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Article Excerpt
In 1997 Thailand drafted its much-vaunted "People's Constitution'" which many observers saw as a watershed event in Thailand's convoluted constitutional history. (2) In September 2006 popularly elected Prime Minster Thaksin Shinawatra was ousted in a military coup after weeks of protests in the capital about executive abuse and allegations of corruption. Less than a year later, on 19 August 2007, a public referendum approved a new Constitution. (3) The Council for National Security (CNS), the military junta that had launched the coup but promised to return democracy to Thailand within a year, had appointed a Constitutional Drafting Assembly (CDA) to prevent further erosion of constitutional practice. The process was far from being as consultative as the previous exercise had been, but public approval of the CDA draft paved the way for parliamentary elections in December 2007, ending the military interregnum and returning Thailand to formal democratic practice, though under a drastically different Constitution.
Thailand's constitutional history has been tumultuous, as the eighteen Constitutions it has adopted--usually under the control of the military and monarchical networks--surely attest. (4) Since the country became a constitutional monarchy in 1932, Constitution drafting has generally been part of a vicious cycle of elections, instability and military coups in which the political elites in power used constitutional reform to legitimize whatever regime they put in place. (5) Generally directed at limiting political participation, Constitution-making thus has been largely "a matter of consolidating elite power" and "diverting dissenting voices". (6) The 1990s, however, produced something qualitatively new: with Thailand's rapid economic transformation and new demands from the urban middle class and civil society generally, rural as well as urban, the dynamics of institutional reform began to change significantly.
Following the gradual democratic opening in the early 1990s, a broader public constitutional discourse evolved that culminated in the 1997 Constitution, the first in which a broad spectrum of Thais felt a sense of ownership--though in fact it primarily embodied the aspirations of Thailand's urban middle class and the belief of its liberal elites that it was possible to "engineer" greater democracy and good governance. (7) The new Constitution sought to radically alter the governance system in terms of executive stability, accountability and participation.
That many of the new arrangements worked as envisioned was vividly illustrated by the meteoric rise of businessman-turnedPrime Minister Thaksin Shinawatra and his Thai Rak Thai Party (TRT); after resounding electoral victories in 2001 and 2005, he oversaw a period of unprecedented single-party dominance and executive stability. Unfortunately, his assertive leadership style also earned the enmity of Thailand's royal networks and those who had made his ascent possible by endorsing the radical 1997 Constitution. The result, once again, was constitutional instability as the urban middle class, supported by Thailand's traditional elites, rose up in revolt. (8)
This reversion to constitutional instability raises several questions: what led to the revocation of the 1997 People's Constitution? In what ways does the new Constitution differ from the previous one? (which was one of Thailand's longest and most democratic). How likely is it that the 2007 Constitution will bring lasting stability and enhance the quality of democratic governance in Thailand? These questions are of great relevance because, as recent events demonstrate, since the new Constitution was approved, political volatility has reached unprecedented levels--as have demands once again for constitutional amendments.
Scholars have differed in their answers to the question of why the 1997 Constitution failed. Some consider the political reform coalition, which brought together an unusual mix of liberal academics, reform-oriented technocrats and civil society activists, to have been unstable. The coalition, which had to overcome considerable resistance from conservative elements, not only produced a somewhat contradictory draft but also failed to sustain the reform momentum after the Constitution was promulgated, leaving it with little support beyond the urban reform constituency. (9)
Other scholars consider the institutional framework to have been too ambitious, if not an outright design failure. They cite the dysfunctional workings of oversight agencies, particularly the Senate, which though supposedly neutral quickly became home to the wives, children and relatives of leading politicians, a development that effectively neutralized any checks and balances on the executive branch. (10) Finally, a popular line of argument in Thailand blamed the personality of the executive, arguing that Thaksin and his brand of business populism showed little inclination to honour the constitutional rules. In actively seeking to undermine them, he demonstrated the weakness of democratic political culture in Thailand. (11)
Probably there is some truth to all these explanations, but they all fail to account for the setting in which constitutional struggles have taken place since the 1990s. A rapidly modernizing Thailand became increasingly complex and contentious. Elites modified institutions to restructure power in response to political pressures from emerging social constituencies. This was clearly the case in 1997, when urban liberal elites and progressive activists banded together to confront the resistance of Thailand's traditional bureaucratic elites and politicians and pushed for radically new constitutional arrangements that expressed the liberal aspirations of the urban middle class. A decade later, confronted with an unexpectedly populist leadership that used the new rules to establish alternate power centres among traditionally marginalized groups, the same urban actors rallied once more under the banner of "good governance". They joined hands with the illiberal military and monarchical networks to oust the popularly elected government and draft a far less democratic Constitution. Thus, constitutional instability is best understood as a byproduct of continuing social struggles over access to power that play out in the constitutional realm.
