Thais must have input on constitution

Thais must have input on constitution

Democracy Monument (Photo by Seksan Rojjanametakul)
Democracy Monument (Photo by Seksan Rojjanametakul)

Many people were disheartened by the National Reform Council's failure to pass the draft constitution, and the subsequent postponement of elections, but the rejection may have been the most positive possible outcome. Questions and concerns about the process through which the constitution was developed would not go away, and it seems likely that, if this constitution had gone to a referendum, it would have failed to achieve the votes required for passage. Now Thailand has the opportunity to get the process right, and craft a new constitution based on public consensus that can serve the Thai people for the long term.

Much of the criticism of the recent draft focused on specific articles, including the selection process for senators, provision for an appointed prime minister, and the introduction of a crisis committee with the power to overrule the legislature, but the primary weakness of the draft may have been the process used for developing it, rather than any specific article.

Thailand has on average changed its constitution every four years since 1932, and uncertainty about the legal foundation of the state has contributed to social and political instability. Therefore, it stands to reason that developing a constitution that will last should be a primary objective of constitutional drafters. The question is how to do it. Luckily, there has been much research over the last decade on factors that contribute to constitutional longevity, and this research strongly suggests that the most important factor is public participation in the development process.

When charters are developed with public input and participation, citizens have a sense of ownership of the resulting document. Also, a constitution developed with significant public input will address issues of greatest concern to the general public, and create institutions and processes acceptable to the majority of citizens. All of these factors contribute to the durability and longevity of constitutions.

In contrast, constitutions developed in isolation by legal, academic or political technocrats without public participation may not address the issues of greatest public concern, or be able to create institutions and processes endorsed by the majority of citizens, resulting in a fragile constitution.

Other factors also affect the longevity of constitutions. A durable constitution should only include the public consensus on the framework for governing a country. Since a constitution should be hard to change, drafters should never use the constitution to try to settle contentious ideological or political issues. These should be left for the political process, so they can be debated and changed with evolving public opinion. Including ideological issues in a constitution simply ensures that partisans will never accept the constitution, and that it will be scrapped at the first opportunity.

A constitution is intended to provide the framework for peaceful political conflict and compromise--to establish the rules of the political game -- and it is unfair if it favours one side or the other. A constitution focused on establishing an institutional framework for political governance, but avoiding ideological and political policy, will normally be relatively short, and is likely to be durable.

Thailand's recent draft constitution was largely developed without public input on either the selection of the drafters, or issues to be addressed; and was the longest and most prescriptive in Thai history, so it's not surprising it was rejected. Unfortunately, current plans are to develop the next draft of the constitution in exactly the same way as the last, suggesting the outcome of the process is likely to be the same.

Rather than wasting time and money doing the same thing, and expecting the same result, the government should consider seizing this opportunity by introducing a participatory development process that will guarantee a new constitution owned and endorsed by the Thai public.

Suggestions have been made by academic and political figures to improve ownership and participation, including directly electing members of the drafting committee, which would certainly enhance public ownership of the process. Others have suggested adapting a previous constitution, and if this approach is adopted it would make sense to use the 1997 constitution, as that is the only charter that was developed with significant public input. In fact, it seems likely that the 1997 process set the standard for constitutional development for many Thais, implying that no process that is not at least as participatory will be accepted as wholly legitimate by much of the Thai public.

According to the reform roadmap the National Council for Peace and Order have 30 days to establish a new drafting committee. The rejection of the constitution on Sept 6 need not be a negative for the government and Thai people if the government can "seize the day", and introduce a participatory constitutional development process that will be broadly accepted by the Thai people.


Tim Meisburger is the regional director for Elections and Political Processes at the Asia Foundation, and the author of the paper 'Best Practices in Constitutional Reform' which is available online.

Tim Meisburger

Elections and Political Processes director

Tim Meisburger is the regional director for Elections and Political Processes at the Asia Foundation, and the author of the paper 'Best Practices in Constitutional Reform' which is available online.

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