Latest Thai Constitution Draft a Non-Starter

It is a measure of the Thai junta’s distrust of the country’s wider populace that the National Council for Peace and Order, with the aid of the country’s election commission, has banned public criticism or the ability to campaign against a referendum on the latest version of the Constitution promulgated by the junta’s drafting committee.

The committee released the latest version of the document on March 29, to loud criticism on all sides. Among other things, it empowers the junta to hand-pick all 250 senators, including 6 officers from the military’s top brass. It is unsure if the document may go back for further redrafting or if it will actually be put to Thailand’s 35 million-odd voters on Aug. 7, as coup leader Prayuth Chan-ocha has promised.

If passed, it would be the country’s 19th charter since 1932 and it would reverse most if not all of the human rights protections put in place in the previous two under the democratically elected governments tied to the allies of ousted former Prime Minister Thaksin Shinawatra.

If indeed the referendum were to be conducted without hindrance, the chance that it would be accepted by the voters is almost nil. According to constitutional scholars, the latest draft trespasses on democratic principles even more than the previous one which was rejected by the junta’s own parliament last year.

While the document pays lip service to the recognition of the country as a democratic state and the people as sovereign, it retains familiar provisions of the 2014 interim constitution, granting amnesty to for all past and future military actions concerning the May 22, 2014 coup that ended electoral democracy. It invests the NCPO with vast powers, including a provision under which the prime minister is given the power to issue any order at will for the sake of the reforms or security. All orders so issued are considered lawful and final.

Many critics say it is doubtful that the junta members even believe the charter would be approved by the broader electorate. Since the coup that ended democratic government, the military has continued to ensconce itself to the point where it appears difficult to dislodge without a major rebellion on the part of the larger electorate. There is no indication that is going to happen any time soon. Last week, Prawit Wongsuwon, the deputy prime minister, threatened to “re-educate” politicians who displayed “unruly behavior” during what have become known as “attitude adjustment” sessions that have been used against members of the press and those who object to the junta’s draconian rule.

“The objective of the draft constitution is more than get rid of the Shinawatra and corruption from Thai politics,” said a Bangkok-based political science professor in an email. “It is an attempt to entrench military power in politics with the assistance of the judiciary, top bureaucrats and the monarchists. If the draft passes the referendum, Thailand would remain in a strong authoritarian state for a long term while civil rights would be widely suppressed. “

“Without public debate, average people may not fully understand the hidden agendas of the draft charter. Many may support the draft simply because they wish to have an elected government and to get the military out of politics,” the political scientist said. “Since the draft charter can be passed by a simple 50.1 percent majority, it should be easier for the draft to pass. The junta will try to mobilize civil servants and soldiers to vote for it. We cannot rule out cheating either.”

Whatever form the new constitution takes, it is designed to reconstruct the political system in a way that the old elite – the military, the business elite and the royalty – will permanently retain power and keep the Shinawatra allies out. The military, which has either controlled the country overtly or covertly since 1932, will continue to do so in one form or another.

Although the provisions in the latest version of the charter have been tightened here and liberalized there, the document is essentially designed to perpetuate this control. Elections, expected to follow in 2017 or 2018, are to be conducted under conditions that keep anyone connected to the Shinawatras off the ballot.

“The new game that the conservative powers are creating is like old wine in new bottle,” according to Puangthong Pawakapan, then a Visiting Senior Fellow at the Institute for Southeast Asian Studies in 2015. She is an Associate Professor at the Department of International Relations, Faculty of Political Science, Chulalongkorn University. “It bears the signature of 1980s Thailand under the premiership of General Prem Tinsulanonda (1980-1988), who is currently chief advisor of the King. The constitution of 1978 allowed non-elected MPs, including a serving military officer, to be a prime minister. Parliament thus came to be filled with numerous small and factional political parties. Prem became a prime minister when he was still an army commander. Though he retired from the army in August 1981, his entrenched influence in the armed forces as well as his being the palace’s favorite were key factors keeping weak political parties subservient to his command.”

Even in areas identified by drafters as strengths, such as its ability to address corruption, the draft has major flaws, according to an analysis written by Khemthong Tonsakulrungruang, a Thai constitutional law scholar in New Mandala, an academic website hosted by the Australian National University’s Coral Bell School of Asia Pacific Affairs.

The latest version, Khemthong wrote, “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.”

While the draft has sought to strengthen other anti-corruption measures, Khemthong continued, “the fitness of many of the changes is questionable. For example, given that courts and independent organizations 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.

The draft does make potentially positive changes, such as clarifying interactions between independent organizations and broadening appeal rights for those convicted by the Supreme Court’s Criminal Division for political office holders, according to to Khemthong’s analysis.

But in general any hope that the latest version would return democracy to Thailand is faint indeed.