Constitution-Making in the 21st Century Thailand: The Continuing Search for Perfect Paper

[published in the Chinese Journal of Comparative Law 2019]

By Andrew Harding and Rawin Leelapatana

1. Introduction

            Since the 1932 Revolution that changed the system of government in Thailand from an absolute to a constitutional monarchy, the country has intermittently been convulsed by a succession of periods of political instability. For the last 87 years Thailand has oscillated between military (or military-backed) dictatorial rule and civilian government under a liberal, multi-party democracy, witnessing 13 successful coups and 20 constitutions, the latest constitution being that of 2017. Notwithstanding the 1997 reforms aimed at halting this vicious cycleof coups and constitutions, the constitutional and political stability Thailand has sought seems to be even more elusive in the 21st century than it was in the 20th, following the occurrence from 2006 onwards of colour-coded politicsor conflict between the ‘Red’ and ‘Yellow’ factions. The conflict between these two factions led to two coups, those of 2006 and 2014,[1] both of which involved the revocation of the constitution (those of 1997 and 2007), and the enactment of a new one (those of 2007 and 2017), as well as the promulgation of an interim constitution (those of 2006 and 2014). This conflict has turned Thailand into what Lemer calls a deeply divided society with two competing notions of the constitution, resulting from a lack of consensus as to whether liberal democracy, popular sovereignty and the principle of constitutionalism should serve as the countrys fundamental norms and values.[2] Whereas on the one hand the Red faction and other, liberal-minded, middle-class people outwardly endorse these western notions, on the other hand the Yellow faction and many other, conservative-minded, middle-class people, the military, and some elites, have accused liberal politics of generating political romanticismpluralism without hierarchy [and] political cacophony without strong state orchestration, and give more weight to a shared belief in homogeneity of the nation or Thai-ness, comprising the three pillars of Nation, Religion and Monarchy.[3]

            The Yellow faction even expresses its support for two military coups and constitutional revocations of 2006 and 2014, citing corruption and a threat to Thai-ness entailed by party politics within the parliamentary system as justification for these actions. Indeed, some members of the Yellow faction have gone even further in renouncing the very notion of parliamentary democracy, resigning their seats to take to the streets in protest against the ‘Red’ government of Yingluck Shinawatra in 2013/14.[4]

The two interim constitutions were promulgated following the seizures of power by the military in 2006 and 2014, not only (as is usual) to legitimate the actions of the junta, but also to set up a committee responsible for drafting the new ‘permanent’ constitutions that came into force in 2007 and 2017, respectively. These constitutions, despite outwardly restoring electoral politics, greatly reduced the space for emergent liberal politics fostered by the 1997 constitutional reform. In particular, where the 1997 Constitution, for the first time, created the directly elected Senate of 200 members, the 2007 and 2017 reintroduced the appointed Senate, comprising senior bureaucrats and military officials, which traditionally functions to label electoral politics associated with liberal democracy as pluralism with disintegrating tendencies, corrupt, and therefore a source of political instability and even crisis. Given that the clash between the two notions of the constitution is being played out in the context of what appeared at the time to be global trends towards constitutionalism, modernisation, liberalisation, and democratisation, the technique of constitution-making appears to have become an essential weapon necessary for legitimating and stabilising the regime preferred by the Yellow faction, including for the purpose of insulating the coup-leaders from any legal challenges by pro-democracy forces.[5] Nevertheless, rather than facilitating constitutional stability, the making of three constitutions promulgated in late 20th and early 21st century Thailand, which are the object of this study (i.e., those of 1997, 2007 and 2017) seem to have exacerbated or even created a rift within Thai society, exemplified by the two competing conceptions of the constitution set out above.

            In this paper we therefore seek to explore some of the current constitutional debates and issues related to constitution-making in 21st-century Thailand in an attempt to ascertain the relevance of global ideas of constitutionalism as evidenced in the three constitution-making processes (those of 1996-7, 2007 and 2014-7) which we regard as the most significant ones in and for the (long) 21st century as seen from the vantage-point of 2018. As we write the 2017 Constitution is being implemented, with elections set for February 2019. Accordingly, we are unable to assess the effects of this particular exercise, but are able nonetheless to comment on those of 1997 and 2007. It will be apparent that, at one level at least, the processes of 1996-7 and 2007 have to be seen as unsuccessful, in that, despite what Ginsburg calls the ‘constitutional afterlife’ of the 1997 reforms,[6] both of the resulting constitutions were eclipsed by a coup d’état.

2. Historical Background: The Tension between Two Notions of ‘the Constitution

            On 24 June 1932 a group of civilian officials and military officers known as the Peoples Party staged a coup détat, overthrowing the absolute monarchy. Their key figures were Pridi Banomyong, a doctoral law scholar, and a military strongman, Field-Marshall Plaek Phibun-songkhram. Following the coup Pridi drafted the 1932 Constitution, Siam/ Thailand’s[7] first written constitution. Considering the patronage system as obstructing commoner talents from reaching top-rank positions, Pridi attempted to implement a meritocratic bureaucracy and democratic constitutionalism. Viewing the military as the natural leaders of the new society, Phibun and the military could initially co-operate due to a shared distaste for aristocratic rule.[8]  However, due to an internal rift between Phibun and Pridi, the traditional elites, notably bureaucrats from the aristocracy, formed an alliance with Phibun in 1947, staging another coup détat, forcing Pridi to flee Thailand. This coup significantly restored what was referred to as ‘Thai-ness’, or the royalist tradition. Phibun was ousted in 1957 through another coup imposed by General Sarit Thanarat, with the support of the conservative elites. Sarit played a key role in reviving the hegemonic status of Thai-ness within Thailands constitutional landscape.[9] 

