The Draft Constitution of Thailand – An Analysis

Abstract

You assess a constitution by looking at three elements:  what rights are fully protected, how is the power to run the country divided and organized, and how are those in power selected?  Thailand’s proposed new constitution has significant issues on all three fronts.

The draft constitution seems to contain a long list of rights, but rights in the sense of “inalienable rights” – rights that cannot be taken away by those in power – are few if any.  Basic rights protected in most Western democracies – like due process, equality before the law, freedom of speech and association – are included only to the extent that the government of the day allows them.  Those are not constitutional rights, because they are not truly protected.  Further, to the extent that there are any rights, the many caveats mean that enforcing those rights favours those with the money and influence to prevail in the courts.  Meanwhile, there are also a set of what can only be described as “inalienable duties” of individual Thais, and those seem to be quite absolute.  In short, the most important part of a constitution – rights – has big holes in it.

The powers granted by the people in this draft constitution are divided up between five groups:  the House of Representatives, the Senate, the executive branch, the monarchy, and the adjudicative branch (courts and administrative entities, including Constitutional Organizations).  The House has the power to initiate lawmaking, but can’t make any final decisions, and is vulnerable to the interpretation and enforcement of the laws by the other four groups.  This is fairly normal, and where all or most of the power rests with democratically selected groups, this is called “checks and balances”.  Many countries have this, and it can work well.  In Thailand, though, it is proposed that essentially all of the real powers rest with the Senate, the executive branch, the monarchy, and the adjudicative branch.  The House, the only elected group, is given little actual power. 

That leads to the third area, the selection of those put in power.  In this draft, the House is elected using a type of proportional representation (a hybrid local representative and party list system).  There is nothing wrong with that.  Then, though, the other four branches are not elected.  The Senate is appointed by non-elected officials, and appointees are all from various elites.  The executive branch is appointed by the House, but under the constant threat of challenge and disqualification at the instance of the other appointed groups.  The monarchy remains sacrosanct, and has real power.  The various components of the adjudicative branch are selected through an appointment process that is essentially controlled by the unelected Senate, with some influence from the monarchy.  Elected officials have no meaningful input into the appointments.  This is particularly problematic because, to the extent that there are “inalienable rights”, they are “protected”, if at all, by a Constitutional Court appointed by people who are themselves appointees. 

When you work through the details, this draft constitution entrenches the privileges of the upper and middle classes, and fails to protect the rights of the poor, the vulnerable, and the weak.  Further, in giving too much power to unelected organs of government, it is fundamentally undemocratic. 

What is perhaps worse than any of this is that Thais are not allowed to communicate with each other publicly about the contents or appropriateness of the draft.  Only the military junta, through the Election Commission, is allowed to describe to the public what is in the 137-page document.  If you won’t (or can’t, which is true for 90%+ of the population) read it and understand it yourself, you are legally limited to what the government says it means.  The junta appears to assume that, unable to learn what is in the document, the public will blindly accept the military’s conclusion that it is good for them, and approve it.  Given the country’s recent history, they may be right. 

It is not my place to have an opinion on whether Thais should approve this charter on August 7th. There are a lot of reasons to vote for or against, some of them quite subtle and complex.  All I can and should do, I think, is describe objectively what I see.  This is my analysis of what the document says.

 

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Hand’s up all those who have read the full text of the proposed new Constitution of Thailand.

The reason I ask that question is because I know a number of well-educated, serious people in Thailand, some of whom are reading this.  There is a referendum in Thailand on August 7th to decide whether or not to approve this constitution.  The fate of democracy in Thailand rests on the outcome.  The situation is very volatile, not least because the King, whose immense stature is a key part of the glue holding the country together, is very old and very sick.  His heir, Crown Prince Vajiralongkorn, is much less popular than his father.  The country is being run by a military dictatorship that seized power in a 2014 coup d’état.  There are significant tensions between an established elite, mostly in Bangkok, a growing middle class in Bangkok and elsewhere, and a large impoverished class that is seeking greater opportunity for their children.

