A first look at Thailand's new interim constitution

Originally published at Siam Voices on July 23, 2014

Two months after Thailand's military has staged a coup on May 22, 2014, the country has now adopted a new interim constitution. Army chief and junta leader General Prayuth Chan-Ocha was granted an audience with King Bhumibol Adulyadej on Tuesday in order to seek His Majesty's endorsement of the country's 19th constitution.

The 2014 Interim Constitution, available online HERE on the website of the Royal Gazette, is 17 pages long, consists of 48 articles and draws up how and who will govern Thailand, who will draft and approve the next full constitution, and what role the military junta aka the "National Council for Peace and Order" (NCPO) will still have - all that with the proclaimed aim of creating a "genuine democracy" by "reforming" the country and "eradicating corruption" as stated in the constitution's preamble, before organizing new elections sometime by October 2015.

Here's a first look and analysis of some of the key aspects of the new interim constitution, grouped by field of topics. (Note: All citations are unofficial, rough translations by this author.)

The National Legislative Assembly (สภานิติบัญญัตแห่งชาต)

Article 6: The National Legislative Assembly should have no more than 220 members, who should be of Thai nationality since birth and no younger than 40 years of age and appointed by the NCPO. The National Legislative Assembly will assume the duties of the House of Representatives and the Senate.

Article 7: Members of the National Legislative Assembly should be knowledgeable and come from different groups in society such as the state sector, the private sector, the social sector, the academic sector, the professional sector and other sectors that are beneficial to the National Legislative Assembly.

Article 8: A member of the National Legislative Assembly is prohibited from assuming office if he/she:

1. Has assumed a position in a political party within three years prior to the date of appointment as member of the National Legislative Assembly.
2. Is a Buddhist novice or priest.
3. Is bankrupt or has caused bankruptcy through corruption.
4. Has been previously stripped of his/her right to vote.
5. Has been previously expelled, dismissed or fired as a government official or employee at a state enterprise on the grounds of corruption, fraud or misconduct.
6. Has had assets seized by the court.
7. Has been previously barred or removed from political office. (...)

The National Legislative Assembly (NLA) will be housing both chambers of the House filled with appointees of the junta, who are not politicians or have been that for the past three years (perhaps coincidentally, three years since the election victory of the government the junta has just ousted), but instead with representatives from different sectors of society. Sounds familiar...

The Prime Minister and the cabinet (นายกรัฐมนตรและคณะรัฐมนตรี)

Article 19: HM The King endorses the Prime Minister and other ministers, not exceeding 35 [cabinet members], who are is appointed by the National Legislative Assembly and not more than 35 ministers recommended by the Prime Minister to constitute the Cabinet (...)

[NOTE, July 24: The article above has been corrected to better reflect the appointment process. Apologies for any confusion.]

The requirements of a prime minister or cabinet member stay mostly the same (Article 20) compared to the previous constitution: still must be born Thai, now has to be no younger than 40 years (previously 35), still has to be university education with at least a Bacherlor's degree. However, like the members of the NLA, the prime minister and the other ministers must not have assumed a position in a political party within the last three years.

Also, he/she cannot be at the same time be a member of the NLA, the National Reform Council, the Constitutional Drafting Committee, the member of a local government or of the independent government agencies (e.g. Election Commission, National Anti-Corruption Commission, National Human Rights Commission etc.). That would already exclude a lot of potential candidates and make way for plenty others.

The cabinet may be allowed to attend and speak at the NLA, but they are not allowed to cast their vote at the sessions (Article 19).

The National Reform Council (สภาปฏิรูปแห่งชาติ)

Article 27: A National Reform Council should study and propose reforms to the following areas:

(1) Politics, (2) Public administration, (3) Law and Justice, (4) Local government, (5) Education, (6) Economy, (7) Energy resources, (8) Public health & environment, (9) Mass Media, (10) Social, (11) others

This will allow a democratic regime with the King as the Head of State that is in accordance with a Thai society in which elections are honest and fair, with mechanisms to prevent and eradicate corruption and misconduct, to eliminate disparity and create social and economic fairness, in order to have sustainable development.

