Dr Thanet Aphornsuvan, Faculty of Liberal Arts, Thammasat University, Bangkok, Thailand
In 1997, parliament passed the new Constitution of the Kingdom of Thailand BE 2540 (1997). The new constitution reflected the crystallization of 67 years of Thai democracy. In this sense, the promulgation of the latest constitution was not simply another amendment to the previous constitutions, but it was a political reform that involved the majority of the people from the very beginning of its drafting. The whole process of constitution writing was also unprecedented in the history of modern Thai politics. Unlike most of the previous constitutions that came into being because those in power needed legitimacy, the constitution of 1997 was initiated and called for by the citizens who wanted a true and democratic regime transplanted on to Thai soil. This popular demand, fueled by the latest uprising in May 1992 against the military-controlled government, led to the election of the Constitution Drafting Assembly to rewrite the new constitution according to the wishes of the people. To make this constitution closer to the wishes and aspirations of the people, the assembly organized public hearings to enable concerned citizens and groups to air their opinions on a variety of topics and subjects crucial to the working and efficiency of the constitution. Finally the new and first popular constitution was submitted to parliament with strong support from people of all walks of life. Its submission was followed by long debates and objections from certain leading members of the house who feared it was overly liberal in its strong support of human rights and liberties of the people. The constitution of 1997 became the 16th constitution in the 67 years of Thai democracy.
This article was first published in The Thai government and economy, Chintana Bhandfalk (ed.), Public Relations Department, Foreign Office, Bangkok, 2000, and later revised, presented and republished in the proceedings of the symposium on “Constitutions and human rights in a global age: An Asia-Pacific perspective”, held at the Research School of Pacific and Asian Studies, Australian National University, Canberra, 1–3 December 2001. Thank you to Dr Thanet for giving permission for it to be reedited and published in article 2.
The history of a constitution is necessarily interwoven with the history and development of democracy, and more specifically, with the emergence of the concept of rule by law. The ability to implement a constitution and to guarantee its integrity presupposes strong social and political institutions. Although constitutions were occasionally put in practice by ancient regimes, they are, for the most part, of recent invention. Their fates remain bound to those of the political history of a given country, particularly with regard to the aspirations for democratic rule. The Thai constitution is no exception. Thailand was catapulted into a democratic, or at least a democratizing, period following the coup of 1932. The leaders of this coup were immediately presented with the dilemma of having to adapt the ideals of western constitutionalism to the realities of Thai society and politics: namely a highly stratified society with a large number of undereducated people and the concentration of political and economic resources in the hands of a small percentage of the population. Additionally the presence of the military in their capacity as ‘midwives’ of Thai democracy, although not initially perceived as an obstruction to the advancement of democracy, became increasingly problematic as they gained in strength throughout the Cold War period and beyond.
In order to understand the Thai constitution, it is necessary to examine how it developed by drawing upon Thai ideas and adapting the western ‘ideal’ to Thai realities.
The importance of constitutions in Thai history
In the tradition and understanding of western constitutionalism, the constitution aims at the limitation and regulation of the government’s powers and the protection of private rights and liberties. The significance of the constitution in Thai political history and government is that it is not simply the highest law. Thai constitutions served as histories of political development and conflicts, and in terms of the law, they were the sum total, not the source, of the lesser and organic laws that existed prior to the promulgation of the constitutions. Reflecting the temperament of the times, the Thai constitutions therefore represented the realities of power relations in the process of Thai social and political development.
The historic role of the constitution in Thai politics reflects its unique position in the continuity of the government. After the abolition of the absolute monarchy, the country had not been able to establish new institutions and customs to legitimize the transfer of power by force. In the old Thai government tradition, the palace coups and the use of force to overthrow or take over the king’s power was justified and legitimized by the Buddhist concept of merit and power. According to traditional beliefs, the righteous behavior of the leaders was a precondition for their possession of power. That meant that those who had power were thought to be good and deserving of it. But the legitimacy of a modern regime stems not only from the elaborate process of having constitutions, calling for new elections, appointing respectable figures in the governments, and declaring loyalty to the monarchy, but more so from the regime’s ability to maintain authority and retain power.
