Ordering peace: Thailand's 2016 constitutional referendum.

JurisdictionSingapore
AuthorMcCargo, Duncan
Date01 April 2017

Thailand's August 2016 constitutional referendum marked the second occasion on which a military junta has sought popular endorsement to legitimize its efforts to reform the country's political system. As in the previous referendum of August 2007, Thai voters endorsed military plans to reduce levels of democracy. Draconian moves by the regime curtailed open debate about the content of the draft constitution, which virtually nobody had read. Partly as a result of the junta's suppression of dissent, "No" votes declined--but the draft charter was still opposed by almost 40 per cent of voters, testifying to continuing high levels of political polarization along regional lines. This article argues that the referendum process may have helped the military to impose order on Thai society during the difficult period of royal transition, but did not create any genuine peace between the country's fractious competing groups and interests.

Keywords: Thailand, constitution, referendum, military, peace.

On 7 August 2016, Thais voted to endorse a new draft constitution that significantly curtailed the political power voters had enjoyed under both the 1997 and 2007 Constitutions. The constitutional referendum was called by the National Council for Peace and Order (NCPO), the military junta that seized power in the 22 May 2014 coup d'etat. (1) Headed by Prime Minister and former army chief General Prayut Chan-ocha, the NCPO followed previous recent Thai juntas (including those responsible for the coups of 1977, 1991 and 2006) in abrogating the existing constitution and later forming a constitution-drafting committee tasked with preparing a new charter. The NCPO leadership was the most hardline group of coup-makers since 1976, and their seizure of power was accompanied by widespread and lengthy repression of political dissent. Why did the majority of the electorate endorse a document which was much more draconian than the 2007 charter, let alone the much praised 1997 "people's constitution"?

This article argues that the military junta successfully used coercive measures to supress participatory democracy, claiming that such draconian means were necessary to ensure peace and order. The referendum period from March to August 2016 was characterized by misinformation, direct repression and both implicit and explicit threats of violence. From the outset, voters lacked enthusiasm both for the draft charter and for the referendum itself. Because the NCPO actively curtailed critical discussion, voter understanding of the charter was at best inadequate, and at worst downright confused. The resulting referendum did not reflect a genuine public choice between two alternatives. Furthermore, it did nothing to reconcile the country's fractious competing groups and interests, beyond imposing crude and superficial notions of order.

In contrast with earlier juntas, the NCPO was little concerned about legal niceties. In the wake of the 2014 coup, Thailand lacked even an interim constitution for two months, and had no prime minister or cabinet for three months. When an interim constitution was promulgated on 22 July 2014, it included a notorious catch-all clause, Article 44, which gave General Prayut absolute power to override bureaucratic and budgetary processes as he saw fit. Whereas the 1991 and 2007 juntas had sought to reassure the public and the international community that fresh elections would be held within a year or so, the NCPO was very reluctant to commit to any such timetable. However, in late 2014, under pressure from civilian elites, the NCPO began the process of drafting a new constitution. (2)

While it has become fashionable to see conservative forces in Thailand as a part of a highly unified state apparatus, the reality is much more messy and ambiguous. Between September 2014 and September 2015, the NCPO engaged in a protracted dance with its own thirty-six-member Constitutional Drafting Committee (CDC), chaired by a distinguished legal academic, Professor Borwornsak Uwanno, whom Duncan McCargo has elsewhere termed "the chief legal ideologue of the monarchical network". (3) Borwornsak and his colleagues expended considerable professional and social capital to promote their vision of a legally codified moral order, in which citizens would be empowered to blow the whistle on corrupt politicians. Many of their proposals --including the idea of a National Morality Assembly--met with widespread scepticism and were criticized for giving too much power to the military and the establishment. But the resulting 2015 draft constitution, with its emphasis on empowering the citizenry to monitor abuses by elected politicians, was still not sufficiently authoritarian for the generals. (4) In September 2015, the charter was voted down by the NCPO's National Reform Council. (5)