And my well-educated, serious Thai friends?  It is likely that none of their hands went up.  I doubt any of them have read this document.

Someone in Bangkok I respect very highly estimated for me that less than ten thousand people in all of Thailand (population at least 68 million) will read the entire document.  That includes, he opined, only a few of the 36 members of the committee that actually drafted it (the CDC, or Constitution Drafting Committee), and none – I repeat, NONE – of the NCPO, the National Council for Peace and Order, i.e. the military junta.

To be fair, the document itself is 137 pages of turgid, somewhat technical verbiage that only a lawyer could love.  It is also fair to note that it is against the law in Thailand to discuss the draft constitution publicly in any critical way, in the sense of campaigning for or against its approval (except for the junta and its agencies, which can argue for its approval).  There is a lot of fear that critical discussion of the issues will see you brought in by the military for one of their famous “attitude adjustments”.

Well, I have read the whole thing, geek that I am.  I read it in translation, of course, using the English version from the Geneva-based International Commission of Jurists.  This version was prepared in conjunction with the International Institute for Democracy and Electoral Assistance in Australia, and the Office of the United Nations Resident Coordinator in Thailand.

The English translation can be found at this web page

Having read it, and while trying very hard not to run afoul of the referendum law that prohibits certain types of discussions about the draft constitution (since I do want to be able to go back to Thailand in the future), here is my analysis of its content.

Constitution-Drafting Principles

Any discussion of a country’s constitution must be grounded in the reason why you have a constitution in the first place.

A constitution is the basic “deal” between the people in a society about how their society will be managed and governed.  It is their social and political contract, in which they set out three things:

  • What: The powers that are granted to the government and, maybe more important, the powers that are withheld from the government (sometimes called “inalienable rights”)
  • How: The structures within which those appointed or elected will exercise power, including checks and balances
  • Who: The methods by which the people in positions of power will be selected

The first component, the powers granted to government, is what we most often think of when we talk about a constitution.  People understand that too much power is bad, so it is rare that governments have absolute power, unless of course power is taken by force.

This means that most constitutions have a focus on what the government cannot do.  Those things are usually captured in a series of “rights” enjoyed by the people, and by definition those rights represent restrictions on what the government is allowed to do.  Basically, we say to those chosen to govern our society, “You have the discretion to enact whatever laws you feel are appropriate, but you can’t do A, B, and C.  That’s not part of the deal.”

In most countries, for example, the government does not have the authority to throw people in jail, or take their property, without “due process of law”.  Most places prohibit unreasonable search and seizure under the same premise, and the presumption of innocence in criminal law may also stem from the “due process” concept.  In most countries a government cannot enact laws discriminating against people based on gender, or race, or ethnicity, or religion, or several other heads of unlawful discrimination.   In the United States, famously, the government cannot make laws denying people the right to have guns.

What is important to understand about the powers being granted to government is that the exceptions – those “inalienable rights” that are so important to us – are a small sub-category of the powers the government does get.  In a democracy, we usually give the government power to do almost everything, and control the use of that power through elections.  If we don’t like how the government uses those powers, we kick them out at the next election.  Politicians, wanting to keep their jobs, are pretty careful to make sure they don’t go too far afield with the powers we give them.  The party system is intended to help with that, because the collective job security of the party members means they control each other’s excesses (well, in theory), and free speech and freedom of the press are there to ensure transparency.

Most constitutions, while sometimes setting out a few high principles, are careful to make the list of restrictions on power quite narrow.  The more restrictions you put in, the more people will engage in constitutional litigation in the future.  Any lawyer will tell you, a lot of words means a lot of opportunity for interpretation and therefore debate and litigation.  So, you only protect the small number of things that you really, really want protected.  Those things you protect absolutely.  The rest you leave to elected officials to decide.

Once you decide what powers you want to give to the government, or not, the second part is setting up a structure for the exercise of those powers.  The structure is sometimes about specialization (narrowly technical areas of decision-making).   Mostly, though, it is about making sure that all interests are being respected, all the time, and that it is very difficult for those in power to do anything truly crazy.  This is often called “checks and balances”.

