Chaos, Kings, and Thailand’s 20th Constitution

—Khemthong Tonsakulrungruang, Chulalongkorn University

After three years, three commissions, and millions of Baht spent, Thailand’s 20^th Constitution finally came into effect. On the 6^th day of April 2017, King Vajiralongkorn signed the Constitution in presence of the royal family members, courtiers, the cabinet, members of the National Legislative Assembly (NLA), judges, diplomats, and other bureaucrats at the Ananta Samakhom Throne Hall. The drafters claim the charter shall bring the country perpetual prosperity and peace while opponents warn of its upcoming failure. Given controversies surrounding the document, this post sets out to trace its drafting history, discuss the meaning of the signing ceremony, and speculate the future of Thai politics.

Chaotic Drafting

General Prayuth Chan-ocha, the army chief and leader of the National Council of Peace and Order (NCPO), staged a coup in May 2014, abolishing the 2007 Constitution and replacing it with the 2014 Interim Charter. The NCPO then created the Constitution Drafting Commission (CDC) which was chaired by Borwornsak Uwanno, the famed constitutional law professor, and consisted of conservative-leaning figures from the anti-Thaksin fraction.[1] This move was consistent with the past norm that a junta-backed commission would prepare a new constitution and hold an election so the military could return to the barrack. The 2006 junta took only 16 months to introduce the 2007 constitution. No one expected this round to last much longer. However, the seemingly easy task turned disastrous when, in August 2015, the NCPO decided to reject the draft due to its highly unpopular “Crisis Panel” which would serve as the politburo in time of national emergency.[2] Ironically, the NCPO forced Borwornsak to introduce this mechanism against his exact fear that it would trigger popular opposition.

The rejection of Borwornsak’s draft brought the first delay to the drafting process. The NCPO amended the Interim Charter to allow the second drafting. Prayuth approached Meechai Ruchupan, the aged civil servant known for serving in several authoritarian regimes. While Borwornsak was an idealistic scholar, Meechai was a practical technician. He abandoned moralism for which Borwornsak was criticised.[3] His constitution draft was blunter in style, not concealing the NCPO’s desire to entrench its presence and manipulated post-coup politics. The draft showed disdain of electoral politics, imposing disproportionately harsh punishment upon politicians while cherishing the judiciary and other unelected watchdog bodies. Meechai’s constitution draft won the national referendum in August 2016 with a considerable margin. The 2015 delay embarrassed the NCPO but this extra year permitted the junta to effectively silence dissidents and won the referendum with ease.

However, the referendum asked not only for an approval of the draft, it also contained one tricky additional question: in the first 5 years, should the first parliament under this constitution be allowed to choose an appropriate person to be the prime minister in order to execute the national reform plan. In other word, could the Parliament select a non-MP the first PM? The public approved so, therefore, the CDC revised the draft accordingly. A dispute between the CDC and the NLA arose whether the Senate was able to propose PM candidates. The dispute had serious implication on Thai politics for the first Senate under the 2017 Constitution was designed to be the NCPO’s successor. Many junta-handpicked NLA members expressed interest in becoming senators. Seats were also reserved for commanders of the armed forces.[4] Critics feared that the Senate would propose Prayuth as a candidate. The dispute was posed to the Constitutional Court, which ruled that the Senate could only vote but not propose.[5] Because of the dispute, Meechai concluded the draft in early October, a month after the original deadline.

Should this delay happened a year earlier, Meechai need not worry. Unfortunately, King Bhumibol passed away on October 13. Thus, the CDC had to re-wrote the preamble to address the new King.[6] But the new preamble was the least problem stemmed from the transition of the throne. When King Vajiralongkorn claimed the throne in early December, he expressed his wish that he wanted some changes in this constitution. It has been argued that the 2014 coup and this constitution were to facilitate a smooth transition of the reigns so the Judiciary and watchdog agencies were assigned the power, to convene and solve a constitutional crisis.[7] It was speculated that King Vajiralongkorn saw this document as usurpations of his power, limiting his ability to intervene in Thai politics, something his father had done from time to time.[8]

It should be noted that the NCPO handled the matter with utmost care. The draft was supposed to be finalized after the referendum. But the royal support was crucial to the survival of the constitution so the Interim Charter was amended again in order to allow another amendment before the King’s signing of the draft. The special commission was created to entertain the King’s wish. The seriousness of this matter might be realized by the fact that this special commission included, among other legal top-notches, Borwornsak who earlier refused to help Meechai. In addition to removing the provision on the constitutional crisis convention, the commission designed a more flexible appoint of a regent, as the palace instructed.[9] Interestingly, this round of amendment was not publicized. No draft was released for public discussion. Prayuth guaranteed the people that their rights and liberties remained intact so they should not ask for information.

