By Andrew Harding, Rawin Leelapatana, and Khemthong Tonsakulrungruang
In 1932 a coup d’etat abolished the absolute monarchy of Thailand and created a constitutional monarchy, for which it is obviously necessary to have a constitution. Since then, over a period of 81 years, Thailand has had 18 constitutions, the latest being the Constitution which came into effect in August 2007 (‘the 2007 Constitution’). Although much progress has been made in the last 20 years in terms of democratic governance, the constitutional stability which Thailand has sought since 1932 has proved surprisingly elusive. The 2007 Constitution was drafted by a National Constitution Drafting Assembly, under the provisions of the Interim Constitution of 2006, which followed a military coup on 19 September 2006 and a Military Decree of that date, which revoked the Constitution of the Kingdom of Thailand 1997 (‘the 1997 Constitution’), and abolished the elected Government of Thailand, the National Assembly, and the Constitutional Court. The elected Prime Minister Thaksin Shinawatra was effectively banished from Thailand, which was governed under the Interim Constitution of 2006 from September 2006 until August 2007. In January 2008 general elections were held under the 2007 Constitution. These resulted in the election of a new Government belonging to the ‘red’ faction, that is, supporters of former Prime Minister Thaksin. Three changes of government occurred during 2008, as a result of which mass protests took place almost continually in Bangkok, leading ultimately to the occupation of part of the city centre of Bangkok by red faction protesters, opposed to the Democratic Party (yellow faction) government of Prime Minister Abhisit Vejjajiva (2009-11). The army dispersed the protesters in May 2010, during which event some 90 persons were killed. Following elections in July 2011 Thaksin’s sister Yingluck Shinawatra, the leader of the Pheu Thai party, became Prime Minister, leading a coalition of red parties.
This is the catalogue of instability which Thailand seeks to put behind it. An additional problem to be confronted is the future role of the monarchy given the present indisposition of the ever-popular King Bhumiphol.
After two years of ‘red’ government, which have seen a welcome comparative normalization of the political landscape, one might reasonably ask whether some kind of political stability has been reached and whether the 2007 Constitution will prove to be the touchstone and basis for constitutional progress. In this piece we explore some of the current constitutional debates and issues with a view to attempting to answer these questions. Will Thailand’s search for ‘perfect paper’ finally achieve success? Has it indeed, in some way, already done so?
2. Lustration and the 2010 Crackdown.
The issue that has consumed most attention since July 2011 is how to move on from the polarized politics of 2005-11. One obvious issue is that the ultimate divisive figure, Thaksin himself, remains out of the country, a wanted man with many legal proceedings ongoing against him, who is nonetheless thought by many to control the government through his sister. Despite being out of power since 2006 his situation remains one of fundamental importance in the search for stability. It is one of many paradoxes in Thailand that the 2006 coup and the violent crackdown of 2010 have resulted ultimately in the restoration of red parties to government.
Reports following Yingluck Shinawatra’s election in July 2011 appeared to indicate that the red shirts and the military reached some kind of rapprochement along the lines of the military and executive powers each agreeing not to interfere with the other. If so, this would make much sense given that military coups (often rumoured) seem no longer to offer much prospect of resolving fundamental constitutional issues; that democratic elections seem to represent an immovable requirement; and that military coups have often been motivated by government interference in military appointments or finances.
This does not of course remove from the table basic issues of accountability. Many people are determined that Thaksin should be held to account for corrupt practices and even for human rights abuses in relation to the southern Muslim insurgency. Many others are equally determined that the military and the former Prime Minister Abhisit Vejjajiva (2009-11) should be held to account for the deaths during the May 2010 crackdown. Prime Minister Yingluck’s solution to this has been to propose an Amnesty Bill that is currently before Parliament; however, following mass protests the bill, although passed in the lower house, was rejected by the Senate with a vote of 141-0. The government has stated its intention not to invoke the lower house’s constitutional power to override the Senate’s rejection of the bill after a lapse of 180 days. This law would have the effect of immunizing Thaksin from legal actions and enable him to return to Thailand; and absolve the military for any blame for what happened during the crackdown. A major issue with the bill is the breadth of its scope, encompassing large numbers of cases of corruption and human rights abuses, and the ambiguity of some of its provisions. The military already enjoys immunity in respect of the coup of 2006 under the terms of the Interim Constitution of 2006, approved by the King in the wake of the coup. In addition a law providing for compensation for the victims of May 2010 or their families has been passed and allows up to one million baht to be paid to them. The supposition of this law is that some actions of the military during the crackdown were indeed unlawful, and this is the effect of a judicial decision. Although many fact-finding committees and independent bodies and even the court of first instance have all ruled that there were soldiers involved in wrongful death and injuries during the crackdown, the Army Commander has always denied such allegations. He has insisted that as long as the court has not delivered its final verdict, his men should be presumed innocent. On 28 October 2013 the Attorney-General decided to press charges of murder against Abhisit and the then Deputy Prime Minister Suthep Thaugsuban.
