THE THAI CONSTITUTION
OF 1997 SOURCES AND PROCESS
Borwornsak Uwanno* & Attorney Wayne D. Burns**
development of the modern Thai nation-state has its origins in the reign
of King Rama IV when the Kingdom was known to the world as Siam. Siam
in the mid-nineteeth century was essentially a feudal state headed by
the monarch who administered the country through a hierarchy topped by
minor royalty and aristocrats. They in turn were paid tribute by various
levels of officials and at the bottom were the serfs who tilled the fields,
paid a portion of their harvests to the landlords and served in the Siamese
army in times of war.
all changed in 1855 with the signing of the Treaty of Friendship and Commerce,
(the Bowring Treaty), with Great Britain. By signing this Treaty with
the British and the other European powers, along with the Americans and
the Japanese, the King reluctantly acknowledged the arrival of Europeans,
and radically altered the status quo. Siam was forced to open its economy
to the world. In so doing, the royal monopoly of external trade was destroyed.
By the time King Chulalongkorn (1868-1910) ascended the throne, the effects
of this economic transformation were already affecting Siamese society.
The young monarch began the step-by-step process to eliminate slavery
and serfdom in 1874. This liberation of manpower resulted in further breaking
down the traditional hierarchy. A professional army was created. The government
took control of natural resources like teak and tin and granted trading
concessions directly, taking this power out of the hands of provincial
governors. Foreign traders dealt directly with local trading houses and
paid a 3% export tax..
addition to its economic and social effects, the Bowring Treaty effected
judicial and legal reform. The old judicial system was not trusted by
foreigners. The Treaty imposed a system of extraterritorial laws under
which foreigners would not be subject to the Thai courts. King Chulalongkorn
realised if these laws were ever to be lifted the system had to be modernised.
Western foreign legal experts were hired to adapt the Thai laws to a more
Western model. A codified system was adopted with the beginnings of three
major codes of law: the Penal Code; the Civil and Commercial Code, and;
the Civil Procedure Code and the Criminal Procedure Code.
with legal and judicial reform, King Chulalongkorn initiated wide ranging
institutional reform of the Thai government. A Council of State system
was instituted in 1894. A civil service based on merit attempted to replace
the old system based on patronage. This period truly marks the emergence
of most aspects of the modern Thai nation-state as we see it today.
process of reform continued in the reigns of Rama VI and VII. Rama VI
pushed forth the legal reforms his father had fostered and went further
in promoting Thai nationalism and further professionalising the Thai army.
But the economy turned sour and King Rama VII , ascending to the throne
in 1925, inherited economic recession from his brother and a growing restiveness
among a new elite of young graduates with foreign educations who had witnessed
the social and political ferment in Europe.
II. The Problems
of the Thai Constitutional Regime since 1932
A. The Coup of
1932 and the Creation of the Constitutional Monarchy
1932, a group of young reformists composed mostly of lawyers and military
graduates took the initiative and took over the government. They created
the first Constitution in Thailand and forced the King to agree to reliquish
his absolute status and become a constitutional monarch. But the government
that emerged was essentially dominated by the military and noteworthy
for the non-participation of the people.
1932, the Thai government has been largely a cabal between the military
and the technocrats making up the Thai bureaucracy. The people have for
most of the sixty years that followed, had little participation.
B. The Beginnings
of the Vicious Circle of Thai Politics
1947, a military coup overthrew a civilian government, and this event
marked the beginning of a vicious circle in Thai political development
that would repeat itself right up to the last coup which occurred in February,
1991. This circle starts with increasing public pressure on the civilian
regime (normally functioning with the approval of the military) usually
fomented by its social, political and economic dysfunction. This dysfunction
is typically exacerbated by the media reporting on the regime's overt
corruption. This in turn provokes increasing political conflict between
factions in the government coalition. Finally in compliance with the bureaucracy,
the military steps in to restore order and establish a functional legislature,
able to pass the laws the bureaucracy has drafted. Usually an interim
constitution is quickly implemented followed by a permanent constitution
with possibly an election to create an ostensibly civilian government.
