By: Pithaya Pookaman

The Thai Constitution of 2017 which was promulgated on April 6, 2017 is a proud product of the Thai military junta, officially misnamed the National Council for Peace and Order, which usurped power from the democratically elected government in May 2014.  It is the 20th constitution since the democratic transformation of the country in 1932.

The document was meticulously written by junta-appointed and well-respected legal opportunists popularly called in Thai Neti Borikorn, jargon that means “paralegal servicemen” at the disposal of the junta. It took almost four years to complete and after going through rejection of the first draft for unknown dubious reasons.  

Given the tedious effort, the unusually long time-frame, high public expectations and all the hype that went into the writing of the charter, the finished product must predictably be an extraordinary supreme law of the land.  Fortunately or unfortunately, it is.  This extraordinary constitution more than guarantees the continuance of power of the junta and its elitist ally for decades to come by limiting the power of the politicians and political parties which the junta stigmatizes as corrupt elements of the society. 

The charter violates the democratic principle of checks and balances by ceding disproportionate power to the judicial branch and the so-called independent organs (another misnomer) and hence rendering the executive branch vulnerable.  In retrospect, it is a major setback for democracy in a sense that it steers the country backward into the future.

 The constitution contains voluminous 279 sections, a far cry from the minimalist American constitution, with only four sections and seven articles, making the US document, by contrast, short enough to be interesting but long enough to cover all the essential tenets of democracy. It far exceeds the Japanese constitution which has only 103 Sections but has made Japan a democratically driven economic powerhouse of the world. When weighed in the context of the ‘hip hop’ development of Thai democracy, it is a regression from the 1997 constitution which was hailed as the “People’s Constitution” as it was drafted by an elected assembly and provided a broader suffrage and fully elected House of Representatives and Senate. 

The 2017 constitution, by contrast, is designed to project the current stranglehold on power of the militarist and the elitist establishment well into the foreseeable future.  Shamefully for the 2017 Constitution, even the short-lived 1946 Constitution (Thailand’s third) was by far more democratic as it provided for the fully elected chambers and incorporated many features which were democratically more advanced.

Essentially, the 2017 Constitution provides for the junta-appointed Senate and a bizarre and complicated proportional system designed to reduce the influence of major political parties, particularly the ones which won most elections. The constitutional court, which was notorious for destabilizing the previous elected governments, is strengthened even further as an instrument to derail civilian governments, should they fail to conform with the “20 Year Plan” set by the junta.

In short, there are more ‘checks’ than ‘balances’ in the constitution.  To augment the legitimacy of the charter, the junta bulldozed the draft, guns blazing, through a farcical referendum which permitted only campaigning for the charter but banned and harassed any campaigning or debate against it.

Despite the promulgation of the constitution, the junta wields extra-constitutional power provided by the interim charter of 2014 to issue orders that infringe on the rights and freedoms of the Thai people and intrude into the authority of political parties as well as other organizations. For example, Article 44 has been liberally used as supra-constitutional measure to suit the junta with no accountability and devoid of any investigative process.  It is clearly a blatant violation of the rule of law and in contravention of the country’s already distorted legal system.  Moreover, it gives arbitrary power to a single person of the junta to amend laws duly passed by the legislature, signed by the King and promulgated as law. 

This all-powerful individual can also sidestep the constitution to make significant amendments to the organic laws on political parties.  A case in point is the issuance of Order No. 53/2560 which further amends the law on political parties and requires members of the parties to confirm their membership of their respective parties within 30 days. 

The limited time frame has caused many party members to forfeit their membership rights and their political memberships were subsequently annulled, thus significantly reducing the membership of the main parties.  Such an order is a deliberate attempt by the junta to create existential problem for the targeted large political parties and to benefit new political parties.  

Moreover, a prolonged ban on political activities has prevented the parties from carrying out their administrative duties such as the holding of meetings.  Meanwhile, the junta’s promise of a general election under the constitution has thus far come to naught as the timeline keeps expanding in tandem with the junta’s appetite to stay in power.  The Junta’s ‘Road Map’ has turned out to be a never-ending journey, though it still manages to keep the prospects of the election alive.                  

As Thailand enters its 86th year since the establishment of a constitutional monarchy in 1932, the development of democracy and the constitution has been a farce of the century.  Where else has there been a record number of coups d’etat as in Thailand, where the military has hitherto staged 18 coups, citing worn-out pretexts such as corruption and bad governance to justify their actions.

 Where else in the world have the constitutions, 19 in all, been torn up with ease and impunity upon the whims of the military top brass, often with the acquiescence of the middle class?  Where else in the world can one find the travesty of justice when elected prime ministers can be dismissed for trivial reasons?

The economic opportunities lost to the country and the ostracism of the regime by the international community since the 2014 military coup have rendered Thailand economically less competitive and politically diminutive on the world’s stage.  Thailand has now replaced the Philippines as “the sick man of Asia.”   A lingering question is why democratization has failed despite 86 years of experience.  The answer lies in the absence of the political culture of a democratic system. From time immemorial, Thai society has stressed reverence and subservience to autocratic elite, be it bureaucratic establishment or the military. The militarists and the Thai elitists with some degree of influence have the propensity to flout the rule of law, marginalize the rural poor, and demonize or mischaracterize or even criminalize the politicians, student activists, academia, and media whose actions in exercising their fundamental rights are construed as the threat to them.

Moreover, middle-class Thais are entrapped in a fallacy that totalitarianism is better suited to Thailand than democracy.  They take comfort in their conviction that authoritarianism is compatible with “Thai traditional values,” while doubling down on their argument that authoritarian regimes bring calm and stability, that the marginalized poor lack adequate education and therefore have “poor voting quality.” They unfairly fault democracy for ushering in governments that they personally loathe.

Democracy, for all its flaws, is always better than totalitarianism and its genetically modified siblings. It can effectively address the current woes of the country as it is more responsive to the people’s needs.  Totalitarianism, on the other hand, is a philosophy of total subjugation, compounded by the creed of ignorance.  Its inherent virtue is stability.  However, stability is untenable in the midst of poverty and widespread misery of the people. 

Sir Winston Churchill was certainly not in the state of nicotine tipsiness from over-puffing his cigars when he rightly said: “It has been said that democracy is the worst form of government except all the others that have been tried.”  His famous quote holds true today.

Sadly for democracy, the present constitution effectively reinforces the stereotypical Thai political culture by allocating more political power to the militarists and elitist establishment while circumscribing the power of the legislative body that is elected by the people and functions as the sole representative of the people.  By virtue of this constitution, totalitarianism has already carried the day.

Pithaya Pookaman is a retired Thai ambassador to Bangladesh, Bhutan, Chile and Ecuador. He currently lives in Bangkok.