Title: “Thai Constitutional Crafting 2015: Premises, Pitfalls, Prospects”
Time: Thursday, 9th April 2015
Location: The Chumbhot-Pantip Conference Room, 4th Floor Prajadhipok-Rambhaibarni Building
Faculty of Political Science, Chulalongkorn University
Organisers: ISIS Thailand, King Prajadhipok’s Institute, Friedrich Naumann Stiftung
Opening Remarks
Assoc. Prof. Dr. Ake Tangsupvattana
Dean, Faculty of Political Science, Chulalongkorn University
Speakers:
Prof. Dr. Suchit Bunbongkarn
ISIS Senior Professorial Fellow
Emeritus Professor and Former Dean,
Faculty of Political Science,
Chulalongkorn University;
Deputy Chairman and Member of
Constitution Drafting Committee
Assoc. Prof. Dr. Panitan Wattanayagorn
Faculty of Political Science,
Chulalongkorn University;
Security Advisor to the Deputy Prime Minister
and Minister of Defence
Dr. Jade Tonavanik
Dean, Pridi Banonyong Faculty of Law,
Dhurakij Pundit University;
Member of Constitution Drafting
Committee
Assoc. Prof. Siripan Nogsuan Sawasdee
Department of Government,
Faculty of Political Science,
Chulalongkorn University
Dr. Thawilwadee Bureekul
Director of Research and Development
Office, King Prajadhipok’s Institute;
Member of the National Reform Council;
Member of Constitution Drafting
Committee
Moderator:
Assoc. Prof. Dr. Thitinan Pongsudhirak
Director of ISIS Thailand,
Faculty of Political Science, Chulalongkorn University
Opening Remarks: Assoc. Prof. Dr. Ake Tangsupvattana
The Institute of Security and International Studies and the Faculty of Political Science positions itself as a
neutral value-added window into Thailand for the outside world. There now may be more space to
promote public understanding and conversation that is constructive and beneficial to Thailand.
Thailand’s Constitutional drafting process is being undertaken hand-in-hand with other reforms. The
Constitution Drafting Committee is currently drafting the 20th Constitution since 1932, and one may
wonder whether this will be the last. It is important to lay out a workable pathway towards a new Charter
that will enable Thailand to move forward.
Moderator: Assoc Prof. Dr. Thitinan Pongsudhirak
If we were to describe the thrust of the 1997 Constitution, it was based on the 1992 bloodshed and
removing military dictatorship. It was an effort to eliminate money politics in Thailand. For a
number of reasons it didn’t work. The overarching basis of the 2007 Constitution was to prevent
abuses of power. For 2015, what kind of overarching theme is driving the current crafting
process?
Prof. Dr. Suchit Bunbongkarn
The new Constitution will be finished very soon. It is an issue at the forefront of many minds and some
are concerned over its contents, so it is important to also look at the attractive points of what it will
include. The 1997 Constitution was written to redress problems surrounding unstable, weak coalition
governments. The drafters wanted to strengthen the executive branch, to empower the position of the
Prime Minister. This proved a success, so much so that Prof. Suchit suggested that Thaksin Shinawatra
and Yingluck Shinawatra were the only Prime Ministers in Thailand between 1997 and 2014. The power
of the executive was so strong that they believed once they were in power they could do anything. The
contentious enactment of the Amnesty Bill in 2013 is evidence of these abuses of power. There was an
imbalance between the executive and the institutions to check abuses of power. At the same time, the
1997 Constitution sought to eliminate ‘vote buying’ practises which had become rampant, so a number of
institutions oversee elections and scrutinise politicians were established.
The new Constitution is being drafted with four key aims in mind:
1) Thailand has a weak ‘people-sector.’ To ensure stability in a democracy there needs to be a solid base
for the people. In the past whenever there has been a political problem, the tendency has been to only
revise structure at the top, such as removing Prime Minsters or politicians. However, the role of
people has been overlooked. The basic problem of Thai democracy has been that there has been a
relatively weak people sector, as evidenced by the fact that people can be easily mobilised or
manipulated for the benefit of political leaders. So, one of the objectives of the new Constitution is
empowerment of the people.
2) Corruption and cronyism have long hampered Thai politics. Enabling clean politics is essential. To
make clean politics possible there must be a revised system of checks and balances.
3) There must be a society with justice for all. There must be a reduction in the gaps between economic
classes and ethnicities, and urban and rural areas. This Constitution will be quite unique as it will force
those in power to provide justice for all.
4) The current government do not want to see a repeat of violence and clashes between the people that
occurred last year before the military coup. This is a difficult task, but some processes to build peace,
serenity and reconciliation have been included in the new Constitution.
If the current draft of the Constitution is accepted, it will be one of the longest in the world with 315 Articles.