Once the government is up and running, it is allowed a honeymoon period
where everyone settles back to the business of state affairs. But then
rumours of corruption arise yet again. And renewed social and political
turmoil causes the governmental factions to again turn on one another.
And the vicious cycle begins yet again.
Components in the Equation
have figured in this equation as instruments drafted by the current regime,
be it military or civilian, to ensure that they retain power. The formation
of an interim constitution followed by a so-called permanent constitution,
may seem strange to a Westerner. But there have been fifteen constitutions
since 1932 and the 1997 Constitution represents the sixteenth. While some
of the essential truths of the Thai reality have been repeated in every
one of these constitutions, especially regarding the monarchy and religion,
these previous constitutions have not been written as guarantees of the
fundamental freedoms and obligations of the people, as constitutions are
regarded in the West. They have been guarantees that the current regime
can remain in power.
D. The Student
Uprisings of October 1973 and 1976
cycle of coups, new constitutions, new civilian regimes, and coups again,
began to unravel in 1973. In October, 1973, a student uprising took place
protesting the egregious corruption and martial law of the Thanom regime
of the time. Tens of thousands of students from Thailand's three major
universities converged on Democracy Monument in Bangkok. The uprising
resulted in the deaths of many students. A new government was formed but
unlike previous changes in the regime, this event marked a turning point.
As Wright stated: "It was the first time in modern Thai history that the
masses had rallied to take up arms against the ruling elite and to demand
a change in leadership."
period that followed was a time of euphoria and promise. The students
and the media which had witnessed this transformation, proclaimed the
beginning of an era of mass politics. But their shared view proved to
be too simplistic. There was a wide divergence between the Bangkok view
of the uprising and its reasons and the views from the provinces. While
there were demonstrations in towns and campuses in the provinces, agitation
outside Bangkok arose for different and even more complex reasons than
those of the Bangkok elite.
a fortnight of the October 1973 incident, a committee was established
to draft the latest version of Thailand's "permanent" constitution. The
National Convention as it was called, dominated by a majority of conventioneers
drawn from the rural majority, created a Legislative Assembly made up
of 81% of residents of Bangkok. This betrayed the traditional client-patron
loyalty and deference to authority which was still strong among the rural
classes and far exceeded their longing for democracy.
the next few years, disillusion with the change in government began to
grow among students, labour and the newly-galvanised middle classes which
had participated in the October, 1973 uprising. It became progressively
obvious, that the new so-called "liberal" regime while replacing a rigid
military dictatorship was actually a perpetuation of control by the wealthy
elite largely centered in Bangkok. Agitation for reforms again began to
gain momentum in mid-1975. But the agitators were no longer buttressed
by the Bangkok bourgeoisie who had watched in horror as one after another
of the Indochinese governments fell victim to communist regimes.
civilian governments came and went during this period. The Bangkok elite
became increasingly polarised along rightist-leftist lines with extreme
acts of violence rising in frequency as months of unrest, spiralled toward
the climax which occurred on October 6, 1976. Dubbed the Six October Massacre
, the Thai police and a mob of rightist gangs, marched on demonstrators
gathered at Thammasat University campus in central Bangkok.The Thai police
shot, clubbed to death and even hanged hundreds of students. They followed
this mayhem by arresting 1,700 protesters. Many of the others who had
avoided death or arrest, retreated to the mountains to mount further resistance.
E. Steps Leading
to a New Order (1978-1992)
the October 6, 1976 incident, the military stepped in yet again to restore
order. Within days the junta had installed a new cabinet, prime minister
and constitution. But that would last only a year. Too much had changed
in the preceding three years and constitutionalism had taken root among
the people. The violence of the 1976 events shocked the nation. Although
not well understood ,even by the educated elites, the taste for mass participation
had taken hold and a return to the former ways of rigid oppression was
no longer tolerable.