Following the coup of 1932, the first constitutional monarchy regime was established with the aim of creating a democratic government in the kingdom. The coup group (known as the People’s Party) saw this period as transitional and needed a special plan for the implementation of the new political system, resulting in the National Assembly, composed of a mixture of elected and appointed members. In the wake of the coup, however, government leaders and political elites attempted to adhere to the idea of constitutionalism. This idea persisted even in the face of many violent conflicts, which erupted from rivalry among elite groups. From 1932 to 1946, there were two unconstitutional changes of government. The first was the forced closure of parliament in 1933 by Phraya Mano, the first prime minister, as a result of disagreement in the cabinet over the proposed economic plan of Pridi Phanomyong. This led to a coup in the same year by the military wing of the People’s Party. Later there were also two attempted rebellions against the government. One was the Bowaradet Rebellion in 1933; the other was the Songsuradet Rebellion in 1939. The use of force in resolving political conflicts among rival elite groups increasingly became part of the fledgling constitutional regime. The government under Phibun at that time resorted to the use of a special court and executions in order to suppress its political enemies.
After World War II, the meaning of the constitution began to change according to new developments in political factions and conflicts. Maintaining parliamentary politics and the stability of the government proved to be increasingly difficult. In order to cope with the new internal and external political and economic situation, the constitution of 1946 replaced a unicameral parliament with a bicameral one, calling the second house the House of Elders. From that time on the upper house, later referred to as the senate, would become another institution in the growth and development of parliamentary government in Thailand. The 1946 Constitution was terminated by the military coup of 1947.
From 1947-1958 there were seven attempts to overthrow the government by force, four of which succeeded: in 1947, 1951, 1957 and 1958. Two rebellions against the regime—the Grand Palace Coup of 1949 and the Manhattan Coup of 1951—failed, and one attempted coup by a group of junior army officers was suppressed before it took place. But these overthrows and instances of violent action against the regimes had not yet polarized into an antagonistic relationship between civilians and military rulers. In fact throughout the period of 1932–1957 governments consisted of supporters from both military and civilian groups, as did their opponents. As yet there was no strong division between military and civilians in government. Nor did the government leaders use the constitution as a political means to protect and secure their powers. Of the four governments mentioned, only two wrote new constitutions, in 1948 and 1949. Otherwise they simply revised or amended the previous or existing constitutions.
The important point is that in the period of 1932–1957 government leaders still firmly believed in democracy as the most modern and viable form of government. Pridi Phanomyong, who was prime minister from March 24 to August 21 in 1946 and was the most important leader of the People’s Party once said, “A democratic system means democracy with law and order and morality and honesty.” Such a system clearly must be based on a constitution that is the highest law of the country. The problem facing the political elite at the time was how to make the new democratic government work in the context of Thai society rather than trying to redefine the meaning of democracy to fit with the desire of the government holders: a policy which would be anxiously initiated and pursued by government leaders from the late 1950s onwards.
Gradually, but more so after World War II, it became clear that the principles and customs of liberal democracy were inapplicable in the transfer of power and resolution of political conflicts among the elites, who resorted to force and extra-constitutional means to settle their conflicts. Once in power by extra-constitutional means, government leaders sought to legitimize their regimes mainly by the holding of elections. To achieve this they first had to promulgate new constitutions, which also gave them the semblance of popular sanction. Another reason for writing a new constitution was that after each major change of government institutional structures were modified to strengthen the new regimes. A new constitution thus served as a legal framework and guarantee of stable political structure for the regimes. Politically, the enactment of new constitutions allowed the government to declare its complete loyalty to the monarchy and to demonstrate the king’s acceptance and support of the new rulers. The constitution thus retained its acquired symbolic meaning along the way.