            Thai-ness is the traditional Thai notion of political stability and authority which grows from a traditional belief in the authority of a senior (Phu Yai), and noble people presumed to possess great Bun (merit) and Barami (charisma)—rather than in individualism and political participation. King Vajiravudh (1910-25) developed this tradition, and officially coined the three pillars of the traditional trinityNation-Religion-Monarchy - according to which the righteous Buddhist king is the embodiment of the nation and political unity.[10] In other words, according to the trinity, the Chat/ nation is a congregation of the people joining together to elect a ruler whose power is wielded through the moral principles of Theravada Buddhism..[11]  Hence the trinity of ‘Nation, Monarchy and Religion’, which, unlike some other expressions of national ideology in Asia (for example, Malaysia’s rukunegara), does not traditionally include an expression of loyalty to the Constitution or the rule of law.[12]

            Thai-ness provides an ideological weapon for modern-day conservatives and military leaders to counteract what they deem as a possible threat to political unity extreme exposure to liberalism. To them, the introduction of liberal democracy with a parliamentary system is a source of political instability in Thailand as it replaced concrete, personalistic rule with rule under an abstract constitution, thus generating political romanticism which invites antagonisms among egotistic evil politicians who enter politics just to pursue their own purposes.[13] Claiming to be the guardian of the sacred trinity, every coup leader since 1947 then proclaimed himself as conducting good Karma (action), and proclaiming himself as a ‘good person’ or Khon Dee.

            However, owing to the expansion of the middle class fostered by Thailands rapid economic growth after Sarit’s death in 1963, the country has witnessed greater demands from civil society for liberal democracy. Two mass protests in 1973 and 1992 made it clear that permanent military rule was no longer conceivable. The oscillation was thus set: liberal democracy could not prevail because it caused chaos; but authoritarian rule too could not prevail because it was undemocratic. The two systems thus resemble two stars in a binary-star-system: each star is unable to escape from the gravitational pull of the other. Growing liberal aspiration culminated in constitutional reform and the promulgation of the 1997 ‘Peoples Constitution’, seeking to encourage both stable politics and nationwide political participation. This constitution is normally heralded as a visible symbol of constitutional progressand of anti-coup sentiment.[14] Significantly for present purposes, it is the constitution involving the greatest (thus far) public participation and the greatest attention to global ideas of constitutionalism. It was a specific rejection of military rule and an attempt to resolve the problem of the binary-star-system.

            An apparently stable political environment created by the 1997 Constitution nevertheless facilitated the rise of Thaksin Shinawatras electoral pluto-populist regime between 2001 and 2005, and fostered a politically active citizenry even at the grass-roots level. Thaksins set of populist policies, such as universal health-care coverage and village-managed development funds, attracted poor voters in vast numbers.[15] This changing constitutional landscape significantly provoked anxiety among some conservatives and members of the middle classes who viewed Thaksins overwhelming popularity as a threat to Thai-ness. They believed that most of his supporters were uneducated and poor farmers or labourers manipulated by demagogues. Some middle class people even share a belief with the conservative elites that Thaksin sought to change Thailand into a republic. Put differently, based on Thai-ness, Thaksin has long been stigmatised as the un-Thai, who disrespects the sacred three pillars, and must be purged from Thai society. Ironically, Thaksin also tried to capitalise on nationalist sentiment: his party was called Thai Rak Thai, or ‘Thai Love Thai’.

            To purge Thaksin and his cronies from Thai politics, the military staged coups in 2006 and 2014, and promulgated four constitutions, outwardly undermining the liberal progress to which the 1997 reform aspired. Yet these coups not only exacerbated the rift between the pro- and anti-Thaksin factionsthe Red and the Yellow factions—but also deepened the demand-supply conflict between the two conceptions of the constitution, or more broadly speaking, of constituent power, that is, the status quo in which the (Thai) people as the sovereign. This concept is pursued in more detail in part 3 of the paper.  For now, we wish to summarise the demand-supply conflict in contemporary Thailand.

            The demand-side perspective is related to recurring demands for democratic constitutionalism in Thailand. It is premised on the Kantian (or perhaps Pridian) viewpoint which highlights the essence of political inclusion and equality, that is, that human beings must be treated as ends in themselves, not mere means’.[16] A constitution is regarded as an instrument containing institutionalised mechanisms of power-control for the protection of the interests and liberties of the citizenryin principle, rights and freedoms are unlimited, whilst state power is limited and subjected to checks and balances.[17] Given this liberal aspiration, opposing wills and interests must be conceived equally as, and the real owners of, state power and constituent power, capable of making and remaking the ‘institutional arrangements through which [the people] are governed.[18] There is no sovereign person holding a dictatorial authority derived from constituent power to suspend a written constitution at willa true constitution-making (or abolishing) power can be derived only from the people through extensive popular participation beyond the groups of ammat (nobles).[19] This standpoint is embraced not only by the Red faction, but also a rising number of members of the liberal-minded middle class.

            By contrast, its supply-side counterpart is agent-based, and espoused by the Yellow faction, the military and the conservative elites. It connotes attempts by the conservatives to preserve the paternalistic, hierarchical order, embodied in the durable [conservative-military] alliance.[20] The constitution here is understood as a unified wholethe concrete, collective condition of political unity and social order of a particular state’.[21] Individual rights and liberties have to give the way to the security of the state, which connotes the collectivity of the people. Meanwhile, it follows from such emphasis on the existential concept of the constitution that the coup leader, acting as the delegate or the peoples representative, exercises the remnant of constituent power to violate and annul an incumbent constitution under the justification of the protection of homogeneous unity under Thai-ness, and promulgate an interim one, thus iterating a repetition of the cycle.