Constitution was drafted in 1978. This marked the beginning of an era
of rapprochement with the students who had exiled themselves after the
massacre of 1976 and had joined the Communist Party of Thailand (CPT)
insurgency in the mountains. This period was an extremely important one
in the constitutional transformation of Thailand. Wright stated it as
follows: "It marked a significant realignment in the relations between
the rulers and the ruled.Thai democracy was not born on that Sunday in
1973 any more than it suffocated in its crib [ with the massacre] three
years later." If anything, the relationship between the elite and the
masses was clarified. They increasingly saw their interdependence as part
of the social contract that had arisen out of the age-old Thai tradition
events which led up to the "Black May" incident sixteen years later in
May, 1992. certainly had their roots in the events of the Seventies. Under
the Constitution of 1978, an era of relative moderation seemed to take
hold. Although the government that brought in this latest version, was
militarily controlled, the military had set a timetable for the eventual
devolution of its control to a truly civilian government. Nevertheless,
in 1980 the elected Parliament chose as the successor to General Kriangsak,
General Prem Tinsulanonda who was the Commander-in-Chief of the Royal
Thai Army. His ascendancy came about while the military and civilian elites
grappled with reaching compromise on constitutionalism in Thailand.
spite of General Prem's military connections this still did not protect
his regime from several coup attempts.From the end of absolute monarchy
in 1932 up until a coup attempt in 1981 there had been fifteen coups,
with nine of them overthrowing the regime of the time. This hearkens back
to the vicious circle mentioned at the outset. And the question which
most legal observers continued to ask was, how would Thailand break out
of this syndrome once and for all.
Prem survived many challenges during his term as Prime Minister. After
several years in office, General Prem became the first military prime
minister to resign his commission and still keep his premiership. He also
became the first such prime minister to hand over his office voluntarily,
to an elected civilian Prime Minister, albeit also a former general.
Prime Minister who formed the newly-elected government, Prime Minister
Chatichai Choonhavan would be the last Prime Minister to be overthrown
by a military coup. After barely three years in office, the Prime Minister
began a heated feud with the two Army leaders, Generals Suchinda and Sunthorn
over the armed forces displeasure with the departure of General Chavalit
Yongchaiyudh from the cabinet as defence minister. This dispute reached
a head on 23 February, 1991, just as the prime minister was taxiing for
take-off to fly to Chiang Mai to present the credentials of his new deputy
defence minister to the King. Arrested and put under house arrest, the
prime minister was forced to step down and the new military government
abolished the 1978 Constitution. An interim constitution, to be replaced
with the Constitution of 1992, was followed by assurances by the new regime
that they would return powers to a civilian government, once order was
Suchinda, who led the coup promised late in 1991 that he would never seek
to put himself in the premiership. But in May, 1992 he did just that.
This resulted in demonstrations in around Democracy Monument, the scene
of many of the demonstrations in both 1973 and 1976. But this time around
the demonstrators were dominated by members of the Bangkok middle classes.
So much so that the popular media dubbed it the "hand held" revolution
in Thai, referring to the prevalence of hand held mobile phones among
the crowds. The incident became known as "Black May" and the army was
brought in to crush the uprising in the heart of the city. Only after
the King intervened and called General Suchinda to an audience, together
with General Chamlong who was seen as a key leader of the opposition,
did the situation calm down. But the main result of this incident and
its aftermath was the beginning of demands for profound political and
social reform. When calm was restored, quiet pressure began to mount to
once and for all rid the nation of the destructive cycle of coup after
coup that had characterised Thailand's history since 1947.
III. The Movement
for Political Reform
A. Beginning steps
movement for reform started in earnest in 1992 with four amendments being
passed by the Parliament after the bloodshed in May. Two of these amendments
were aimed squarely at ensuring that what had led to the 1992 demonstrations
would not be repeated. The first required that only an elected Member
of Parliament could become Prime Minister. The second attempted to deal
with the problem of an unelected Senate, dominated by the military clique.