In the period from 1957 to 1992 the Thai constitution underwent many redefinitions. With many ups and downs in the lives of the constitutions, the political elites during the Cold War era denounced the western liberal democratic regime as “alien institution” incompatible with the customs of Thai society. Paradoxically this stance was adopted even though the government had close ties with the United States government, but such were the mutual needs and interests of the Thai government and the US in their fight against communism during the Cold War. In order to create a more stable government, political leaders, mainly from the army, turned away from the western concept of constitutionalism and relied instead on traditional political ideas, namely paternalism and patron-client relations between government and the people.
“Once in power by extra-constitutional means, government leaders sought to legitimize their regimes mainly by the holding of elections; they first had to promulgate new constitutions, which also gave them the semblance of” popular sanction
The growth of indigenous Thai democracy came about as a result of the failure in implementing a liberal form of democracy. First defined during Sarit Thanarat’s regime (from 1959 to 1963) as “Thai-style democracy”, the executive branch of government was emphasized at the expense of the legislature and judiciary. Sarit redefined the role and meaning of the constitution, appointing the Constituent Assembly to function both as the Constitutional Drafting Assembly and the legislature. The assembly drafted a new constitution while making laws for the government. Other democratic institutions were either curtailed or abolished. Political parties, labor unions, organizations, and freedom of the press and expression were prohibited or suppressed in the name of national peace and order. In place of modern democratic theory, Sarit introduced Thai paternalism invoking what he claimed were the practices and ideas of the ancient Thai kings, in which the government was like a benevolent father and the people were children. Claiming the power to guide and the responsibility to care for the well being of the people, the government had no need for Western frameworks of democracy. With full control of government power, Sarit’s rule was known as despotic paternalism. Such political ideas and practices continued in the Thanom Kittikachorn regime until the people’s uprising in October 1973, calling for full democratic government. The Constitution of 1974 was promulgated to serve as the fundamental basis for democratic development; however, it was nullified by the military coup of October 1976.
Later during the Prem Tinsulanond government in the 1980s, a similar idea of Thai style “half-fruit democracy” was also proposed, allowing for some relaxation of restrictions on political parties, the labor movement and the media.
The meaning of the constitution changed again after Bloody May 1992, when popular demonstrations were held against the military-led government of General Suchinda Kraprayoon. Advocates for reform and change of the “half-fruit democracy” called for the rewriting of the constitution. Finally, with the new constitution of 1997, the idea of constitutionalism was reintroduced into the political system again. The constitution was expected to bring about political reform through the application of liberal democratic government in the country. With these political goals, it contained extensive powers to regulate and control government and public agencies as well as to provide for and protect individual rights and liberties.
The new constitution of 1997
After Bloody May 1992, the public was again reminded that the mere existence of parliament and elections does not always work to the benefit of the people. The unexpected occurrence of the coup in 1991 made people more pessimistic about the progress and development of democracy in Thailand. Since the prevention of military intervention in national politics and government was almost impossible, the last hope was to rely on a sound and efficient democratic system of government. But the general election in 1995, held after the restoration of a civilian government, almost dashed this hope because of vote buying all over the country together with other forms of electoral corruption. Electoral politics was becoming increasingly controlled by an alliance of so-called ‘professional politicians’, provincial mafia, unsavoury business interests, large companies, and third-rate ex-soldiers and bureaucrats.
In order to cope with the new trend of democratization under a globalized economy, a more responsive and accountable government and parliament was needed. This could be ensured through rigorous reform and improving the existing institutions—including the house of representatives, the senate, the judiciary, political parties and local government—so that they could become more responsible and accountable to the people. In the long run this political reform would build up the immunity of the political system, so that extra-constitutional interventions could not be justified. With hopes and fears, people began to call for true reform of the political system.