After the NCPO had rejected its own 2015 draft charter, then seventy-seven-year-old veteran constitution-drafter Meechai Ruchuphan --a serial pragmatist who had long pandered to the preferences of whoever held power--was recruited to head a new CDC. (6) Meechai proved far more willing to accommodate the junta. When Deputy Prime Minister Prawit Wongsuwan requested a number of key changes, Meechai accepted most of them, including: a 250-member Senate appointed by the NCPO; reserved seats in the Senate for top security commanders; and the option of an unelected prime minister. (7) One key Borwornsak legacy survived, however: the principle that the new draft charter, like that of 2007, be ratified by a popular referendum. Dwindling economic performance, scandal-suffused mega projects and Prayut's often ham-fisted leadership style undermined the NCPO's rhetoric of restoring national happiness. A constitution approved in a popular vote could provide the junta a much-needed veneer of legitimacy, while refusing to hold a referendum would make the NCPO look dictatorial. But while a date was eventually set for 7 August 2016, the country's military rulers never really warmed to the prospect. Fearing that the referendum could become a lightning rod for political dissent, the NCPO was intent upon keeping the polling as perfunctory as possible.

The 2016 Draft Constitution: What's Not to Like?

Thai constitutions since the 1990s have alternated between two modes: the 1991, 2007 and 2016 "conservative" constitutions, and the more "liberal" ones of 1997 and 2015. Directly or indirectly, conservative constitutions sought to curtail the power of elected politicians; and to create opportunities for the military and the network monarchy to exercise veto power over the direction of Thai politics. While the 2007 Constitution established a hybrid semi-appointed Senate and boosted the political role of senior judges, the 2016 draft placed the country's fate firmly in the hands of the military. In many respects, the final draft resembled the 1991 Constitution; both sought to institutionalize military control over Thai politics through a wholly appointed Senate and provisions for a non-elected prime minister. The 2016 draft also restricted or removed various political and civil rights formerly enjoyed under previous constitutions, such as freedom of expression, academic freedom and environmental rights. (8) All three conservative constitutions were crafted under the direct authority of Meechai Ruchuphan. The somewhat more "liberal" 1997 and 2015 Constitutions, overseen by Borwornsak Uwanno, sought to empower "the people" (variously understood) to check and monitor elected politicians. Whereas the 1991-92 and 2006-7 military juntas gave relatively free rein to the professional constitution-drafters, the post-2014 junta was considerably more hands-on, showing little deference to the distinguished jurists whom it conscripted into service. The NCPO did not hesitate to reject the Borwornsak draft completely, and to demand important changes to the Meechai draft. (9)

The 2016 draft reflected the NCPO's desire to prevent any party aligned with controversial former Prime Minister Thaksin Shinawatra --the bete noire of Thailand's conservative establishment who was ousted in a military coup in September 2006--from returning to power. The draft proposed a rarely-used multi-member apportionment (MMA) system, according to which votes cast for 350 individual constituency members of parliament (MPs) would be re-apportioned to determine the make-up of 150 party-list MPs. (10) The MMA would likely reduce the number of MPs from any large pro-Thaksin party and increase the number from medium-sized parties. (11) Under the MMA system, forming a single party government would be difficult. The pro-establishment Democrat Party stood to benefit: it would be well-placed to join any governing coalition. (12) However, a return to multi-party coalitions would also be a throwback to the weak and unstable party politics of the 1980s and 1990s. While the Election Commission of Thailand (ECT) argued that the switch to a single ballot paper (instead of the separate constituency and party list ballot papers used under the 1997 and 2007 Constitutions) would prove simpler, the workings of MMA were arcane and difficult for ordinary voters to follow.

In a significant rollback of democracy, the new 250-member Senate would be wholly appointed, effectively under NCPO auspices. This was a reversion to pre-1997 mechanisms, which had seen the Senate dominated by the military and the bureaucracy; it marked a decisive break with post-1997 liberal ideals that senators should be independent, directly elected and non-partisan figures. The 2016 draft also enabled the NCPO to retain its authoritarian powers (including those under Article 44) until the new cabinet was formed. This provision would allow the generals to intervene in the election process should they wish to do so. Another controversial provision allowed for a non-elected prime minister, which could allow the junta to retain control over post-election politics.

Although...

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