Thailand’s elusive quest for a workable constitution, 1997–2007

Contemporary Southeast Asia

Volumn 31, Issue 2, 2009, Pages 296-325

  Dressel, Björn ^a  

^a GRIFFITH UNIVERSITY   (Australia)

Author keywords

Constitution; Democracy; Legitimacy; Military; Samak Sundaravej; Thaksin Shinawatra

Indexed keywords

EID: 85050838886     PISSN: 0129797X     EISSN: None     Source Type: Journal    
DOI: 10.1355/cs31-2e     Document Type: Article

References (70)

1. Constitution of the Kingdom of Thailand (B.E. 2540), as published in the Government Gazette, Vol. 114, Part 55a, dated 11 October 1997 (B.E. 2540); here accessed through the official translation of the Council of State. The possible loss of legal nuances in the translation is acknowledged.
2. See for example, Michael Kelly Connors, “Framing the ‘People’s Constitution’”, in Reforming Thai Politics, edited by Duncan McCargo (Copenhagen: NIAS, 2002), pp. 37–57; Michael Kelly Connors, “Political Reform and the State in Thailand”, Journal of Contemporary Asia 29, no. 4 (1999): 202–26; Andrew Harding, “May There Be Virtue: New Asian Constitutionalism in Thailand”, Australian Journal of Asian Law 3, no. 3 (2001): 236–60; Duncan McCargo, “Alternative Meanings of Political Reform in Contemporary Thailand”, The Copenhagen Journal of Asian Studies 13, no. 98 (1998): 5–30; Reforming Thai Politics, edited by Duncan McCargo (Copenhagen: NIAS, 2002); Pasuk Phongpaichit and Chris Baker, Thailand’s Crisis (Singapore: Institute of Southeast Asian Studies, 2000); Pinai Nanakorn, “Re-Making of the Constitution in Thailand”, Singapore Journal of International & Comparative Law, no. 6 (2002): 90-115.
3. Constitution of the Kingdom of Thailand (B.E. 2550), published in the Government Gazette, Vol. 124, Part 27, dated 24 August 2007 (B.E. 2550); here accessed through the official translation by the National Assembly.
4. Thailand’s rich constitutional history is well documented. See Preben A.F. Aaakesson, Marut Bunnag, and Bunnag Rujira, “The Development of Constitutionalism in Thailand: Some Historical Considerations”, in Constitutional Systems in Late Twentieth Century Asia, edited by Lawrence W. Beer (Seattle and London: University of Washington Press, 1992), pp. 656–83; Amon Chantharasombun, Khonstitichanaelism Thang Ok Khong Prathet Thai [Constitutionalism: Way out for Thailand] (Bangkok: Public Policy Institute, 1994); Kramol Thongthammachart, Evolution of the Thai Constitutional Regime (Bangkok: Duangdee Press, 1981); Somkid Lertpaithoon, Present Constitution (Bangkok: Nititham, 1994); Pinai Nanakorn, “Comparative Constitutionalism: The Remaking of the Constitutional Orders in South-East Asia”, Singapore Journal of International & Comparative Law, no. 6 (2002): 90–116; Kobuka Suwannathat-Pian, Kings, Country and Constitutions: Thailand’s Political Development 1932–2000 (London: RoutledgeCurzon, 2003); Wariya S. Chinwanno and Chaichana Inqavata, eds., Us Constitution. Thai Perspectives/Ratthamanun Saharat … Thatsana Chak Muang Thai (Bangkok: Chulalongkorn University Press, 1990).
5. Chai Anan Samudavanija, State-Building, Democracy and Globalization (Bangkok: IPPS, 2002), pp. 102–07.
6. Duncan McCargo, “Introduction: Understanding Political Reform in Thailand”, in Reforming Thai Politics, op. cit., p. 3.
7. For a good overview of the early constitutional debates see Borwornsak Uwanno and Wayne D. Burns, “The Thai Constitution of 1997: Sources and Process”, University of British Columbia Law Review 32 (1998): 227–47; Amon Chandara-Somboon, Constitutionalism: Thang Ok Khong Prathet Thai [Constitutionalism: The Solution for Thailand] (Bangkok: Institute of Public Policy Studies, 1994); Michael Kelly Connors, Democracy and National Identity (Copenhagen: NIAS Press, 2007), especially pp. 153–82.
