Thai charter changes without reform

Thai charter changes without reform

Democracy Monument is seen with a red traffic light. The constitution needs to reflect the people's will. (Photo: Pattarachai Preechapanich)
Democracy Monument is seen with a red traffic light. The constitution needs to reflect the people's will. (Photo: Pattarachai Preechapanich)

In view of the ongoing parliamentary debate about constitutional revisions, it has become the consensus that the 2017 charter is flawed and in need of change. At issue is the nature and extent of charter amendments. What is being proposed can be categorised into three positions -- those favouring amendments without fundamental reforms and others who want reforms with all necessary amendments, with some advocating measures in between. Owing to the powers of incumbency, status quo proponents aligned with the coalition government of Prime Minister Prayut Chan-o-cha are likely to carry the day, thereby stoking political tensions to manifest on the horizon.

Thailand's political situation harks back most directly to the May 2014 coup. Over five years, the generals who seized power, spearheaded by the prime minister as then-army chief, appointed a coterie of loyalists and supporters to fill key agencies -- from the Constitutional Court and Election Commission to the National Ant-Corruption Commission. Most damaging was the junta's selection and supervision of a constitution drafting committee that came up with the current charter, enabling the generals to pick one third of parliament as the Senate and empowering it with broader authority, including choosing the premier after the March 2019 election.

Together with the Constitutional Court's dissolution of the opposition Future Forward Party and the Election Commission's favourable management of election results, Gen Prayut thus galloped to post-election power on the back of the pro-military Palang Pracharath Party (PPRP), aided by the junta-appointed and military-dominated Senate. Despite its passage in a referendum during military rule, the 2017 charter thus became a structural by-product of the coup. It is designed to keep Gen Prayut and the PPRP, or a future proxy successor, in power indefinitely. This is why and how the Prayut cabinet survived one scandal after another from a deputy prime minister's ownership of mysterious luxury watches and a minister's past drugs conviction and imprisonment in Australia to Gen Prayut's residential overstay on army premises after retirement.

Along the way, the 2017 constitution has become a Catch-22. Changing its provisions, particularly on the Senate's role and authority, requires approval from one third of the upper house, or 84 senators. This is a Senate that has been voting unanimously for government draft laws, with few abstentions and zero dissent just about every time. Unsurprisingly, the senators oppose revising Section 272, which would disallow them from electing the prime minister when governments are formed.

While keeping the Senate as is, the PPRP wants to change Section 83 to go back to a two-ballot voting system, one for an MP and the other for a political party. This voting method was enshrined in the widely popular 1997 constitution but it is now seen as stacked against smaller banners, such as Move Forward Party (MFP), the smaller successor of Future Forward. For the progressive and up-and-coming MFP to have a shot, it needs the mixed-member apportionment which counts votes of losing MPs for party-list results. Pheu Thai, the largest opposition party, also favours the two-ballot procedure. If this proposal is eventually adopted, Thai elections will be more than ever like the old politics of patronage and bigger and more established parties at the expense of newer players with new ideas.

A string of other proposed amendments are also on the table, trying to do away with the pro-military charter's 20-year national strategy plan and promoting popular rights and liberties. These cosmetic changes at the margins of the charter are crucial but they represent amendments without reform.

The most reformist and wide-ranging proposal is to amend Section 256 to set up a Constitution Drafting Assembly (CDA) that is representative of voters. The composition of this CDA would be based on popular representation much like the roots of the 1997 charter. What this proposed CDA would be authorised to consider has become a sticking point, especially in relation to the first two chapters dealing with royal prerogatives and the role of the monarchy.

In principle, the MFP favours a CDA with full authority and consideration over the whole of the constitution. Its basic logic is that, if the Thai people own Thailand, then its representatives should be able to craft a charter as they see fit. Other parties on both sides, such as Pheu Thai in the opposition and the Democrats in the coalition government, support a wholesale charter rewrite, except for the initial chapters dealing with the monarchy. For this reason, it is likely that changes will be fudged to come up with piecemeal amendments without genuine constitutional reform to preserve the post-coup status quo.

If all goes according to the coup-makers' plan, the current Senate with a five-year term will have another shot to elect the prime minister after the 2023 election.

This constitutional setup leaves little room for fundamental change that Thailand desperately needs to move forward.

Until the supreme law becomes a reflection and function of the people's collective will, political tensions will continue to accumulate and percolate. No one disagrees that the 2017 charter is flawed and skewered towards incumbent vested interests to maintain power.

Yet not enough lawmakers are willing to enact structural changes and adjustments to come up with a more legitimate document based on the popular will. Until it is totally revamped, the current charter can be seen merely as a way to perpetuate royalist-military rule by constitutional means.

Thitinan Pongsudhirak

A PROFESSOR AT CHULALONGKORN UNIVERSITY

A professor and director 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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