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Thailand’s Draft Constitution and Referendum: Principles, Stakes, Directions

Thailand’s Draft Constitution and Referendum: Principles, Stakes, Directions

Wednesday, 16th March 2016, 09.00-11.00 a.m.

The Chumbhot-Pantip Conference Room, 4th Floor Prajadhipok-Rambhaibarni Building,
Faculty of Political Science, Chulalongkorn University


Opening Remarks

Assoc. Prof. Dr. Ake Tangsupvattana
Dean, Faculty of Political Science, Chulalongkorn University

Speakers:

Assoc. Prof. Dr. Ake Tangsupvattana
Dean, Faculty of Political Science, Chulalongkorn University
(Note: Due to Prof. Dr. Suchit Bunbongkarn being unable to participate as speaker due to sudden illness,
Assoc. Prof. Dr. Ake Tangsupvattana kindly agreed to replace him as speaker)

H.E. Mr. Norachit Sinhaseni
Former Permanent Secretary

The Ministry of Foreign Affairs of Thailand

Spokesman, Constitution Drafting Commission (CDC)

Assoc. Prof. Dr. Siripan Nogsuan Sawasdee
Chair, Department of Government,

Faculty of Political Science, 
Chulalongkorn University

Moderator: 

Assoc. Prof. Dr. Thitinan Pongsudhirak
Director of ISIS Thailand

Faculty of Political Science, Chulalongkorn University


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Videos: Thailand’s Draft Constitution and Referendum: Principles, Stakes, Directions

Thailand’s Draft Constitution and Referendum: Principles, Stakes, Directions Part 1/2: goo.gl/x2EzCh

Thailand’s Draft Constitution and Referendum: Principles, Stakes, Directions Part 2/2: goo.gl/v3XbLl

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Assoc. Prof. Dr. Ake Tangsupvattana
Dean, Faculty of Political Science, Chulalongkorn University

Thailand has had 19 Constitutions since 1932 – we are trying to come up with number 20 now. On average, there has been a Constitution every 4.3 years. However, when we talk about Constitutions, what we have to think about more is how we have tries to use political structures to try to change the behaviour of the people, and how to influence the relation between political structure and political behaviour.

In the past, Constitutional drafters focussed more on the political structure and used it to force political behaviour of the Thai people. It failed, many times because it was imbalanced. What we have to think about is how to link political structure and political behaviour to be complementary. If the gap between structure and behaviour widens, Thai politics and society will remain in conflict.

Thailand was ruled in 1932-1973 by authoritarian regimes. After 1973-1976, and after, we established a ‘semi-democracy.’ The 1997 Constitution established what we can call ‘firm Parliamentary politics.’ We moved to party politics and departed from military regimes. In the future, will we return to a semi-democracy, or can this Constitution return Thailand to full democracy?

One of the main purposes of this draft is to confront the corruption problem in Thailand. This is one of the great strengths of this Constitution. According to the draft, there are many independent regulatory bodies like the Constitutional Court and the Senate. It seems that these independent regulatory bodies have strong powers not only to regulate, but to some extent control government. How can we arrange the balance between the representatives of the people, and recruit fair regulatory bodies?

Looking at the 1997, 2007 and 2016 Constitutions, we can see that the electoral system changes every time. What is the purpose of changing the system? The change of the system will impact the party system, and if the changing really benefits the people it will be fine. But if not, what will be the situation in the next coming year in Thailand?

After the coup, there was a perception that this Constitution will be a key part of the reconciliation process here in Thailand. If this draft is enacted, can it really help to resolve political conflict and the instances of ‘mob rule’ in Thailand?

 

Thitinan Pongsudhirak: If you draw a trajectory of Thai democracy from 1932, it is very up-and-down. From 1947-1973 was a long period of military dictatorship controlled by two alternating cliques. From 1973-1976 a democratic interval; elections, protests and violence. A backlash from established centres of power hit back in 1976, with hard right-wing rule until 1980. From 1980-1988, Thailand had a stable, semi-democratic rule with one Prime Minister from the Army (Gen. Prem). That was what many think of as the ‘glory period’ for the Thai economy and politics; it was stable, predictable and many of the successes of the Thai economy were established during this period. In 1988-91 the Chart Thai government came into power after an election, but this was a period characterized by corruption. 1991-92 was a coup period. 1992 the coup-makers were kicked out, and until 1997 was an exuberant period of democratic experimentation, particularly with the popular 1997 Constitution. It was organic, driven by public, inclusive and grassroots participation, there were TV programmes and public debates arguing what should be included in the Constitution. The 1997 Constitution worked until it ran into Thaksin Shinawatra. From 2001-2006 there was democratic government but which also came with a lot of abuses. There was a coup in 2006, then in 2007 a new Constitution which shifted power back away from what was ingrained in 1997, but it was not enough to keep the Thaksin party machine away. Eventually, his sister Yingluck was able to find a way to power, which resulted in another coup in 2014. We are now trying to reconfigure the Constitution in a way that regain some semblance of balance and stability for Thailand and Thai politics.