8. For good analysis of these events see Kasian Tejapira, “Toppling Thaksin”, New Left Review 39 (2006): 5–37; Michael Montesano, “Thailand: A Reckoning with History Begins”, in Southeast Asian Affairs 2007, edited by Daljit Singh and Lorraine C. Salazar (Singapore: Institute of Southeast Asian Studies, 2007), pp. 311–40; Surin Maisrikrod, “Learning from the 19 September Coup: Advancing Thai Style Democracy”, in Southeast Asia Affairs 2006, edited by Daljit Singh and Lorraine C. Salazar (Singapore: Institute of Southeast Asian Studies, 2006), pp. 346–59; Ukrist Pathmanand, “A Different Coup D’etat?”, Journal of Contemporary Asia 38, no. 1 (2008): 124–42.
9. See for instance, Michael Kelly Connors, “Framing the ‘People’s Constitution’”, in Reforming Thai Politics, op. cit., pp. 37–57; Connors, “Political Reform and the State in Thailand”, op. cit., pp. 202–26; McCargo, “Alternative Meanings of Political Reform in Contemporary Thailand”, op. cit, pp. 5–30; Duncan McCargo, “Democracy under Stress in Thaksin’s Thailand”, Journal of Democracy 13, no. 4 (2002): 114–26.
10. Alex Martinez Kuhonta, “The Paradox of Thailand’s 1997 ‘People’s Constitution’: Be Careful What You Wish For”, Asian Survey XLVIII, no. 3 (2008): 373–92; Pasuk Phongpaichit and Chris Baker, “‘Business Populism’ in Thailand”, Journal of Democracy 16, no. 2 (2005): 58–72; Pasuk Phongpaichit and Chris Baker, Thaksin: The Business of Politics in Thailand (Bangkok: Silkworm Books, 2004), especially pp. 173–80.
11. Borwornsak and Burns, “The Thai Constitution of 1997”, op. cit, p. 246; Harding, “May There Be Virtue”, op. cit., p. 257; Duncan McCargo and Ukrist Pathmanand, The Thaksinization of Thailand (Copenhagen: Nordic Institute of Asian Studies, 2005), especially pp. 16–18; Pasuk and Baker, “‘Business Populism’ in Thailand”, op. cit., especially pp. 61–67.
12. In fact with rural-urban linkages growing and Bangkok’s relative economic share declining, the new political constituencies emerging from the provincial lower middle class and rural poor not only share the aspirations of their urban counterparts at the centre but also recognized that their economic well-being depends heavily on government policies emanating from the capital.
13. A good indication here is the share of the gross provincial product (at current market prices). Bangkok’s relative share fell from 39 to 19 per cent over the period 1996–2006, whereas the central region increased its share from 4.6 to 7.1 per cent and the eastern region from 10.1 to 16.6 per cent. The north and northeast, by contrast saw their share decrease from 9.2 per cent and 11.8 per cent respectively to 8.8 per cent and 10.3 per cent over the same period; see NESDB at < http://www.nesdb.go.th/Default.aspx?tabid=96>.
14. Pasuk Phongpaichit and Chris Baker, “Thaksin’s Populism”, Journal of Contemporary Asia 38, no. 1 (2008): 62–83.
15. For the extensive literature on this issue, with particular respect to the drafting process, see Andrew Arato, “Forms of Constitution-Making and Theories of Democracies”, Cardozo Law Review 17 (1995); Jon Elster, “Forces and Mechanism in the Constitution-Making Process”, Duke Law Journal 45 (1995): 364–96; Vivien Hart, “Democratic Constitution Making” (Washington, D.C.: United States Institute of Peace, 2003); Muno Ndulo, “Constitution-Making in Africa: Assessing Both the Process and the Content”, Public Administration and Development 21, no. 2 (2001): 101–17; H.W.O. Okoth-Ogendo, “The Quest for Constitutional Government”, in African Perspectives on Governance, edited by Goran Hyden, H.W.O. Okoth-Ogendo, and Bamidele Olowu (Asmara: Africa World Press, 2000), pp. 33–61.
