Two Years After Thailand’s Coup, Draft Constitution Stirs Controversy

May 22 marks the second anniversary of the coup that ousted Thailand’s elected Pheu Thai government, ended weeks of escalating political tensions in the streets of Bangkok, and installed the military-led National Council for Peace and Order (NCPO) that has since held firm rein on state affairs.

While there is little to celebrate as the junta passes its second year in power, the anniversary invites reflection on the present environment and future prospects for Thailand. By most accounts, the Thai economy continues to languish. The military government keeps tough watch on the press, social media, and occasional whiffs of protest, with critics facing an arsenal of legal and other sanctions that include computer crime and lese-majeste charges, or compulsory summons to guidance sessions on “attitude readjustment” as guests of the junta. Political leaders continue to ground their mandate and actions taken in the rhetoric of Thai nationalism, moral values, and a tradition of elite political stewardship as checks on subversive elements in society.

Most significantly, a second draft constitution has emerged as the product of a tightly managed drafting process that bore no stamp of public input or consultation, which Thais of legal voting age are invited to approve or reject in a national referendum scheduled for August 7. The political and other developments of the last year offer scant evidence or assurance that the NCPO will honor its pledge to restore democratic governance of a kind consistent with international norms in the near term.

Earlier this month, the United Nations Human Rights Council (UNHRC) convened a Universal Periodic Review (UPR) of Thailand’s human rights record, which criticized the military government for a suite of issues. These include a patchy human rights record; the absence of accountability in authoritarian governance; and censorship, surveillance, and related restrictions on freedom of expression, among others. Since the coup, an appointed National Legislative Assembly has passed a flurry of new and amended laws with little scope for public consultation or stakeholder input. This closed-door exercise stands as a stark reminder of a lost opportunity to advance important economic, local governance, and other reforms of keen public interest, on which a succession of elected governments have made little headway – had the authorities been open to stakeholder inputs.

A contentious draft constitution

Having faced criticism for unprecedented length, prescriptive detail, and encroachments on democratic space, the first post-coup draft constitution was rejected by its own architects in September 2015 – a surprise intervention that precluded referral of the draft to public referendum. The 2016 charter raises similar concerns, with political actors on both sides of Thailand’s bitter political divide joining academic specialists, CSO leaders, and rights advocates in condemning the draft constitution for a combination of issues.

While thoughtfully crafted constitutions routinely place limits on the fundamental rights of citizens where security considerations or other concerns of greater public good take precedence, those limits logically apply to rights expressly provided in the constitution. The draft Thai charter adds far-reaching discretionary limitations on rights and liberties that fall outside the strict letter of the constitution, as long as any restrictive measures imposed accord with the rule of law. While a limitation of this kind would be exceptional in any context, it is doubly striking and problematic in Thailand, where the concept of the rule of law is imprecisely defined, subject to broad interpretation, and historically vulnerable to manipulation and abuse.

Beneath this overarching twist on the general concept of rights that underpins the constitution, certain specific rights prescribed likewise stand at odds with conventional practice. The draft constitution locates rights in the purview of state responsibility as opposed to citizen entitlement. For example, in the case of environmental management and protection, previous Thai constitutions recognized fundamental rights to a healthy environment and provided scope for public review of prospective laws or policy decisions that threatened the welfare of communities, including legal recourse. The draft charter assigns a general duty to the state to exercise due care in activities that could negatively affect communities, with no mention of corollary individual or community rights to scrutinize, provide input, or otherwise intervene. Similarly, access to state information is not a guaranteed public entitlement; rather, the state has a duty to disclose information in a manner that confers broad discretionary authority on public agencies and officials.

The draft constitution also calls on elected officials to embody and observe lofty values of the kind cited in government rhetoric following the coup, with little guidance on what these entail, or by whose yardstick moral standards are set, satisfied, or deemed to have failed. In the broader realm of political affairs, the constitution establishes a proportional electoral system that reduces the odds of a majority government assuming power – a measure aimed to break a succession of sweeping Pheu Thai election victories. The most controversial institutional reform measure is the establishment of a 250-member appointed Senate, with ex officio reserve seats allotted for the six heads of the respective branches of the armed forces. The revised composition and appointment mechanisms empower and equip a non-elected upper house to check the independent law and policy-making authority of an elected Parliament, including restrictions on future constitutional reform. To this end, the August 7 referendum will pose a second question to voters: whether to accept or reject an arrangement through which an appointed Senate could move to designate a non-elected prime minister if elected members of Parliament are unable to reach agreement.