 

H.E. Mr. Norachit Sinhaseni
Former Permanent Secretary
The Ministry of Foreign Affairs of Thailand
Spokesman, Constitution Drafting Commission(CDC)

“Principles, Stakes and Directions.” The principles are clear: How can we bring Thailand back to democracy away from the conflict, confrontation, violence and protest, and, how do we combat corruption? At the same time, we have to give the people the power to select their own representatives.

The stakes are very high. If we succeed, then we have some type of normalcy. If we fail, then the likelihood of more confrontation in society is very high.

Where we stand now: This Constitution has been in the drafting phase since the 6th of October. There are 13 days left for the CDC to present the Constitution to the government, who can then send it onto the National Election Commission.

How are we doing? The CDC has completed its first draft and distributed it on the 29th of January giving people 2.5 weeks to present their views, comments, proposals and amendments. Many have done so; the government, the “Four Rivers,” political parties, civil society and people. The CDC have studied these amendments seriously and carefully. We have tried to take these suggestions into account, especially the suggestions from the people, public and NGOs, however not everyone will be pleased with the final product.

The 1997 Constitution broke new ground, it enshrined rights and freedoms to the people for the first time. The 2007 Constitution also included new rights. So when the drafting process of the new Constitution begun, ensuring rights and freedoms for the people again was a priority. The Constitution also framed rights as being a duty for the state to ensure they are met and protected, which ultimately ended up being controversial in society because it was a new notion.

Another controversial issue was over how MPs and Senators are selected. Anecdotally, once the CDC toured throughout the country explaining the election process clearly, most people found it acceptable. In reality, it is the political parties which have a problem with the process – they argue that the new Constitution is trying to take away the people’s right to select their own candidate. However, the CDC is just trying to change the way that people vote in order to create a fairer outcome and to ensure every vote is counted. Every vote that goes to the major political parties will still translate into the number of MPs that will represent them in the Parliament.

Final discussions on the chapter on “Reform” have just been completed. The NCPO had previously outlined provisions explaining the reforms which had to be addressed, however on the issues of Education and Justice, the CDC was asked to come up with a separate chapter.

In the CDC view, all views, objections, concerns and amendments proposed by the people, MPs, and Civil Society and NGOs have been taken into account. What has not been changed is the CDC’s position views on the political and electoral system, and the Senate and House.  

What has been happening in the past few days? On the 13th of March, the “Four Rivers” presented a list of recommendations on “transition provisions” to the CDC. It was not released until the 16th of March. These included:

1)      Senators. In the CDC draft, there will be 200 Senators elected from 20 different groups in to represent all of Thai society. The list of recommendations from the “Four Rivers” proposed that for the first five years after the Constitution is promulgated, the Senators (increased to 250) will have to go through a selection committee, with the full details to be worked out in the future. It is basically a proposal that the 250 Senators should be appointed for a period of five years.

2)      MPs. What the CDC has proposed is a mixed system where if any candidate wins the majority of the vote in their electorate, they are still elected to be MPs. The votes of each candidate is put into a nationwide pool and distributed back to their parties; if your number of MPs already does not meet the percentage of the votes you receive, then the party is given additional ‘party-list MPs’ in Parliament. However, the counter-proposal contained in the letter from the “Four Rivers” suggests that for the first five years there be a transition provision which reverts back to the old system. The people will go to the polling booth and select their MPs, and be able to votes for a single candidate only.

3)      The issue of the Prime Minister: In the CDC draft, the party with the most seats in the House will be able to form government, but the party should let the public know the likely Prime Ministerial candidate(s) before the election. The “Four Rivers” have suggested that this plan might not be appropriate at this point in time.