Almost every constitution has at least some checks and balances.  For example, there is usually a separation between the legislative branch of government (those who draft and approve the laws), and the judicial or adjudicative branch of government (those who interpret and enforce the laws).  There is also usually some level of separation between those branches and the executive branch of government (those who implement the laws and run the country).  This can be quite different from country to country.  The USA has a presidency that is very separate from Congress, which is the legislative branch.  In parliamentary systems like the UK and Canada, the executive branch (prime minister, cabinet ministers, and their staffs) is part of, and therefore closely connected to, the legislature, but it still operates separately.

The other part of checks and balances is respecting different interests.  In the UK’s transition to democracy, the nobility, including the monarchy, gave up power to elected representatives, but retained the House of Lords (their equivalent of a Senate) and the King or Queen’s prerogatives.  However, because the country was shifting to the democratic paradigm, the powers given to the House of Lords and the monarchy are very limited.  Essentially, they can briefly slow down actions taken by the elected representatives, and ask them to look at issues again, but in the end the will of the democratically-chosen members of the House of Commons must always be implemented.

It is fundamental to democracy that the will of the people must ultimately prevail.  Otherwise, it is simply not a democracy.

The USA took a different approach with its Senate.  The House of Representatives is selected based on population.  Each person’s vote is worth more or less the same.  The Senate is intended to protect the interests of the states in what is technically a federation of independent states (the “united states”).  Thus, each state, no matter how many people they have, has two senators.  In a vote for senators, within each state all votes are equal, but each state has equal representation in the Senate.  New York and California, with sixty million people, can’t gang up on New Mexico and North Dakota, with less than three million.  Each has two senators.

In looking at the structure of governance set out by the constitution, it is important to ensure that each of the proposed elements has a specific purpose, and is optimized to achieve that purpose.

The third component of the constitution is the method for selecting those people granted the power to govern.  In a democracy, this is about how best to ensure that the will of the people is being achieved through the selection process.  Thus, elections.

There are a number of different electoral systems, and I won’t get into the pros and cons of each of them here.  What is common to all systems in true democracies is that everyone is entitled to vote, and their votes have equal value (or as equal as it is possible to get).  There was a time when some people were not given the right to vote – women, members of religious or racial minorities, etc.  Today, in a democracy every adult must be given the equal right to vote, unless they have lost that right due to criminal conduct (and this is often disputed) or mental incapacity.

Of considerable importance in looking at selection systems is the principle that the will of the people must be respected.  Some people are more educated, or more intelligent, or more successful, than others.  That cannot matter.  Their votes are equal.  In its central foundation, democracy stands for the principle that the collective wisdom of everyone in society, all equal, and all counted, is better than the individual wisdom of this or that group or individual, however brilliant they may be.  “None of us are as smart as all of us”, as they say.

You can argue whether that principle is right.  However, if you don’t accept that principle you can’t pretend your system is a democracy.  Simple as that.

Of course, the selection method and the structure are interactive.  If you cannot, for whatever reason, fully reflect the will of the people in some part of the selection process, then the powers within that part of the structure need to be tightly curtailed.  Conversely, if you want to imbue a particular role with significant power, then democracy requires that the people select, directly or indirectly, those that fill the role.

That, then, is your framework.  When you look at a constitution, those are the questions you want to see addressed, and addressed well.

The Draft Thai Constitution 2016

Against that backdrop, let’s see what the NCPO is asking the Thai people to approve in August.

(In the discussion below, I have deliberately focused on the substance, not the drafting itself.  I found the drafting of this document appallingly bad, so far below the standards I have come to expect in Thailand that I was shaking my head.  If a second year law student gave me something drafted that poorly, I would tell them that they needed to do better.  For top scholars, as are some of the CDC members, it was shocking.  However, some of that may simply be the English translation, and some of it may be the short time frame and intense pressure on the CDC to produce something the NCPO could approve, and some of it may be the difficulties that arise in drafting anything by committee.  In the end, the substance is what is important.  The courts can sort out the bad drafting later, if and when the constitution is approved.)