To complete the labyrinth of oversight mechanisms, the draft constitution and broader NCPO reform “roadmap” include wider scope for extended military oversight and prospective intervention in democratic political affairs. An unelected National Reform Steering Assembly (NRSA) composed of senior military leaders and others loyal to the junta is tasked with defining and implementing policies that could conceivably stand at odds with those of an elected parliament – including a 20-year national development plan whose terms underlines the military’s long-term horizon. The NRSA mechanism reserves discretionary authority for the military to intervene in elected politics, effectively setting a lever that the military authorities may at their discretion pull at any point in the tenure of an elected government – tantamount to a constitutionally authorized coup.

Voters prepare for constitutional referendum

Under the recently passed Referendum Law, the Election Commission of Thailand (ECT) will take a lead role in raising public awareness of the draft constitution and referendum procedures. While it is not clear what select elements of the draft will be highlighted in a forthcoming public awareness campaign that presumably aims to secure a “yes” vote, the assumption is that information materials will highlight less controversial elements of the constitution and sidestep reference to those that have raised concern among political actors and other stakeholders. The NCPO has signaled that it will tolerate no criticism of the constitution, with the Referendum Act imposing strict sanctions on any referendum campaign that the authorities declare provocative or likely to instigate unrest. In recent days, some bold public interest groups led by respected individuals who enjoy greater space and scope to voice concern than ordinary Thais have begun to test the bounds for frank and substantive discussion of the constitution. It remains to be seen how much space the military government will allow.

Will the military authorities extend scope for domestic civil society groups or international agencies to observe the referendum? The Asia Foundation, ANFREL, and IRI recently co-hosted a civil society workshop in which veteran and prospective domestic election observers voiced keen interest in observing the referendum. Other issues notwithstanding, participants saw value in observing even a problematic constitutional referendum as a matter of principle – to maintain a documentary record and enhance local capacity to observe a future election. It is not clear at present how the ECT will manage the accreditation process, but prospective domestic observer groups are encouraged to seek clarity and secure official approval well in advance of the referendum.

When the first draft constitution was unveiled and a referendum mandated, a sense prevailed that Thai voters might approve the controversial charter for the sake of ending authoritarian rule – in reasonable confidence that election results would once again reflect popular will and the prospect of an elected parliament drafting a fresh constitution. Developments in the last year may have sapped this confidence. While the NCPO clearly desires a “yes” vote to bolster its domestic and international image and legitimacy, the implications of a “no” vote weigh in the calculus. In a television interview earlier this week, the Minister of Justice acknowledged that the referendum has “political implications” as a proxy measure of public support for – or disapproval of – the NCPO. The Pheu Thai party has called on supporters to reject the draft constitution. While it remains to be seen if the Democrat Party will issue similar “no” vote orders to its supporters, party leadership has intimated that it does not support the draft constitution.

Changes with a yes or no vote

While speculation points to a variety of plausible scenarios, the deepest worry is that little will change whatever the referendum result. If the constitution passes, the NCPO may be in no rush to enact the extensive body of election and other “organic laws” that must be in place before an election is held. Alternative scenarios include public rejection of the charter, setting the country on an uncharted course of continued military rule, or cancellation of the referendum by the NCPO if the military leaders sense growing public unrest in the lead-up to August 7. Sadly, none of these prospective outcomes ensures Thailand’s release from the stubborn grip of authoritarianism and guided democracy – a prospect that seemingly weighs in a climate of creeping malaise and dwindling hope that observers sense among Thais across all strata of society – a mood that some observers suggest may portend unrest.

How does a government, or a country as whole, extract itself from a situation of this kind? No constitution is perfect. Even the acclaimed 1997 “People’s Constitution” – a model of informed public consultation and consensus input – was vulnerable to manipulation when Thailand’s institutions of governance and independent agencies yielded to political pressure. The bitter political tensions that led to the 2014 coup continue to churn below the surface of present circumstances, with observers hard-pressed to identify a single development in the last two years that genuinely addresses or comes to terms with the issues that brought Thailand to the brink of political crisis and economic collapse in 2014. Thais will ultimately find their way forward on their own terms, but as Myanmar and other Southeast Asian neighbors come forward to fulfill the promise of the “Asian century,” Thailand risks being left behind.

Kim McQuay is The Asia Foundation’s country representative in Thailand. He can be reached at [email protected]. The views and opinions expressed here are those of the individual author and not those of The Asia Foundation or its funders.