—Khemthong Tonsakulrungruang, Chulalongkorn University
Thailand is heading toward the first election under the 2017 Constitution on March 24th. It has been eight years since the last valid election. The 2014 Election was invalidated by the Constitutional Court because the anti-government demonstrators successfully blocked voters from entering the voting booths. Shortly afterward, Prayuth Cahn-ocha, the then-Army Commander, staged a coup. His government, known as the National Council of Peace and Order (NCPO), promised a better constitution and long-lasting democracy. However, the 2017 Constitution and the upcoming election are anything but democracy. Instead, the first election under the 2017 Constitution will be a showcase of how constitutionalism can be abused by an unscrupulous autocrat whose real intention is to constitutionalize his authoritarian regime.
Prayuth has total control over the constitution drafting process. He represents the network of conservative minority, most of which can be considered elites in the military, bureaucracy, and judiciary. They clearly oppose the idea of representative democracy, which allows the majority, deemed intellectually and morally inferior, to participate in politics. The drafting process reflected this mentality. Prayuth emphasized not consensus and participation but the trust of expert-guided planning. He handpicked a group of 21 trusted lawyers, academics, and generals to form the Constitution Drafting Commission (CDC) which operated under the NCPO’s supervision. A draft was drawn up with consultation from the NCPO and approved by the National Legislative Assembly (NLA), which, again, was appointed by Prayuth from his network of sympathizers. Thus, the drafting process was a closed system, with severely limited, almost farcical, input from the general public. Although the draft was voted for in the referendum, critics noted that the NCPO intimidated dissenters so badly so that they could not effectively campaign against the draft.
Unsurprisingly, the 2017 Constitution offers one of the most complicated electoral systems an objective of which is to give Prayuth’s party, Phalang Pracha Rath Party (PPRP), an edge over other contestants. The House of Representatives of 500 MPs come from two sources: 350 MPs from constituencies, and 150 from party list. (sec 83&85) Voters cast only one vote which would determine first the MPs from their constituencies. The remaining seats are allocated proportionate to leftover votes. This Mixed Member Apportionment (MMA) system particularly hurts existing large parties. The more MPs they gain from constituencies, the fewer they would get from the party list. MMA is beneficial to smaller, newly created, parties like PPRP which have no chance of winning in a constituency.
Moreover, the CDC devised a special selection process for prime minister (PM). A party must submit up to three PM candidates prior to an election. (sec 159) For the first five years, both the House and the Senate will jointly vote for the PM. (sec 272) Within that same five year period, the 250 senators will come from two sources; 6 are reserved for armed forces and police commanders; and 244 are chosen by a committee from a nationwide pool of applicants. (sec 269) The process is kept from public knowledge. The confidential senate-recruitment committee, again, is headed by Prayuth’s deputy prime minister, his right-hand man who has been embroiled constantly in various corruption scandals, so Prayuth is able to direct the selection. As a result, with 250 senators in his pocket, Prayuth needs to win only another 125 seats to become the next PM. Should the plan fail, for the first five years too, the Parliament may nominate the PM from outside of the candidate list. (sec 272 para 2) The double-nomination design ensures that Prayuth will enjoy the best chance to be a candidate regardless of circumstances. Because the term for a government is four years, the special five years period actually allow the Prayuth-affiliated Senate to vote for a PM for up to eight years.
Ultimately, while the election has yet to arrive, the NCPO, as the government, still enjoys vast power. The 2017 Constitution allows it to exercise dictatorial power to supersede any legislative, executive, administrative, or even judicial power, with absolute impunity. Prayuth has not wasted this opportunity. (sec 279) He authorized the Election Commission (EC), whom the NLA appointed, to gerrymander. The EC then went after rival parties, investigating them for various offences that can lead to dissolution, whereas the EC foot-drags on any accusation that involves PPRP.
Thus, Prayuth looks set to win, constitutionally. Free and fair are subjective but winning an election is real. He may then transform from the traditional dictator, the last of its kind, who rules by brute military force, to join the club of illiberal, yet, constitutional, autocrats. There has been a trend in recent years that a growing number of autocratic leaders amend, or adopt, constitutions that crush their opponents, curb criticism, and perpetuate undemocratic regimes. Hungary, Venezuela, and Columbia are a few examples. Others, such as Cambodia, Turkey, and Russia, abuse the legal means to transgress the democratic spirit.
However, Thailand’s case is unique and the constitutional trick might not work as planned. Other autocratic leaders are able to abuse constitutions as they can convince the majority to support their illiberal agenda to the detriment of rights and liberties and the rule of law. Prayuth is different from his peers because he is so unpopular. PPRP trails far behind other parties, bruised but still withstanding Prayuth’s harassment. In the country where a coup d’etat is so institutionalized, the norm dictates that whoever the Army Commander is at the moment of turmoil will stage a coup. Few have become national heroes but others suffered a decisive loss when they tried to play smart by winning in the electoral arena. Prayuth can coerce a constitution but he cannot force the majority to vote for him, unless he decides to outright cheat the process. But that choice will erode his legitimacy and possible risk a massive public protest that jeopardizes his regime even more. Moreover, Prayuth represents the elite network but he does not own it. King Vajiralongkorn occasionally asserts his power, for example, requesting a post-referendum amendment to the constitution, or suggesting that the EC should not accept his elder sister as the PM candidate. Prayuth is evidently not the real master of this powerful network.
The stake in this election is great as it will determine the fate of Thailand in many years to come. The path can be irreversible. Even if Prayuth loses, the 2017 Constitution will guarantee a rough administration for whichever party that wins. In addition to a complicated electoral process, the Constitution prepares the 20-year national strategic plan and the national reform plan to which the government must be subject. The Constitution also empowers watchdog agencies and the judiciary so the government should expect very hostile scrutiny. Some parties are considering amending the law but a chance of amendment is almost impossible because it requires a consensus.
The contest is tense and the tension is high. Within the region, Thais have witnessed Cambodia succumbing, once again, to the authoritarian Hun Sen. Yet, they also saw the underdog making an electoral miracle in Malaysia. Thais await anxiously for their turn.
Suggested Citation: Khemthong Tonsakulrungruang, Constitutionalizing Autocracy: A General Election Under Thailand’s 20th Constitution, Int’l J. Const. L. Blog, Mar. 16, 2019, at: http://www.iconnectblog.com/2019/03/constitutionalizing-autocracy:-a-general-election-under-thailand’s-20th-constitution