 3.  In Search of the Thai Pouvoir Constituent

In light of our references to recent processes of constitution-making in Thailand, which are set out more fully below, we recognise that, given the enactment of so many constitutions in Thailand, there is a need to locate, in relation to this repeated constitution-making, the Thai pouvoir constituent: who has the power to make the constitution, and what are the conditions for the exercise of this power? In doing so, we offer here an explanation that we take to satisfy two potentially conflicting needs. The first is to offer a theory of the Thai grundnorm; what is the legal foundation for constitution-making, in circumstances in which the constitution-of-the-moment cannot provide an answer, despite its invariable assertion to be the supreme law? The second is to provide a socio-cultural account, following our analysis in part 2, of fundamental legal authority that helps to understand the rapidly evolving politics of a divided society.

            The fundamental concept, which has been endlessly repeated in constitution-making exercises and constitutional texts since 1947,  is the democratic regime with the King as head of state(DRKH). We have sought to explain this concept historically and socio-culturally in terms of the trinity of Nation-Religion-Monarchy. This repeated mantra of constitutional principle[22] can now be unpacked into a number of meta-constitutional propositions.

            First, democracy is fundamental. It is of course capable of being interpreted in different ways; however, ilitary rule may only be justified as a temporary diversion or divergence from democracy, and is indeed conceived in this theory as ultimately, if not in the short-term, in the interests of preserving the DRKH. Given the irreversible trend of modernisation in Thailand, the traditional ‘Yellow’ elites and the military can no longer turn the clock back to the absolute monarchy of the pre-1932 period, as this would be tantamount to explicitly bestowing political power upon mere persons or factions, thus compromising their own legitimacy. Recognising the modernisation and democratisation processes, coup leaders, since 1947, follow King Chulalongkorn’s approach in seeking to preserve the ‘Thai-ness’ tradition by connecting it to the increasing disenchantment with the world, namely the notion of democracy. This is a trend of opinion that may now be seen in many other states, not just Thailand.

            Naturally, however, the meaning ascribed to ‘democracy’ is fluid. The version of democracy that coup-makers seek to preserve is the DRKH, which underlines a rigorous respect to Nation-Religion-Monarchy. Liberal democracy as set out in the various constitutions can of course be replaced and limited, consistently with the DRKH. Essential to understanding this is the idea that ‘bad’ politicians (and almost all politicians are perceived as ‘bad’ in this configuration of society) cannot be allowed to rule in the name of democracy; only ‘good’ people may do so.[23]

            Secondly, constitutional monarchy is also fundamental. Constitutions are promulgated on the authority and with the consent of the King, not claimed from him, as in some Western conceptions of the constitution. Coups detat are also endorsed on each occasion by the King on the advice of coup-leaders. Thus, the constitution must enshrine outwardly both democracy and constitutional monarchy. Intrinsically, however, it is designed to ensure the continued hegemony of the DRKH. This leaves us with the question where to accommodate military rule, which we view as an exception and located outside the scope of the constitution, not within it.[24] Coups, as we have discussed above, reflect the exercise of what we can term ‘sovereign decisionism’—the decision made by a sovereign who is capable of acting in contravention to the law on the exception.[25]

However, the question has to be addressed, what counts as the ‘norm’ and the ‘exception’? Conservative opinion in Thailand sees what Schmitt called ‘political romanticism’ as associated with liberal democracy. This is increasingly the case since the advent of colour-coded politics. In this view liberal democracy is the exception, given that it allows political enemies (i.e., on this view, the Red faction), to participate legally in politics. For this reason, a coup must be imposed to bring back the norm, that is, the dominance of the DRKH. On the other hand, the Red faction would see military rule as the exception and liberal democracy as the norm, with the Yellow faction as truly opposed to democracy.

            This analysis might seem to fly in the face of the analysis of recent constitutions. Military rule, under the mantra of Thai-style democracy, as during the rule of Sarit in the 1950s or Prayuth in the 2010s, is of course located outside the scope of the constitution. However, military rule must also compete these days against the trends of modernisation, democratisation, liberalisation, and constitutionalism. Coup-makers in 21st century Thailand cannot therefore avoid establishing their rule and legitimising their actions within the realm of legality as opposed to simply ruling by brute force. Therefore, they may only act through the process of constitution-making, and ostensibly only in order (ultimately) to restore what they regard as true democracy, that is the DRHK.

            In fact, the Yellow elites and the military have been increasingly cautious with regard to this issue. For instance, in 1972 they attempted to reinforce the constitutional legitimacy of the 1971 coup by stipulating in Section 21 of the 1971 Interim Constitution that: ‘All acts and orders done by the coup leader … shall be deemed lawful.’ However, the term ‘lawful’ still leaves the possibility for any challenge against the imposition of coup on the ground of unconstitutionality. Thai constitutional drafters of the Yellow faction are quite aware of this problem and choose to use more precise wording to institutionalise and constitutonalise ‘coups’ and their effect. Since 1991, every interim and permanent constitution of Thailand declares all actions done by the junta to be ‘constitutional’. In the 21st century, the 2007 Constitution and the 2017 Constitution even employ more precise wordings to insulate the coup as they stipulate that:

            All actions [related to the coup] done prior to or subsequent to the date of the promulgation of this Constitution shall be deemed lawful and constitutional by virtue of this Constitution.

This provision grants more extensive protection to the coup-makers and their allies by emphasising the constitutionality, not only of actions prior to the promulgation of the 2007 and 2017 Constitution - in particular, the coup and martial law - but also, of future actions related to the takeover after Parliament has been restored, notably any enforcement of coup decrees or martial law power, notwithstanding their adverse effects on human rights.