 The referendum may take place on the 31st of July or 7th of August (unofficial). If it passes, there will should be another 6-8 months taken to draft 10 more laws; those concerning elections of Members of Parliament, selections of Senators, political party law, the laws governing the Auditor General, the Ombudsman, and procedures of the Constitutional Tribunal. Then, within that timeframe, the general election can take place. If the draft does not pass the election, then the current CDC is ‘off the hook.’

 

Assoc. Prof. Dr. Siripan Nogsuan Sawasdee
Chair, Department of Government,
Faculty of Political Science, Chulalongkorn University

At present, the Thai public cannot speak outright on the Constitution or politics without certain reservations. If this current draft Constitution is implemented, it will create another round of political crisis.

The draft Constitution, instead of resting upon the idea of popular sovereignty, it creates the possibility that the power to choose the government and the Prime Minister might be in the hands of medium sized political parties that did not win the election. The Prime Minister could also be a non-elected MP. In other words, an outsider.

Under the Mixed Member Apportionment system, there would be 350 constituency seats and 150 party list seats. The process of how these representatives will be elected to Parliament is complex, and may produce illogical outcomes. The impact of this system will be to create greater vote buying, as parties’ electoral strategies will become more candidate-oriented rather than policy oriented and parties are likely to recruit well-known celebrity candidates under their umbrella.

The new system proposed by the CDC gives fewer choices for people to express their vote. The vote for the constituency candidate will automatically go towards the party list. It means that voters will no longer be able to choose a local representative and political party which are different. Moreover, the draft Constitution requests that the party nominate three names for the Prime Ministership, who could be outsiders or unelected. People will feel like they have no power to choose who will be their Prime Minister at the next election.

Based on the draft, there will be 200 Senators coming from 20 professional groups, most of which are likely to be former bureaucrats and technocrats. They will be elected among themselves, not by the people. This is contradictory to the principle of popular sovereignty. But the more critical point is on the NCPO’s recommendations that the Senate be chosen by a Selection Committee composed of about 8-10 members (former political leaders and officers). If the Senate is not democratically elected, its legitimacy will be limited (like the House of Lords in the UK). However, the NCPO has suggested that the Senate be appointed with excessive powers to pass a vote of no confidence, and the right to supervise the executive branch. In Thailand’s history, there have been examples of problems which have arisen as a result of dissatisfaction with political systems with appointed MPs.

Power should be a check to power. A major weak point of the Constitution is the lack of checks and balances. Article 207 of the draft Constitution grants emergency powers to the Constitutional Court. This is beyond what should be the power of the Judiciary as it grants the Constitutional Court the ability to write its own laws as it sees fit. However, what happens if the actions or verdicts of the Constitutional Court are not deemed as acceptable by the public at large? This is an extremely sensitive issue.

People’s voices are constrained under this draft. There is particular concern that the term “human dignity,” which was included in the 1997 and 2007 Constitutions under Article 4, has now been demoted to Article 26. This is only one of many essential articles which have been removed, reinterpreted or replaced, but is the most essential. Hopefully the CDC, as they promised, will re-enshrine the rights and dignity of the people into the next draft of the Constitution.  

If this Constitution passes the referendum, it will create a “duality of Supreme Laws,” meaning that there will be a new 2016 Constitution, but supreme law will also exist under Article 44. Thailand will have two concurrent Supreme Laws for about 15 months. In this context, the significance of passing the referendum will be greatly reduced.

The 2007 referendum was the first time Thailand conducted a referendum to decide on a Constitution. At the time, the ‘Vote No’ supporters were not allowed to campaign. This time, both ‘Yes’ and ‘No’ supporters have to register with the Electoral Commission, but hopefully there will be equal opportunities for both sets of supporters to run their campaigns without intimidation or censorship. International standards should be observed and applied: free, fair and transparent elections. Thailand is at risk of de-democratisation moving down an authoritarian path. A vote against the current draft Constitution in a referendum might be interpreted as a vote against the NCPO and military.

If we think that the political contest in Thailand is about democracy, we are fooling ourselves. It is about whether the elite minority can retain their top position with minor resistance. If the draft Constitution passes the referendum, Thailand’s democratic movement will remain in a deep sleep for a very long time.

 

Moderator: In 1997 it was very straightforward. You have two votes, one for your favourite candidate and one for the party you like. 400:100.

2007, they changed it a little bit. 400 constituency seats and 80 on the party list. That actually favoured the Democrats, which almost levelled the People’s Power Party. 