Drafting the new constitution
The speaker of the house of representatives set up the Democratic Development Committee (DDC) on 9 June 1994 to study possibilities for political reform, following the hunger strike in front of parliament by Lt. Chalard Vorachat, a former member of parliament and political activist. Lt. Chalard started his protest on 25 May 1994 and ended it on July 31 after the government and opposition conceded to popular demands to revise the existing constitution, which was written in 1991 under the influence of the coup group, the National Peace Keeping Council. Consequently, parliament passed the fifth amendment to the Constitution of 1991 in February 1995, in an attempt to revise and amend some sections of the constitution which were regarded as undemocratic. But further effort to revise and amend the whole constitution according to the wishes of the people seemed to be deadlocked.
Then, under the new government led by Banharn Silpa-archa (from 13 July 1995 to 25 November 1996) the Political Reform Committee was appointed to look for solutions. One was found in the sixth amendment of the constitution, which was passed on 22 October 1996. This amendment stipulated the making of a whole new constitution by a special committee outside the National Assembly. The latter elected the Constitution Drafting Assembly, which consisted of 99 members. Seventy-six of them were representatives elected from all provinces and 23 were chosen from the ranks of academics and other qualified persons. This assembly’s duty was to prepare a draft new constitution. In the drafting process, the assembly paid special attention to the wishes of people all over the country. Public consultations took place nationwide, coordinated by the public relations committee. Public hearings were held, and input solicited. The proposed ideas and principles to be discussed in the draft constitution had to do promote and protect rights and liberties of the people. Equally important in achieving electoral reform was public participation in government and monitoring the exercise of state power. Finally the Constitution Drafting Assembly completed its work within 233 days and the constitution was promulgated on 11 October 1997.
Principles of government
The 1997 Constitution is not only the embodiment of the aspirations of Thai people for a democratic system of government, but it also reflects the struggle of the people to advance and achieve the democratic cause in Thai society. The constitution identifies the main principles of government: the form of the state, the structure of government, the separation of powers, the protection of individual rights and liberties, and the amendment of the constitution.
The significant change in the constitution regarding the political structure of the country is seen in the change from representative democracy to participatory democracy. This can be seen in many sections of the constitution that allow people to participate in the process of appointment of independent commissions, such as the Election Commission, the Administrative Court and the Ombudsman. Furthermore, it also allows people to recall certain members of parliament and ministers and to propose draft bills. The constitution makes clear that sovereign power belongs to the people and only the people can legitimately use this power.
The main objectives of the constitution are to uphold the principle of the democratic regime of government with the king as head of the state and to bring happiness, prosperity, and dignity to the people. The constitution also recognizes that sovereign power is derived from the Thai people.
The executive, legislature, and judiciary are independent in their respective functions and duties. The house of representatives exercises its check on the government by initiating motions on members of the cabinet and, in important policy matters, requesting a vote of confidence on the government. The council of ministers, or cabinet, has the duty to administer the country with the approval of the legislature. Finally, the courts perform their duties and responsibilities independently from the other two branches of government.
Another important principle introduced in the 1997 Constitution is the supervision and control of the use of power by the government and its agencies. There are rules and regulations regarding the wealth and behavior of politicians who are in office. Many new commissions and organizations independent from government and the bureaucracy have been created to monitor the running of the government and public services. The qualifications of members of the National Assembly and the cabinet have been raised to meet the popular demand for better public servants.
The bill of rights
The constitution of 1997, for the first time, stipulates that human dignity, not only the rights and liberties of an individual, must be protected. There are many new rights introduced in this constitution also. This is a reflection of the changes in the political and social environment in the country following the rapid expansion and growth of the economy in the 1990s. It also demonstrates the response of Thai people towards global trends and developments. Chief among these rights are individual rights, community rights, rights of children, the elderly, the handicapped and women. Freedom of information, the right to public health and education and consumer rights are also recognized. In all there are 40 sections on rights compared to only nine in the constitution of 1932.
Regarding rights and liberties of the individual, the new constitution of 1997 states that a person shall enjoy the right and liberty in his or her own person to dignity, reputation and privacy, including family rights. A person has liberty of dwelling and travelling within Thailand. The rights to practice any religion, to hold private property and have inheritance, together with the rights of expression, of association, and of information are also recognized.
