SPEAKING
FREELY Constitution at the heart of Thai
coup By Erik Martinez Kuhonta
Speaking Freely is an Asia Times
Online feature that allows guest writers to have
their say. Please click hereif you are interested in
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Thailand's September
19 military coup d'etat that overthrew prime
minister Thaksin Shinawatra had its origins in the
1997 constitution, which was meant to strengthen
the country's
democratic institutions. The
constitution, heralded as the most democratic in
the country's history, ironically helped Thaksin
rule in an autocratic manner.
It in effect
allowed him to tighten his control over his
coalition and the parliamentary opposition,
thereby solidifying his monopoly on power. Despite
numerous efforts to weaken the government through
parliamentary procedures, the opposition was
impotent. As a result, civil society took to the
streets to challenge Thaksin. But this move also
failed to provide any concrete change. Many
continued to point to the need for constitutional
reform as the only way of dislodging Thaksin.
Indeed, one of the first steps of the coup
group was to dissolve the progressive 1997
constitution upon seizing power on the night of
September 19. The aim of the previous charter was
to create a solid check-and-balance system
underpinned by strong institutions that would in
effect end two pathologies in the Thai political
system: the history of bureaucratic-authoritarian
dominance and the cycle of corrupt, provincial
politicians exploiting the state for personal
interests.
Although the immediate catalyst
for the new constitution was the 1991 military
coup and the subsequent 1992 bloody crackdown on
pro-democracy demonstrators, the real focus of
reform, particularly in terms of
institution-building and checks and balances, was
aimed at the provincial politicians, whom many had
blamed for creating the conditions for a military
coup in the first place.
The 1997
constitution created numerous rules and
institutions that were intended to give the
government greater stability and staying power.
Some of the most critical included the separation
between the executive and the legislature. For
instance, the constitution prohibited a cabinet
member from remaining a member of parliament (MP)
to reduce his chance of using his cabinet seat for
funneling patronage to his faction. This made
cabinet members more beholden to the prime
minister than to his or her faction. A cabinet
member dissenting against the prime minister could
be dismissed from the political scene without a
parliamentary seat to rely on for backing.
Another critical rule meant to buttress
the executive over the legislature was the 90-day
rule. This rule required a candidate for the Lower
House to be a member of a political party for at
least 90 days prior to the next election. A
perennial problem of governments in Thailand had
been the constant party-hopping prior to a new
election, as factions searched for more lucrative
political opportunities. Now any faction that
sought to jump ship ran the risk of being
disqualified if the prime minister called a snap
election soon after it abandoned the coalition.
The 90-day rule thus provided the prime minister
with a disciplining tool that severely constrained
MPs in their actions. It ensured that the
governing coalition would remain intact, shielding
it from poaching by other parties.
Other
rules instituted to protect the smooth functioning
of the executive included the rule for
no-confidence debates. Two hundred members -
two-fifths of the House - were now necessary to
launch a censure motion against the prime
minister, while one-fifth of the House would be
required to censure a cabinet minister.
Furthermore, no-confidence motions by the
opposition were limited to one per year. In the
past, no-confidence debates were launched simply
to embarrass the government without a solid
justification.
The net result of these
changes in the constitution has been to strengthen
the hand of the executive against the legislature.
In effect, Thaksin had been able to rule without
much dissent within his grand coalition or without
much of a challenge from the parliamentary
opposition. While in the past rebellious factions
had led to the collapse of parliament, this time
the governing coalition held on despite a crisis
that polarized much of the country. The
parliamentary opposition led by the Democrat Party
had also been unable to shift the balance of power
because it lacked the votes to launch censure
motions against the prime minister. With only 97
seats in Thaksin's second term, the Democrat Party
was incapable of launching censure motions even
against cabinet members.
Street
democracy As a consequence, the only avenue
left for challenging the government was the
street. Led by Sondhi Limthongkul, a media mogul
whose television show was pulled off the air after
he began criticizing Thaksin, civil-society groups
staged numerous rallies throughout Bangkok.