It required that the Speaker of joint sessions of Parliament no longer
be the Speaker of the non-elected Senate, but rather the elected Speaker
of the House of Representatives. This momentum for reform continued through
1993, responding to rising public support for the political reform movement,
an ad hoc committee for constitutional reform was formed by the House
of Representatives. The committee was empowered to deal with setting up
the main issues to be addressed in any reform of the system and came up
with 45 proposed issues to be addressed in the form of amendments to the
recently created 1992 Constitution.
problems to be addressed by reform
initial steps toward reform were taken alongside a debate among Thai academics,
lawyers and politicians, largely centered in Bangkok to pinpoint the problems
inherent in the Thai political culture which had to be addressed if the
reform initiative was to mean real change. The first problem has already
been discussed in the first section of this article: the vicious cycle
of civilian governments replaced by coups and the lack of genuine constitutionalism
as a result. But as the debate grew, deeper problems were singled out
as needing to be confronted.
2. Lack of transparency
in Government: the problem of corruption
first major problem which analysts agreed would require reform was the
lack of transparency in government and the corruption that this fostered.
The forms of corruption which the reformers focused on were:
a. Vote-buying and
of the primary manifestations of corruption which went to the very heart
of the political process was vote-buying and electoral fraud. During elections,
politicians have traditionally sent their cronies out to the rural areas
with bucketfuls of cash. This has demonstrated very starkly the electoral
profile of the Thai voting public. Bangkok is important as the nation's
political capital and business center, and therefore exerts enormous influence
over national policy makers, if for no other reason than their proximity
to the scrutiny of the nation's national media concentrated in the city.
The towns are important only because they spawn provincial leaders. Their
weight during elections is minimal. Not so the countryside where the vast
majority of Thais live.
view from Bangkok of electioneering in the countryside is skewed by the
bias against what the urbanites see as their country bumpkins, the lower-educated
rural voters who persist in sending corrupt politicians to the capital
and in so doing, help to perpetuate a system of patronage and corruption.
This view was presented by Christensen and Siamwalla in the following
voters are poor and susceptible to bribery by candidates: therefore candidates
bribe voters and spend enormous sums of money to get elected and spending
more money means a better chance of winning; therefore having lots of
money, winning candidates try to recoup the cost of electioneering; therefore
they engage in corrupt activities when they come to Bangkok, and widespread
corruption is thus explained.
there is some truth to this portrayal, it also illustrates the differences
which divide the rural populace from their urban cousins. First of all,
Bangkok has persistently lower voter turnout percentages than the rural
areas. Citizens of Bangkok are richer and better-educated. Criticism of
politicians especially when they are accused of corruption, is much louder
in Bangkok than the rural areas. Although the majority of Members of Parliament
come from the rural areas, they must face a barrage of media attention,
especially if they are accused of corruption. In trying to appease the
urban media, Members of Parliament often seem to forget the rural voters'
needs which can have adverse effects on the age-old system of patronage
which they were elected to maintain.
patron-client relationship has been a facet of Thai law since the Three
Seals Law of the last century. And this relationship lies at the heart
of politicians relationships with their rural constituents. It is an exchange.
There is an exchange. The voters sell their votes to their candidate.
