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A Public Forum on “200 Years of the Norwegian Constitution: Reflections on Thai Constitutionalism”

 

A Public Forum on “200 Years of the Norwegian Constitution:
Reflections on Thai Constitutionalism”

Monday, 20th May 2014 at 8.30-11.30 a.m.

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

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

Program

08.30 – 09.00 a.m.                  Registration and Coffee

09.00 – 09.20 a.m.                  Opening Remarks

                                                 H.E. Ms. Katja Christina Nordgaard
                                                 Norwegian Ambassador to Thailand

 09.20 – 10.50 a.m.                 Speakers:

                                                Prof. Dr. Stein Tønnesson
                                                Director, The Norwegian Institute for Peace Research (PRIO)

                                                Prof. Dr. Charas Suwanmala
                                                Former Drafter of Thai Constitution
                                                Former Dean of Faculty of Political Science, Chulalongkorn University

                                                Dr. Michael H. Nelson
                                                Head of the Master of Arts Program
                                                Southeast Asian Studies, School of Liberal Arts
                                                Walailak University, Nakorn Si Thammarat

                                                Assist. Prof. Dr. Pitch Pongsawat
                                                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

10.50 – 11.30 a.m.                 Open Forum

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

Videos: 200 Years of the Norwegian Constitution: Reflections on Thai Constitutionalism

200 Years of the Norwegian Constitution: Reflections on Thai Constitutionalism 1/3: 
www.youtube.com/watch

200 Years of the Norwegian Constitution: Reflections on Thai Constitutionalism 2/3: 
www.youtube.com/watch

200 Years of the Norwegian Constitution: Reflections on Thai Constitutionalism 3/3: 
www.youtube.com/watch

 

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

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

 

Moderator: Thitinan Pongsudhirak

In the midst of ongoing protests, controversial court decisions and entrenched political crisis, these kinds of forums can create a space where debate can occur and ideas can be shared. Hopefully the experiences of Norway’s 200 years of Constitutionalism can provide some guidance for Thailand going forward.

 

Welcome Remarks: HE Katja Nordgaard, Norwegian Ambassador to Thailand

Ambassador Katja Nordgaard noted that the celebrations of the 200th Anniversary of Norway’s Constitution have coincided with increased questions over the future of the Thai Constitution, so sharing observations on both political systems is timely and important.

Ambassador Katja explained that the 17 May 1814 Constitution, now one of the oldest in the world, laid the foundation for democracy in Norway. For Norwegians, It is now a unifying symbol of freedom, independence and democracy, based on equality and solidarity. It enshrined beliefs such as the serenity of the people, separation of powers and civil liberties such as freedom of speech, right to assembly and rule of law, which were radical ideas at the time. 

Norway’s recent prosperity can in large part be attributed to the success of its Constitution in enshrining fundamental rights. Norway now has a long tradition of good government, consensus and compromise. It has high standards of living and productivity, and access to free education. Gender equality is promoted, women are encouraged to take part in the production process and children of working parents are cared for. There is strong rule of law, for businesses and private persons, as well as a proud Norwegian culture. It has a decentralized government and there is a high degree of income distribution among the regions.  Even Norway’s royal household is held accountable and must publish its expenses. Norway has found the middle way between capitalism and socialism.

 

Prof. Dr. Stein Tønnesson

Prof. Tønnesson first gave a picture of the scale of the 17 May 2014 celebrations. The high regard in which Norwegians hold their Constitution was embodied in the excitement and jubilation of people of all ages and backgrounds that he witnessed celebrating in parades and in schools.

Prof. Tønnesson described the progression towards Norway’s “Constitutional moment” in 1814. The adoption of the Constitution was borne out of the political instability which had enveloped Europe in the early part of the 19th Century. Sweden had selected a new Crown Prince, Jean Bernadotte (Later, Carl Johan, King of Sweden), a French soldier (Marshall of France). Once he became King, he moved swiftly to annex Norway from Denmark in January of 1814. Out of this formed the Norwegian Rebellion centered in Eidsvoll, who hoping to secure their nationality now that they were part of Sweden, worked together to produce the Norwegian Constitution, adopted on 17 May 1814. Carl Johan, the new Swedish King, accepted this new and relatively radical Norwegian Constitution.