Several of these rallies numbered more than
100,000. Yet despite mass mobilization, Thaksin
remained firmly in charge.
Thaksin's
gamble to hold an election this April 2 to
re-establish his legitimacy backfired when the
opposition parties led by the Democrats decided to
boycott the election. Although Thaksin's Thai Rak
Thai party won the election, some 12 million
people used a ballot provision to vote for none of
the candidates or else spoiled their ballots. As
Thailand became more polarized, His Majesty King
Bhumibol Adulyadej stepped in on April 26 and
called on the courts to rectify the situation. A
week later, the Constitutional Court voided the
April election. With a new election scheduled for
October, where Thaksin looked likely to win once
again and thereby reignite the middle-class
rallies on Bangkok's streets, it is not surprising
that the military decided to take action. Most
telling, in the early hours of the coup was a
statement by the generals calling for the
immediate annulment of the constitution as well as
the dissolution of the Constitutional Court and
its replacement with a Constitutional Tribunal
made up entirely of justices. The coup group, now
renamed the Council on National Security,
subsequently promulgated an interim constitution
with the advice of former conservative senator
Meechai Ruchuphan, who had likewise drawn up the
charter for the 1991 coup. Meechai was assisted in
drafting the interim constitution by two former
members of Thaksin's administration: Bowornsak
Uwanno and Wissanu Krea-ngam. Significantly,
perhaps, Bowornsak had been one of the architects
of the 1997 constitution.
The interim
constitution ensures that the military will
continue to dominate the civilian government. It
grants the Council on National Security the
authority to appoint the chairman and vice
chairman of the National Legislative Assembly
(which replaces parliament) and the right to
dismiss the prime minister. More critically, the
interim constitution gives the generals the power
to select the members of the Constitution Drafting
Assembly (CDA) - the body that will draft the
permanent constitution.
The process for
the drafting of the new constitution will be an
elaborate affair that will take about nine months
to complete. First, the ruling council will
appoint 2,000 members to a National Assembly. Most
of these individuals will come from the ranks of
the bureaucracy and academia. From there, the
National Assembly will nominate 200 of its own
members to the CDA.
The council will then
pick 100 of these members to form the CDA.
Thirty-five members will then be chosen to form
the Constitution Drafting Committee - the main
body that will write the new constitution. Ten
members of the committee will be hand-picked by
the Council on National Security and can come from
inside or outside the CDA.
The interim
constitution under the Council on National
Security is a completely top-down affair. All the
members of the CDA are appointed by the council
and little room is given for public consultation.
The only gesture toward some democratic input is
the decision to expose the new constitution to the
public for 30 days and then put it to a national
referendum. But if the new permanent charter is
not approved by the public, the council reserves
the right to revise a previous constitution and
then enforce it as Thailand's permanent
constitution.
Despite all the failures of
the 1997 constitution, one of its greatest
achievements was its effort to consult with the
public. The drafters of the 1997 "People's
Constitution" hosted numerous public seminars and
ran surveys to get the input of civil society. The
interim constitution indicates no similar effort
to involve the public. Given the authoritarian
manner in which the new constitution will be
drafted, it is by no means clear whether
constitutional reform will lead to a more robust
democracy.
If the new constitution does
indeed usher in greater accountability and
stronger checks and balances, then Thais will most
likely agree that the ends justify the means. But
if the new constitution does not strengthen
democratic institutions, the middle class will be
hard to convince that a military coup is
preferable to an elected autocrat.
Erik Martinez Kuhonta is an
assistant professor of political science at McGill
University. He is a specialist on Thai politics
and has been published in several academic
journals.
(Copyright 2006 Erik
Martinez Kuhonta.)
Speaking Freely
is an Asia Times Online feature that allows guest
writers to have their say. Please click hereif you are interested in
contributing.
