Peopling Thailand's 2015 draft constitution.

AuthorMcCargo, Duncan

"We hope that this constitution will bring about a paradigm shift." (1) Following the 22 May 2014 military coup in Thailand, a committee was appointed to draft a new constitution. This article reviews the competing understandings of the Thai people that emerged during the drafting of the new constitution, and attempts to explain why the draft constitution was rejected by another military-appointed body in September 2015. It argues that during the drafting process, liberal royalists sought to reclaim the people as active citizens in order to create a more moral nation in which elected politicians would be subordinated to the popular will. However, this conception was not shared by the ruling junta, and in the end, the military deliberately sabotaged the new constitution that they themselves had commissioned. The episode offers telling insights into the internal dynamics of Thailand's troubled politics and society.

Thailand's abortive 2015 draft constitution was crafted by two closely linked elites: the retired and serving army generals who formed the core of the National Council for Peace and Order (NCPO), and the civilian legal experts who comprised the thirty-six-member Constitution Drafting Committee (CDC). Both of these elites invoked notions of the populace in support of their visions for the country's future. However, close scrutiny reveals that military notions of prachachon (the people) differed significantly from the CDC's idea of phonlamueang (citizens). And neither the army nor the legal specialists invoked the generally understood meanings of the people contained in the ground-breaking 1997 "People's Constitution". Prachachon was a term used by the army for a depoliticized population, operating under military tutelage. Phonlamueang was a term favoured by royal legalists, connoting "active citizens" who were dedicated to monitoring abuses by elected politicians, animated by deep-rooted loyalty to the nation and the monarchy. By contrast, the 1997 Constitution was characterized by extensive consultation and popular participation which gave "the people" a strong sense of ownership. No such participation was envisaged either by the military or by the CDC in 2015. Nevertheless, there were real tensions between the political imaginaries of the NCPO and the CDC, tensions which contributed to the eventual failure of the drafting process.

Thai Constitutionalism

The idea that a new constitution might "reset" Thailand's politics is far from new: variations on this theme were articulated in 1932, 1974, 1997 and 2007. As this author has argued elsewhere, Thailand is at the opposite end of the spectrum from the monumental, sacralized constitutions of countries such as Japan and the United States: short documents that are rarely, if ever, amended. (2) Thailand has an iterative constitution, one that is constantly being changed to reflect political vicissitudes. In a talk given at the Foreign Correspondents' Club of Thailand (FCCT) on 8 April 2015, two leading drafters of the proposed new constitution, Borwornsak Uwanno and Navin Damrigan, noted that the Dominican Republic, Venezuela, Haiti and Ecuador have all had more constitutions than Thailand's nineteen. They quickly added: "This is not something to be proud of. But there are reasons behind that." (3) Why, then, does Thailand find itself in such unlikely company?

Constitutionalism is a political disease that has long afflicted Thailand. The disease has two main symptoms: legalism and moralism. Most studies of Thai constitutions and constitution-drafting have focused on the ways in which successive drafters have sought to deploy legal engineering to shape politics and society--a "rules of the game" approach. Yet this emphasis on legalism can sometimes occlude the moral dimensions of Thai public life, in which quasi-Buddhist rhetoric about advancing virtue and opposing evil is all-pervasive. The 2015 draft constitution, issued on 17 April 2015, was the first Thai charter in which legal language was overtly overlaid with a discourse of moralism. (4) While some of this language was removed from the later draft that was voted down by the National Reform Council (NRC) (a 250-member body charged with overseeing the junta's political programmes] on 6 September 2015, (5) the basic thrust of the rejected version was the same.