Out of the 200 constitutions which were in force in 1814, the Norwegian Constitution in only one of two which has survived (along with the United States Constitution). Why has the Norwegian Constitution been so durable and successful when so many others fail? Most Constitutions are written during a time of emergency. They are written by one faction that is fighting another faction, and imposed by the winning side. Therefore, for a large section of society, the Constitution is seen as illegitimate. Constitutions that are likely to survive are those made by a coalition, such as in Norway. They were drawn together in a national rebellion against being ceded to Sweden, and thus the Constitution acted as a uniting force. The Constitution was also radical for its time in that it employed the principles of popular sovereignty and the division of power. Norway had very little nobility which is part of an egalitarianism which has allowed the Constitution to succeed.

The Norwegian Constitution has been around for so long, so it is not owned by a single party and it is very well known. People understand how the Constitution works and how to work within its parameters. It has, however, been flexible when necessary, such as the inclusion of franchise for all males in 1898 and universal suffrage including women in 1913.

The key is that Constitutions which are imposed on one side by another are almost certain to fail. To be successful, they must be made with the input of all sides of the political spectrum to act as a unifying force in throughout the country.

Dr. Thitinan reflected on the Thai experience where most of the 18 Thai Constitutions have been written against something, for example the 1997 Constitution was written to remove the scourge of money politics from the political system while the 2007 Constitution was written in the backdrop of Thaksin Shinawatra. Thailand hasn’t had the opportunity to write an inclusive Constitution which promotes unity in the country.

 

Assist. Prof. Dr. Pitch Pongsawat

Dr. Pitch Pongsawat first noted that unlike in Norway, Thailand has not yet found an ideal balance between the people, the Monarchy and the Constitution. He observed that Norway’s Constitution celebrations are absent from military presence, while the Constitution Day is also the National Day of Norway (whereas in Thailand it was the Revolution Day, later changed to the King’s Birthday). This shows the sanctity and importance of the Constitution in Norway.

Dr. Pongsawat also talked about the current political predicament and the issue with the Constitution. Thaksin rose to power under the 1997 Constitution and delivered on his promises to the electorate, but his brand of populism clashed with corruption and neoliberalism. Thus, the 2007 Constitution was drawn in-part to root out that kind of corrupt politics. However, now Suthep, the PDRC and the Senate are trying to reform that Constitution while the Red Shirts are defending it. This represents a complete U-Turn in Thai politics.

Now there is also a legitimacy crisis in Thailand. The Constitution is no longer the sole source of legitimacy. The Constitutional Court banned Yingluck and 9 Cabinet members, meaning that the remaining Cabinet members can continue to work within the Constitution. Yet, the anti-government protesters still claim that which Constitutional they lack legitimacy.  The Constitution and Constitution Court are no longer the source of legitimacy in Thailand.

 

Dr. Michael H. Nelson

Dr. Nelson began by noting his position as a neutral third party to this debate. Reflecting on Dr. Tønnesson’s observations, he explained that the German Constitution was drafted in an emergency situation after WWII, but it was drafted with friends overseas and was decidedly a collective effort to try to come up with a viable constitutional framework for future German politics. This has been a very durable constitution since 1949, albeit with a few changes over the years.

On May 7 2014 the Constitutional Court decided that PM Yingluck must leave office as she had unduly interfered in the role of permanent paid government officials. In previous years, this method has been used to justify a military coup d'état. Dr. Nelson noted that Article 3 of the Constitution states that the power belongs to the people. During the 2011 elections some 27 million people exercised their power either voting for the Prime Minister or against her. In 2014, those 27 million votes were invalidated by a handful of judges in the Constitutional Court.

