Constitutional Referendum Cannot Disguise Thailand's Democratic Deficit
Constitutional Referendum Cannot Disguise Thailand's Democratic Deficit
Op-Ed / Asia 9 minutes

Constitutional Referendum Cannot Disguise Thailand's Democratic Deficit

After Thai police found that voter lists displayed ahead of Sunday's constitutional referendum had been torn down earlier this month, the military government spoke darkly of an organised plot to derail the controversial plebiscite, removed the local police chief, and ordered regional officials to step up security. It turned out that the 'saboteurs' were two eight-year-old girls who wanted the pink lists to draw on.

This over-reaction (the provincial election supervisor has filed a criminal complaint against the aspiring artists) reflects the military government's anxiety about the upcoming referendum. The poll will be a test for the ruling National Council for Peace and Order (NCPO), the military clique that took power in the May 2014 coup d'état: their first moment of accountability to the voters they disenfranchised. Soon after the coup, the army chief, now prime minister, General Prayuth Chan-ocha, penned a ballad, 'Return Happiness to Thailand', which implored the Thai people to 'give us just a little more time'.

More than two years later, a general election is at least another year away, and the draft constitution, written by regime appointees, would allow the NCPO to retain an oversight role for another five years after an election in order to launch an unspecified twenty-year reform plan. The referendum is billed as a step along the regime's proposed roadmap to elected government, but the draft charter was drawn up without public participation and seems designed to preserve the power of established elites and to constrain elected authority.

The draft, which if adopted would be Thailand's 20th charter in less than 85 years, provides for:

  • A 250-member senate to be selected by the NCPO for a five-year term, with six seats reserved for the armed forces chiefs, the police chief and the permanent secretary of defence.
  • A single-ballot, mixed-member proportional voting system for the lower house that favours medium-sized parties.
  • The possibility of an unelected prime minister.
  • Enhanced powers for judges and appointed bodies called 'constitutional agencies', such as the Office of the Auditor General, Election Commission and National Anti-Corruption Commission, to intervene in executive and legislative affairs.

The document also makes amendment all but impossible; a successful vote to amend the draft constitution requires more than half the members of both houses, and in the third reading must include the votes of at least 10% of MPs from every party, votes from every party with more than ten MPs, and at least 10% of votes from all parties with fewer than ten MPs. Just 10% of the members of each house may put an amendment before the deeply conservative Constitutional Court.

Members of the CDC concede that the constitution is not '100 per cent democratic', and that popular participation in the drafting process was perfunctory. But the draft's proponents argue that the document is a bulwark against corrupt politicians, who they blame for Thailand's problems. They say it will ensure continuity of a political reform process and prevent a recurrence of the street protests and political violence that have marred the past decade.

At the eleventh hour, the NCPO's appointed national assembly approved a second question for the referendum, asking if the senate should, in a joint sitting with the lower house, vote on who will be prime minister. Senate participation in selecting the prime minister is widely understood as a gambit by the NCPO to place one of its own in office following a general election. Such a scenario would echo events following the 1991 coup, when coup maker General Suchinda Kraprayoon reneged on a promise not to seek the premiership following a general election, sparking pro-democracy protests that the army suppressed with deadly force in what is known as Black May 1992.

If the draft charter is meant to be a prescription for what ails Thailand, then the NCPO's diagnosis of the ailment is incomplete.

The NCPO and its allies rail against the 'tyranny of the majority' and 'parliamentary dictatorship', embodied in what they called 'the Thaksin regime', a reference to controversial Prime Minister Thaksin Shinawatra, who was ousted in a coup in 2006, and his sister Yingluck, who was ousted in May 2014 by the current regime. This demonisation of politicians is of a piece with longstanding unease in the Thai establishment with representative politics. Thaksin's electoral machine has won every general election since 2001 with a combination of populist policies, slick marketing and effective differentiation from the establishment, provoking the fury of the elites who accuse him of self-enrichment and corrupting the political system.

But the failures of representative politics cannot be ascribed solely to venal politicians and the foibles of provincial voters. The patronage system, which encourages nepotism and corruption, is not the exclusive domain of political parties. Allegations of corruption and nepotism against the NCPO have surfaced during its tenure, but have been dismissed with assertions that such practices are 'normal' and 'not against the law'.

It is paradoxical that the NCPO insisted on a national plebiscite. Thailand's military rulers and their allies see politics as inherently divisive and are ambivalent about the value of elections, which have been banned at all levels of government since the coup. With the referendum, as with the constitution, the military authorities have attempted to create a process that confers a degree of democratic legitimacy without conferring democracy itself. Had the drafting process been transparent and participatory, or the plebiscite held amid free public debate, it may have worked to enhance the regime's legitimacy. In the event, it has not.

Even if the public approves it, the drafting process and the government restrictions on public debate will taint the new constitution. NCPO orders prohibit political gatherings of five or more people. Under the 2016 Referendum Act, passed by the all-appointed National Legislative Assembly in April, those who attempt to persuade others to reject or accept the constitution face up to ten years in jail and a fine of 200,000 baht ($5715). The Election Commission (EC) has warned activists and academics that their explications of the draft could be illegal. A legal rights group reported that at least 86 people have been investigated or charged since June in the NCPO's crackdown on dissent. On 13 July, Prayuth invoked Article 44 of the interim constitution to empower the National Broadcasting and Telecommunications Commission (NBTC) to shut down any media outlets it deems have criticised the government dishonestly. The NBTC promptly suspended the license of Peace TV, a pro-Thaksin station, for 30 days. It will not come back on air until after the referendum.