When the Constitution writing process started in January 2015, one of the goals of the Constitution Drafting
Committee members was to produce a succinct Charter, but this was ultimately unachievable.
Citizens’ empowerment has been one of the major themes shaping the drafting process. Conventional rights
such as freedoms of expression, life and liberty have been included, but rights for people to access good
education, environment and governance are also prioritised. Under the draft Constitution the government
will have an obligation to ensure these rights are met. There are also a number of clauses which will allow
citizens to get more involved in checking and scrutinising politicians, such as the Citizens Council at the
Local Level to oversee the administration at the local level. At the national level, the National Ethic Council
will be established to oversee the ethics, principles and morality of politicians.
The dominance of a single party over the electorate will also try to be avoided, so a Mixed Member
Proportional (MMP) electoral system has been adopted to allow smaller parties to be elected and to reflect a
true view of will of the voters. In this system, coalitions would be required to be able to form government.
There have been some attacks on the CDC claiming that the MMP system will lead to unstable government,
but once the party system itself becomes more democratic and responsive to the people (rather than the
needs of the leader or interests of the party) this instability will be mitigated.
Dr. Thawilwadee Bureekul
Input for the Constitution drafting process comes not only from the 36-members of the CDC, but there has
been a great deal of engagement with the public. The best ‘immune system’ for a democracy is input from the
public. Listening to the people allows politicians and technocrats to respond to their specific needs. The CDC
opened a PO Box, 1600 post-boxes, and utilised electronic communication to allow people to submit their
proposals and ideas directly to the drafting committee. Over 20 public deliberative forums were held all over
Thailand for eligible voters to engage with the CDC. The suggestions from these forums and submissions
have been posted on the CDC website and in a regular newsletter.
The most important issue that came out of these public forums was for the Constitution to mandate anticorruption mechanisms. Reconciliation, education reform, equality, socio-economic security and public
participation in the policy process were commonly brought up. Many of these issues had already been
addressed by the CDC in the draft Charter, however some ideas were included after the public participation
processes.
Good governance, public participation and gender equality are new areas for Thai Constitutions. Good
governance and public administration have been promoted by the CDC. While good governance was covered
in the 1997 Constitution, the draft of the latest Constitution places much more attention on it, particularly
with regard to environmental governance and environmental justice. People will have more access to decision
making, policy and justice in environmental management. Strategic environmental assessments and
judgements on resource allocation have also been highlighted.
Gender responsive budgeting has been contentious, but is the most important item in the Constitution.
Thanks to the efforts of members such as Dr. Suchit and Dr. Jade, gender has been addressed in a Thai
Constitution for the first time. Within the CDC, there was a secret vote on whether to include gender quotas
in the draft of the Constitution. The process of budget allocation will take into account gender issues, and will
help the government address their priorities when they allocate resources to live up to their commitments to
advance women’s rights. This will transform the rhetoric about women’s rights into a concrete reality. Gender
quotas may be a small issue, but is important for women. At least one-third of the Party List must be
allocated to the ‘alternate gender.’
Dr. Jade Tonavanik
Many of the issues in Thailand are being addressed in the Constitution in new and laudable ways. They are
aimed at, in many ways, improving not only politicians but also enhancing ordinary Thai citizens into
engaged, active voters responsible for their political system.
The Constitutions of United States, Germany and Australia are impressive as they have endured with only a
few modifications. Thailand, famously, is up to its twentieth Constitution since 1932. In the current process,
one of the concerns faced in the drafting process was to determine whether issues addressed in the
Constitution would still be relevant one-hundred years into the future. Ever since Thailand’s first modern
election, women have had the right to vote. Thailand has not struggled with women’s suffrage like other
countries. Thailand, however, does still have imbalances regarding gender, which Gender Responsive
Budgeting will seek to address.
The current draft Constitution has 315 Sections, making up more than 16,000 words more than the 1997
Constitution, and 10,000 words more than the 2007 Constitution. Looking into what the CDC have been
trying to do, one of the main subjects that being brought into reality is proportionality. Since the 1997
Constitution which used the parallel systems of constituency and party-lists under a ‘first-past the post’
system, the real will of the electorate has not been truly shown. The only major change in the current draft
Constitution has been to include proportionality. This will bring the real will of the people in elections. The
first, second and third runners up in the constituency will not be MPs, but all the votes they received will go
to the Party List.
Thailand will be the first country out of nine currently using the Mixed Member Proportional system to use
an Open-List in the electoral process. One of the problems in Thailand is that political parties have been
dominated by their ‘owners’ or ‘funders,’ who might not be popular with the majority of voters. Now under
the Open-List system, voters will have a greater chance to select their preferred candidate within a political
party. For example, if there are only 11 positions available in the Parliament, and ‘Miss A’ is number 18 on
the party list, but a large number of voters select her over the other candidates, with the Open-List system it
is possible for her to be elected. Under old system, she will never be able to get into Parliament.