            Given this understanding, we may see the theory advanced in the preambles to the various constitutions, which are rather more than mere formality. They assume that constituent power lies with the King, while also providing an elaborate justification in terms of recent political history for the promulgation of (yet another) constitution. It is worth setting out in extenso, as an example, the Preamble to the 1997 Constitution. On this occasion the King was

graciously pleased to proclaim that whereas Constitutions have been promulgated as the principle of the democratic regime of government with the King as Head of the State in Thailand for more than sixty-five years, and there had been annulment and amendment to the Constitutions on several occasions, it is manifest that the Constitution is changeable depending upon the situation in the country. In addition, the Constitution must clearly lay down fundamental rules as the principle of the administration of the State and the guideline for the preparation of the organic laws and other laws in conformity therewith; and whereas the Constitution of the Kingdom of Thailand, B.E. 2534 [1991] as amended by the Constitution Amendment (No. 6), B.E. 2539 [1996] established the Constituent Assembly, consisting of ninety-nine members elected by the National Assembly, charged with the duty to prepare a draft of a new Constitution as the fundamental of political reform and His Majesty the King graciously granted an audience to members of the Constituent Assembly for taking His Royal speeches and receiving blessings in carrying out this task, and, thereafter, the Constituent Assembly prepared the draft Constitution with the essential substance lying in additionally promoting and protecting rights and liberties of the people, providing for public participation in the governance and inspecting the exercise of State power as well as improving a political structure to achieve more efficiency and stability, having particular regard to public opinions and observing procedures provided in the Constitution of the Kingdom of Thailand, B.E. 2534 (1991) as amended by the Constitution Amendment (No. 6), B.E. 2539 (1996) in every respect; Having carefully considered the Draft Constitution prepared by the Constituent Assembly in the light of the situation of the country, the National Assembly passed a resolution approving the presentation of the draft Constitution to the King for His Royal signature to promulgate it as the Constitution of the Kingdom of Thailand; Having thoroughly examined the draft Constitution, the King deemed it expedient to grant His Royal assent in accordance with the resolution of the National Assembly; Be it, therefore, commanded by the King that the Constitution of the Kingdom of Thailand be promulgated to replace, as from the date of its promulgation, the [1991] Constitution of the Kingdom of Thailand.

The case of the 1997 Constitution was unusual in one respect, namely that it came about, as the Preamble indicates, by virtue of provisions of the (amended) 1991 Constitution.[26] In the cases of the 2007 and 2017 Constitutions there was a clean break, as is discussed above, as an interim constitution laid down the process for drafting a new constitution. The important fact is that the constitution is promulgated by order of the King, not claimed by the people in expression of sovereign will. Yet, as Borwornsak observes, the King is perceived as the embodiment and representative of the nation or the Thai people. This is why coup-makers, outwardly claiming to preserve democracy, need to advise the King to endorse the takeover and the promulgation of the interim constitution/permanent constitution they initiated.[27] Thus, it seems that the Thai people express their sovereignty, not through the process of ‘deliberation’, but through the ‘acclamation’ of the King as head of state. In the process of acclamation in 1946 King Bhumipol uttered the words, “I will rule the country by Dhamma for the sake of the Siamese people”. This combines Nation, Religion, and Monarchy in a single act and affirms the DRKH as a fundamental norm. However, we should not underestimate the ‘afterlife’ effect of the 1997 Constitution on the constitution-making process, notably its emphasis on the significance of the people’s electoral power, which importantly challenges the right-wing idea of sovereignty which perceives the people as an homogeneity of voiceless and passive citizens. It seems that in modern Thailand, sovereignty lies somewhere between ‘the acclamation’ of the King as head of state, who embodies national will, and the process of ‘deliberation’. The gravitational pull between these two ideas, as we will show below, forced the military governments to organize, in 2007 and 2016 respectively, referenda to reinforce the legitimacy of the 2007 and 2017 Constitutions.

            If we were to stitch together all the Preambles since that of 1932, we would see that they constitute something like a developing essay on Thai constitutional jurisprudence. These Preambles could hardly be clearer as a statement of the grundnorm in Thailand. If we paraphrase them in clear and simple language, we will obtain something like the following:

            In 1932 there was a great constitutional rupture when the monarchy was changed from an absolute to a constitutional monarchy. Although there have been many constitutions since then, which reveal some differences, there is a thread running through them, which involves the following major propositions. First, the constitution may change from time to time, as the King deems expedient on the advice of the legislature or other body drafting the constitution, and reflecting the changing needs of the kingdom. Second, these changes do, and must, always reflect the DRKH, and the fact that the previously exclusively royal power to legislate, execute, and judge is now exercised by the National Assembly, the Council of Ministers, and the judiciary.

            All of Thai constitutional history since 1932 could be explained in these terms, despite the fact that there were periods of dictatorship under various military leaders. The consequence of this would be that, consistently with the grundnorm, neither the DRKH, nor the democratic and parliamentary form of government, nor the exercise of judicial power,[28] can be abolished in a constitution-making process – not at least without forfeiting all forms of legitimacy based, not on international norms or expectations, but on Thai jurisprudence and historical experience and precedent. However, the precise relationship between the executive and the legislature could be changed from time to time, providing the DRKH is maintained. By this means we can see that despite 20 constitutions there are fundamental principles which have continued to apply since 1932 and which themselves represent a linear development from the 19th century reforms of King Rama V to the present day.