With such restrictions, the vote cannot be free and fair. Without an open debate on the merits of the draft constitution, there can be no consent of the governed. Faced with steady foreign and domestic criticism of these restrictions, the NCPO has opened some narrow space for carefully controlled discussion, including a series of taped debates to be aired on public TV during the middle of each working day next week, but these efforts are too little, too late to redeem the process.

In spite of the restrictions, the draft constitution has come in for heavy criticism from politicians, academics and activists. Even some of Thaksin's most implacable opponents have serious misgivings about the draft. Prasong Sunsiri, a former intelligence chief and chair of the 2007 constitution drafting committee, said it contradicts democratic principles, giving too much power to appointed senators. Sombat Thamrongthanyawong of the National Institute for Development Administration said that the weak governments envisioned by the drafters will be unable to institute reforms, leading to further instability. Kasit Piromya, a senior Democrat Party member and former foreign minister, called the draft illiberal and unacceptable. On 21 July, the Platform of Concerned Citizens (PCC), comprising sixteen civil society organisations as well as academics and politicians from the Democrat and Pheu Thai parties, issued a statement calling for open debate on the draft. Abhisit Vejjajiva, leader of the Democrat Party, said the constitution would lead to future conflicts and on 27 July declared he would vote 'no'.

The outcome of the 7 August vote is uncertain. As the date approaches, there is little public enthusiasm. Many Thais remain poorly informed about the content and ramifications of the draft's 279 articles. Government efforts to promote the referendum appear to have meet with mixed results. Thais must vote in their home constituency, unless they have registered in advance with the Electoral Commission to vote elsewhere. The EC changed the system since the last general election so that voters must re-register before every poll. Many voters, unaware of the changes, failed to register in time.

What happens if the draft is voted down? Prayuth promised that there will be a general election next year regardless of the referendum's outcome, thereby removing one possible incentive to approve the draft, but has not clarified the constitutional framework under which it would be held. NCPO officials have made contradictory statements. Among the possibilities, the NCPO could promulgate an amalgam of earlier constitutions, or start a third drafting process. One likely option would be to amend the 2014 interim charter and impose it as the new 'permanent' constitution. Under the sweeping powers that the interim constitution grants to the NCPO, Prayuth can do as he wishes. Prayuth said, 'You can vote down the draft if you don't want peace in this country. If I am to be responsible (if the draft is not passed), I can terminate everything. I have power to do that if I want to'. According to academic Thitinan Pongsudhirak, the threat that the unknown alternative may be much worse than the draft amounts to 'constitutional blackmail'.

But even if the draft is approved, conflict may still lie ahead. Neither the referendum nor the result will heal the deep and widening rift that is at the heart of Thailand's recent troubles. It is more likely to add fuel to the conflict between a class given new confidence by 40 years of economic growth and an establishment that is resisting social changes that would diminish their power and perquisites. If the 2014 coup and 2016 draft constitution are a replay of the 2006 coup and 2007 constitution, then there is cause to worry about Thailand's stability. The 2007 constitution, narrowly approved in Thailand's first-ever referendum, set the stage for the most tumultuous period in Thai history since the mid-1970s. The Constitutional Court's rejection of elected governments' efforts to amend the constitution engendered much of this turmoil.

What might be the outcome of the depoliticised system that the NCPO's draft constitution envisions? At best, it would be some version of guided democracy of the sort practiced in the 1980s: an unelected prime minister, a military-dominated appointed senate, and unstable coalitions. This is hardly a model of steady or clean government.

There are good reasons to doubt that such an anachronistic system would work in the years ahead without popular opposition. First, the years of semi-democracy coincided with blazing economic growth, which eased a multitude of government failings. But today, the era of double-digit GDP growth is over, the economic outlook bleak, and many sources of the malaise beyond the NCPO's control.

Second, the monarchy under King Bhumibol Adulyadej, now 88 and ailing, was at the pinnacle of its prestige and influence during the period of guided democracy. The NCPO, and any proxy government that follows it, will be increasingly bereft of the aura of legitimacy the monarchy once lent to military governments and unelected prime ministers. Writing at the end of the 1970s, the scholar JS Girling noted that there could be costs to using Nation, Religion and Monarchy to bolster the establishment:

(T)he more these 'institutions' are co-opted by the bureaucratic polity to cover up its own deficiencies, including its inability to cope with change, the more these institutions will lose their original, autonomous, 'pure' force, derived from being 'above the battle.' They will increasingly become part of 'politics' and will go the way of politics'.

The monarchy has demonstrated remarkable resilience in this role, but the past decade of conflict has seen the institution increasingly politicised, even at the popular level.

Third, the experience of voters with representative democracy, in choosing political leaders who implement policies that result in positive change in their lives, is indelible. Chai-anan Samudawanij, an experienced constitution drafter who supported the 2006 and 2014 coups, wrote in the late 1980s that once participatory political institutions demonstrated their value to people, the power of the deeply conservative bureaucratic polity would recede. Arguably, that is precisely what has happened, but rather than adapting to the new reality, the establishment, lead by the army, has dug in its heels and is now fighting desperately to preserve the status quo.

The popular protests of the past decade demonstrate that Thais want government that is just, transparent, efficient, and responsive. The most effective and sustainable way to combat the kind of corruption and abuse of power attributed to Thaksin is to strengthen the institutions and processes of representative government. It demands that society value the process of politics as well as the results of policy. It is an ongoing task, not to be achieved once-and-for-all with a constitutional silver bullet.

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