Each year on the 10th of December, Thailand commemorates its first constitution adopted after the 1932 Siamese Revolution. History books describe this as the momentous event of Thailand’s transition from an absolute to a constitutional monarchy– that is, democracy, with the monarch as the head of state.
It is within this background that a certain irony becomes apparent: since 1932, a stable democracy has never truly been achieved. Thailand had a grand total of 20 constitutions – joining a special league of countries that have achieved this disheartening record. The promulgation of new charters roughly every four years reflects discontinuity and turmoil in Thai politics, resulting in a dysfunctional democracy that rarely accurately reflects the will of the people at large. This is owing to decades of civilian-military rivalry and numerous coups, after which coupmakers would promulgate new constitutions. Indeed, today’s People’s Party (Ratsadon) echoes the same issues that Khana Ratsadon was trying to achieve back then.
Thus, Constitution Day this year – which happens to fall on the same day as International Human Rights Day – was marked not by solemn remembrance but by continued active struggle of the people in Thailand’s tumultuous journey towards democracy and guaranteed human rights.
In the midst of crowds of protesters, shipping container blockades, and barbed wire, it may be difficult to see what Thailand’s constitutions have taught us over the years. On this year’s Constitution Day, it may be important to pause and reflect on the importance of a constitution and the people’s struggles for one that represents them.
“A Constitution is not an idol to be worshipped; it is an instrument of government to be worked.” – Senator Robert J. Bulkley of Ohio
The Constitution is an amalgamation of a country’s fundamental rules and principles that frame the relationship between institutions and people, establish the rule of law and respect for human rights, and decide how the people will be governed. In theory, it is an essential component of democracy, as it delineates and limits the powers the government can exercise, ensure transparency and accountability, and guarantee the rights of the people.
In practice, Thailand’s constitutions are indeed more akin to instruments of each day-to-day government to be worked. Following each successful military coup, old constitutions would be abrogated and new ones promulgated, thus pushing new laws that serve the interests of the coupmakers and absolve them of any wrongdoing. All of Thailand’s constitutions purport to govern under the system of a constitutional monarchy, but the specific details of governance widely differ. Some truly aim to be democratic; others merely claim to be in order to allow for “civilian” administrations that serve as a trojan horse for military ones.
As it may require a full history course to fully understand all of Thailand’s constitutions, it is most useful here to look at the past three “permanent” constitutions over the three decades: the 1997, 2007, and 2017 Constitutions.
Following political turmoil after the Black May public uprising, it became increasingly clear that politicians must respond to the public’s demands for reform towards an open and accountable government. What resulted was the 1997 Constitution, which was widely lauded as “The People’s Constitution” for its high degree of public participation, accountability, and explicit acknowledgement of human rights.
Regarding the first point, it is the only charter drafted purely by democratically-elected representatives. The Constitution Drafting Assembly comprised 76 members elected directly from each province, and 23 members selected by parliament. There was nationwide public consultation to ensure public approval. Moreover, the people had the complete power to elect Members of Parliament in both the House and the Senate; a completely elected legislature of this kind has not been seen before– the closest was the 1946 Constitution, where an elected House selected the Senate.
Thus, in the 1997 Constitution, the elected Senate ensured accountability of other rulers. Anti-corruption provisions were added, including compulsory voting as an anti-vote-buying measure, codes of conducts, and control authorities or independent organisations to provide further checks and balances.
Lastly, the 1997 Constitution explicitly recognised human rights and the concept of human dignity – then unprecedented in Thailand – and related it to civil liberties, affirming each individual’s rights. Perhaps most importantly in the context of Thai politics, the right and duty to protest coups peacefully was recognised, as well as practical guarantees to ensure access to information, freedom of expression, and provision of twelve years of free education – aiming to allow people to express free and informed opinions.