People have the right to vote, run in an election, form a political party and have access to government information. The airwaves are also a common resource and cannot be monopolized by the government. People have equal rights to utilize and make use of their frequencies. They are granted rights to sue the government and public agencies, and to lodge complaints with the National Human Rights Commission and the Ombudsman. In criminal cases and other cases, legal procedures must not violate the accused person’s rights to a fair trial and investigation.
Another area of rights in the 1997 Constitution is the protection and promotion of individuals’ self-development. Section 42 states that “a person shall enjoy an academic freedom” and that “education, training, learning, teaching, researching and disseminating such research according to academic principles shall be protected provided that it is not contrary to his or her civic duties or good morals”. People have equal rights to public education for the duration of not less than twelve years without charge.
The new sections on communal rights and liberties deal with community rights, the preservation of natural resources and self- government. For example, section 46 states that persons assembling as a traditional community shall have the right to conserve or restore customs, local knowledge, arts or culture and participate in the management, maintenance, preservation and exploitation of natural resources and the environment.
Finally, for the first time, the constitution grants people “the right to resist peacefully any act committed for the acquisition of power to rule the country by a means which is not in accordance with the modes provided in this Constitution” (section 65).
The separation of powers
The principle of the separation of powers is mainly concerned with creating a stable government and protecting individual rights and freedoms from abuse by government powers. Underlying this is the distribution of power among the executive, legislative and judicial branches. The separation of powers is not the division of sovereign power but the separation of the exercise of that power. In practice there is no government that absolutely separates the three branches of powers from one another, because they are all related and dependent upon one another.
In fact, the efficiency of parliamentary government lies in the close union, nearly complete fusion, of the executive and legislative powers. This takes place in the cabinet. The house of representatives chooses the prime minister, who once elected exerts powers of administration by nominating ministers and selecting the cabinet, over which he presides. Then the cabinet exerts a special control over the house through its policies. The cabinet members cannot at the same time be members of the house, or government officials. In conducting government policies, the executive is accountable to the legislature, which can exercise a vote of no confidence to check the government. In return the government has the power to dissolve the parliament.
The right of dissolution that the government possesses makes it into an executive that can annihilate the legislature, as well as an executive that is the nominee of the legislature. The stability and efficiency of parliamentary government thus rests on the collective responsibility of the cabinet combined with the threat of dissolution of the parliament.
The 1997 Constitution makes it a duty for people to vote in a general election. Failure to do so is punishable by law. This requirement stems from people’s wishes to construct a democratic government free from vote buying and selling, which have dominated elections in the past. Thus voting is now compulsory. For the first time, the people will directly elect the senate, which is being given more power in the National Assembly, including power to recall and investigate politicians. To guarantee the neutrality of the senate, senators are prohibited from affiliating with any political party, and no campaigning for election is allowed.
Members of parliament come from both direct popular election and from a party list, which accounts for one fifth of their total number. The reason for the introduction of party-list members is to allow certain professionals to be able to be elected into parliament without having to spend a huge amount of money in campaigning like ordinary members. This will open more avenues for some groups of people to be able to have their own representatives. Also this is a chance to see whether the direct election of executives will work or not, because only political parties will nominate the party lists. Another new mechanism is the establishment of the Election Commission to oversee elections instead of the Ministry of Interior.
The significance of the constitution in Thai political history and government lies in its function to serve the interests of stability of the given regime. In this sense, Thai constitutions represented realities of power relations more than being the source of political legitimacy.
The 1997 Constitution, however, intends to introduce a change from representative democracy to participatory democracy. This can be seen in the establishment of the independent commissions and special courts, such as the Election Commission, the Administrative Court and the Ombudsman. Individual rights and liberties are expanded upon together with communal rights. Principles and practices of checks and balances and the separation of powers figure prominently. The 1997 Constitution therefore makes clear that sovereign power belongs to the people and only the people can legitimately use this power.