Charter draft has checks, lacks balances

Charter draft has checks, lacks balances

The Democracy Monument in Bangkok is always visible against the nearby skyline, but still has failed to live up to its many predictions of imminent glory. (Post Today photo)
The Democracy Monument in Bangkok is always visible against the nearby skyline, but still has failed to live up to its many predictions of imminent glory. (Post Today photo)

When political reforms themselves are reformed time and again, they can revert back to their pre-reform beginnings. This phenomenon appears to be afflicting Thailand's ongoing constitutional-drafting process, which is stuck in a circuitous time warp.

The main purpose of any effective and legitimate constitution in any democracy is to strike a balance between popular representation and institutional restraint. As it stands in the drafting process, the new charter appears equipped with more checks than ever but with the least balance in Thai constitutional annals.

Until recently, Thailand's constitutional experimentation followed a topsy-turvy linear trajectory. Past constitutions in military-dominant eras for much of the post-Second World War period typically made the Senate an appointed upper chamber to counterbalance the elected Lower House. In 1991-92, when a disguised military dictatorship came to power after a coup and institutionalised itself after an orchestrated election won by its own political party, this constitutional pattern shifted, partly owing to prior decades of development and modernisation.

Led by a swelling middle class, growing calls for "full" democracy and a more democratic charter led to the reform-oriented and popular 1997 constitution, featuring a fully elected Senate, a prime ministership that had to come from the ranks of members of parliament (MPs), and a parliamentary presidency that resided with the Lower House, not the Senate as in the past.

Smaller parties were decimated in favour of larger ones. The executive branch was strengthened to promote government stability and effectiveness. The checks and accountability mechanisms were set up in a clutch of independent agencies, such as the Election Commission, National Anti-Corruption Commission and Constitutional Court.

The 1997 charter worked as designed for a while until it hit a brick wall embodied in the political party machine and vast wealth and personal networks of Thaksin Shinawatra. Eventually, the 1997 charter was penetrated and captured by Thaksin-linked vested interests and partisans. It was the most popular, and arguably still the best-ever constitution because of its inclusiveness, bottom-up mandate and broad consensus. After its demise by way of the September 2006 coup, the pendulum swung the other way against the very reforms Thai civil society were so bent on adopting in the mid-1990s.

By 2007, a new constitution came into place that made the upper chamber half-appointed and half-elected. The executive branch was weakened. More checks and accountability channels were imposed. The judiciary gained more authority at the expense of elected representatives. It became easier to dissolve parties and ban politicians. Yet all that was not enough to put down the Thaksin challenge as his party machine kept winning at the polls, thanks in no small part to patently unwinnable electoral opponents in the opposition Democrat Party. The Thaksin party machine triumphed most recently in July 2011 when his sister, Yingluck Shinawatra, won by a landslide with an overall majority under the Pheu Thai Party.

Not having swung far enough, the anti-Thaksin pendulum in charter design is now going farther. The Senate is now poised to return to its fully appointed pre-1997 incarnations, dominated by so-called professional groups that will inevitably be fraught with lobbying and jockeying at the top echelons without citizen participation. Under ostensibly extenuating circumstances, the prime minister under new rules may not have to be an elected representative. The logic is that Thai politics when paralysed, as seen in Ms Yingluck's final months as prime minister, should have an escape clause to handle future intractable political crises and confrontations.

This logic is betrayed by past experiences whereby MPs deliberately opted for an unelected individual as prime minister on the justification of special situations. A case in point is Gen Suchinda Kraprayoon, the lead coup-maker in the February 1991 putsch, a military strongman who became an unelected prime minister after the March 1992 election.

The paramount lesson from Thailand's recent charter crafting is that constitutional provisions and institutional design can only go so far in producing intended outcomes. Ultimately, a constitution must provide general principles, not minute clauses, of democratic governance that derives from a popular mandate based on representation and restraint that go hand-in-hand.

It is understandable that the current constitutional design is premised on a distrust of elected representatives. Thai politicians have been disappointing at best and unscrupulous and abusive at worst. But all who engage in politics eventually become politicians, one way or another. Demonising politicians will only exacerbate the Thai predicament because no fresh new faces will enter the electoral fray and because all future rulers of Thailand will inescapably have to engage in politics and become politicians.

It is one thing to distrust politicians but it is abhorrent and probably unsustainable in any country to disregard citizens' ability to see and judge matters for themselves. There is a top-down premise inherent in the current constitution-drafting that the few know better and more than the rest. In the past, the rest, which is to say the masses and vast majority of the Thai citizenry, did not care as much. Now, after all that has happened in the past decade, there is a strong likelihood that the masses count more now than ever, that their voices will have to be accommodated and recognised if Thailand is to regain a new balance.

Anchoring the new constitution firmly on citizenship inclusivity would lead to the second lesson in Thailand's charter experience. In the end, rules do not deliver victory and overcome opponents. Those who support new rules to keep the Thaksin side at bay should learn to claim power and legitimacy by winning at the polls. While constitutional provisions should lead to a fair playing field, victory and a mandate from the people must be earned. It is a pity that the pro-coup and anti-Thaksin camps have been unwilling to play fair and square. They have the ability to win if they work hard enough to gain popular trust and support.

As it has unfolded thus far, the constitution-drafting process is likely to produce a problematic document that is likely to lead to more tension and turmoil due to a lack of balance between representation and restraint. The constitution should not be a potpourri of well-intentioned pet ideas and schemes to design a perfect charter. The current focus should be more on representation and more care and caution on restraint.

The 1997 constitutional principles and overall design, minus much of Thaksin's party machine, should inspire the current set of drafters to rebalance and regain a new charter equilibrium. Thailand's answer is not in right and perfect rules but in a right and fair playing field and in players who are willing and able to win the Thai people's trust and support.


Thitinan Pongsudhirak is associate professor and director of the Institute of Security and International Studies, Faculty of Political Science, Chulalongkorn University.

The Democracy Monument is silhouetted against the sunrise in an orange sky. A new political reform effort is facing criticism for taking Thailand back to the past. SEKSAN ROJJANAMETAKUL

Thitinan Pongsudhirak

Senior fellow of the Institute of Security and International Studies at Chulalongkorn University

A professor and senior fellow of the Institute of Security and International Studies at Chulalongkorn University’s Faculty of Political Science, he earned a PhD from the London School of Economics with a top dissertation prize in 2002. Recognised for excellence in opinion writing from Society of Publishers in Asia, his views and articles have been published widely by local and international media.

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