So let’s talk about the substance.

Powers and Rights.  The first and most striking thing that any observer will see in this draft constitution is that there is no clear division between the powers of the government, and the rights of the people.  There are dozens of pages of what can only be described as “instructions” to the government – “do this, don’t do that, do this a particular way, etc.” – many of which are then qualified by saying that they only apply if there is no law saying otherwise.

There are many examples.  When it comes to basic rights, for example, the rights to be free of arrest, or search and seizure, are not fully protected.  The draft says:

“Arrest and detention of a person shall not be permitted, except by a court order or warrant or any other ground as specified by law. Search of a person or any act affecting the right and liberty in life or body shall not be permitted, unless there is a ground specified by law.”

So, for example, the legislature can pass a law saying that protesters can be arrested and held without charge indefinitely.  Most constitutions would not allow that.

How about other basic freedoms?  Here’s one:

“A person shall enjoy the rights of privacy, dignity, reputation, and family.

An act violating or affecting the rights of a person under Paragraph One, or the use of personal information for benefit by any means shall not be permitted, except by virtue of the provisions of the law specifically enacted as deemed necessary for the public interests.”

That means the legislature can take away your rights to reputation, dignity, privacy or family, any time it wants, simply by declaring it to be in the public interest.  Are you too outspoken in your political views?  Sorry, no rights for you.  (Check out Section 34 of the draft if you have any doubts about my conclusion.)

These examples, and many more, make clear that may of the so-called “rights” in this constitution are not actually rights at all.

The draft constitution also proposes many other things that look like they might be rights, but realistically they are restrictions, not rights.  For example, Section 45 provides the right to form political parties, but then prescribes numerous conditions to what a political party can look like.  Section 46 gives the right to establish consumers’ rights organizations, but only in accordance with rules established by the legislature. These are not rights.  These are limitations on rights.

There are some that are not subject to conditions.  For example, Section 47 says:

“A person shall be entitled to prevention and eradication of harmful contagious diseases by the State without charge.”

However, the same provision allows the poor to have free health care, but only “in compliance with the law.”

Note that the so-called rights, most of which are qualified or undermined, are balanced by quite unconditional duties of the Thai people.  There is a long list, which includes:

“to…not commit any act that may cause disharmony or hatred in the society”

“to…uphold the prestige and interest of the nation and public property of the Kingdom”

“to freely exercise the right to vote at an election or a public referendum, importantly bearing in mind the common interests of the country”

These are listed as blunt obligations of individuals in Thailand.  Unlike rights, there are no caveats.  In effect, this constitution provides for “inalienable duties”, but not “inalienable rights”.

Under the headings “Duties of the State”, and “Policies of the State”, there is an even longer list of things that the state must do under the constitution.  These are, in effect, rights of the people, but not in the ordinary sense.  They are, rather, roadmaps for the various interest groups that had a hand in the constitution drafting:  education, health care, telecommunications, the environment, self-regulating professions, and many others.  A good example is Article 54 on Education.  I’ll quote the whole thing, and you’ll see what I mean.  (Remember, this is not an ordinary law, or even an organic law.  It is the proposed constitution of the country.)

“The State shall ensure the availability of compulsory education of good quality and with no charge for a period of twelve years for all children, beginning from the pre-school level.

The State shall ensure the provision of care and development for pre-school children prior to the education under Paragraph One for the purpose of physical, mental, disciplinary, emotional, social and intellectual development appropriate to their ages. For such purpose, the State shall promote and enhance the participation of local administration organizations and private sector therein.

The State shall ensure the availability of different educational systems according to the needs of people, including the promotion of life time learning. The State shall facilitate the cooperation among the State, local administration organizations and private sector in the provision of education at all levels thereof the State has the duty to operate, supervise, promote, and support such education to be of good quality and meet international standard. In this respect, the law on national education requires that at least there shall be provisions related to development of a national education plan including implementation and monitoring to ascertain compliance with the plan.

