Constitutional contestation over Thailand's Senate, 1997 to 2014.

• Author: Nelson, Michael H.
• Position: Report

Thailand's partly sabotaged and therefore inconclusive elections of 2 February 2014 were held amid an attempted civilian coup d'etat led by Suthep Thaugsuban, a former Democrat Party Member of Parliament (MP) and powerbroker, who had been a key person in the military crackdown on the red-shirt protests in April 2010 that claimed more than ninety lives, most of them unarmed protesters. In the aftermath of the government of Prime Minister Yingluck Shinawatra's misguided and aborted attempt to push through Parliament a blanket amnesty bill that potentially would have enabled her brother and former Prime Minister Thaksin Shinawatra to return to Thailand without having to serve his two-year jail sentence for an abuse of power in the sale of a piece of land to his then-wife, Suthep assumed the position of secretary-general of the People's Democratic Reform Council (PDRC). Since November 2013, his group had organized continuous mass protests aimed principally at toppling what they called the "Thaksin regime". (1) The immediate goals were to overthrow the legitimately elected Yingluck government (including an instant seizure of the Shinawatra family's and their "cronies" assets), effectively abolish the 2007 Constitution, establish an appointed government, and replace the elected House with an appointed "people's council", which would also be tasked with drawing up a new constitution. (2) After Prime Minister Yingluck had dissolved the House and called a snap election (prompted by the collective resignation of Democrat Party MPs from the House), the PDRC's protest tactics included the blocking of candidacy registration, advance voting, the distribution of ballot papers and voting on election day, while its "parent organization", the Democrat Party, boycotted the election altogether. Whereas the elections went smoothly in most parts of the country, it was partly disrupted in Bangkok, and made almost entirely impossible in the Democrat-dominated provinces of southern Thailand. The PDRC's key slogan was "reform before elections". (3)

The PDRC's protests were thus not purely an attempt to grab power from the government. Rather, they were also an instance of constitutional contestation, meaning a restructuring of the formal political order. (4) Though the PDRC's persistent calls for "reform" remained vague throughout their three months of protests before the elections, two issues were clear. First, they wanted to change the election system as stipulated in the 2007 Constitution. Since they held the view that the one-man-one-vote system in Thailand had brought "bad", "corrupt" and "incompetent" politicians to power, due to the "stupidity" of up-country voters in the north and the northeast of Thailand (Thaksin's electoral strongholds), a mere change from a mixed-member majoritarian to a mixed-member proportional election system--as extensively discussed during the drafting of the 2007 Constitution (5) --was certainly not what they wanted. Probably, their ideas were similar to those that had been proposed in the 2008 protests organized by the People's Alliance for Democracy (PAD), which had seen many of the same organizers and protesters who attended the PDRC rallies. Under the label of "new politics" the PAD had suggested that only 30 per cent of the MPs should be directly elected by the people, while 70 per cent should come from a selection process organized by occupational organizations. (6) This would have very substantially reduced the role of the politicians and political parties so much despised by these protest groups.

Second, Suthep suggested that the central government's regional administration system should be replaced by elected provincial governors. Conservative forces, such as the Democrats, had always been against this, because it would contradict the idea of Thailand being a strictly "unitary state", fearing that this kind of far-reaching devolution would lead to the re-establishment of semi-independent "kingdoms" on Thai territory (just as they had existed before King Chulalongkorn centralized the country's administrative system from 1892 onwards). Moreover, it would enable supposedly incompetent and corrupt machine politicians to grab power in their provinces. However, some of these conservative forces seemed to have been so agitated by what they perceived as the central-level "monopolization of power" under Thaksin (7) that they had become ready to add vertical devolution to the existing structures of horizontal accountability, or what has been called the "checks-and-balances" system (this system includes appointed senators, the constitutional court, the state audit commission, the national anti-corruption commission, the national human rights commission, the ombudsmen and the election commission).

