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Draft Thai constitution threatens to cement military might

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In 1996, the Thai political scientist Anek Laothamatas published an influential essay titled A Tale of Two Democracies. He reasoned that the Bangkok middle and upper classes opposed corruption and embraced democracy, while the ignorant rural masses were susceptible to electoral manipulation by self-serving populist politicians.

But Anek was wrong. When Thaksin Shinawatra was overthrown by a military coup in 2006, and his sister Yingluck in 2014 – both of whom were elected prime minister on the back of populist policies that resonated with rural constituents – it was the urban elite that was “manipulated by wayward politicians” and “voters from the countryside who [backed] electoral democracy,” wrote Duncan McCargo, professor of political science at the University of Leeds, UK, in the New York Times.

The opinion that Thailand’s political tableau is divided in two is an enduring one. The country’s colour-coded cleavage in now into its second decade, fractured between class and ideology. On one side are the ‘red shirts’, who claim to be pro-democracy, tend to support the Shinawatras, find support amongst the rural masses and urban poor, and opposed the 2006 and 2014 military coups. On the other are the ‘yellow shirts’, supported by the urban middle and upper classes who mostly rally behind the Democrat Party, are self-professed royalists and were leading proponents of the two military coups.

When the military junta came to power in May 2014, it revoked the 2007 constitution and imposed an interim one, giving it absolute governmental power. The following year, it ordered a committee to begin drafting a fresh constitution but, months later, rejected the draft outright. A new one was unveiled on 29 March, and the Thai electorate will vote on whether or not to accept it in a referendum scheduled for 7 August.

Constitution by coup

Maintaining power: Thai Prime Minister Prayuth Chan-ocha has been at the helm since a 2014 military coup. Photo: Reuters

The constitution proposes that Thailand’s upper house, the Senate, would be unelected and nominated by the junta – with dozens of seats reserved for the security forces’ top brass. This continues an erosion of the country’s democratic system: under the 1997 constitution, the Senate was wholly elected, before a 2007 constitution reduced this to half of the seats.

As for the National Assembly’s lower house, the House of Representatives, significant changes would be made to how MPs are elected. In the last election, in 2011, lawmakers were chosen using a ‘mixed member majoritarian’ system, which allowed Yingluck’s Pheu Thai Party, after securing 48% of votes, to gain 265 seats – compared to the Democrat Party’s 159 – and to form a majority government.

But the draft constitution would introduce a ‘mixed member apportionment’ (MMA) system, making it difficult for another majority government to be formed and signalling a future of coalitions.

Allen Hicken, a professor at the University of Michigan, recently ran a simulation of what the 2011 election results would have looked like under a MMA system. Instead of 265 seats, the Pheu Thai Party would have won only 225 – the difference going to smaller parties.

The Pheu Thai Party “would be the big loser,” Hicken surmised on the New Mandala website. He added that the draft constitution is predicated on the belief of the junta and its supporters that “political parties have been too large and too strong” and that “ignorant voters keep electing ‘bad people’”.

“The new constitution is designed to provide the appropriate treatment by fragmenting and weakening political parties, and minimising the power of elected politicians,” he concluded.

Pavin Chachavalpongpun, associate professor at the Centre for Southeast Asian Studies at Kyoto University, Japan, goes one step further. “The constitution is part of the junta’s plot to maintain its position in politics,” he said.

Of course, the junta does not see it this way. “The constitution is not meant to give sole power to citizens but to ensure the well-being of the citizens,” Meechai Ruchupan, head of the junta-appointed Constitution Drafting Committee, told reporters in March.

If the constitution is accepted, almost one-third of the National Assembly would be unelected; the House of Representatives would be forced to report to the Senate every three months with updates on reforms; senators would have a say in who becomes prime minister; and the prime minister would not need to be an elected politician, leaving the option open for an unelected official say, perhaps, a military general to take the role.

