While the second draft constitution is thoroughly dissected and digested in the weeks ahead, for all of its anti-corruption strengths and anti-democratic shortcomings, its broad contours are clear. The current draft that is being set up for a referendum this July builds on its precursor from 2007 in restricting and rolling back the democratic direction of the 1997 constitution, harking back to earlier versions from 1978 and 1991. There is constitutional continuity in Thailand's charter drafting -- but it is going back in time in a democratic regression.
Following its rejection by the National Reform Council last September, the passage of the current draft now relies on similar constitutional blackmail that we saw in August 2007, when Thailand held its one and only plebiscite thus far, as a result of the September 2006 coup.
The premise and logic of the drafters is that rejection is tantamount to electoral denial. In other words, Thai voters should accept this draft if they want to see polls and back the military government. Unlike 2007, the logic may not work this time.
Of the myriad controversies and technicalities among the 270 sections in the draft, the overall mismatch between the institutions and mechanisms of restraint and representation is conspicuous. This draft constitution is mostly about checks and little about balance in favour of restraint over representation.
This means that voters will choose representatives who will be so scrutinised and supervised that they may end up being weak and ineffectual. The executive and legislative branches, in other words, would be hemmed in and kept in line by the judiciary and other agencies that will not be derived from an electoral mandate and popular rule.
In a clear break from both the 1997 and 2007 versions, the prime minister will no longer have to be a member of parliament. This clause may not be a sinister mechanism to enable someone from the junta or its chosen proxy to ascend to the premiership but it takes away the biggest decades-long accomplishment of the pro-democracy charter movement. That a non-MP can become prime minister has caused crises and violence in the past, most notably in May 1992.
Moreover, the 200-member Senate would no longer be elected. The fully elected Senate from the 1997 version to a half-elected one in the 2007 version is now fully nominated and appointed. True, the fully elected Senate in the 1997 charter did become appendages of lower house representatives, especially during the era of Thaksin Shinawatra who ended up monopolising both chambers. However, it would be better to have a unicameral chamber if the upper house is to be comprised of nominees and proxies who would self-select themselves from certain professional groups. Without a popular mandate, these unelected senators will likely not be doing the electorate's bidding and fulfilling voter preferences.
The 500-member lower house, on the other hand, is systematically subdued and fragmented in the current draft charter. Voters would have a single constituency ballot to choose one MP. Inversely, the more of the 350 constituency MPs a party garners, the fewer the number of 150 party-list MPs it will get. Voters thus will be splitting their vote. The more they want to vote for a party through an MP, the less their preference would take effect. The resulting political party system is unlikely to be strong. Medium-sized and smaller parties will likely have more leverage. This draft evidently prefers fractious coalition governments that characterised Thai politics in the 1980s and 1990s.
The Constitution Drafting Committee under Meechai Ruchupan met members of the National Legislative Assembly and the National Reform Steering Assembly on Wednesday. (Photo by Chanat Katanyu)
In addition, the Constitutional Court, the Election Commission and a clutch of other agencies would gain more authority at the expense of elected bodies of governance. The Constitutional Court, in particular, may intervene and break the kind of crises and political impasse seen in recent years. As what passes for a political crisis in Thailand can be thin and easy to arrange, Constitutional Court judges will have unassailable power every time Thai politics gets rough. The risk, of course, is that the Constitutional Court has not always been seen in a trustworthy light. Its bench in August 2001, for example, cleared Thaksin in his assets-concealment trial by an 8-7 verdict. Ironically, Thaksin's opponents now want the same bench to have practically boundless authority.
To be sure, this second draft is a cousin of its precursor from last year. Its premise is the same -- to favour mechanisms and institutions of checks and restraints over popular representation. The earlier version featured a super extra-parliamentary committee that would have essentially overseen government performance.
The current version disperses this authority to the Constitutional Court and other agencies. But the two are fundamentally from the same mould, relying on restraint over representation and on tinkering with rules to effect an outcome whereby elected governments will be weak coalitions without a dominant party.
As the referendum looms, the constitutional coercion and intimidation that we saw in the aftermath of the previous coup and charter in 2006-07 may not work this time. The drafters' logic that rejecting this draft will result in an even worse charter may not fly because many in the electorate may have learned that bowing to an imposed charter ultimately ends up in the same cycle of charter, crisis and coup. Despite government pressure on the back of another round of constitutional blackmail, the referendum's passage cannot be taken for granted.
Thailand's charter-drafting machinations stem from mounting international pressure and domestic dissent for a restoration of popular rule. The clock is ticking but the generals in the ruling junta also need to maintain control during Thailand's once-in-a-lifetime royal transition. Maintaining control without polls is a first-best for them but their backup plan may soon become to control the post-poll environment, enabled by the current charter draft.
If the current charter draft squeaks through a referendum, what Thailand will be headed toward is a sort of custodial democracy where voters get to vote but their representatives will not really get to rule. Those who ultimately rule will be the unelected custodians of Thai democracy who harbour a deep disregard and distrust of voter preferences. Accordingly, it would not be surprising if we end up having to study another charter draft before long.
Thitinan Pongsudhirak is associate professor and director of the Institute of Security and International Studies, Faculty of Political Science, Chulalongkorn University.