One important element in this system--subjected to constitutional contestation over almost twenty-five years--had been the Senate. Conservative forces wanted it to be a counterweight to the elected politicians in the House. After the controversially-interpreted experience with two fully elected Senates--especially in the context of what critics had labelled the "Thaksin regime" (8)--the military coup of 2006 opened another opportunity for those forces, or aphichon (the Establishment), to realize their idea of a Senate free of influence from elected politicians. Since the aphichon dominated the Constitution Drafting Committee (CDC) of 2007, (9) the return to a fully elected Senate was improbable. Rather, the CDC envisaged a fully appointed Senate, recruited by a national-level committee made up of a very small number of members of the aphichon, perhaps combined with provincial-level recruitment committees. From the beginning of their deliberations, though, the CDC suspected that public opinion would probably perceive the return to a fully appointed Senate as too regressive, especially after people had become used to electing their senators. In the end, a mixed form was adopted, with 76 senators directly elected in the provinces, (10) and 74 senators recruited by a "Senator Selection Committee" of seven high-ranking members of the aphichon. (11)

In the following section, I will sketch two major constitutional contestations over the Senate during the drafting of the 1997 and 2007 constitutions. (12) Afterwards, I will deal with the most recent attempt of the Phuea Thai Party to return to a fully elected Senate, which was declared unconstitutional by the Constitutional Court in November 2013. The conclusion will return to issues of constitutional contestation raised by the PDRC.

The Senate in the 1997 Constitution and the Senate Elections of 2000 and 2006

The Constitution Drafting Committee, as part of a Constitution Drafting Assembly (CDA), started its work on 20 January 1997. (13) I will first summarize its proceedings in designing the Senate, and then briefly describe critical impressions of the 2000 and 2006 Senate elections, which in turn informed the deliberations about designing the Senate by the CDC of 2007.

Designing the Senate in the 1997 Constitution

When Borwornsak Uwanno--the leader of the technocratic "political reform" faction of the 1997 CDC and also its secretary--reported on 24 February 1997 the results of a working group tasked with developing a framework for drafting the constitution, he noted that they had agreed that Thailand's political system still needed the Senate "to a certain degree". (14) This concerned the two key duties of the Senate: the screening of laws, "and the most important point, namely the balancing of the power of the political parties in the House, especially regarding decisions to investigate or impeach or appoint people who will occupy positions in the accountability organizations (onkon truatsob), such as the Constitutional Court". (15) If there were no second chamber, the fate of these organizations would rest with the political parties in the House. Therefore, the power to select the senators should be transferred from the prime minister to an "assembly of experts" [samatcha phusongkhunnawut). In each province, the local government councils should select 10 people to join this assembly. Furthermore, 76 organizations should also name 10 members each. Finally, the prime minister and the opposition leader would select 100 members each, bringing this assembly to 1,720 members. These members, each of whom would have 3 votes, would then select from among themselves the 200 senators. (16)

Yet, this version of "indirect elections" was not the only proposal about how to recruit senators. Some members still advocated some kind of appointment process, while others thought that the party-list MPs could function as a Senate, or that there could be a Senate mixed from one elected senator per province with an equal number of representatives from occupation groups. Prachum Thongmi, a well-established lawyer and CDA member for Nakorn Pathom province, however, insisted on the most important counter proposal to that of the technocrats--the direct popular elections of senators at the provincial level. In the CDC meeting on 25 February 1997, Prachum admitted that, with elections:

... there might be vote buying. However, we will issue laws that will clearly prohibit vote buying. In sum, senators should come from the provinces--at least two per province--by direct elections so that the people can carefully chose [candidates] to fulfill duties at a level different from the House. [The candidates] should not be under any political party, but independent. (17) When the final version of the framework for drafting the 1997 Constitution was published in March 1997 for countrywide distribution and discussion, the section on the Senate stated that the recruitment process for senators could no longer be limited to the prime minister, but had to be transparent and legitimate. After all, the Senate would have the power to screen laws, impeach political office holders and state officials...