Opinion: Abolishing the Senate is a new minimum for constitutional reform

The 2017 Constitution allowed the return of the same Prime Minister as the one that had instigated a military coup five years before prompting calls from many sectors of society to amend the charter. Those calls have never been stronger than it is today.

Compared with last year, the conversation has now shifted from a question whether to amend, to one of what to amend.

While this signifies progress, it also presents a challenge on how to find a common issue that can unite all those calling for a more democratic Constitution.

A common issue that, on the one hand, is progressive enough to create a real, impactful change to the undemocratic structure of this country while, on the other hand, is not so divisive such that it cannot gather consensus amongst those demanding a new Constitution.

Some, especially those in Parliament, want to rally around amending Article 256 to allow for the constitution to be more easily amended.

Those concerned with the economy have, with good reason, taken grievances around the existence and binding nature of the 20-year National Strategy.

While some demands from the student movement earlier in the week have gone beyond anything that had been proposed beforehand.

However, for me, the core proposal should be the abolition of the Senate.

If there is one place that symbolizes and encapsulates all that is wrong with the current political system, you do not need to look further than the 250-member, military-appointed Senate.

If you want evidence of a complete disregard for the basic democratic principle of ‘one person one vote’, look no further than the power granted to the 250 Senators in voting for the Prime Minister alongside 500 elected MPs.

Given than the 500 MPs come from 38 million votes cast at the ballot box while 250 Senators are appointed by a 10-member Selection Committee, simple arithmetic will tell you that that one member of the Senate Selection Committee has 2 million times more power or influence than a general voter.

If you want to see an institution littered with conflict of interest, you can look to either the fact that 6 out of the 10 members of the Senate Selection Committee appointed themselves to be Senators, or you can look to the fact that 6 spaces in the Senate are reserved for the Military and Police Commanders-in-Chief despite their concurrent status as members of the civil service will full-time salaries.

If you want a legal masterpiece of how to ‘lock’ and control all parts of the state structure, look no further than the Constitution writers’ decision to grant the military-appointed Senate not just voting powers, but vetoing powers, on both the selection of members for independent organisations and on any proposed constitutional amendment.

If you want to see a complete mismatch between the professional and demographic make-up of those in power and those they seek to govern, then the fact that 40% of the Senators are personnel from the military or the police force is a telling statistic.

If you want to see an organization that performs the opposite role to what it was supposedly created to do, then you can look to the Senators’ voting records since their appointment. With all 145 motions passed at an average approval rate of 96%, I am sure no one will dare claim that this is an organization that has performed the role of checking and balancing the executive branch to its utmost abilities.

This list can go on, but perhaps need not to, in order to illustrate the point : any amendment to the Constitution is not enough unless it strikes at the core of the system, the Senate.

As seen across the globe, creating a ‘democratic’ Upper House has no single recipe; although an internationally accepted principle is that the power a senate has must be in proportion to the democratic origins of its members.

The House of Lords can still exist in the UK because despite it being wholly composed of appointed members, it wields little power. The most it can do from a legislative standpoint is to delay Bills passed by the elected MPs for a maximum of one year.

Meanwhile, its U.S. counterpart is allowed more legislative powers precisely because of its more democratic origins – members of the Senate are elected to represent different States in the federal system.

To balance the equation, a way out for the Thai Senate is to choose between these two models : either follow the UK route by retaining its appointed nature but reducing its powers to an extent that its undemocratic origins have little meaning or follow the US route and create an elected Upper House, similar to what we saw in the 1997 Constitution.

However, this is a false dichotomy : there is in fact a third, more compelling, solution.

A solution that is currently chosen by two-thirds of democratic countries around the world that are comparable to Thailand in their unitary status and adoption of a parliamentary system.

The solution is to do away with an Upper House entirely and transform our legislative branch from a bicameral, two-House system to a unicameral, one-House parliamentary system.

I must confess that when I first proposed this at a panel discussion on constitutional change in Hat Yai hosted by New Consensus Thailand last year (https://ilaw.or.th/node/5376), it was met with a mixed reception between those who agree and those who still prefer an elected Upper House.

However, as events have panned out, I have grown in confidence with this proposal.

