Author: Sarah Bishop, ANU
Thailand, for the 19th time in 82 years, has a new written constitution. The King promulgated the Constitution of the Kingdom of Thailand (Interim) B.E 2557 (2014) on 22 July 2014, finally bringing an end to the nation’s fourth longest period since 1932 without a written constitution. However, although there are some small gains, there are very few positive signs for democracy or rule of law.
On the positive side, the interim constitution provides for the formation of several new governing bodies including a cabinet, national legislative assembly, national reform council and constitutional drafting committee. While the junta exercises considerable control over membership of these bodies, and appointments so far have largely been of military personnel, the creation of these bodies should at least result in greater power sharing and transparency than existed during the period prior to promulgation of the interim constitution when the junta was ruling by executive decree alone. The interim constitution also leaves the composition of the judiciary untouched and gives some recognition to basic principles of human rights.
However, little effort is made to make the new bodies appear democratic or representative. There is no procedure for members of any of the bodies to be selected through popular processes, and persons who have held a position in a political party in the past three years are excluded from being members of all except for the national reform council. There are also many other grounds on which persons are excluded from being members of the bodies, most of which focus on past misconduct or removal from political office. In practice these criteria most strongly affect past members of the Pheu Thai party and its predecessors. Also noteworthy is the exclusion from the cabinet and constitutional drafting committee of judges, a group who have often assumed a prominent role in governance in post-coup periods.
Similarly, in contrast to the 2006 interim constitution, which emphasised public involvement in the creation of a new constitution, the 2014 interim constitution makes no provision for public consultation on, or approval by referendum of, a new permanent constitution. Also, criteria expressly set for the content of the new permanent constitution by the interim constitution focus mostly on the need to establish even more effective mechanisms for preventing corruption and populism and, of democracy, say only that the model established must be ‘appropriate to the conditions of Thai society’. Given the extent to which anti-corruption mechanisms under the 2007 constitution denied due process and impacted governance, whether even stricter measures can or should be adopted is highly questionable.
Also, although new bodies are created, the junta retains significant powers. Most worrying of these is a non-reviewable power to ‘make any order, or suspend or take any action’ which the head of the junta considers necessary for a very broad range of permissible reasons including ‘for the benefit of any aspect of the reform process’. Similar powers conferred under past constitutions have been used to order executions, detain opponents, curtail freedom of speech and target past rulers. Inclusion of this power therefore gives rise to concern that the formal recognition of rights will be meaningless. Assurances given by drafters that the power is no broader than powers possessed by the junta prior to promulgation of the interim constitution do little to allay this concern. The junta is also given more discrete powers to ask the cabinet to act and to suggest that the new draft constitution be amended.
Further, the junta is afforded an amnesty for actions taken in seizing and consolidating power, and, all orders issued by the junta both prior to and after adoption of the interim constitution but before appointment of a cabinet are rendered legal and constitutional. Although past constitutions have included similar provisions, the conferring of legality on junta orders not yet issued without any stipulation of processes to be followed or permissible grounds is unique.
Also, for the first time in Thai history the interim constitution itself includes an amendment procedure, giving rise to apprehension regarding how ‘interim’ it is.
Overall, there is little in the interim constitution that is surprising. Like interim constitutions that have preceded it, the 2014 interim constitution is intended to legitimise the coup that led to its drafting and to protect and empower the coup-makers. It is not intended to provide legal protections or establish democratic rule.
What is surprising, however, is the particularly blatant manner in which it rejects democratic process and confers powers and immunities on the junta, and the sheer prevalence of anti-corruption rhetoric which has often been used to justify authoritarian rule and which in current political circumstances is far from neutral.
Signs from the interim constitution seem to be that Thailand may be headed for yet another period of extended authoritarian and arbitrary rule.
Hopefully, this is not the case.
Sarah Bishop is a PhD candidate in Thai Law at the ANU College of Law, The Australian National University.