THAILAND: MILITARY COUP–Constitutional fictions

In A Short History of Thailand, David Wyatt describes how after Field Marshal Phibun Songkhram retook power from an elected government in 1948 he set about retaining “the facade of constitutional democracy”. He writes that

“Thailand was now receiving economic and military assistance from the United States and favors from international organizations, and Phibun could not afford to jeopardize those by dispensing with the constitutional fictions that seemed so to impress the international community.”

Under Phibun’s control, Thailand continued with “constitutional regimes, but with the important qualification that the constitution was subordinate to the government, not the opposite”. This was the trend until 1997, when for the first time its people themselves participated in the writing and passing of a charter that aimed to set in place institutions which would ensure the supremacy of law rather than the supremacy of the ruler.

The 1997 Constitution was dumped by Thailand’s newest military junta on September 19. The regime now has its own plans for the writing of constitutional fictions. They are well underway. Through its self-proclaimed interim constitution, the coup group hopes to create the impression that a permanent one prepared on its orders is somehow the only avenue through which to address the “grave threat to the democratic system” caused by the government of Pol. Lt. Col. Thaksin Shinawatra.

One of the junta’s constitutional fictions consists of the impression that the new charter will involve many people from different–albeit as yet unspecified–walks of life. To do this, its interim constitution arranges for the setting up of various bodies with fine-sounding democratic names: the National Legislative Assembly as a temporary parliament, alongside the National People’s Assembly, Constitution Drafting Assembly and Constitution Drafting Committee for the writing of the permanent constitution.

All of these proposed bodies are nothing more than generic characters in a poorly-devised plot, driven by the need to conceal the presence of the armed forces at its every point. Under the interim constitution the junta pulls all the strings: appointing the National Legislative Assembly members, president and vice president (section 7); removal of the prime minister (section 14); appointing and replacing the Constitution Drafting Assembly members, president and vice president (sections 19, 23 & 24); appointing the members of the National People’s Assembly (section 20); and, appointing persons to the Constitution Drafting Committee (section 25).

Another constitutional fiction consists of the appearance that the people of Thailand are somehow involved in any of this. Apart from the incongruously-named National People’s Assembly, the flourish of a plebiscite (under section 29) is intended to prove–perhaps as if by magic–that the draft constitution has a stamp of approval from the nation. What could be more democratic than that, the generals seem to be insisting.

The plebiscite is the tried-and-tested friend of dictators and autocrats. Referendums can be used by any person, for any purpose. Without messy party politics and complicated debate, they can be reduced to achieve the simplest and most dangerous goals. Napoleon III, seen by many as the forerunner of modern autocratic rulers, used referendums on a number of occasions to secure his anti-democratic yet constitutional rule. Hitler and Mussolini both used them, as did Chilean dictator General Augusto Pinochet. In Sri Lanka, J R Jayewardene called a referendum in 1982 to extend the absolute powers he took through the constitution of 1978, with which he propelled the country into the conflict that has continued to this day. Such is the nature of plebiscite.

For the military regime in Thailand too the appeal to the people is conceived as a way to get its own handiwork formally approved, for the sake of public relations at home and abroad. Yes or no, with us or against us: this is the extent of democracy on offer. And even this choice is a scam. If things do not work out as planned–due to arbitrary deadlines not being met or the draft being unexpectedly rejected by the public–the junta will simply write its own charter, revising “one of the previously promulgated Constitutions” (section 32). Thus, the fraud is ultimately exposed, as it was in 1991 when early versions of the constitution prepared under a military junta at that time were extensively rewritten according to the generals’ wishes.

The 2006 coup group is now embarking on its own journey of constitutional fiction-writing in the tradition of its predecessors. Like them, it is concerned to impress its international partners, especially the United States, which has already suspended a large amount of military aid. It also has much more to contend with at home: unlike Phibun’s government, it must deal with an informed and interested electorate with a keener awareness of constitutional rights than any before it. For this reason and many others it will find that the longer it spins its constitutional fictions the more it will struggle to obtain credulity.

The Asian Human Rights Commission again calls upon the new interim prime minister of Thailand, General Surayud Chulanont, to give up this constitutional fiction writing. His government would best prove the calibre and good sense for which its prime minister is reputed by abandoning the so-called path to free and fair elections mapped out in the interim constitution and instead directly preparing for a newly-elected legislature. Only after that can talk begin about a permanent constitution, with open and widespread public involvement, as it deserves.

No end of military-conceived assemblies and handpicked writing groups, plebiscites or otherwise will redeem whatever constitution is produced under the method laid down by the September 19 junta. In fact, its interim constitution is itself the greatest constitutional fiction of them all and it can only lead to more of the same.

Document Type : Statement
Document ID : AS-242-2006
Countries : Thailand,
Issues : Independence of judges & lawyers, Judicial system, Rule of law,