Article 28: The National Reform Council should have not more than 250 members. (…)

As with members of the NLA, the members of the National Reform Council (NRC) are appointed by the junta and are subject to the same restrictions as stated in Article 8. The composition of the NRC is a little bit more complex:

Article 30: The NCPO will appoint members of the National Reform Council based on the following rules:

1. Establish a selection committee which will appoint members for the committees of each area as stated in Article 27 and also a selection committee in every province (…)
2. The NCPO will appoint the selection committees from a line of experts (…)
3. The selection committee is tasked to find qualified persons based on Article 28 and Article 29 (…). A list with names will be submitted to the NCPO for approval. Members of the selection committee cannot put their own names on the list
4. The selection as stated in (3) should consider a diverse range of candidates from various sectors such as from the state, private, social, academia, professional and other sectors that are beneficial to the work of the National Reform Council, including from all provinces (…) all genders and those less privileged.

Going by that text, the makeup of the the NRC would be 77 members - one from each province - and 173 others, who are able to send draft bills to the National Legislative Assembly for consideration (Article 31.3). Also, how inclusive will be the council really be? For example, will "all genders" be represented, including transgender people?

The Constitutional Drafting Committee (คณะกรรมาธิการยกร่างรัฐธรรมนูญ)

Article 32: A Constitutional Drafting Committee should prepare a draft constitution, which consists of 36 members (...)

1. The chairman will be appointed by the NCPO
2. The National Reform Council will appoint 20 members
3. The National Legislative Assembly, the Cabinet and the NCPO will appoint 5 members each

As the name implies, the Constitutional Drafting Committee (CDC) is tasked to draft a new full constitution in 120 days after its inception through the National Reform Council (NRC) (Article 34) and will include a broad catalogue of considerations (Article 35, which we may cover in a future post) such as mechanisms to "eradicate corruption".

However, should the CDC fail to present a finished draft at the end of the 120 days, the committee will be sacked and a new one will be set up (Article 38). Even more severe, should the draft be rejected by the National Reform Council or should the consideration take longer than 15 days (as stated in Article 37), BOTH the Constitutional Drafting Committee and the National Reform Council will be dissolved and replaced by a new one, and the whole process starts anew (also Article 38). All sacked members would be barred from joining the newly formed CDC and NRC. There could be a potentially interesting precedent here.

Also, as expected, there's no word on a public referendum on the new constitution.

The National Council for Peace and Order (คณะรักษาความสงบแห่งชาติ)

It comes at no surprise that the NCPO, aka the junta, will maintain some considerable influence for the foreseeable future. It affirms that the junta is in charge in the absence of a government and parliament (Article 43) and all past 100+ orders and announcements are still valid (Article 47). And Article 44 underlines that the junta will stay in power:

Article 44: For the benefit of the reform process to promote unity and solidarity of the people or in order to prevent or protect from threats against public order, national security, the monarchy, national economy or sovereignty of the country - no matter whether it’s from inside or outside the country - the head of the NCPO is authorized, with the approval of the NCPO board, to order, to suspend or to take action, regardless of its effects on the legislative, executive or judiciary. All orders or acts are to be regarded as lawful and constitutional. At the conclusion of that order or act, the speaker of the National Legislative Assembly and the Prime Minister are to be notified as soon as possible.

What may appear as an emergency passage for some, this is basically a carte blanche authorizing the junta to do nearly everything it sees fit, from calling special meetings to seemingly unlimited vetoing powers. No matter if it violates this constitution or law, this article could enable extrajudicial actions against those it sees as a threat.

And finally, the very last article of the interim constitution states:

Article 48: All acts related to the seizure of power on May 22, 2014 by the NCPO and those associated or ordered by the head [of NCPO] (…) regardless of its impact on the legislature, executive and judiciary (…) and regardless of the acts carried out on, before or after said day, should those acts are considered to be unlawful, all those associated with those acts are entirely free of fault or guilt.

As with previous coups, the junta has written its own amnesty into law.

Summary aka the "tl;dr"-part

• A fully junta-appointed, 220-strong National Legislative Assembly that doubles as both the parliament and the senate, which will deliberate and vote on bills.
• A 250-strong National Reform Council supposedly representing a broad section of society and all provinces looking to reform almost every aspect in the country and also able to draft bills.
• All persons holding a position at a political party within the past three years are barred from participating.
• A 36-strong Constitutional Drafting Committee tasked with, well, drafting a new constitution with 120 days or else faced with dissolution, only to be replaced by a new committee. No word of a public referendum.
• The NCPO aka the junta will still wield considerable powers whenever it sees fit and also has given itself an amnesty for the May 22 coup.
• According to media reports, all appointments should be done by September later this year and more official details are expected Wednesday morning at a press conference by the NCPO.