Education of all forms shall aim at developing learners to become good people, well-disciplined, proud of the nation, capable with own skills, and responsible for family, community, society and the country.

To ensure that young children are cared for and developed as provided in Paragraph Two or that people are educated as stipulated in Paragraph Three, the State shall make available the fund to support educational expenses of the impoverished in relation to their skills.

There shall be established a Fund to assist the impoverished in order to reduce the educational disparity and to strengthen and improve the quality and efficiency of teachers. The State shall allocate budget to the Fund or apply tax measures or mechanisms and allow the contributors to the Fund to benefit from tax deduction, as provided by law. The law herein shall minimally require independent management of the Fund and utilization of the Fund for achieving the purpose thereof.”

This only one of dozens of provisions that stipulate what the State must do, or what policies it must have.  Under this constitution, if you don’t think the educational system has sufficient focus on life-long learning, you can seek to enforce your “right” to that through complaints and the courts.  If you don’t like the telecommunications policies, you have rights to enforce that as well.

Later, in Article XVI, entitled National Reform, there is a further laundry list of changes that are required to be made to politics, administration, education, the economy, and other aspects of society.

As a lawyer, I should probably applaud all of this.  Actually, I should probably learn Thai.  With the material on powers and duties of individuals and government in this draft constitution as convoluted and confusing (and verbose) as it is, the next decade could be a great time to be a lawyer in Thailand.  Forget red shirts, yellow shirts, and any other shirts marching in the streets.  The place to push for your own pet cause is going to be the courts.  There will always be something in this constitution that will allow you to argue that the government is obligated to do what you want, or is prohibited from doing what you don’t want.

You say, no, the courts will be sensible, and will not allow people to do this.  They will not enforce tens of thousands of claims that the government should be restricted in many different ways.  My answer is, you may be right, but if so then the things in the constitution that really do matter – like your real rights as a free individual in Thai society – will also not be enforced.  If your constitution doesn’t draw a bright line between rights, which you want guarded jealously, and everything else, then the rights will inevitably have little value.  They won’t really be “rights” at all.

This is especially true since the whole point of having rights is so that the vulnerable and weaker members of society are protected.  If there are so many rights – and things that resemble rights – in the constitution that the courts become the battleground of choice, who does that favour?  The answer is, those who already have money and power – what used to be called the Bangkok elite – are favoured by a system that promotes litigation of “rights”.

The truth is, I almost stopped reading the draft constitution at page 34.  Once I realized the content of the sections on rights and duties and policies, I almost didn’t have to look at the structure and selection of government.  It was clear that, under this constitution, the laws would not be designed to protect the vulnerable and weak.  The laws would protect those with the resources to defend their rights, and to maintain the privileges and advantages they already have.

Sad.

Structure of Government.  I did end up reading the rest of it, but it turns out the structure is, if anything, more of a concern.

The proposed Thai government structure has five components, of which one is elected, and the other four are not.

The legislative branch of government (the National Assembly) is composed of an elected 500-person House of Representatives, and an appointed 250-person Senate (eventually 200, but 250 for the first five years).  Despite the fact that the Senate is appointed, it has quite a lot of power, unusually so for unelected officials.

Bills, including organic laws, can only start in the House. They can be initiated by the government (i.e. the Council of Ministers, or cabinet), or by twenty members or ten thousand citizens, in the latter two cases with the consent of the Prime Minister if it’s a money bill.  Once passed by the House, they go to the Senate, which has 60 days to either approve, disapprove and withhold, or amend.  If amended, the House has to either accept the amendment, or work out a compromise with the Senate.  If neither happens, it has the same fate as “disapprove and withhold”.

If the Senate refuses a bill (“disapprove and withhold”), the House cannot look at it again for 180 days (10 days for a money bill).  Then if more than half of the then-sitting members of the House approve it, it is passed.  Note that this is not a majority vote.  It is at least 251 votes, no matter how many are actually voting.

However, during the first five years, when the interim Senate appointed by the NCPO is in place, the House cannot override a Senate disapproval.  It can only be overridden by a joint vote of the House and the Senate, with at least 501 votes to override.