4. International Influence and the Drafting of Thailands 1997, 2007 and 2017 Constitutions

            In some nascent democracies in Asia, such as Cambodia and Timor-Leste, non-national actors were directly involved or even supervised and iterated the constitution-making process. This was due to severe rupture and violence in these countries, precipitating UN action to secure peace and political stability.[29] In late 20th and early 21st century Thailand, however, the opposite has been the case. The (amended) 1991 Constitution and the Interim Constitutions of 2006 and 2014, in establishing in each case a Constitution-Drafting Assembly (CDA), which has become the weapon of choice in drafting Thai constitutions in the period discussed here, all required the members of the CDA to be of Thai nationality by birth.[30]  Not only was the international community not part of, nor was it consulted by, the CDA, but it is even difficult to discern any overt or even covert international pressure on the CDA during the constitution-making process. Given the ideological predilections discussed above, this should occasion no surprise.

However, this does not of course mean that such process received no inspiration from international texts or the comparison of different methods used elsewhere to solve the particular problems of detail considered by the CDAs. The constitution-making process in Thailand during this period significantly occurred in the context of global trends, following the end of the cold war, towards liberalisation and democratisation.[31] Rising demands for liberal democracy led to Thailands accession to the International Covenant on Civil and Political Rights (ICCPR) in 1996 - almost three decades after its adoption by the United Nations General Assembly, and to the International Covenant on Economic, Social and Cultural Rights (ICESCR) in 1999. CEDAW had been acceded to in 1985; otherwise as shown in the Appendix, almost all relevant accessions by Thailand to international human-rights instruments took place between 1992 and 2006, i.e. during the period of greatest liberalism.  For these reasons in this paper we choose to construe international involvement in Thai constitution-making to mean inspiration drawn from the international bill of rights and comparative consideration, as opposed to direct or indirect influence or actual participation.

Rights and liberties enshrined in the human-rights covenants were progressively incorporated into the 1997, 2007 and 2017 Constitutions. As a result, if one were to judge by the texts of these constitutions one would have to conclude that Thailand has the most comprehensive protection of human rights of almost any Asian country. Indeed the 1997 Constitution set up the National Human Rights Commission, along with many other new or newly-reformed independent agencies which are still operating and are constitutionally entrenched.[32]  Interestingly, despite the occurrence of two coups détat, international human rights, given the irresistible process of modernisation, also played a role in masquerading the authoritarian turn from 2006. The 2006 and 2014 Interim Constitutions similarly stated: ‘Subject to the provisions of this Constitution, human dignity, rights and liberties, and equality enjoyed by the Thai citizens under international obligations binding Thailand, are still upheld by this Constitution’.[33] However, international human rights have almost no effect in practice other than to make it appear as though international norms are being complied with. At the time this paper is written, General Prayuth does not hesitate to trade-off these standards for preserving his military government. The NCPO leader Order no.3/2558 (2015) was enacted by virtue of the special provision under the 2014 Interim Constitution—section 44—that gives military officers extensive emergency powers, in particular, the arrest and detention of people for no more than 7 days, the imposition of lèse-majesté charges, searches, the seizure of goods and weapons, and media censorship. This law is a vital tool for suppressing pro-democracy demands.

            When we turn to the agencies other than the NHRC that were developed pursuant to the 1997 Constitution (there were nine of these altogether), it is remarkable that a major aspect of what Ginsburg calls the afterlife of the 1997 Constitution is the continuation of these agencies under dramatically changed constitutional conditions.[34] These include the Constitutional Court, the administrative courts, the Supreme Court's Criminal Division for Holders of Political Positions, the Election Commission, the National Counter-Corruption Commission, the Ombudsman, and the Auditor-General. Although these were all innovations in Thai constitutional law, they are all familiar as types of agency designed to achieve the relevant objective, whether that be cracking down on corruption, ensuring free and fair elections, or ensuring the legality of government acts and decisions. In this sense the drafting of these constitutions owed as much to comparative law as to international law or international influence.[35]

            The effect of comparison does not stop there. Thailand had also to deal with questions related to the structure of government. These included: Should the members of the upper house (the Senate) be elected or appointed, or both? Should the Prime Minister and members of the government be drawn from members of parliament or be separated therefrom? Should there be restrictions on the possibility to introduce a motion of no confidence in the government in parliament? Should provinces and local government authorities have more decentralised powers? Should elections be held on a single-member, first-past-the-post electoral system, or via proportional representation and/ or a party-list system? What powers should be given to the Constitutional Court, and who should be able to bring a case before it?

            Space precludes examining all the debates and oscillations concerning these issues, but obviously in all cases there were available precedents and experiences from across the world; and in some cases, these precedents were followed. One example of this is that in the electoral system designed under the 1997 Constitution a quarter of parliamentary seats would be filled by using the party-list system. The German electoral system was obviously influential here, especially as the 1997 Constitution adopted the same benchmark (5% of the votes cast) as Germany in setting a minimum standard for the participation of smaller parties in the party-list system; and of course, for the same reasons.[36] On many of the issues listed above the 1997 Constitutions solutions have not been followed in the 2007 and 2017 Constitutions. For example, the method of choosing senators (election, appointment, or a combination of the two) has been varied in each Constitution. Therefore, the choices afforded by comparative law have been treated as a kind of constitutional buffet, not as an a la carte (let alone set) menu. The CDA in each case has made its own choices, irrespective of the origin of the device in question. The mechanisms in question are seen merely as legal technology. Accordingly, these are not cases of legal transplants, but simply cases of paying attention to and using the gobal white noise of constitutional discussion and ideas.

