Thailand's post-coup constitution: Will the people have a say?

Originally published at Siam Voices on May 12, 2015 Thailand’s draft for the next constitution is still subject to heated debate. But  the hottest issue at the moment is whether the Thai people will actually have a say in the next charter via a referendum.

It’s been almost a month now since the Constitutional Drafting Committee (CDC) presented the fruits of their labor with the new draft that will become Thailand’s 20th constitution (download the draft and English translation here, more analysis in the coming weeks) - that is, if it actually survives the coming weeks and months.

Since a military coup ousted the popularly elected but embattled government of former Prime Minister Yingluck Shinawatra almost exactly a year ago, Thailand’s military junta government is trying its absolute best to ensure that this draft, and with it its singular vision about the country’s political power structure, is written into law with minimal changes.

After the previous military coup of 2006 that ousted Thaksin Shinawatra the Constitution of 1997 was scrapped. Instead of what was widely regarded as the "People’s Constitution" that pushed Thailand towards democracy, the interim government drew up the 2007 Constitution. It included stipulations like a two-term limit for the prime minister, a half-appointed senate and easier processes to impeach the government.

Curiously, and specified in the 2006 interim constitution, the then-military junta put this draft to a referendum and launched a far-reaching PR-campaign (knowing well that it controlled the airwaves, see more examples here, here, and here) calling on the people to vote in favor of it. Eventually, the referendum in August 2007 went in favor of the constitution with 58 to 42 per cent (turnout: 57 per cent) and elections were held later that year in December - only for another Thaksin-associated party to come to power (and later repeated in 2011 with Thaksin’s sister Yingluck).

Now, with the 2007 version thrown into the bin again, another Shinawatra government toppled, and the military tightening its grip on power, a new draft has been drawn up by the junta’s all-appointed Constitutional Drafting Committee and the question many are asking is if there will be a referendum again?

There were signs as early as one month after the coup that the military is against a referendum this time. Then later in October - with the country still under martial law - National Reform Council (NRC) member Chai-Anan Samudavanija had this rather singular take on the issue:

Once the constitution had been drafted, he saw no need for a national referendum, because there weren’t any clearly conflicting issues.

“Usually, a referendum is required when opinions are split between alternative options; whether society wants A or B. However in the current situation, those alternative options aren’t apparent, therefore, a referendum is not necessary.”

“Public endorsement of the constitution can, instead, be demonstrated through the absence of public dissent,” he pointed out.

”'Fewer MPs would mean less corruption’”, The Nation, October 13, 2015 - via Bangkok Pundit

The referendum issue flared up again in March when the sidelined political parties from both sides of the spectrum (the ousted, Thaksin-associated Pheu Thai Party and the opposition, ‘Democrat’ Party) started to become more vocal:

In an exclusive interview with the Bangkok Post, Pheu Thai legal experts, led by Pongthep Thepkanchana and secretary-general Phumtham Wechayachai, insist a referendum must be carried out — and the public should be given a choice of an alternative if they don't like the one currently being written.

Asking the public to simply accept or reject the new charter is not enough, they say. The voters should be given options and allowed to pick a version of a charter — for example the 1997 version — if they disagree with the coup-sponsored draft.

The experts' suggestion is in line with what the Democrat Party has proposed, but the Democrats called for the 2007 version (…) to be one of the choices. (…) [Democrat leader Abhisit Vejjajiva] outlined his support for a referendum in a previous interview with the Bangkok Post, saying it will not only ensure the legitimacy of the new charter, but it will also help quell any suspicions the charter has been designed to allow the coup-makers and other bodies set up after the coup to prolong their hold on power.

”Pheu Thai backs charter referendum”, Bangkok Post, March 16, 2015

These calls were repeated by both parties and have been echoed in the most unlikeliest of places, as both NRC member Alongkorn Polabutr and even the CDC’s chairman Borwornsak Uwanno voiced their support for a vote by the people.

However, the military junta government is still staunchly against this and put some people back in their place:

"The CDC needs not say anything because a public referendum is neither the matter nor duty of the drafting panel," Deputy Prime Minister Wissanu Krea-ngarm said. "It is the matter for the cabinet and the National Council for Peace and Order to decide." (…) "The CDC's job was finished once it completed drafting the new constitution," Mr Wissanu said.

”Govt lashes out at CDC, NRC for referendum remarks”, Bangkok Post, April 30, 2015

However, junta leader and Prime minister General Prayuth Chan-ocha said on the same day that it’s not up to him but the CDC and NRC to decide whether or not to hold a referendum. The question here if he was either referring to himself as the prime minister or the leader of the “National Council for Peace and Order” (NCPO), as the junta is officially called, since both positions are occupied by him - in the same way many positions are in the NCPO and in the cabinet.

Meanwhile, civil society groups are speaking up on this matter, while academics, activists, students, NGOs and alternative media organizations have launched their pro-referendum campaign with the unveiling of the website prachamati.org (the Thai word for referendum), providing a forum where users can debate and vote on crucial parts of the draft constitution - because that’s exactly what’s currently not happening in the real world.

We can expect a pretty clear schedule in the coming weeks: The cabinet and the junta (essentially the same people) submit their comments to the CDC by May 25. Then the CDC has until July 23 to amend the draft and send the final version to the NRC, which has two weeks to review and approve by August 6 - or not and then start the whole process all over again.

The issue of whether or not to let the Thai people vote on the new constitution is yet another thorny one for the military junta, which doesn't like leaving anything to chance (or rather choice in this case), most evidently illustrated by the junta’s threat in case of a referendum to delay the future election even further into 2016.