In other words, never.

At any time before the bill goes to the King, any group of 75 senators or members can require that it be sent to the Constitutional Court for review.  If that Court decides that the bill is not consistent with the constitution, the bill lapses.  There is no appeal.  It’s dead, period.

Once a bill is approved by the National Assembly, it goes to the King.  The King has 90 days to decide.  If he says no, his veto can only be overridden by a two-thirds vote of all of the sitting members of both houses (i.e. 501 votes).  Even then, it has to go back to the King for another 30 day period before the override kicks in.

The effect of all of this is that the elected representatives, the House, are subject to significant control by the Senate, the Constitutional Court, and ultimately the monarchy. Something that is not favoured by the elite can be resisted for a long time, and in only rare cases will the elected representatives be able to enforce their policy decision.

The Council of Ministers is the executive branch of government, essentially the cabinet that runs the government.  There doesn’t appear  to be anything much unusual about the role of the Council, except that it can ask the King to enact a law at any time if it feels it is in the interests of national security, including economic security or public safety.  Pesky red shirt rallies?  Make wearing a red shirt illegal.  Laws enacted by the King on the advice of the Council can be overridden by the House or, in some cases, the Senate, but in the interim period they are valid laws (unless overturned by the Constitutional Court).

The King has certain powers that, not really being curtailed, are quite surprising.  For example, the King can at any time dissolve the House of Representatives and require a new election.   There do not appear to be any limits on this power, nor on a similar power to declare martial law. For example, it can be exercised in the 90 days during which the King is considering a proposed law, in which case that proposed law lapses and the House and Senate have to start the whole process again after an election.

The bigger power of the King appears to be to refuse to approve bills from the National Assembly.  This can be overruled, but it is very difficult.

All of the top appointments to the military or the civil service are made by the King, not apparently subject to the consent of the House or Senate.  The King also decides the salaries paid to the top members of the government and the senators.

The King also has the unusual power, in Section 174, to enact laws on taxes or currency, without the approval of the Council of Ministers, subject only to override by the House and Senate as above.

Most of the powers of the King, however, such as powers to declare war or conclude treaties, are subject to approval by the National Assembly.  Note that this approval is not by the House.  It is by House and Senate together, which means one-third appointed and two-thirds elected.

The Senate is comprised of two-hundred and fifty appointed members (two hundred after five years).  The main powers of the Senate are to block legislation approved by the House, and to control the appointment processes for the various components of the adjudicative branch.

The Constitutional Court is the most important of the courts.  In addition to the powers noted above to determine that proposed laws are not consistent with the constitution, they are also the sole adjudicators with respect to the actions and duties of the elected representatives, senators, cabinet, and Constitutional Organizations.  For example, they decide if someone is qualified to hold an office, or should be removed.  As well, all cases in which individuals in society are claiming their rights under the constitution have been violated are heard by the Constitutional Court.

There is no appeal from any decision of the Constitutional Court, and no method of overriding their decisions.

The Constitutional Court has the power, jointly with the Constitutional Organizations, to develop “the ethical standard” that applies to judges, elected officials, and position holders.  This is not defined anywhere.

There appear to be five Constitutional Organizations:  the Election Commission, the Ombudsman, the National Counter Corruption Commission, the State Audit Commission, and the National Human Rights Commission.   Each of those organizations has responsibilities under the constitution, most of which are self-explanatory.

Notable among these is the National Counter Corruption Commission, which is charged with responsibility to determine if anyone in any branch of the government is corrupt, has “failed to comply with the ethical standard”, or “is of unusual wealth”.

Selection Process.   The draft charter provides that the five hundred members of the House of Representatives are elected by a one-person, one-vote system.  Three hundred and fifty of them are elected in constituencies around the country.  The other one hundred and fifty are elected based on country-wide popular vote by party, and are from the party lists of the various accepted parties.  If Party X gets 58% of the members on a constituency basis, but gets 62% of the popular vote across the country, they should have 62% of the 500 members of the House.  To achieve that, the top 107 on their party list are also elected, moving their total members up from 58% (203 of 350) to 62% (310 of 500).