What we are seeing in Thailand is a Constitutional contestation between the people and the old entrenched powers. Looking at the 2007 Constitution we can see that the power of the people (in academia, CSOs, or general electorate) has been diminished in comparison to the 1997 Constitution. This is a manifestation of the continual contest between electoral and appointed power in Thailand’s political system. At the moment, successful push towards effective constitutionalism in Thailand remains a goal, rather a reality, in the future of Thailand.

 

Prof. Dr. Charas Suwanmala

Aj. Charas explained the four main areas of Thai politics that the PDRC is hoping to reform. The process for these reforms are not detailed as they have not yet been finalized, however one prerequisite is that the reforms must come before elections. Aj. Charas emphasized that this does not mean the PDRC is against elections or democracy, but they believe that if elections come first the same vicious cycle of political brinkmanship will start over again.

1)      Electoral reform. They want to prevent the populist policies from dominating the electoral cycle like they have for the past 10 years. In addition, political party reform is necessary in order to prevent political parties from being dominated by money politics. The PDRC would also like to install a kind of pre-election ‘primary system’ so that the process of selecting candidates can be more transparent and democratic. Finally, they would like to eradicate the practice of vote buying from Thai elections. 

2)      Decentralization. A major aim is to have elected governors in the provinces around the nation. They advocate self-governing provinces in local areas, with financial autonomy. Citizens see their votes leading to real change in their local communities.

3)      Corruption. The PDRC wants to end corruption in all levels of politics and society. Corruption has a very big network and a large footprint in Thai society. The bureaucracy, businesses, politicians and society need long-term reform to eradicate corruption.

4)      Social disparity. They aim to reduce the gap between rich and poor by reshaping resource management, enact land reform, have community land ownership, and improve the rights of the agricultural sector.

Aj. Charas used the metaphor that the Constitution is the machine which runs politics in Thailand, however, the PDRC believe that if the machine is not working then they must find a way to fix it. The problem in Thailand is that the machine has been corrupted by the operator, so in order to get things running smoothly the operator must also be removed. To do this more fair checks and balances must be implemented and trust be built in the political system again.

 

 

In Thailand the Constitutional Court has the power to remove the government from office over a seemingly frivolous charge. So, how does the role of the Constitutional Court in Thailand compare with other countries?

Assist. Prof. Dr. Pitch Ponsawat: The Constitutional Court is a new trend in democracy for many countries. It is a mechanism which is usually aimed at countering extreme majority rule. However, in Thailand the opposite is true as it is the minority who are using the Constitutional Court for minority rule. This is a major challenge and debate for democracy in Thailand.

Problems arise when the Constitutional Court abuses their power. They must make sure that fair interpretation of the law is the guiding principle behind their judgments, otherwise the Constitution will lose its legitimacy. This is what has happened in Thailand; not every group obeys the Constitution because perceived double standards over its enforcement. Each side ends up blaming the other for ignoring the Constitution.

Dr. Michael H. Nelson:

In Thailand, there is a peculiar connection between verdicts in the Constitutional Court and punishment. In most countries, if the government violates the Constitution, this is undone by the Constitutional Court’s verdict but the government will not be severely punished. They simply need to go back to the drafting phase of the legislation or decision and ensure they do not contravene the Constitution again.

Prof. Dr. Stein Tønnesson

In Norway this is part of the job of the Supreme Court. Dismissing the Prime Minister or the government would be seen as unthinkable. If the government wanted amend the Constitution, it would not be unconstitutional. But if they tried to do it without the 2/3 majority would be! There is a clear process outlined if the government would like to amend the Constitution.

Assoc. Prof. Dr. Thitinan Pongsudhirak

Constitutionalism in Thailand remains stuck between a rock and a hard place. If we went only with majority rule – such as with the Amnesty Bill last November – it would pass but may lead to manipulation by the majority. On the flipside, an appointed minority lacks a popular mandate to overturn decisions or dismiss the government. Finding the balance between the two is the new challenge for Thailand.

 

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