16. One has to be careful with the term legitimacy; ideally one needs to differentiate between mass and elite legitimacy; for the role of the drafting process in generating legitimacy see Yash Ghai, “The Constitution Reform Process: Comparative Perspectives”, paper presented at the conference “Toward Inclusive and Participatory Constitution Making”, Kathmandu, 3–5 August 2004.
17. For a good overview of the political context leading up the to 1997 Constitution, see Connors, Democracy and National Identity, op. cit., especially pp. 92–118; Kevin Hewison, “Constitutions, Regimes and Power in Thailand”, Democratization 14, no. 5 (2007): 931–36; Surin Maisrikrod, “Changing Forms of Democracy in Asia? Some Observations on the Thai and Philippine Constitutions”, Asian Studies Review 23, no. 3 (1999): 355–73.
18. Somkiat Onwimon, The Dynamic of the People Participation in Thailand and the Drafting of the ‘People’s Constitution’ (1997) (Bangkok: Thai Vitas, 2002).
19. Borwornsak and Burns, “The Thai Constitution of 1997: Sources and Process”, op. cit, pp. 232–35.
20. Connors, “Framing the ‘People’s Constitution’”, op. cit., pp. 48–53; Surin, “Changing Forms of Democracy in Asia?”, op. cit., pp. 363–65.
21. For an analysis of royal networks see Duncan McCargo, “Network Monarchy and Legitimacy Crisis in Thailand”, The Pacific Review 18, no. 4 (2005): 499–519.
22. Björn Dressel, “Constitutional Reform, Democratic Governance, and Budgetary Politics: Comparative Cases from Southeast Asia and Sub-Saharan Africa”, unpublished Ph.D. thesis, Johns Hopkins University, 2008.
23. Philippe Doneys, “Political Reform through the Public Sphere: Women’s Groups and the Fabric of Governance”, in Reforming Thai Politics, edited by McCargo, op. cit., pp. 163–82.
24. Prudhisan Jumbala, “Thailand: Constitutional Reform Amidst Economic Crisis”, in Southeast Asian Affairs 1998, edited by Derek da Cunha and John Funston (Singapore: Institute of Southeast Asian Studies, 1998), pp. 265–91.
25. In a media reported incidence a soldier guarding the entrance to parliament stopped a women carrying 400,000 baht on the day of the voting; she refused to answer why she was carrying so much money; see Mongkol Bangprapa and Manop Thip-Osod, “200 shortlisted to draft new charter, but accusations made of improper NPA vote”, Bangkok Post, 20 December 2006.
26. See Pravit Rojanaphruk and Sucheera Pinijparakarn, “Eyebrows raised over CDA selection”, The Nation, 19 December 2006.
27. The majority of the 200 nominees came from the public sector (73), followed by the private sector (54), social sector (38) and academia (34).
28. See “Full list of CDA”, The Nation, 3 January 2007 at .
29. See Avudh Panananda, “Technocrats oversee charter writing”, The Nation, 16 January 2007.
30. CDA member Chirmsak Pinthong later claimed that bloc voting had been arranged to elect Noranit and the two deputies, forcing the two other candidates to withdraw, see Sathian Viriyapanpongsa, “Noranit picked to head the CDA”, The Nation, 9 January 2007.
31. See “Nominees of CNS can’t chair panels”, The Nation, 23 January 2007 at .
32. Issued in December 2006, these guidelines included: restricting the Prime Minister to a maximum of two terms; preventing government from assuming a caretaker role if parliament is dissolved; and making it easier to induce motions of no confidence under the new constitution.
33. For instance, the meeting of concerned judges under the leadership of Supreme Court Judge Wattanachai Chotechootrakul, chairman of the courts committee reviewing the constitution draft, concluded that: “It is inappropriate to make judges become involved (in politics) because it will lead to loss of independence and fairness of the courts”; see “Judges oppose appointment’s role”, The Nation, 2 May 2007 at < http://www.nationmultimedia.com/search/read.php?newsid= 30033161&keyword=Wattanachai+Chotechootrakul>.
34. Tom Ginsburg, “Constitutional Afterlife: The Continuing Impact of Thailand’s Postpolitical Constitution”, International Journal of Constitutional Law 7 (2009): 83–105.