There are a few small problems with this, like the control the unelected organs of government have over political parties, and the many limitations on being a candidate at all, but generally it is a reasonable system.

Voting is limited to those 18 years or older, who are natural-born Thais, or naturalized for at least five years.  Candidates must be at least 25, must be Thai by birth, and must be born in, or live for five years in (or go to school or work for the government for five years in), the constituency in which they are running.  Anyone who has been in prison in the last 10 years is ineligible, as is anyone who has been convicted of certain crimes any time in their life.  People who have been judges, senators, or public officials are also disqualified.

The Senate is a body appointed from the ranks of the professions, academia and others.  The detailed rules about their appointment – who appoints them, when, and under what circumstances – are not included in the draft charter.  The constitution provides that the Constitution Drafting Committee will draft a new law dealing with the selection of senators, which will be approved by the House.

Some criteria are known, however.  Senators must be at least 40, and must have been working in their field of expertise for at least ten years.  They cannot have been members of the House or any local council, or ministers, or members of any political party within the previous five years.  They have a five year term, and then they cannot be senators again.  There is no provision for continuity between one Senate and the next.

Meanwhile, until the selection process is designed and approved, there is an interim Senate, chosen by the NCPO, the military junta.  The six heads of the branches of the military and police are automatic members.  That Senate is in place for five years.

The executive branch, the Council of Ministers, consists of the Prime Minister and the Ministers.  The House chooses the Prime Minister from lists of candidates provided by the political parties.  In practice, this means a parliamentary system, in which the party or parties with a majority form the government.  They have to get everyone there, however, because 251 votes are required to select a Prime Minister, not just a majority of votes cast.

The criteria to be Prime Minister are strange:  at least 35, born Thai, and with at least a Bachelor’s degree.  Two others are: “apparent honesty”, and no unethical behaviour.  This appears to be intended to allow challenges to anyone who is unacceptable to the Senate or other unelected officials.  There is no requirement that the Prime Minister be an elected member.

In a similar vein, the constitution sets out rules for how the Council of Ministers conducts itself, with phrases like “sacrifice”, “good governance” and “enhancing all sections of the society to together live in a just, peaceful and harmonious manner”.  The practical effect is to allow opponents of elected Ministers to challenge their actions simply because they disagree.

The Constitutional Court, one of the Constitutional Organizations, has a lot of power.  Its members are appointed by the King but actually selected by a Selection Committee comprised of the chief judges of the two other courts, the President and Leader of the Opposition in the House, and an appointee from each of the five Constitutional Organizations.  After the Selection Committee makes a choice, it goes to the Senate, which decides whether to approve the nomination and send it to the King for approval.  At no time in the process is it subject to a decision of elected officials.

Once appointed, judges are on the Constitutional Court for seven years.

The same Selection Committee that nominates the Constitutional Court judges also nominates the office holders of each Constitutional Organization (except the National Human Rights Commission).   After the nominations are approved by the Senate, those individuals are then appointed by the King.  Elected officials are not involved in the process.

Overall Result.  The constitution appears to isolate the House – the only people who are actually elected by the people – and to give the House limited power.  To the extent that they have any power at all, it is supervised very tightly by the Senate, the King, the Constitutional Court, and the Constitutional Organizations.  All of the latter groups are appointed or hereditary.

Basically, in this system the rights of any person in Thailand – to the extent that there are any rights – are decided in almost every case by appointees from a self-perpetuating elite, with no meaningful participation by the people or any elected representative of the people.  Any action attempted by the elected officials can be thwarted, challenged, delayed, and, in the end, stopped by appointees at multiple levels.

All real decisions will, it seems, be made by a small group within the Senate, the Constitutional Court, the Constitutional Organizations, and perhaps the Palace.

Oh, and by the way.  Everything done by the junta while it was in power, no matter what, is deemed to have been constitutional and lawful.  Surprise.

