Opinion: The Case for Constitutional Reform

In the last TIME article in March, the now-former Prime Minister Srettha Thavisin declared that Thailand is open for business. But now, the businessman is no longer in charge.

In the span of a few days, the Constitutional Court managed to dissolve the most popular political party and ban its leader from politics as well as dismiss the prime minister (who by every right should have been the same person – but that is a story for another day).

Its decision cannot be justified on legal merit alone. The “ethical standards” the Constitutional Court declared that Srettha grossly breached pertains to his appointment of Phichit Chuenban, who was jailed for alleged bribery of court officials, as a Cabinet member. These “ethical standards” stem from the 2017 Constitution drafted by the instigators of the 2014 military coup; it is the first time such a phrase has appeared in a constitution. Guidelines have been issued by the Constitutional Court itself with other nominally independent institutions (including the Election Commission) to give meaning to what these ethical standards mean, in a way that can be broadly interpreted to favour one side or another.

It seems jarring that there is a breach of “ethical standards” in Thailand in this case, and that this is enough to disqualify someone from the highest democratic office in the Country – while Thammanat Prompao – who has been convicted for conspiracy to transport heroin in Australia – has been allowed to remain minister of agriculture. (The Constitutional Court’s previous reasoning on this matter is that he was convicted in Australia, and verdicts of foreign courts have no effect in Thailand.) 

Or take a look at the Constitutional Court’s voting record. Apart from Srettha, two other prime ministers from the Pheu Thai Party have also been dismissed in the past two decades: Samak Sundaravej and Yingluck Shinawatra. The cases against all three of them have been brought by unelected MPs. (Thaksin also had a case against him in the Constitutional Court, but he narrowly escaped dismissal by one vote.) Yet, former prime minister Prayut Chan-o-cha, who instigated the 2014 coup, has survived all three cases that have been brought against him by a wide margin.

All this doesn’t just suggest blatant inequality and double standards in the application of legal norms; it highlights the Court’s role as a machiavellian defence of the old guard. In deciding cases clearly along party lines, they chose fear rather than change in an attempt to preserve the power of the conservative establishment. But these decisions are mere band-aids over a bullet hole. Try as they may, they cannot rid the country of opposition. The Court’s verdict may hold up in its own court of law, but it will never hold up in the court of public opinion. And oftentimes in a democracy, that is just as important.

The result of this verdict plunges Thailand’s already volatile situation into even more chaos. While government officials are busy admonishing foreign countries expressing concern about the recent court decisions for judicial interference, the Thai people are crying foul about judicial interference in democratic processes. It circumvents democratic mandate, disrupts political stability, and frankly embarrasses the country. 

In less than a year since Srettha has been in office, what has he achieved? Sure, the Marriage Equality Bill passed under his watch, and that should be celebrated. But economic growth and development, which is what his party’s campaign has focused on, has not taken off. Nor has Srettha’s “Ignite Thailand” Vision 2030, pledging his commitment to igniting Thailand to become a hub for tourism, wellness and medicine, and agriculture; instead, the only thing that seems to ignite is political instability. The latest UNCTAD report shows Thailand having a sharp decline in foreign direct investment, partly due to its political uncertainty after the elections last year and ensuing questions on budgeting and policy. Indeed, investments take a long time to pay off–more time than he has had.

Even with Srettha’s party still at the helm, all that he has achieved may be undone. Other countries do not see fertile ground for investment, nor a promising place to host World Pride 2030 – not when its pioneer has been thrown out of office. They can see right through the feeble attempts to justify judicial coups, fractured and incoherent internal voices, and politics seeped with struggles between the old and new guard.

Looking ahead, Paetongtharn faces a difficult job. She will need to grapple with consolidating the coalition, the fate of Srettha’s controversial digital wallet handouts policy that clashes with the central government, and the People’s Party reform agenda. On top of all this, the shadow of her father Thaksin Shinawatra, no other than the most polarising figure in Thai politics, will be seen to inform her every decision.

As evidenced by the last election, populist policies will no longer be enough to appease voters. The spectre looming in the background is what has been voiced by the disenfranchised 14 million voters that chose the now-dissolved Move Forward Party: constitutional reform – in particular, institutional reform.

Yes, the judiciary plays an important role. They should be independent and unelected, not necessarily entirely answerable to the people. But this is exactly why its powers should be clearly delimited. There should be clearer separation of powers, checked and balanced with the other branches of government. In this sense, their powers of interpretation should not be tantamount to judicial coups. With the judicial interference in the democratic legislative process through overly broad interpretations – from holding that a mere proposal to amend section 112 of the Criminal Code is grounds for banning people from politics to this current case – the Constitutional Court has toppled more than enough democratically elected leaders on questionable grounds. And this is just a microcosm of how the powers that be make a mockery of the highest, supposedly elected, office in the country.

All this points to one thing: the case for constitutional reform remains stronger than ever. If anything, the Constitutional Court’s verdict is a reminder that reform is a real, relevant and recurrent issue not to be swept under the rug of populist discourse. The office of the prime minister should hold more meaning than what the unelected institutions, including the Constitutional Court and the Election Commission, are giving it. Such reform cannot be excluded from the national agenda forever. If Thailand wants to show that it is truly open for business, it’s going to take more than cash handouts. It’s going to mean taking a long, hard look at our country, strengthening the rule of law, and building strong, robust, and accountable institutions. This is the precondition for development. Without it, Thailand cannot be open for business.