In one notable respect the CDA has adopted a device that seems of purely Thai conception. When it comes to selecting judges and members of the independent agencies, the CDA has not apparently trusted the government of the day or even, ultimately, the legislature, to make fair and independent choices irrespective of political allegiance. The method adopted has been to prescribe in great detail the method of composition of a selection committee for each of these agencies.[37] The selection committee looks to be of largely similar composition in the case of each of the independent agencies. Over the three constitution-making episodes these selection committees have been more tightly drawn (to reduce the chance of political interference) and given more powers (for example, not to have its choices vetoed by the Senate).[38]

5. Public Participation in Constitution-Making

Given that the 2006 and 2014 Interim Constitutions were products of a newly-installed junta immediately on taking power and so without public participation, it is more beneficial to compare the making of the three permanent constitutions.

With respect to the making of the 1997 Constitution, in 1995 the then-Prime Minister, Banharn Silpa-archa, set up a Political Reform Committee responsible for recommending the amendment of the then 1991 Constitution, resulting in the formation of the CDA. This consisted of 76 members indirectly elected from each province, and 23 qualified experts, especially in law and political science. With respect to the former, all residents of each province could run for CDA membership. All applicants had to elect ten amongst themselves to be CDA candidates760 in total. Then, the MPs and Senators had to jointly select one member from each province. The Constitutional Drafting Committee (‘CDC’) was created under the CDA to commence writing the draft. Public consultations and hearings were conducted by the CDC on a nationwide basis. The process of 1996-7 was the most open and most democratic in Thai history to date.[39]

By contrast, the making of the 2007 Constitution resulted from the 2006 Interim Constitution, and was both more complex and less democratic. The 2006 Constitution initially created the National Peoples Assembly, a legislative assembly of 2,000 members appointed by the junta from different sectors of society, responsible for making short-list naming 200 candidates, selected from the NPAs own members, for membership of the CDA. These candidates were urban elites and bureaucrats, and there were no representatives at all from farmers or workers. The ruling junta, the Council of National Security, had then to choose 100 members from the short-list to constitute the CDA.  The CDA would then select 25 of its own members to form the CDC.  Ostensibly, its key drafters were conservatives and technocrats, while some were regarded as Thaksin critics. 

Likewise, with respect to the drafting process of the 2017 Constitution, the 2014 Interim Constitution created a CDC consisting of 36 members selected by the National Reform Assembly (NRA), the National Legislative Assembly, the cabinet and the junta.  The CDC was chaired by the key drafter of the 1997 Constitution, Borwornsak Uwanno, who was criticised by left-leaning media for taking part in a public protest against Prime Minister Yingluck Shinawatra in 2013 and 2014. However, Borwornsaks draft was rejected by the NRA in September 2015, forcing the Prime Minister General Prayuth to appoint a new CDC comprising 21 members[40] and chaired by a conservative technocrat, Meechai Ruchuphan. Overall, it is apparent that, while playing a more inclusive role in making the democratic constitution of 1997, civil societies, pressure groups and individuals played a very limited role in the constitution-making processes for the 2007 and 2017 Constitutions, which were spearheaded by the military and conservative technocrats.   

However, despite (or because of) the absence of public participation in their drafting process, national referenda were organised to reinforce the legitimacy of both the 2007 and 2017 Constitutions. The 2007 Constitution was the first Thai constitution to be approved by a national referendum, which was held on 19 August 2007. Nevertheless, dissenters from the draft were largely suppressed through the use of martial-law powers, whilst many people decided to endorse the draft constitution with a hope for future political stability and subsequent later amendment of the constitution.[41]   Some, by contrast, chose to approve it due to their worry that the junta would choose to promulgate one of the past authoritarian constitutions (such as Sarits 1959 Charter), if the draft was rejected.[42] In the event 57.61 % of the voters (14,727,306 people) approved the draft, whilst most of its dissenters live in the bastion of the Red faction in the North and Northeast of Thailand.

Just as in 2007, in the 2014-7 constitution-making process the juntathis time, through amendment of the 2014 Interim Constitutionsought legitimacy for the second draft, also made by Meechai, in a national referendum held on 7 August 2016. The turnout was approximately 55%. Campaigning against the draft constitution was specifically prohibited by the junta. Thus, again the suppression of dissenting voices and crude demands for political stability, reinforced by weariness of the colour-coded politics, together with the fear of uncertainty if the draft had been rejected, led to the approval of Meechais draft (61.35% or 16,820,402 people in favour), while the majority of those living in the North and Northeast again dissented.[43]

In sum, it appears that in 21st century Thailand, public support, or at least the appearance of public support, has increasingly gained importance as a basis of legitimacy for the process of constitution-making. Yet, in practice, pro-democracy forces tend to be suppressed by the junta’s use of emergency powers. Ironically, the fact that the constitution is approved by a national referendum allows the junta to launder its fundamentally undemocratic drafting process.

The Constitutional Court has also implicitly affirmed this point. In 2012, the government led by PM Yingluck Shinawatra attempted to amend Article 291 of the 2007 Constitution to pave the way for establishing a new CDA, but was opposed by several appointed senators, who, in turn, launched individual petitions contesting the constitutionality of such attempt before the Constitutional Court. The Constitutional Court affirmed that the approval of the 2007 Constitution by a national referendum was tantamount to the expression of the people’s constituent power, and suggested Parliament amend the 2007 Constitution either article by article or by asking for public approval first through a national referendum process.[44] The nature of the Thai pouvoir constituent has been discussed above and this decision is consistent with that discussion.