The Referendum Act

I hope that by writing this I’m not offending the Referendum Act, but I’m not 100% sure.  You see, the Act appears to say that what you can say about the draft constitution is whatever the NCPO says you can say.  It is difficult to say anything and be confident you are complying.

The theory behind the Referendum Act is that Thailand had years of civil strife, and some people feel that was caused by politicians simply misstating the truth.  There is a sense that some politicians were demagogues, and some of the people – particularly those in the provinces with less education – were gullible and easily fooled by the politicians.

To avoid that problem with the constitutional referendum, the NCPO required that there be no public campaigning for or against the charter.  It is the military mind at work.  In theory, the totally impartial Election Commission will hand out neutral information about the charter, and then the people will decide.  Pure democracy, at least on the surface.

Of course, “neutral” is a concept that depends on your perspective.  In practice, there has been a limited amount of information provided to the public by the Election Commission and, indirectly, by the NCPO.  None of that information is critical of the draft charter.  None of it contains any real analysis, strengths and weaknesses, pros and cons, alternatives.  Nothing that has been provided to the public to date has been anything other than pro-charter, all the time.

In a fascinating opinion piece in the Bangkok Post last week, editor/columnist Surasak Glahan likened this to the old practice of arranged marriages:

“At the beginning of a relationship, an unknown or ambiguous thing about a person whom we are attracted to usually excites us. Once the relationship gets more serious, we usually need to know the unknown and understand the ambiguity before committing ourselves further, let’s say, to a marriage.

 That is the notion of most Thais in the modern era. We make our own choices based on how much we know and like about a person. An arranged marriage, by parents, to someone whom we know little about is rare and something from the past. But the Aug 7 referendum on the draft charter will, ironically, be a throwback to the era of Thailand’s forced marriages.”

The writer goes on to describe and discuss the limitations on public discussion, and the inevitable lack of information people will have when they vote, as a result of those limitations.  The conclusion is that Thais have to either a) blindly accept the judgment of the junta – the “parents”, in effect – or b) reject that judgment on principle, and vote no.  There is no opportunity to actually choose for yourself based on knowledge of the proposal.

From the outside, the strategy of refusing to allow public debate appears to be a cynical plan to play on the apathy, and acceptance of authority, of the average person.  Certainly many writers in Thailand have suggested that is the plan.

Will it work?  Honestly, the answer is not certain.  Thais are sick and tired of political debate, sick and tired of demonstrations in the street, and completely and totally sick and tired of dysfunctional governments.  The common feeling about all of this is one of disgust.

Now, many people don’t like the fact that their freedoms have been suspended by the military junta.  Ah, but on the other side, there are no more demonstrations.  Life goes on.  Nothing truly bad has happened.  And the freedoms?  Mai pen rai.

The Referendum Act appears to limit any truly critical analysis of this poorly-drafted, problematic document.  Despite this, or perhaps as a result of this, I can tell you that in the last thirty days at least twenty-five intelligent, aware Thais have looked at me blankly when I mentioned the upcoming vote.  Blankly as in “What vote are you talking about?”

Not everyone is ignoring the referendum, and certainly interest will increase when we get closer to the date.  But, what appears to be clear is that, without the regular speeches and other churn by politicians and others expressing their views, the public is largely disengaged.

Conclusion

I don’t have an overall opinion on the draft charter.  That is for Thais to decide.  I am hopeful that things will turn around, and people will talk about this more between now and August 7th.

Unless they do, Thailand might be in for an interesting next decade or so.  Thailand has underlying and increasingly untenable economic, opportunity, and power disparities within its society. Throw in social and regime change, creating significant instability, and you have a recipe for challenging times.

–  Jay Shepherd, July 18, 2016

 

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About Jay Shepherd

Jay Shepherd is a Toronto lawyer and writer. This site includes a series on energy issues, plus some random non-fiction on matters of interest. More important, it includes the Lives series, which bridge the gap between fiction and non-fiction, and now some short stories. Fiction is where I'm going, but not everything you want to say fits one form. I am not spending any time actively marketing what I write, but by all means feel free to share if you think others would enjoy reading this stuff.
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