By Erik Martinez KuhontaThe views and opinions expressed in this essay do not necessarily reflect those of the creator of this blog and are the sole responsibility of the author. Essays expressing opinions similar to and counter to those of the creator of this blog are strictly for diversity and to start thoughtful and meaningful discussion.
This article appeared today in the Speaking Freely section in Asia Times Online in where guest writers can contribute to the online publication. 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 journals.
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.