Junta in ‘panic mode’ – Abhisit

Thailand Election Commission’s mascot attends an event to kick off the distribution of five million copies of a controversial military-written draft constitution, ahead of the August 7 referendum in Bangkok, Thailand, May 25, 2016. Photo: Reuters

In June, the Nikkei Asian Review posited that “the country’s main political parties have put aside their differences to close ranks against the [constitution]”. Indeed, one might have expected the claqueurs of the 2014 coup to support its natural by-product, but recent months have witnessed several members of the Democrat Party voicing their disapproval of the constitution. Abhisit Vejjajiva, a former prime minister and current leader of the party, described the junta as being in “panic mode” and said “it’s clear that we’re not going to get the kind of constitution that many of us want” in a speech to business leaders in March. Two months later, senior Democrat Party member Kasit Piromya publicly called the draft “illiberal” and “unacceptable”.

Some red shirts have dismissed this as a lakorn – ‘soap opera’ – and pure face-saving by those who believe themselves to be liberal and do not want to be seen endorsing an undemocratic constitution. However, Pavin suggested such disapproval is genuine; many are “disappointed with the junta, not because of political rights being denied, but the decline of the Thai economy”, which has faltered significantly since the military coup.

According to Khemthong Tonsakulrungruang, a constitutional law scholar in Thailand, criticism of the draft constitution by Democrat Party members is only natural, as changes to the electoral system will harm its ability to form a majority government in the future.

A similar motive exists on the other side of the divide as well. Thaksin has publicly called for his adherents to oppose the constitution. “It’s a charade to show the world that Thailand is returning to democracy,” he recently told the Wall Street Journal. “In reality, it would be like Myanmar before its political reforms. There would be a prime minister, but the real power would be in some politburo above him.”

It now seems as if Thailand’s two largest political parties are reading from the same page on the question of the draft constitution. But how much sway the parties have on their typical supporters is less assured.

Khemthong told Southeast Asia Globe that a good number of yellow shirts are “quite angry” at the Democrat Party’s stance since they believe the draft constitution is “not extreme enough” in curtailing populism and the red shirt masses.

There is also good reason to believe the yellow shirt movement is splitting factionally, said James Buchanan, a lecturer at the Department of Asian and International Studies at the City University of Hong Kong. A power struggle is purportedly taking place between Prawit Wongsuwan, a former commander-in-chief of the Royal Thai Army and now deputy prime minister – who many believe to be the real power behind the junta – and Prem Tinsulanonda, head of the Privy Council, who has the ear of the ailing king.

As for the red shirts, some are no longer following the Pheu Thai Party’s instructions, Khemthong said, as they “feel it has deserted them and compromised with the junta”. This may be a small minority, but the question of how to vote in the referendum is arguably more difficult to answer for the red shirts than for the yellows.

A democracy divided

The pro-democracy activists could appear undemocratic if they reject the notion of a plebiscite altogether. But by voting against the constitution, the junta will no doubt continue ruling the country until another is accepted. There are suggestions it might either force one through internally or seek another referendum. This would most likely further postpone elections supposedly planned for late 2017 or 2018.

The alternative may be far graver, however, and this is by far the most important issue for Thailand’s future. One could reason that even if this draft constitution is accepted at the referendum there is no guarantee that it will not go the same way as previous constitutions. Thailand has had 20 since 1932 and few have survived for longer than a decade. “I sincerely doubt that this will be Thailand’s last constitution,” said Buchanan.

Certainly, there is the optimistic view that if elections are held in the coming years, a new government could feasibly introduce its own constitution, reversing the anti-democratic nature of the current draft. But there may be an excess of confidence in this view. The changes to Thailand’s parliamentary system the draft intends could render political parties unable to achieve a parliamentary majority, making future democratic reforms difficult to achieve in an electoral system tilted toward military oversight.

What is clear, however, is that Thailand’s fractured political scene will not be agglutinated by the constitution, accepted or not. “The division is so severe, so grave,” said Khemthong, that neither the constitution nor changes in direction by the main political parties will have much impact.

And should the referendum be accepted by the electorate, then Thailand’s two ‘democracies’, divided between class and ideology, will be reinforced by a schizophrenic political system with an unelected third comprised of those backed by the yellow shirts and the urban elite, and an elected two-thirds that will most likely be occupied by politicians loyal to the Shinawatras and the rural masses.

“Thailand needs to first emerge from its current crisis and then consolidate a meaningful democracy,” Buchanan said, “before its constitutions are worth the paper they are written on.”

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