Another contentious issue is the pluralist Senate. The CDC have deliberated on whether to retain the Senate
and House of Representatives in a bicameral system. If the Senate comes from direct elections, why do we
need to have it? The result in the Senatorial elections will be the same as those in the House. If we want to
keep the Senate we have to make it different. A balance between the Senate and House must be struck.
Therefore, the CDC has suggested a so-called ‘Three-River Senate,” with members selected from the ranks of
former Permanent Secretaries and government officials, from the overall professions and occupations around
the country (including home-keepers, farmers and teachers) selected by a selection committee, and finally the
77 people from 77 provinces (anyone can run for election, or selected by a selection committee who choose
one-from-ten people.) The Senate will not have equal power to propose and pass laws as the House of
Representatives. The division of power is similar to existing processes in bicameral parliaments worldwide.
The Senate and House of Representatives will also be able to join to solve important or pressing issues
together.
There are two distinctions for the position of Prime Minister, one that comes from the Members of
Parliament and one that is not. People who are MPs are already elected from the people directly, so for one
of them to become Prime Minister simply requires a simple majority (more than half). But for a person who
is not MP, a two-thirds supermajority will be required. The non-MP Prime Minister will be able to come into
power in great times of need. The CDC has tried to reform and bring reconciliation to the country with the
draft Constitution. While this might be idealistic, better ways of trying to bring this change about are not
forthcoming.
Moderator: What will be the mechanics on voting day? Will there be two ballots?
Jade: I would say, three ballots. One is for the Constituency, the other is for the Party-List, and the third on
is for a person on the list. A lot of people were advising that since we use the Open-List, people should be
asked to rank all of their preferred candidates, but we decided that it might be too complicated. Hence, they
will only select their favourite candidate.
Moderator: How many MPs will there be?
Jade: 250 in the constituencies, and up to 220 in the Party List (to allow for the overhand mandate).
Moderator: The Open-List is designed to overcome the previous party-list sequence was sequential,
so now people can truly select their preferred candidate.
Assoc. Prof. Dr. Panitan Wattanayagorn
The NCPO and the government are committed to their roadmap, which is half-way to completion. The
government are currently preparing for the conclusion of the drafting of the Constitution, and a decision on a
referendum should be made soon (if there is a referendum, it may take longer for the Constitution to be in
place for the election.) When the current government came into power, their first order was to ensure that
peace and stability were installed and that a stable environment was created to enable the crafting of the
Constitution. For now, that seems to be on-course.
There are five main objectives for the current government at present:
1) Provide a safe, secure and stable environment. The NCPO are determined that all demonstrations
relating to the drafting process have to be monitored and approved. If a number of groups come out
to demonstrate, the drafting of the Constitution may be derailed.
2) This year, the government has encouraged more participation of stakeholders in the drafting process.
Monitoring over 600 satellite TV stations and 6000 satellite radio states, most of them have very
intense comments on drafting of the Constitution and performance of the government.
3) The government wishes to see that progress is made in the Constitution drafting process, particularly
with regards to issues such as political conflict. There should be a new framework for governance
and new rules and regulations. Progress should be made on conflict between political parties. The
two major political parties need internal reform, and need to reconcile and work in the new
framework made by the CDC.
4) Conflicts among political groups and against elected governments must be addressed. Not only do
parties, institutions and courts have power, but citizens themselves have become empowered. They
have created colour-coded groups and are quite dynamic in many regards.
5) It is interesting to see that the Constitution drafters are trying to address reforms for the future in
Thailand. There are eleven reform areas that the government is passing to the CDC and NRC. This
is about social justice. The Thai people have woken up to the new reality that they need more justice,
equal rights and space. These reform areas must address that.
The NCPO, government and Prime Minister so far have not commented on the Constitutional drafting
process. It has been left up to the CDC. Although these drafters were picked by the coup-makers, they are
clearly independent minds. The Thai people themselves will be the adjudicators for whether the Constitution
passes or fails. Thailand has been a democracy since 1932, but it has had a new Prime Minister on average
every three years, 19 Constitutions, and 61 Cabinets. These statistics are nothing to be proud of and Thailand
has a long way to go before it becomes a consolidated democracy. With the new elements included in the
draft Constitution, such as empowerment of the citizens and social justice, hopefully the Thai people will call
politicians to be more responsible for the country.
Assoc. Prof. Siripan Nogsuan Sawasdee
The Constitution Drafting Committee have undertaken their drafting, or ‘crafting’ process with the most
sincere of intentions, however there are some reservations and concerns over current draft. Primarily, there
should be concern that the ‘soul’ and the ‘body’ of this Constitution are contradictory. The ‘soul’ of the
Constitution can be found in Article 3 which says “The sovereign power belongs to the People.” However,
the Constitution’s contents reveals otherwise.