6. Conclusion

            In explaining the ideology and the sociology of Thai constitution-making we are aware that we have not had space to examine in detail particular areas of debate concerning particular constitutional questions. Nonetheless, in our view the existence of constitutional devices considered comparatively needs to be understood in connection with the ideas set out in this paper. In other words what drives the process is the divided politics of Thailand, not the merits or demerits, speaking comparatively, of constitutional devices. Thus, for example, the Constitutional Court can be seen as a result, in concept and design, as a reflection of international experience; but in fact it is better understood as a device for controlling political parties based on ‘scepticism’ about political romanticism.[45] Ideas are only ever the whistle on the train; and this is certainly the case in Thai constitution-making.

            We have not addressed specifically, too, other questions posed by consideration of constitution-making processes generally.

First, the role of these processes in dealing with social conflict. Here it is important to understand that the purpose of constitution-making in Thailand is not, as elsewhere, to find a compromise between competing histories, geographies, ethnicities, cultures, languages, or religions. Those who control the process of constitution-making come from one group and it is their intention to suppress the influence of the other. Given the persistent domination of elections by Red parties, it seems inevitable that the tension between constitutionalism Thai-style and electoral democracy will continue (elections are currently due in February 2019). The 2017 Constitution was an attempt to control the power of the government, not to provide an accommodation between competing demands.[46]

We also do not specifically address above the issue of the impact of constitution-making episodes. However, as is also apparent from the foregoing, the three constitutions being considered, their impact is fairly clear. The 1997 Constitution had lasting impact in terms of afterlife, but it failed ultimately in solving the problems it was designed to solve. The 2007 Constitution also failed; indeed it started to fail immediately it came into effect, with the election of Red parties to power in 2008, leading to intensification of colour-coded politics in 2008, 2010, and 2013/14. This conflict led to the 2014 coup and the 2017 Constitution.

Although we can see development in constitution-making processes generally over the longer period of 1973 to date, the three constitutions selected indicate a progressively less open and less democratic process being adopted. Ultimately any success in constitution-making seems to be attributable to those aspects of constitutionalism that survive these episodes, not those that are innovated by them.

               [1] For a discussion concerning vicious cycleof constitutional-making in Thailand see Andrew Harding and Peter Leyland, The Constitutional System of Thailand: A Contextual Analysis (Hart 2011), pp 10-29; Chaianan Samutwanit, Thai Young Turks (Institute of Southeast Asian Studies 1982), pp 1-5.
               [2] Hanna Lerner, Making Constitutions in Deeply Divided Societies (Cambridge University Press 2011).
               [3] Carl Schmitt, Political Romanticism (Guy Oakes (tr), Transaction Publishers 2011), p 99; see the Preambles of the Interim Constitutions of the 2006 and 2014 Interim Constitutions
               [4]  See Mark R. Thompson, ‘Democracy with Asian Characteristics’ (2015) 74 The Journal of Asian Studies 875, pp 881-882.
               [5] See Section 3 below.