The financial cost of having a Senate alone is not something to be dismissed. From adding up the salaries of the 250 Senators and their legally assigned assistants, the operational expenses involved, and the 1,300 million baht used in the selection process, we are already looking at an annual expense of over 1 billion baht per year (I initially wanted to include meeting allowances in the expenses calculation, but then decided not to after seeing the meeting attendance records of some of the Senators…). At a time where our national budget will be increasingly constrained given the immediate need for a sizable post-COVID fiscal stimulus, spending so much on an institution that have so far failed to add tangible value to the checks and balances process is hard to justify.

Moreover, the cost in terms of time and effort required to balance the equation between the powers the Senate has and the origins of its members cannot be underestimated. New Zealand’s attempt to find a workable model for an appointed Upper House faced difficulties from its inability to find an appointments process that can ensure truly neutral appointments, resulting in abolition in 1951. Sweden also decided to do away with its Upper House in 1970 after its model of an elected Senate resulted in two Chambers performing overlapping legislative roles with almost identical political make-up. Given our history, there is no reason to believe that our process will be faster, smoother or more successful – even the closest we came to a workable democratic model of the Senate (i.e., an elected version that was borne out of the 1997 Constitution) was met with accusations of becoming a replica of the House of Representatives, influenced by the same political forces that dominated the Lower House.

However, the most compelling reason for me is that the Senate may have become an outdated model for providing checks and balances in these modern times – the three roles previously expected to be performed by the Senate, may be better performed by other bodies.

On the legislative front, given the fast-changing nature of the world and the quick rise and fall of new technologies, retaining a lengthy legislative process that passes through two chambers may not be best at ensuring the laws of our country can quickly adapt to changes in the real world. By the time we have a legislative framework passed for a certain technology – be it digital currency, artificial intelligence, or telemedicine – new technologies may have already emerged. If the argument for retaining a Senate is merely to create a place where experts across different fields can voice their opinions on various laws being passed, the existing House Committee mechanism can be adjusted to provide sufficient space for incorporating their suggestions.

On holding the Government to account, the rise of social media and the greater availability of data call into question whether relying on 200 or so experts in the Upper House is the most effective or cost-efficient way to investigate the workings of the Government. If equipped with the right to access sensitive and detailed data, the legal protection for whistleblowers or the appropriate digital platforms for crowdsourcing information and instigating change, the people as a whole may collectively be more capable at performing this checks and balances function than any 200 cherry-picked members of the Senate could.

On the Senate’s currently controversial role in appointing Committee members of Independent Organisations, this responsibility should instead be placed in the hands of elected MPs in order to ensure people have an indirect say in these appointments. However, to ensure neutrality and non-partisanship, a further condition could be placed to say that all appointments to Independent Organisaitons must be approved by both the majority of Government MPs and the majority of Opposition MPs.

Not only will a unicameral system be more in line with modern times, but it also eliminates a core institution that has been used often in the past – and especially currently – to extend military or unelected powers. 

While this proposal, when introduced last year, may have been seen as a potential step too far in pushing the boundaries for constitutional change, but fast forward to the current political climate and the demands that are escalating day-by-day, I believe this has now become the minimum that would be acceptable to those calling for real change.

Amending Article 256, while necessary, may not be enough to invoke confidence that real change will follow, if not tabled concurrently with other more tangible amendments.

Forming a People’s Constitution Drafting Committee may not always guarantee democratic process, let alone democratic content, if no sufficient measures are put in place to prevent the Government’s potential to meddle with the free and fair nature of the process (especially if the way the 2016 referendum to ratify the current Constitution was conducted is anything to go by).

Removing the Senate’s power to vote for Prime Minister alone does nothing more than run down its transitional powers 1 or 2 years quicker than initially planned.

Only in abolishing the Senate will we strike at the root cause of the existing political problem.

Anything less than this will not be satisfactory or perceived to be genuine enough in creating real change. Anything more may be hard to garner consensus at this time even amongst those calling for democracy.

If we can all at least rally around creating a unicameral system to be the ‘new normal’ for Thai politics, then that may be the first step needed to jumpstart our country on its path to a full democracy.

And for those still worried about the checks and balances mechanism in the absence of a Senate, I leave you with this : the only thing that is more dangerous than not having a Senate to check and balance the Government, is to have a Senate that mindlessly rubber stamps everything the Government does.

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