35. See Nophakhun Limsamarnphun, “New style of politics might be in the offering after CNS steps down”, The Nation, 3 December 2006.
36. See Nattaya Chetchotiros and Mongkol Bangprapa, “Political leaders set out their charter goals”, Bangkok Post, 13 November 2006.
37. See Pravit Rojanaphruk, “Thai style democracy advocated”, The Nation, 1 December 2006.
38. Michael Connors, “Article of Faith: The Failure of Royal Liberalism in Thailand”, Journal of Contemporary Asia 38, no. 1 (2007): 143–65.
39. See Subhatra Bhumiprabhas, “Charter drafter pans ‘evil’ elections”, The Nation, 27 April 2007.
40. See Nantiya Tangwisutijit and Bancha Khaengkhan, “Thumbs down for the next charter”, The Nation, 15 January 2007.
41. Commenting on the process, Banjerd Singkhaneti, Director of the Thammasat University Law Center, noted: “I think it will be a mess and the next constitution will be just that”, while Charoen Khumpeeraparp of Silpakorn University criticized the amnesty clause; see Pradit Ruangdit, “Draft charter loopholes can ‘resurrect Thaksin regime’”, Bangkok Post, 28 September 2006.
42. See “Former charter drafting assembly chairman declares opposition to draft constitution”, The Nation, 15 August 2007 at .
43. Public Presentation, Foreign Correspondence Club, Bangkok, 25 May 2007.
44. Duncan McCargo, “Thailand: State of Anxiety”, in Southeast Asian Affairs 2008, edited by Daljit Singh and Lorraine C. Salazar (Singapore: Institute of Southeast Asian Studies, 2008), pp. 332–56.
45. See “Rejecting new charter could make things worse”, The Nation, 26 April 2007 at .
46. For instance, police raided the house of the Duang Prateep Foundation of former Senator Prateep Ungsongtham Hata, confiscating anti-charter material without filing charges; other politicians were affected as well. “Robbed by army captain”, The Nation, 31 July 2007 at .
47. The CNS mobilized the Internal Security Operations Command’s (ISOC) 700,000 nationwide staff to promote “a proper understanding of the constitution” in rural areas; see Wassana Nanuam and Subin Khunkaew, “CNS push for charter ‘yes’ vote”, Bangkok Post, 31 July 2007.
48. See Gil Ji Ungpakorn, “The 19th August constitutional referendum process is undemocratic”, Prachatai, 15 August 2007 at < http://www.prachatai.com/english/news.php?id=149>.
49. An Abac poll conducted between 25 July and 2 August 2008 found that 53.3 per cent of respondents supported the government’s plan for charter amendments. See “Poll: Thais nationwide favour constitutional change”, Bangkok Post, 6 August 2008.
50. Allen Hicken, “Party Fabrication: Constitutional Reform and the Rise of Thai Rak Thai”, Journal of East Asian Studies 6, no. 3 (2006): 381–407.
51. Bloc Vote can be defined as a plurality-majority system used in multi-member districts in which electors have as many votes as there are candidates.
52. Allen Hicken, “Parties, Policy and Patronage: Governance and Growth in Thailand”, in Corruption: The Boom and Bust of East Asia, edited by J.E.L. Campos (Quezon City: Ateneo de Manila Press, 2001), pp. 38–50; see also Allen Hicken, “Party Systems, Political Institutions and Policy: Policy-Making in Developing Democracies”, unpublished Ph.D. thesis, University of California, 2002.
53. Under the 1997 Constitution, Senators were prohibited from belonging to a party or from campaigning for office. See Articles 121–34.
54. For a critical review of these institutions see Peter Leyland, “Thailand’s Constitutional Watchdogs: Dobermans, Bloodhounds or Lapdogs?”, Journal of Comparative Law 2 (2008): 151–62; Alex Mutebi, “Thailand’s Independent Agencies under Thaksin”, in Southeast Asian Affairs 2006, edited by Daljit Singh and Lorraine C. Salazar (Singapore: Institite of Southeast Asian Studies, 2006), pp. 303–21.