Comparing the constitutional reforms in 1997 and 2007 illustrates the structural dynamics underpinning institutional developments. As an ambitious urban liberal elite project--which grew out of opposition against military rule and later incorporated frustrations over the poor functioning of Thai democracy--the 1997 Constitution, to a certain extent, "oversupplied" Thailand's political system with complex democratic institutions. Many of these lacked societal support beyond narrow urban reform constituencies which created a constitutional void Thaksin quickly sought to fill, above all by using his strengthened executive position to establish populist linkages with a new voter base among the poor and low-middleincome classes, both urban and rural. In doing so he profited from the structural changes to Thailand's political economy, in which modern bourgeois interests--like those of Thaksin and his inner circle--emerged alongside political demands from outside the capital. (12) The latter is particularly true for the populous north and northeastern regions, which contain the highest number of voters but was the only region other than Bangkok to have seen its economic share decline. (13) In short, by exploiting structural trends within the 1997 constitutional framework, Thaksin expanded his hold on power. In doing so, he altered policy dynamics at the expense of Thailand's traditional urban elites. (14)
The 2007 Constitution is clearly a deliberate attempt to counter these developments. Drafted in a highly exclusive manner directed by the CNS, the institutional choices it incorporates not only reflect the desire to correct the institutional failures of the previous document's framework while reducing the influence of the rural and urban majority in the electoral process. The critical choice made was to further promote the "judicialization" of politics by transferring even more power than the 1997 Constitution had from Parliament, the political centre, to judicial and quasi-judicial agencies that have limited accountability. Thus, the new Constitution, despite its liberal claims, is less a genuine extension of the governance franchise than a means to channel and deflect new societal demands in the interest of Thailand's traditional elites. By failing to provide inclusive governance structures that could accommodate Thailand's social fault lines--and lacking legitimacy due to the highly controlled drafting process--the new Constitution is unlikely, as recent events demonstrate, to promote stability and better governance any time soon.
This paper will first compare the 1997 and 2007 constitutional reforms, paying particular attention to the drafting process and the institutions they produced. Illustrating how the process and institutional choices did or did not differ allows us to understand the broader underlying trends the documents embody. It will also look at how recent developments illustrate why the new Constitution is unlikely to provide equilibrium for Thailand any time soon. The article concludes with some reflections on the future of constitutionalism in Thailand.
Drafting Dynamics and Institutional Choices
Constitution-making is about power and the construction of legitimacy: (15) who drafts the Constitution, and what interests are represented in the process, clearly inform the choices made. Similarly, how the drafters are chosen, how representative of the population they are, and the degree of public participation, determine the final product's legitimacy.TM The remarkably different dynamics of Constitution-making in 1997 and in 2007 vividly illustrate this point.
The Process
Dissatisfaction with the poor functioning of Thai democracy and the rise of money-based electoral politics underpinned the demands for constitutional reform in the 1990s; there was a sense that the reform process had been stalled in Parliament by traditional interests and self-interested politicians. (17) Growing mass support for constitutional reform prompted an eight-month constitutional drafting process in 1997 that was unique in Thailand's constitutional history: not only were the drafters elected, but there was an unprecedented degree of public consultation. (18) In a compromise between Parliament and the reform movement, the process of drafting was left to an independent Constitutional Drafting Assembly (CDA), whose 99 members were composed of 76 delegates elected from each province and 23 experts chosen by Parliament from a shortlist provided by the universities. Parliament could not amend the final draft; it could only approve or reject it in its entirety. If it chose to reject the document, there would be a referendum. (19)
These arrangements ensured that the drafters were well insulated from politicians; it also meant that the group of academic experts had considerable influence--indeed they came to dominate the central drafting committees of the CDA. Among the leading figures were CDA head Uthai Pimchaichon, a respected former student activist and provincial Member of Parliament (MP); Anan Panyarachun, former Prime Minister and Chairman of the Constitutional Drafting Committee (CDC); and Borwornsak Uwanno, professor of constitutional law and CDC secretary. (20) This triumvirate exemplified the major streams within the urban liberal coalition--reform-oriented technocrats, academics and civil society activists, each pulling the process in a slightly different direction. Academics and technocrats wanted to make governance more stable and efficient and less vulnerable to money politics...
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