               [6] Tom Ginsburg, ‘Constitutional afterlife: The continuing impact of Thailand’s postpolitical constitution’ (2009) 7 the International Journal of Constitutional Law 83.
[7] Siam became ‘Thailand or ‘land of the free’ in 1938.
               [8] Pasuk Phongpaichit and Chris Baker, Thailand: Economy and Politics (Oxford University Press 1995), pp 244-248.
            [9]  Thak Chaloemtiarana, Thailand: The Politics of Despotic Paternalism (Cornell Southeast Asian Program 2007).
               [10] Eiji Murashima, The Origin of Modern Official State Ideology in Thailand’ (1988) 19 Journal of Southeast Asian Studies 80, p 92; Frank E. Reynolds, ‘Dhamma in Dispute: The Interactions of Religion and Law in Thailand’ (1994) 28 Law & Society Review 433, pp 437-440; Nidhi Eoseewong, ‘The Thai Cultural Constitution’ (Chris Baker (tr), Kyoto Review of Southeast Asia 2003) <> accessed 20 June 2018.
               [11] เจ้าพระยาภาสกรวงศ์ [Phraya Phatsakorawong], เรื่องสวน’ [‘On Farming’] (1889) 4 Vajirayan Viset 449, pp 452-54.
               [12] Some Thai leaders such as Sarit did, however, try to link the trinity with ‘constitutionalism’ or ‘the constitution’.  Toru Yano, ‘Political Structures of a ‘Rice-Growing State’ in Yoneo Ishii (ed), Thailand: A Rice-Growing Society (CSAS 1978), pp 127, 136.
               [13] Cf David Streckfuss, The End of the Endless Exception?: Time Catches Up With Dictatorship in Thailand’ (Cultural Anthropology, 23 September 2014) <> accessed 21 June 2018; พระบาทสมเด็จพระมงกุฎเกล้าเจ้าอยู่หัว [King Vajiravudh], ‘ลัทธิเอาอย่าง [The Cult of Imitation]’ in  พระราชนิพนธ์ที่น่ารู้ของล้นเกล้าฯรัชกาลที่ 6 [The consolidation of interesting works by King  Vajiravudh] (Rwmsarn 1963).
               [14] Andrew Harding and Peter Leyland, The Constitutional Courts of Thailand and Indonesia: Two Case Studies From South East Asia’ (2008) 3 Journal of Comparative Law 118, p 119.
               [15] Federico Ferrara, The Political Development of Modern Thailand (Cambridge University Press 2015), pp 223-225.
               [16]  Immanuel Kant, Critique of Practical Reason (Mary Gregor (tr), Cambridge University Press 2015), p 33; สมคิด เลิศไพฑูรย์ [Somkit Lertpaithoon], ‘รัฐธรรมนูญในอุดมคติของปรีดี พนมยงค์’ [‘Pridi’s ideal conception of the constitution’] (2000) 22 Rattasat-Sarn 1, p 6.
               [17]  Scott Gordon, Controlling the State: Constitutionalism from Ancient Athens to Today (Harvard University Press 1999), p 4; ปรีดี พนมยงค์ [Pridi Banomyong], จงพิทักษ์เจตนารมณ์ประชาธิปไตยสมบูรณ์ของวีรชน 14 ตุลาคม [Safeguarding the democratic will of the 14 October Heroes] (Saitarn Press 2000), pp 76-77.
               [18] Hans Kelsen, General Theory of Law and State (Anders Wedberg (tr), Harvard University Press 1945), p 288; Martin Loughlin,The concept of constituent power’ (2014) 13 European Journal of Political Theory 218, p 219.
               [19] Björn Dressel, When Notions of Legitimacy Conflict: The Case of Thailand’ (2010) 38 Politics & Policy 445, p 452; Pridi Banomyong, Pridi By Pridi: Selected Writings on Life, Politics, and Economy (Chris Baker and Pasuk Phongpaichit (trs), Silkworm 2000), p 167. 
               [20] Matthew Wheeler, Thailand Struggles to Break Out of The Cycle of Unrest’ (International Crisis Group, 10th August 2016) <> accessed 21 June 2018.
               [21] Carl Schmitt, Constitutional Theory (Jeffrey Seitzer and Christopher Thornhill (trs), Duke University Press 2008), p 59; David Streckfuss, Truth on Trial in Thailand (Routledge 2011), p 136.
[22] This formula is expressed in all of the preambles to new constitutions and is ever present in the discourse of Thai constitutionalism.
               [23]  McCargo regards this as ‘moralistic tutelary discourse’. Duncan McCargo, Tearing Apart the Land: Islam and Legitimacy in Southern Thailand (Cornell University Press 2008), p 15.
               [24] This can be contrasted with the Constitution of the Union of Myanmar 2008, which enshrines military power by virtue of its provisions.
               [25] Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty (George Schwab (tr), The University of Chicago Press 2005), pp 5-13.
               [26] Bowornsak Uwanno, The Political Reform Process and the Making of the Peoples Constitution’ (KPI Research Paper); Andrew James Harding, May There be Virtue: “New Asian Constitutionalismin Thailand, [2001] Australian Journal of Asian Law 24-48.
               [27]   บวรศักดิ์ อุวรรณโณ [Borwornsak Uwanno], กฎหมายมหาชน เล่ม 2: การแบ่งแยกกฎหมายมหาชน-เอกชน และพัฒนาการกฎหมายมหาชนในประเทศไทย [Public law II: the Separation between Public-Private Law and the Development of the Thai Public Law] (5th edn, Chulalongkorn University Press 2007), pp 243-244.
               [28] The idea is that the judiciary must be kept insulated and independent from party politics, but remains in close connection with, and cannot be indifferent to, the sacred trinity of Nation-Religion-Monarchy.

[29] See chapters on Cambodia and Timor-Leste in Victor V. Ramraj and Arun K. Thiruvengadam (eds), Emergency Powers in Asia: Exploring the Limits of Legality (Cambridge University Press 2010).
[30] Sections 221(4), the 1991 Constitution; Sections 19, 20 and 22, the 2006 Interim Constitution; Section 33, the 2014 Interim Constitution   
[31] Samuel P. Huntington, Democracys Third Wave’ (1991) 2 Journal of Democracy 12.
               [32]  See Andrew Harding, Thailands Reforms: Human Rights and the National Commission(2006) 1 Journal of Comparative Law 88.
               [33] Section 3 of the 2006 Interim Constitution; Section 4 of the 2014 Interim Constitution
               [34] Ginsburg, ‘Constitutional afterlife’, p 93.
               [35] See Peter Leyland, ‘Thailand's Constitutional Watchdogs: Dobermans, Bloodhounds or Lapdogs?’ (2007) 2 Journal of Comparative law 151.
               [36] Benjamin Reilly, ‘Electoral System’ in William Case (ed), Routledge Handbook of Southeast Asian Democratization (Routledge 2015), p 226.
               [37] Leyland, ‘Thailand's Constitutional Watchdogs’, pp 157-160.
[38] See Björn Dressel, ‘Judicialization of politics or politicization of the judiciary? Considerations from recent events in Thailand’ (2010) 23 The Pacific Review 671, p 678.
            [39] Frank Munger, ‘Constitutional Reform, Legal Consciousness, and Citizen Participation in Thailand’ (2007) 40 Cornell International Law Journal 455, pp 465-472.
               [40] Section 38 of the 2014 Interim Constitution
               [41] See Nick Nostitz, The Red Shirts: From Anti-Coup protesters to Social Mass Movementin Pavin Chachavalpongpun (ed), Good CoupGone Bad: Thailands Political Developments since Thaksins Downfall (ISEAS 2014), pp 177-179.
               [42] See Björn Dressel, Thailands Elusive Quest for a Workable Constitution, 19972007’ (2009) 31 Contemporary Southeast Asia 296, p 306.
               [43] Wasamon Audjarint, ‘Scepticism over 'crisis' panel’ (The Nation, 13 August 2015) <> accessed 21 June 2018.
               [44] The Constitutional Court Decision no.18-22/2555 (2012)
               [45]  Khemthong Tonsakulrungruang, ‘The Constitutional Court of Thailand: From Activism to Arbitrariness’ in Albert HY Chen and Andrew Harding (eds), Constitutional Courts in Asia: A Comparative Perspective (Cambridge University Press 2018), p 212.
               [46] Sections 65, 170, 219 of the 2017 Constitution.


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