Of course, the 1997 Constitution is not without its faults. Its aim to strengthen the executive branch and maintain government stability – including through requiring two-fifths of votes in the House to debate a vote of no confidence. This resulted in politicians exploiting loopholes, resulting in the “tyranny of the majority” or “parliamentary dictatorship” that led to the political deadlock in 2006 and subsequent coup against Thakin Shinawatra’s administration by then-Army Chief General Sonthi Boonyaratglin and the promulgation of a interim 2006 Constitution.
In this context, the 2007 Constitution of Thailand was drafted. It is widely seen as a regression of democratic participation, with constitution drafters directly and indirectly appointed by the Council for National Security (CNS), the junta that staged the coup. While the constitution was drafted by a public referendum, it was largely regarded as neither free nor fair; reporting criticism or campaigning against the charter was banned under penalty of law. Furthermore, there was no clear alternative – that is, if the constitution was not accepted, the CNS stipulated that they have the power to promulgate any constitution of their choosing.
The contents of the constitution were also heavily controversial: stemming from the interim 2006 Constitution, the 2007 Constitution allowed for less public participation, with a partially appointed senate. It also provided for amnesty of coup leaders.
The 2017 Constitution is widely seen to follow the 2007 Constitution, with a similar pattern of events leading to its promulgation: political deadlock, a coup against the (Yingluck) Shinawatra administration, and an interim Constitution announced. This echoed trajectory is also evinced in the drafting itself: constitution drafters were directly appointed by the junta staging the coup (National Council for Peace and Order), a public referendum by which the 2017 Constitution was approved with restricted reporting, and an unclear alternative should the people fail to vote for it. Like the 2007 Constitution and unlike the 1997 Constitution, decreased accountability and public participation must be severely questioned.
In addition, the substance of the 2017 Constitution remains similarly or even more controversial than the 2007 one; they are major points of contention today between the pro-democracy protestors and the government. In particular, the 2017 Constitution likewise stipulated for a partially appointed Senate, which has a role in appointing the Prime Minister. Moreover, in the current Constitution, the Parliament, with the approval of the appointed Senate, can select an outside candidate who does not have to be a member of Parliament nor a politician as Prime Minister – heavily criticised then and now as an attempt to write the constitution in a way to retain Prayut and the army’s influence in politics. Lastly, after the referendum, several changes were made regarding the monarch’s power before it was ratified.
A look at today’s reforms
In November 2020, after months of pressure from pro-democracy protesters, the government deliberated constitution amendment proposals and accepted two out of seven in the first reading. The accepted amendments concern Section 256 of the Constitution on how the constitution can be revised, calling for the appointment of a Constitution Drafting Assembly – elected by the people – to review the constitution.
The unsurprisingly rejected amendment proposals attempt to remedy the Constitution’s failures in ensuring accountability and public participation – it aims to curb the role of the elected Senate, including to end its role in national reforms and its power to vote for the Prime Minister. The opposition also proposed removing the provision of amnesty for coupmakers and returning to a double ballot electoral system. It is also worth mentioning that iLaw’s comprehensive set of political reforms, which garnered more than 100,000 signatures, also failed.
Whether this incremental change – if finally enacted – is a glib (and failed) attempt to placate anti-government protestors or a genuine effort to reform according to the pro-democracy protesters’ demands remains to be seen, though many are skeptical of the latter. Some issues, including the protestors’ unprecedented call for monarchy reform – is a point the government refuses to compromise on. It does not help that the two opposing groups of protesters have become extremely polarising with some pro-democracy protesters considering the abolishment of the monarchy altogether, and some royalists suggesting a return to absolute monarchy, thus sowing further division in Thai society.
In any case, resolving the current long political divide in Thailand will require an acknowledgement of the failures and vicious cycle of coups and constitutions that have plagued Thailand’s constitution throughout its modern history, and an understanding of why each constitution failed to last both due to its drafting process and substantive provisions within the context of national politics. There is no time more important than Constitution Day to reflect on this progress – or lack thereof – that we have made up until today. With these lessons in mind, there is hope that the reformed constitution by the people and for the people will truly be the last and most enduring Thai constitution.