The Prime Minister’s argument is that for Thailand to move on her proposed amnesty is needed. However, three groups of people are opposed to this. First, those opposed in principle to removing accountability for illegal actions or disputing the breadth of the proposed amnesty; second, those (mainly red faction) who wish to call the military, as well as Abhisit and Suthep, to account; and third, those (mainly yellow faction) who wish to call Thaksin to account. The latter two groups in particular find the proposed amnesty too bitter a pill to swallow. The business community has also come out against an amnesty, fearing that Thailand’s reputation for honest dealing and accountability will be damaged. If legal actions proceed against all possibly guilty parties, the result will likely be, not lustration, but newly intensified divisions. The question can be asked of the bill’s many opponents, protesting in large popular demonstrations in Bangkok during November 2013, what is the alternative? The answer might be an amnesty given only to participants in the conflicts, not to leaders or officials.
3. Constitutional change and the judiciary.
One issue clearly emerging from the 2007 Constitution is that the constitutional court and the judiciary in general is likely to play a key role in Thai politics for many years to come. The judiciary is still the most trusted institution in Thailand, as it has always been. But the Constitution of 2007 put the judiciary in a difficult position in which it has become politically exposed. The judiciary has become more involved in political issues than before, especially in selection of independent watchdog agencies. As many as 63 “Judges Who Love the Motherland” came out in protest against the proposed amnesty. As a result of recent decisions, the judiciary is now deeply implicated n the issue of constitutional change.
From the point of view of the red faction, the 2007 Constitution was, in Thaksin’s own words, the fruit of a poisoned tree. It emanated from a constitution-making process which was less democratic than that which led to the ‘people’s constitution’ of 1997, and was provided under a military-installed government. The red faction does not seem to distinguish between the process and the result of the constitution-making episode of 2007. There are many reasons to suppose that that constitution is evidence of what Ginsburg calls the ‘afterlife’ of the 1997 Constitution, which was highly praised at the time and continues to exercise influence as Thailand’s supposedly best constitution so far. It is also the case – at least in the view of many commentators – that the 2007 constitution improves on that of 1997 in many matters of detail For example, it provides for more reliable independence of the committees that select the members of the various independent ‘watchdog’ agencies, such as the Election Commission, the Anti-Corruption Commission, the Human Rights Commission, and so on. The greater involvement of the judiciary in this process is a case in point. There are also safeguards against corruption which are intended to be more effective, such as the creation of blind trusts for holders of public office. On the other hand the 2007 Constitution has been criticized for rendering the Senate only half elected; this point is taken up below.
The question then becomes whether progress is to be achieved via amendment of the 2007 Constitution, or via a new constitution-making process. Enough has been said above to indicate that in Thailand it seems to be usual that any major changes require the enactment of a new constitution rather than amendment of the old. The problem with this is of course that the legitimacy and efficacy of the very notion of ‘the constitution’ is reduced the more often it is replaced.
In July 2013 the government introduced a bill to amend s.291 of the Constitution, which would have had the effect of amending the constitutional amendment process by creating a drafting committee to draft a new constitution. The Constitutional Court, accepting a petition by a group of nominated senators, indicated that, since the 2007 Constitution was passed via a referendum, a referendum would also be required for any replacement of the Constitution, even though there is no such express requirement in the Constitution. As a result of this decision, the current objective of the government is to introduce piecemeal amendments to the 2007 Constitution.
Accordingly, this process was pursued by the introduction of a bill in October 2013 to amend the constitutional provisions concerning the Senate. This bill would have the effect of requiring all senators to be elected; currently, under a compromise solution provided following the 2006 coup and the 2007 Constitution half of the members are elected and half are appointed. The red faction favours election, whereas the yellow faction favours appointment. The nomination system has the advantages of, first, allowing for the balancing of different interests, including those of minorities; and second, the insulation of the Senate from direct political influence. In this connection, the role of the Senate in protecting the independence of the independent agencies or ‘watchdogs’, as also under the 1997 Constitution, is highly relevant. The election system on the other hand has the advantage of creating accountability and is thought to be more democratic.
In November 2013 the Constitutional Court again pronounced on the issue of constitutional amendment, when it decided on a petition brought by the same group of senators as in the previous case, arguing that the amendment bill was invalid under s.68 of the Constitution, which provides as follows: ‘No person shall exercise the rights and liberties prescribed in the Constitution to overthrow the democratic regime of government with the King as Head of State under this Constitution or to acquire the power to rule the country by any means that is not in accordance with the modes provided in this Constitution’. The petition also sought the dissolution of the Pheu Thai party which dominates the present coalition government. The Court accepted the argument concerning s.68, striking down the amendment bill; but refused to dissolve the Pheu Thai party. The decision involves a very broad and controversial view of s.68 which expands unduly the Court’s jurisdiction. At the time of writing, members of the Pheu Thai party are seeking the impeachment of the judges forming the majority in this decision, and this move has sparked large protests in Bangkok.