The final draft was submitted to the King by late February. His majesty had 90 days to sign or reject it. On the first week of April, the public was notified that the King was about to sign the and hand the constitution back to the junta on the 6^th of April.

The Royal Glamour

The choice of day for the signing ceremony was significant. Historically, the 6^th of April was the day Phraya Chakri crowned himself King Rama I and, therefore, founded the Chakri dynasty. It is the national holiday and members of the Chakri dynasty gather to pay homage to their ancestors. Moreover, for this year, the Chakri day fell into the very auspicious day, horoscope-wise. The timing would strengthen the King’s power and weaken his enemy, including Thaksin, whom royalist elites considered an ungrateful competitor to the monarchy. Ridiculous this may sound to western ears, many Thais still strongly believed in it. Monks all over the country were ordered to chant and bless this new constitution too.

The signing ceremony was unusual. Since 1932, there had been only four signing ceremonies. In 1932, King Prajadhipok handed the Constitution to the People’s Party, the group of young progressive revolutionists who ended the King’s absolute rule earlier that year. In B.E. 2489, King Ananda had another ceremony. King Bhumibol held it twice in B.E 2495 and B.E. 2511. Both time, constitutions were prepared by the military junta of Field Marshall Pibun and Sarit respectively. Both constitutions were short-lived. No similar ceremony was staged ever since. The usual procedure was private with the President of the Legislative approached the King. Possibly, the notion of a constitution as the supreme law of the land, a permanent highest law, was no longer felt by the public, hence the more low-key ritual.[10]

King Vajiralongkorn’s decision to revive the ceremony displayed his authority to the public and marked the great opening of his reign. This royal display was muchly needed by the NCPO. The 2017 Constitution was criticized for lack of public participation so badly that it resorted to a more ancient form of legitimation. The royal grandeur, together with spiritual backing, helped sacralise the constitution.

More importantly, the signing ceremony served as a strategic move in the long-standing battle to claim ownership of Thailand’s sovereignty. While lip service was paid to the people, the royalists always claimed that the king was the real sovereign. When the People’s Party seized power on the 24^th June, 1932, they planned to promulgate Thailand’s first constitution a few days later. King Prajadhipok then negotiated with the People’s Party that he agreed to sign the document only as a temporary one. Later, he presented the technically “first” constitution to them on the 10^th December. This arrangdment had far-reaching impact beyond what the People’s People could imagine. When the King provided the country the first written constitution, democracy was not the people’s product, but the royal present. King Prajadhipok was honoured the father of Thai democracy. The 10^th of December became the nation’s constitutional day while the People’s Party and the 24^th of June were forgotten.[11] There is little doubt that King Vajiralongkorn’s public ceremony confirmed, once and again, that notion of the King as the sovereign who lend his subjects power and constitutions.

The Rocky Road Ahead

Despite the royal blessing, the 2017 Constitution is predicted to fail. It contains fundamental flaws because it blames all political ills on elected politicians while not addressing the accountability deficit of the judiciary and other independent bodies. Judges and members of watchdog agencies have previously and blatantly showed double-standard in checking and balancing the pro- and anti-Thaksin governments.[12] Still the 2017 Constitution further expands their role in checking politicians. This mistake will only lead to more arbitrary persecutions, unstable politics, and resentful public. The first sign of trouble, a small bomb, exploded the night before the signing day. No life was loss but the message was clear. This constitution will not bring peace. More serious 40 coordinated bombs went off in the restive South the night after, probably a welcome from Muslim separatists.

However, the 2017 Constitution will not be tested any time soon because an election will not immediately follow its promulgation. The NLA has up to 16 months to complete drafting key statues in regulating political parties and elections. But the main cause of delay might not be a legal mandate, but the NCPO’s reluctance to leave the stage.

