the State, Chapter VI on the Policies of the State and Chapter XVI on National Reform, all contain different requirements, some of which may be legally binding. These serve to constrain the state. The Reform chapter seeks to leave a lasting legacy of the military government. It may overly constrain the incoming civilian government.
All in all, the ultimate functioning of the system will be determined by the party system that emerges in the ultimate elections held in the future. We do not expect that the draft will lead to major changes, absent political reconciliation among leading antagonists.
What are the likely implications of the draft Constitution to the political party system? How likely is it to succeed in preventing the Thai Rak Thai party from re-emerging as a political power as have been speculated?
In the House, preventing inter-party mergers (Section 99) may weaken political parties, or at least forestall the creation of large parties. On the other hand, the provisions against aisle-crossing should strengthen parties somewhat. In addition, expulsion from a party (section 101(9)) leads to removal from the House of Representatives. We also note that the earlier provision allowing the Constitutional Court dissolution of a political party is absent from this draft. It remains to be seen whether an Organic Act on Political Parties will include provisions for dissolution, as it did before the 2007 Constitution. Given the history of party dissolution in recent years, this is a critical issue.
The electoral victories of the Thai Rak Thai party over the past two decades have been sustained and genuine. There is no reason to think that this support has dissipated. So it is likely that the party or its successor will be a force in Thai politics for some time to come. The electoral system has not been designed to eliminate that possibility, but to strengthen smaller parties and encourage the formation of coalition governments. In addition, the various non-political mechanisms of checking electoral majorities remain in place. On the other hand, provisions against corruption and limits on who can run for office might also ensure that the members of the party are cleaner. The whole effort seems designed to tame the Thai Rak Thai party but not eliminate it.
As per its drafters, the draft constitution is designed to produce political stability to the volatile Thai politics. How likely is this aim to be achieved? At what cost?
This is an admirable goal and our points above about the draft Constitution, not completely shutting out Thai Rak Thai, suggest that it might be achieved. Giving people a voice in political institutions should channel conflict into the parliament and away from the streets. Of course, the party system that emerges will be key. It is important that neither side see the constitution as favoring their own side, but instead view it as a channel for public engagement. Political stability depends on whether this draft constitution can produce the sense of fairness to all parties. There are two possible flashpoints. First, political change is almost impossible since many policies are defined in this draft constitution and any amendment is almost impossible (see below). Second, much will hinge on how aggressive the powerful independent agencies and courts are in limiting elected government. A failure of channels to express their grievances properly could drive people to the streets again. The adoption of the draft constitution could lead elites to be less willing to compromise with the grassroots forces, which would also extend the conflict.
Drafters of the new constitution are promising general elections to be organized after the constitutional referendum. The elected government and the parliament are then expected to implement the new constitution. How likely is it that the parties who were not part of the drafting process will be successfully implementing it?
In general, there is no necessary connection between the parties drafting a constitution and those implementing it. History has some examples of constitutions drafted by one party but implemented by another; indeed, many people celebrate this as a way to ensure that the institutions are not designed with any particular party in mind. In the case of the current draft Constitution, many of its pieces are familiar from recent Thai constitutional practice, dating back to the 1997 Constitution of Thailand. So, there are no conceptual barriers to implementing the constitution. If all goes well and according to plan, the legislative and administrative bases of the Constitution should be in place by the time a civilian government takes over. There may, however, be political barriers.
Section 267 sets up a process in which the current constitutional drafting commission will draft organic laws to implement the new Constitution, within eight months of promulgation. Since there are existing laws or precedents in recent Thai history for all of these bills, this should not be difficult. Subsequently, the National Legislative Assembly has up to sixty days to consider the bill and adopt it. Section 268 then allows for up to one hundred fifty days before elections of the new legislature must take place. There is thus potential for the current transitional government to wield influence for up to 15 months. On the one hand, this may make the eventual implementation easier, but on the other hand, it is really a lot of time. It is justified in the name of National Reform, as laid out in Chapter XVI.
The draft Constitution’s provision regarding amendments makes it very difficult to amend, and hence inflexible in view of changes in society, thinking, or in balance of power. Does this mean that the only way to change the Constitution is to once again to write a new one?
Chapter XV on Amendment of the Constitution allows wide access to propose constitutional amendments (including the government, minority groups in the legislature and public initiative) but has a high threshold for approval. At the final stage, as described in Section 256(6), it must include 350 total members of the legislature (half the total number of both houses), including a minimum of 67 senators, and 20 per cent of the members of opposition parties in the House. This latter provision is designed to encourage that reforms are supported by a broad consensus, but also may make it very difficult indeed to pass any amendment. Of course, to some degree that depends on the party system, but if the election produces results as in recent Thai elections, we can expect a polarized legislature.
Research has shown that constitutions require some flexibility to adjust to changing circumstances over time. No constitutional draft is perfect and there may be provisions in this particular draft which will require modification, given its manner of production. Some consideration might be given to reducing the opposition threshold that is required for approval. To some extent, the non-partisan Senate, along with the provision for Constitutional Court review of amendments which go to the core of the constitutional order as described in Section 205, will act as a check against overly partisan constitutional amendments.
What if the referendum results to rejection of the draft constitution? What are the likely scenarios in that situation?
It is hard to know what the prospects for passage are given the suppression of open discussion. While no one can predict what will happen in the event that the referendum fails, recent announcements indicate that the process will continue with another draft. The leader of the junta has indicated that he would not resign, so the process will begin again, but there are no details on exactly how it will go. One possibility would be that the National Council for Peace and Order (NCPO) would modify the draft and enact a version without a popular referendum.
While there are some technical oddities in this draft, there is nothing so fundamental that one would say that the version should be completely scrapped. One possible scenario would be to modify the draft slightly, for example with a provision for a partly-elected Senate. But because of the suppression of open discussion, one cannot know exactly which provisions have caused public rejection. The most likely reason for any rejection would be the closed nature of the process of constitution-building, something only a much more open and participatory process can fix.