This time, you only get one ballot, and the split is 350:150. You go vote for your MP, but in doing so you are also voting for the party list – the vote will go into the overall count, and the party list is apportioned to your vote. However, the way it is designed is that the more candidate seats the party wins, they will get relatively fewer party list seats – it is an inverse relationship and a self-regulating mechanism.

In the past week or so, with these proposals from the “Four Rivers” and the NCPO, what do they have in mind?

Norachit: In short, the voices of concern have been heard. The security blanket is back. Article 207 is no longer there, it has already been amended. Initially, it was an attempt by the CDC to recognise that there have been Constitutional crises in the past and that perhaps a Constitutional Court intervention is better than a military coup. The law has been re-written to be more clear on the limits of power in the event of a political deadlock.

Human dignity is back in Article 7.

Public Question: In what form can it be shot down? And, in the referendum if it is shot down, then what is next?

Public Question: In the coming days, the CDC has the final codification of the draft?

Norachit: If the CDC were to accept all of the three main “Four Rivers” proposals, then we could proceed quickly to the referendum and it won’t be shot down. If the CDC do not accept, then some form of bargaining may take place.

If the Constitution is shot down by the referendum, then all 21 members of the CDC will be out of their jobs. Then, the present government could pick any draft they wish, amend it as they wish, then promulgate it – so be careful what you wish for.

Moderator: If the referendum fails, and the government picks any draft Constitution they want, can they amend it before it is promulgated?

Norachit: It is not written anywhere. They could write a brand new one now if they want to. That is the risk.

Public Question: If referendum is held, will the Constitution come into effect immediately or at a later time? Then would there be a situation where there is a new Constitution and Interim Constitution being in place concurrently?

Norachit: The Constitution comes into force after it is submitted to His Majesty the King for his signature. My understanding is that when that Constitution comes into force, the interim Constitution which includes Article 44 is no longer in force.

Moderator: All Thai laws take effect only when they are published in the Royal Gazette.

Public Question: Constitutional amendments in Article 253.

Norachit: A lot of criticism has been directed towards Article 253, particularly that all political parties with MPs more than 5% need to agree on Constitutional change. If something is such an important issue that you cannot find consensus among the parties, then something must be amiss. If a party has at least 10 members, the voices should be heard. The flipside is that a small number of MPs may have veto power – we have accepted that criticism and made some amendments.

Siripan: Article 253 also requires the Senate approval for Constitutional amendment, and the Senate is not elected directly by the people.

Norachit: This issue of Senators being elected by the people: you can see this as infringing people’s rights, but in the past Senators were also appointed. There was a beat up from the press saying that all Senators will be wives, daughters, sons of political parties. However, we have made provisions to avoid this problem.

Public Question: The Rights chapter. This is the first time a ‘conditionality’ clause for rights when compared to the 2007 and 1997 Constitution. What was the background and why did the CDC believe it was important to add a conditionality clause to the rights chapter?

Public Question: What will be the powers of the Senate in relation to legislation and budget?

Norachit: The rights and freedoms of the Thai people are not restricted anywhere, but the usage of such rights should not be to the detriment of the state. The peace and morals of the people should not impede the rights and freedoms of others. This is something we debated, but looking at previous crises in Thailand, people have exercised their grievances on the streets, at Government House, at the airport which has been a security issue and impeded on others’ rights.

The Senate has the power to approve laws that have been presented by the House of Representative. What we have added is that they will have the power to approve the selection of the important independent bodies, but not dismiss people (unlike previous Constitutions). The proposal from the NCPO and Four Rivers is that the Senators will have equal power as the House of Representatives to call for a vote of no confidence against the government (this has not yet been approved).

Siripan: It is not that we are looking at the same rights as the previous Constitution, it is the context upon which it is written that is important, particularly if it is intended to have a different meaning, impact or implications.

Moderator: If you look at the trajectory of Thai politics it is very topsy-turvy, largely because of contested Constitutionalism. Previous Constitutions culminated with the 1997 Constitution, but obviously we saw that it led to problems and crises. The 2007 Constitution was a reaction to that. Now again, we have another reaction. We are still in search of a Constitutional balance which can only come as a function of political balance among institutions, power holders and movers-and-shakers. Once they have some kind of common understanding, then I think we can draw up a balanced Constitution. But until then, we will still remain in search for that document.

 

 

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