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Thai Constitutional Crafting 2015: Premises, Pitfalls, Prospects

“Thai Constitutional Crafting 2015: Premises, Pitfalls, Prospects”

Thursday, 9th April 2015

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

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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, Chulalomgkorn University;
Deputy Chairman and Member o0f 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

 

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Power Point Presentation

Dr. Thawilwadee Bureekul: goo.gl/YZIMe5 

..................................................................................................................................................................

Videos: Thai Constitutional Crafting 2015: Premises, Pitfalls, Prospects 

Thai Constitutional Crafting 2015: Premises, Pitfalls, Prospects 1/3: www.youtube.com/watch

Thai Constitutional Crafting 2015: Premises, Pitfalls, Prospects 2/3: www.youtube.com/watch

Thai Constitutional Crafting 2015: Premises, Pitfalls, Prospects 3/3: www.youtube.com/watch

 

If you wish more detailed information concerning this seminar please click 
http://www.facebook.com/ISISThailand

................................................................................................................................................................... 

 

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
anti-corruption 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.” 

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