Another major issue which will likely be confronted in terms of constitutional changes is the power of the Constitutional Court to dissolve political parties. This power has been invoked in relation to electoral abuses, and involves the dissolution of the party in question and the banning of its officials from politics for five years. This power has proved to be highly problematical, and perhaps one does not need to be a red faction supporter to find it to be open to abuse as well as ineffective in controlling electoral abuses. The problem with this process is that the Constitutional Court is exposed to charges of political preference whichever way they decide; and in practice they have decided consistently against red parties and in favour of yellow parties, despite the fact that electoral abuses are notoriously endemic in Thailand. In addition it is a disproportionate weapon because innocent politicians are punished along with guilty ones, and a party can be dissolved for even the slightest offence. Finally it is ineffective because a new party can be established easily, thus avoiding even the drastic remedy of dissolution. In practice a new party is established, off-stage as it were, even before the old one has been dissolved, this providing a smooth transition. These arguments lead to the conclusion that the power should be removed, but the issue then becomes whether and how it should be replaced.
There are signs that the extreme polarization of 2005-11, which was accompanied by violent and highly confrontational actions, has abated and civil war, seriously contemplated as a possible scenario by some commentators in recent years, has been avoided. Having said that, we have seen that there are highly problematical issues to be resolved; and in a sense the underlying tensions might prove to have been only temporarily reduced rather than dealt with. Still, there appears to be a greater sense of the need to find compromises on constitutional issues such as political party dissolution and the membership of the Senate.
We consider that these tensions are capable of being worked out constitutionally and democratically. Perfect paper will never be achieved but paper on which greater accommodation, and more acceptance of constitutional government, is written – that we think is capable of being achieved.
This post was written at the height of extensive protests in Bangkok, during which protesters seeking to overthrow the government by sheer force of public protest had occupied ministry buildings. Tensions are judged to be increasing once again. In our view it is necessary for all those involved on all sides to respect the law and the Constitution. This is a stance which is essential to resolving the difficulties we have outlined.
 The ‘perfect paper’ referred to here is a reference to the fact that Thailand’s constitutions have all been inscribed on a special paper that is used for religious purposes in Buddhist Wat; and by implication, it is a reference to constitutional perfection. There is, one might well argue, no such thing as perfection in this field of human activity, but the fact that the constitution has been revisited on average once every 4.5 years since 1932 indicates that in Thailand such perfection is thought to be attainable, despite the overwhelming evidence to the contrary.
 ‘Is Thailand’s military compromising for the sake of reconciliation?’, Asian Correspondent, 13 May 2012, http://asiancorrespondent.com/82638/is-thailands-military-compromising-for-the-sake-of-reconciliation/
 See, further, AJ Harding and P Leyland, The Constitutional System of Thailand: A Contextual Analysis (Oxford, Hart Publishing, 2011), ch.1; A Harding and P Leyland, ‘The Color of Thailand’s (Un)Constitutional Reforms: Red, Yellow, or Orange?’, ch.4 of D Linnan (ed), Legitimacy, Legal Development, and Change (Basingstoke, Ashgate, 2012).
 P Leyland, ‘Thailand’s troubled South: Examining the case for devolution from a comparative perspective’, 11:1 Asian Law 1 (2009).
 2007 Constitution, s.148.
 2006 Interim Constitution, s.37.
 2007 Constitution, ss. 231, 243, and 246.
 ‘Judges join opposition to blanket amnesty bid’, Bangkok Post, 6 November 2013.
 Z Elkins, T Ginsburg, and J Melton, The Endurance of National Constitutions (Cambridge, Cambridge University Press 2009) 188-192.
 T Ginsburg, ‘Constitutional afterlife: The continuing impact of Thailand’s postpolitical constitution’ (2009) 7 International Journal of Constitutional Law 83, 84.
 Vitit Muntarbhorn, ‘Deconstructing Thailand’s (new) eighteenth constitution’ (2008) 26 Chulalongkorn Law Journal 39, 41-42.
 Case of the Constitutional Court no. 18-22/2556 (2013).
 Ss.204, 224, 231, 242, 246, 252, 255, 256.
 Constitutional Court, press release 34/2556, 20 November 2013.
 Khemthong Tonsakulrungruang ‘A question on proportionality of political party dissolution under Section 237 of the Constitution’, presented at 9th National Political Science Conference, Bangkok, Thailand, December 2, 2008 (in Thai.)
 E.g. Case of the Constitutional Court no. 12-13/2551 (‘the Cookery Show case’); Case of the Constitutional Court no. 20/2551 (‘the dissolution of the People’s Power Party (Phak Palang Prachachon’) case; the Constitutional Court’s decision on the charter amendment seeking to alter the composition of the Senate on 20 November 2013 (B.E. 2556). See also A Harding and P Leyland,, ‘Constitutional design, electoral process and rebellion in Thailand: An emerging democracy’ 4 Journal of Parliamentary and Political Law 31 (2010).
 ‘Thai political conflict reaches stalemate’, VOA, 14 November 2013, http://www.voanews.com/content/thai-political-conflict-reaches-stalemate/1790064.html
Suggested Citation: Andrew Harding, Rawin Leelapatana, and Khemthong Tonsakulrungruang, Thailand Update: The Search for Perfect Paper Continues, Int’l J. Const. L. Blog, Dec. 2, 2013, available at: http://www.iconnectblog.com/2013/12/thailand-update-the-search-for-perfect-paper-continues/