55. Article 7 of the 1997 Constitution reads: “Whenever no provision under this Constitution is applicable to any case, it shall be decided in accordance with the constitutional practice in the democratic regime of government with the King as Head of State.”
56. See McCargo, “Network Monarchy”, op. cit., pp. 511–12.
57. The effective number of parties dropped from 7.2 between 1986–96 to 3.1 between 2001–05; see Hicken, “Party Fabrication”, op. cit., pp. 381–407.
58. Duncan McCargo, “Democracy under Stress in Thaksin’s Thailand”, op. cit, p. 114.
59. Kuhonta, “The Paradox”, op. cit., pp. 373–92; Duncan McCargo, “Balancing the Checks: Thailand’s Paralysed Politics Post-1997”, Journal of East Asian Studies 3 (2003): 129–52; McCargo and Pathmanand, The Thaksinization of Thailand, op. cit., pp. 511–12; Thitinan Pongsudhirak, “Thailand: Democratic Authoritarianism”, in Southeast Asian Affairs, edited by Daljit Singh and Chin Kin Wah (2003), pp. 277–90.
60. According to Article 113 the SSC consists of the Presidents of the Election Commission, Ombudsman Office, National Counter Corruption Commission, State Audit Commission, as well as one judge of the Supreme and the Administrative Court each.
61. Under the new rules, five judges will come from the Supreme and Administrative Court, with two additional members each representing legal and political/social science experts (previously eight).
62. Official election results, 23 December 2007 (including subsequent re-runs in January 2008): People’s Power Party (233); Democrat Party (164); Chart Thai (34); Puea Pandin (24); Ruam Jai Thai Chart Pattana (9); Matchima Thippathai (11); Pracharaj (5).
63. In one interview Samak even described himself as a Thaksin “nominee”, a statement he later retracted. See Weerayut Chokchaimadon, “PPP is now clearly the new Thai Rak Thai”, The Nation, 27 August 2007.
64. For details see Sopon Onkgara, “Govt reaching first 100 days with poor showing”, The Nation, 29 April 2008.
65. See Supavud Saicheua and Thanomsri Fongarunrung, “Thailand Economics: New government, new hope”, Economic Analysis, 6 February 2008, at .
66. In March 2008 Prime Minister Samak claimed to have received an anonymous letter stating that certain groups were plotting a coup against the PPP government, a claim further fuelled by comments of well-known fortune teller Hon Warin.
67. The longstanding ownership dispute between Thailand and Cambodia over the Preah Vihear temple site reappeared after Cambodia submitted an application in 2008 to UNESCO requesting that it be designated as a World Heritage site. The agreement between both governments about the disputed land area became a cause célèbre for PAD in its fight against the PPP, leading to the Constitutional Court decision against the PPP-led government.
68. For a tentative analysis of the PAD, see Wolfram Schaffer and Oliver Pye, “The 2006 Anti-Thaksin Movement in Thailand: An Analysis”, Journal of Contemporary Asia 38, no. 1 (2008): 38–61.
69. For further interesting thoughts on this issue see Neil A. Englehart, “Democracy and the Thai Middle Class”, Asian Survey 43, no. 2 (2003): 253–79; Mark R. Thompson, “The Dialectic of ‘Good Governance’ and Democracy in Southeast Asia: Globalized Discourses and Local Responses”, Globalities Studies Journal, no. 10 (2007): 1–19.
70. For the growing critical literature on the political involvement of the Thai monarchy, see Connors, “Article of Faith”, op. cit.; Paul Handley, The King Never Smiles: A Biography of Thailand’s Bhumipol Adulyadej (New Haven: Yale University Press, 2006); Kasian Tejapira, “Toppling Thaksin”, op. cit.; McCargo, “Network Monarchy”, op. cit.; Thongchai Winichakul, “Toppling Democracy”, Journal of Contemporary Asia 38, no. 1 (2008): 11–37; Ukrist Pathmanand, “A Different Coup D’etat?”, op. cit.