Thailand has had four Constitution changes in the past 18 years, beginning with the 1997 Constitution, the
2007 Constitution, the amended 2011 Constitution and the current interim Constitution. The major reason
for such frequent changes is to counter past experiences, mainly due to a distrust of elected representatives.
Although there is a need to keep politicians’ power checked, there are three pitfalls that may undermine this
Constitution.
1) Unintentional consequences
Prof. Jade described the Mixed Member Proportional system as having an Open-Party list. In
general, there is little wrong with the MMP system which is designed to reflect the view of the
people. The Open-List is designed to counter the manipulation and domination of the party by its
executive. However, to combine those systems together might induce more vote-buying and
patronage. Candidates on the Open-List will be competing against each other within their parties,
meaning that campaigning will be far more candidate oriented.
The draft also states that the half of the Parliament can bring down the government with a vote of
no-confidence. Yet, as stipulated in the draft constitution, a no-confidence motion will not only lead
to the end of the administration but also the termination of the House. In other words, after a vote
of no confidence, the PM will have to resign and dissolve the House of Representatives. In this
context, it is doubtful that the MPs will give a serious censure debate over the Prime Minister
because they will not be so eager to stand for an election so soon.
2) Devaluation of Elections
The problem with a non-MP Prime Minister being elected, as Prof. Jade alluded to earlier, in a ‘time
of crisis’ is by whom and when that ‘time of crisis’ will be defined. That means that the PM does not
need to be elected by the people, but simply picked by two-thirds of the House of Representatives.
The bottom line is that the election will become less meaningful and only a political ritual, which may
prove to be a major problem.
Moreover, the ‘half-selected’ and ‘half-elected’ Senate will cast doubt on the checks-and-balances
system. Although the half-selected do not have consent of the people, they will be empowered with
moral authority.
3) Unaccountability
The draft Constitution aims to transfer power from mistrusted politicians to several independent
commissions. The fundamental and basic question in this institutional design is, “Who will check the
Watchmen?” In this case, the newly established independent commissions such as the National
Ethics Council which has the power for background checks and to set moral standards, who will
have the power to appoint and make them accountable to the people? It is acceptable for the CDC
to try to formulate a way forward for Thailand, but when they reserve positions for their ‘good
people’ there is a problem. A common definition for a ‘good person’ isn’t clear cut or unanimous,
indeed within the CDC and NRA there have been corruption and conflict scandals.
There are two final points for the prospects for the new Constitution. First, there is concern that the
Constitution will not deliver on its purpose of bringing Thais together. So far, there is a sense that the public
is aloof due to ‘reform fatigue’ or due to fear. The public’s exclusion from the process raises ownership and
legitimacy questions that will affect the Constitution’s acceptances. Secondly, Thailand and Thai politics are at
risk of turning back to the pre-1997 era when the Prime Minister was too busy shuffling Cabinets and
political parties were fragmented and weak to offer concrete policies.
With good intentions, people might want to turn the clock back to the time where we feel secure and
comfortable, however, the real time is moving forward. So are the people.
Moderator: The no-confidence provision has been taken out. It will return to the previous system. If
the PM or an MP loses a no-confidence vote they resign and then they can form a new government
with the same lower-house.
Public Question: Two questions about empowerment of citizens. If this is a Constitution which is supposed
to empower citizens, why are citizens not trusted to approve or disapprove of it in a referendum? Second, are
there any provisions in the draft Constitution to strengthen civilian control over the military and to reduce
the military as a political force?
Suchit: The CDC have officially recommended to the government that there be a public referendum on the
final draft of the Constitution. I have heard unofficially that a number of people in the NCPO seem to agree
with the referendum.
Moderator: In the heyday of the late 1980s Prof. Panitan was an advisor to the Prime Minister who
was also doubling as the Defence Minister.
Panitan: This is an ongoing process. It takes a great deal of effort to make a big shift. The economic crisis of
1997 helped reduce about 80,000 personnel and allowed us to close down a number of military operations
overseas, and streamline arms procurement and reshuffling process. Chuan Leekpai was not liked by the
military, and is still not liked to this day. As a result, the Democrat Party are still unpopular among military
ranks. We are now beginning now to look around for expert groups from overseas to begin to talk about this
process. We also need to prepare the military to respond to the emerging challenges in the region associated
with the rise of China and decline of the United States’ presence in Asia. Just this week, the Defence Minister
is in China to discuss defence purchases, there have been meetings top Indian Minister and the Russian Prime
Minister.
Moderator: Will any article like Article 44 be retained in the new Constitution, and under what
conditions could it be invoked?
Jade: We did not directly discuss Article 44 of the Interim Constitution, but we discussed something similar
to Article 16 of the French Constitution regarding emergency powers. In the end we dropped that. So, the
easy answer is “No.”