ABSTRACT
Introduction Thailand is the only country in Southeast Asia that still regularly experiences coups d’état and direct military rule. Since the absolute monarchy ended in 1932, civilians have never fully achieved control of the army. Even during civilian-led governments, the army remained largely autonomous and insulated from government control (Chambers 2010, 2014b). Yet, notwithstanding its long tradition of military rule,1 Thailand has never been governed by decree (without a constitution) for more than a few months at a time.2 Military leaders seem to have always favored the adoption of constitutions: coups d’état followed by constitution-making are a common way to seize and consolidate power. Once in power, the new power-holders seek to entrench their preferences and interests in a new constitution. Constitution-making under military rule has resulted in two types of constitution: fully authoritarian, with political parties and elections banned altogether,3 and semi-authoritarian, allowing some degree of political representation through elections, but balanced by giving wide-ranging powers to appointed military and civilian bureaucrats.4 After seizing power, the military leaders would usually enact a fully authoritarian temporary charter providing for the drafting of a “permanent” semi-authoritarian constitution. Thailand has had only three democratic constitutional experiments with non-elected individuals prohibited from becoming prime minister and providing for election of the legislature and limited government.5 Following the most recent coups in 2006 and 2014, the army enacted two temporary charters (2006 and 2014) and two permanent constitutions (2007 and draft 2015). Both provided for a return to civilian rule through direct elections but gave broad powers to a Senate wholly or partly appointed.6 They also gave courts and independent organizations much power over the government and the legislature. In that, they resemble the 1997 constitution, which at the time was heralded as one of the most democratic in Asia. The 1997 constitution was the outcome of popular calls for political reform which had their roots in a massive uprising against military rule in May 1992.7 The process of drafting the 1997 constitution was truly inclusive and incorporated nationwide public hearings (see McCargo
1998). The resulting constitution adopted many of the features of democratic “third-wave constitutionalism,” most notably a powerful Constitutional Court tasked to guarantee the supremacy of the constitution. Ginsburg (2009: 83) defined it as a “post-political constitution”:
The post-political constitution involves enhanced efforts to structure and channel democratic power and to limit the role of partisanship, encompassing not only constitutional courts but myriad other institutions that effect a highly refined separation of powers.
