ABSTRACT
In Southeast Asia, Thailand is the country with by far the highest number of constitutions since they were first adopted as a means to structure the formal political order. After a group of civil servants and military officers had toppled the absolute monarchy, Siam (as Thailand was then called) received its first constitution in 1932. Since then, the country has had 19 constitutions (including interim charters issued following military coups). After the latest military coup d’état of May 22, 2014, yet another twist in Thailand’s cycle of “permanent constitutionalism” (McCargo 1998: 5) or “hyper-constitution-making” (Harding and Leyland 2011: 1) began with the establishment of the National Reform Council (NRC) in October, and the Constitution Drafting Committee (CDC) in November 2014.1 The CDC’s draft was unexpectedly rejected by the NRC, and thus had to be abandoned. The military rulers established yet another Constitution Drafting Committee, which presented the final version of its draft on March 29, 2016. In order to become effective, it will have to pass a public referendum scheduled for August 7, 2016. If it is approved, a lengthy process of drafting subordinate laws mandated in the constitution will follow, with general elections anticipated to take place in the second half of 2017. As with the 2007 Constitution, which resulted from the military coup of September 2006, the latest round will relate to the institutional innovations introduced with the 1997 Constitution, combined with assumptions of the ruling military and civilian cliques about undesirable political consequences of those innovations, in the context of the elite perceptions of politicians, political parties, elections, voters, and the political events since 2001, when Thaksin Shinawatra first became prime minister. It remains to be seen how much of an “afterlife” (Ginsburg 2009) of the 1997 Constitution will be found in the 2015 version, whether it will continue the “return to politics past” (Hicken 2007) of the 2007 document, or whether it will include new elements that important strata of the people will either accept or oppose. Yet, this line of constitution-making from 1997 through 2007 to 2015 occurs in the context of a more fundamental contestation in the Thai polity between two
main “notions of legitimacy” (Dressel 2010) or two contrasting models of the political order (Nelson 2012), in which the long-standing hierarchical nature of rule is challenged by more recent bottom-up ideas. This situation leads us back to the beginnings of Thai constitutionalism, meaning the attempt effectively to regulate the entire political order – its state apparatus, political organizations, and the public – by a written constitution. Notwithstanding earlier movements in 1885 and 1912, Thai constitutionalism seriously started in 1932, only after the royal elite’s own considerations of a constitutional order, including the introduction of a parliamentary system, had stalled around 1926. It is important to note here that the 1932 revolt against the absolute monarchy was not a broad-based popular uprising aiming to establish a republic. Rather, middle-level members of the military and civil state apparatus realized their claim to participation in political decision-making against the royal elite. Moreover, they were satisfied with keeping the monarchy in place, though in its constitutional version. Decades of rule by the state apparatus followed, mostly in the form of military dictatorships. This was captured in the view that Thailand was a “bureaucratic polity” (Riggs 1966). Furthermore, it was of great importance that, from the late 1950s, military strongman and Prime Minister Sarit Thanarat revived the monarchy as an ideological support resource for his autocratic rule (Thak 2007: 205). Instead of positioning the constitution as the highest value in the political order, the pre-1932 trinity of “Nation, Religion, and Monarchy” (Murashima 1988) eventually became the key value of the paternalist polity, emphasizing the monarchy and the bureaucracy as key components, the good of the nation as its claim to legitimacy, a unity and control-oriented mode of operation, and obedient and conformist people. “Nation, Religion, and Monarchy” became the “three pillars,” or the “fundamental institutions,” that support the very existence of the eternal and sovereign Thai nation, while the foundation on which these three pillars rest is provided by the military and civilian state apparatus. Until today, civil servants and the military do not legitimize their actions by reference to their constitutional positions, based on the stipulation that the people are the sovereign of the country, but by reference to the official state ideology of “Nation, Religion, and Monarchy.” Since 1974, Thai constitutions stipulate that the people’s first duty is “to protect and uphold Nation, Religion, and the Monarchy, and the democratic system of government that has the king as head of state according to this constitution” (section 70 in the 2007 Constitution). Democracy and constitutionalism in Thailand are thus sandwiched between a thick layer of state ideology and the strongly state-promoted remnant of an ancient institution, neither of which has a democratic or constitutional basis, thereby counteracting the formal constitutional stipulation that the people are the sovereign of Thailand (in fact, this stipulation, in section 3, also states that it is the king who exercises this sovereignty “through the National Assembly, the Council of Ministers and the Courts in accordance with the provisions of this constitution”). When Thailand’s latest military dictator, General Prayuth Chanocha, announced what he thought the state apparatus should propagate as the 12 key values to which all Thai people should adhere, it was hardly surprising that
the first value was “Nation, Religion, and Monarchy.”2 Thus, there is a perennial tension between this hierarchical, top-down ideological worldview and its increasingly vocal democratic-constitutional competitor that emphasizes equal citizens as the key components of this order, with popular sovereignty as its claim to legitimacy, a pluralistic mode of operation that stresses diversity, and an ideal of the people which relies on independent minds. While the ideological and normative complex denoted by “Nation, Religion, and Monarchy” can hardly be challenged by citizens who see it as a relic of the past and who advocate a more people-centered political order in Thailand, constitutions are open to contestations. In principle, this can go in both directions. On the one hand, ascending new groups, such as politicians and newly politicized citizens, can try to expand their power and solidify it in constitutional changes. On the other hand, the state apparatus and its various support forces in the public sphere use constitutional engineering in reaction to political developments they see in a negative light to protect the establishment’s hegemony in the political order. In practice, obviously, the state apparatus and its establishment allies are in a considerably stronger position to push through their ideas about the constitution than are extra-establishment politicians and citizens, simply because the latter two groups do not command any means of physical coercion.3 This was manifest in the constitution-drafting following the military coups of 2006 and 2014. Therefore, the hierarchical perspective does not altogether reject constitutions. Rather, within the restrictions described above, they have become an accepted component of a political order called Thai-style democracy. This order combines a (more or less) democratic constitution with effective supraconstitutional powers, in particular the monarchy and the military (Harding and Leyland 2011: 30; Kobkua 2003: 29; Anek 2007). There is little reason to believe that the idea of rule by pure coercive power still has significant currency (this is very different from the nearly ten years of military dictatorship between January 1959 and June 1968, when the exercise of state power was based on a 20-article “interim charter”). Consequently, the military coup of 2006 did not result in an attempt principally to replace constitutional rule with military power. The interim charter of 2006 stipulated a process and time frame for drafting a new document and for the return to electoral democracy. This chapter, then, provides two examples of how upper-level sociopolitical forces (members of the establishment, bureaucrats, technocrats, academics) joined the coup plotters in trying to write a new constitution that held the prospect of being more in line with the elitist forces’ perception of the flaws of Thai politics. These flaws mainly concerned the Thai politicians, especially those representing the so-called Thaksin regime that had been in power between 2001 and 2006. Therefore, the country’s representative system, being dominated by politicians since 2001, became an important target for trying to manage the influence of this group on the political order. In the following, it will be shown how this attempt worked out in the field of political recruitment (the election system to the House), and regarding the balancing of the fully elected House with an Upper House (Senate)
that was originally supposed to comprise members of the establishment and would thus operate outside the political party logic of the lower chamber. In both cases, however, the underlying principle of establishment hegemony in the Thaistyle democracy was maintained. Neither the drafting of the 2007 Constitution nor that of the 2015 document aimed to establish a political order free from supra-constitutional components.