The NCPO insisted an election would not take place before the cremation of King Bhumibol the ascension to the throne of King Vajiralongkorn in late 2017.[13] An election, according to NCPO, brings with it competition, rivalry, and abusive electoral campaign, all of which disrupt the sober mood and the spirit of unity Thailand needs. The soonest date for an election is in the second half of 2018 but the NCPO also constantly reminds, even threatens, the public that an election can be postponed ‘if necessary.’[14]

What will Thailand be like under the 2017 Constitution? People voted in the national referendum, only to be surpassed as the NCPO pleased. The role of Thai citizens is limited to voting in a severely weakened election. This is the only rather small area of politics where ordinary Thais are allowed to participate. They should not meddle with the elite’s business of setting the bearing of the country: appointing independent agencies and formulating the master policy. Until an election is held and the new government is instated, the NCPO will be in power, armed with Section 44 of the Interim Charter that gives Prayuth unlimited supreme power with no liability. After the first election, the NCPO and its men will transform into judges and members of watchdog agencies to steer the country according to their planning. The 2017 Constitution has already prepared the 20-year policy to bind whoever wins the upcoming election.[15]

The road ahead of the 2017 Constitution is a long and arduous one, full of delays and pitfalls. But perhaps Thais should not care too much about these obstacles. The road is not taking them anywhere anyhow.

Suggested Citation: Khemthong Tonsakulrungruang, Chaos, Kings, and Thailand’s 20th Constitution, Int’l J. Const. L. Blog, Apr. 11, at: http://www.iconnectblog.com/2017/04/chaos-kings-and-thailands-20th-constitution.

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[1] Duncan McCargo, ‘Peopling Thailand’s 2015 Draft Constitution’ (2015) 37 Contemporary Southeast Asia 329, 333-334.

[2] Ibid 347-347.

[3] See ibid 337-338.

[4] The 2017 Constitution of Thailand, sec 269.

[5] Const Ct Decision 6/2559 (2016) and ‘Revised Draft Charter Against Will of Referendum, Court Rules’ The Nation (29 September 2016) <http://www.nationmultimedia.com/news/national/30296475> accessed 6 April 2017.

[6] Const Ct Decision 7/59 (2016).

[7] See Eugenie Merieau, ‘The Constitutional Court in the 2016 Constitutional Draft: A Substitute King for Thailand in the Post-Bhumibol era?’ Pavin Chachavalpongpun (ed), The Blooming Years: Kyoto Review of Southeast Asia (Kyoto 2017).

[8] On this speculation, see Eugenie Merieau, ‘Seeking More Power, Thailand’s New King is Moving the Country away from being a Constitutional Monarch’ The Conversation (3 February 2017) <https://theconversation.com/seeking-more-power-thailands-new-king-is-moving-the-country-away-from-being-a-constitutional-monarchy-71637> accessed 6 April 2017. On King Bhumibol’s account, see Thongchai Winichakul, ‘The Monarchy and Anti-Monarchy: Two Elephants in the Room of Thai Politics and the State of Denial’ in Pavin Chachavalpongpun (ed), Good Coup Gone Bad (ISEAS 2014) 83-85.

[9] ‘Six Change in Constitution’ Bangkok Post (6 April 2017) < http://www.bangkokpost.com/news/general/1228183/six-changes-in-constitution > accessed 6 April 2017.

[10] ‘สาร สนช’ [The National Legislative Assembly Newsletter] vol 28 (November 2016).

[11] Thongchai Winichakul, ‘Toppling Democracy’ (2008) 38 Journal of Contemporary Asia 11, 22-23.

[12] Khemthong Tonsakulrungruang, ‘Thailand’s Forgotten Key’ New Mandala (10 June 2014) <http://www.newmandala.org/thailands-forgotten-key> accessed 6 April 2017.

[13] ‘New Thai King requests constitutional changes to ‘ensure his royal powers’: Prime Minister’ ABC (10 January 2017) <http://www.abc.net.au/news/2017-01-10/thai-king-requests-constitutional-changes-to-ensure-powers/8174062> accessed 6 April 2017.

[14] ‘Why is Thailand Delaying Elections Until 2018’ The Diplomat (10 February 2017) <http://thediplomat.com/2017/02/why-is-thailand-delaying-elections-until-2018/> accessed 6 April 2017.

[15] The 2017 Constitution, chapter 16.