Thai constitutionalism reached a high-water mark in 1997, following the bloody events of Black May 1992, when the military fatally shot unarmed protestors who objected to the way in which a coup leader had turned himself into an unelected premier. Over the next five years, an alliance of royalists, bureaucrats and civil society activists sought to ensure that violence like that of May 1992 would never happen again. They attempted to craft a coup-proof constitution, one that would curb abuses of power by elected politicians and allow "good people" to assume high office. Distinguished former royal physician Dr Prawase Wasi, one of the main architects of the 1990s political reform process, dates the origins of that movement back to 1993, when Borwornsak visited him at Siriraj Hospital, telling him that if the current constitution remained in force, bloodshed could result. (6) Prawase stated that from the outset their objective was to "Rewrite the constitution to curb the power of bad politicians". (7) Writing in 1995, Prawase elaborated the shortcomings of Thai politics in eight points: (8) first, the dominance of money; second, the monopolization of politics by a minority; third, the difficulties faced by good and able people in entering politics; fourth, the dishonest and improper behaviour of elected officials; fifth, parliamentary dictatorship; sixth, political conflict and instability; seventh, the poor quality of administration; and eighth, the lack of political leadership. Twenty years, ten prime ministers, eight elections, five major rounds of mass political rallies, two military coups and two constitutions later, Prawase's eight points still resonate closely with the concerns underpinning the 2015 draft constitution. But the upheavals of the Thaksin and post-Thaksin periods have illustrated the implicit conservatism of this agenda, and the ways it can be abused by those who are opposed to representative politics.

The so-called "People's Constitution" of 1997 drew on an extensive process of popular consultation, but was primarily a compromise between the competing agendas of various elite actors. The primary focus of the document was on establishing more checks and balances in the political system: creating a strong executive, a small number of large political parties, an elected but nonpartisan upper house, and a range of new independent agencies including a Constitutional Court, an Election Commission and a Counter-Corruption Commission. For all the hopes invested in it, the 1997 Constitution and the associated project of political reform were unsuccessful in their core goal of stabilizing Thai politics. Instead, they facilitated the rise of the most popular politician in Thai history: Thaksin Shinawatra, a police officer-turned-billionaire telecommunications tycoon whose political career polarized the nation. (9) By making it possible for an extremely effective prime minister to win unprecedented levels of electoral support, and to exercise tight control over the reins of power, the Constitution ushered in new modes of conflict and contestation, unnerving the very same elite actors who had conceived these political reforms in the first place.

Thaksin was ousted by the military on 19 September 2006 while attending a meeting of the UN General Assembly in New York. (10) In the months that followed, a small group of elite, foreign-trained legal scholars who served as Thailand's professional constitution drafters began to regroup to try and create a "Thaksin-proof" charter. Yet the 2007 Constitution did little more than tinker with the post-1997 rules of the Thai political game, such as the party list system and the array of independent agencies designed to monitor abuses of power. Pro-Thaksin parties decisively won the 2007 and 2011 general elections, despite the fact that the former prime minister and over 200 of his closest allies had been given five-year bans by the courts from holding political office. The aftermath of the 2006 coup demonstrated that the opposition Democrat Party remained electorally inept: it had failed to win a general election convincingly since 1986. (11) The Democrat administrations of Chuan Leekpai (1997-2001) and Abhisit Vejjajiva (2008-11) were formed on the basis of troubling backroom deals, not electoral victories. Pro-Thaksin parties, with their powerful appeal to the urbanized villagers of the North and Northeast who form the country's main bloc of voters, (12) looked destined to continue winning elections for the foreseeable future, unless some ingenious new formula could be devised to undermine their polling successes.

In late (2013), mass street protests by the People's Democratic Reform Committee (PDRC) against the government of Prime Minister Yingluck Shinawatra--Thaksin's sister--forced her to dissolve parliament, and precipitated a sequence of events that culminated in the (22) May (2014) military coup. (13) This time, the Royal Thai Army (RTA) Commander General Prayut Chan-ocha was determined that Thailand's political instability would be laid to rest permanently. (14) His NCPO was willing to suppress all public criticism and overt dissent in order to "restore national happiness". Three months later, Prayut appointed himself prime minister, and established a thirty-six-member CDC charged with putting into place new legal structures that would break the vicious cycle of political polarization once and for all.

The chair of the CDC, Borwornsak Uwanno, was nominated by the NCPO. Borwornsak--the holder of a French law doctorate, a former Dean of the Chulalongkorn University Faculty of Law...

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