By getting elected, the candidate promises to repay the constituents loyalty
with protection. While one patron may have many clients, this does not
lessen the importance of the relationship with one client. The patron
is more powerful than the client. The relationship can persist through
many transactions or in the electoral sense, many elections. And it is
relationship with many facets. It is seldom specialised.
b. The lack of legal
measures to prevent corruption
the patron-client relationship between Members of Parliament and rural
voters lies at the heart of the flawed political system, the lack of legal
measures within the system to prevent corruption guarantees that system's
continuity. For example, the media often headlines yet another lavish
gift given by a prominent business personality to a Minister who holds
a Cabinet post key to the interests of that businessman. Or commercial
interests are famous for offering foreign study tours abroad to a selected
group of officials in a key ministry as a way of buying their way to being
chosen to complete lucrative government contracts. Another example is
the lack of any law against government officials holding passive directorships
in private companies under their control. In 65 years of government preceding
the 1997 Consitution's passage, only once has there been a Minister tried
and convicted of corruption, and only because the man who paid the bribe
came forward because the Minister did not follow through on what he had
Inefficiency of the political and legal process in punishing corrupt politicians
addition to the systematic abuse this pattern of corruption has had on
the administration of government, it has also worked its way into the
very fabric of politics. When corruption rumours reach a crescendo, which
the government can no longer ignore, a vote of no confidence is usually
brought against the ruling coalition. But when the vote is called, habitually
the majority prevails and in spite of a new coalition being established,
nothing really changes. It merely gives members of the coalition an excuse
to pull out of the coalition and maneuvre to secure a more advantageous
position in the formation of the coalition which replaces the one previous
addition to inadequate legal mechanisms to deal effectively with corruption
in the past, the general inefficiency of the political and legal process
to cope effectively with corrupt politicians has also been a persistent
feature of the old order. And this was pinpointed by the reformers as
requiring a thorough overhaul. It is the supreme irony that some of the
most corrupt politicians in Thailand are also its most popular. It would
be foolish to blame this on the gullibility of rural voters. A sounder
explanation is rooted in the continued viability of the patron-client
relationship, especially as it exists between the rural electorate and
its elected representatives. If a representative continues to bring back
resources from rich Bangkok to the provinces, it does not matter to the
rural electorate if the candidate creams off a little for himself. That's
just a fact of political life.
lack of political will to deal effectively with this problem was rooted
in the very nature of the political process that preceded the recent impetus
for reform. Until 1973, most governments were non-elected, usually surviving
under the wing of a strong military clique. While non-elected governments
have passed more laws than their civilian counterparts, these governments
are characterised by a dirth of political debate. Most of their members
come from the bureaucracy after appointment to the government by the military.
Parliamentary debates over laws in non-elected legislatures were suitably
short because non-elected MP's did not have to grandstand for the media.
Their popularity was not contingent on the whim of a distant rural constituency.
Instability of civilian government and the inefficiency of political institutions:
the causes a. Coalition governments guarantee chronic instability
of the prime culprits militating against establishing effective measures
to deal with corruption, has been the instablity of civilian government
and the resultant inefficiency of political institutions. A pattern can
be seen by surveying the list of prime ministers and the various governments
they led, as contained in Appendix __. Junta governments have been extremely
stable. Dominated by dictators enjoying the support of the military and
the bureaucracy, they have also been buttressed by the support of relatively
compliant non-elected parliaments. Civilian governments in contrast have
been very unstable. Usually their tenure is marked by strife and factionalism,
reducing their effectiveness and ensuring a frequent turnover. For example
during the last four years, there have been four prime ministers and seven
ministers of finance.
governments have survived only as long as the coalition dominating the
House can survive. Prior to the current government, the government of
Prime Minister Chavalit had to constantly balance the interests of six
coalition partners with many internal conflicts of interest. Each party
in the coalition wanted a piece of the action, i.e. a key ministry portfolio
out of which would flow lucrative mega-projects through which the minister's
clients would receive contracts. The conflicts this division of the spoils
generated, reduced the shelf life of civilian governments and perpetuated
the destructive cycle of corruption and patronage. It meant that the "super-ministries",
those with the biggest slices of the state fiscal pie, are the ones most
sought after by any party participating in the coalition, ministries such
as Agriculture or Telecommunications. When these machinations are too
egregious for the public to stomach, a vote of no confidence is the usual
tool used by coalition parties to extricate themselves from a tainted
coalition. Only in the last government of Prime Minister Chavalit has
this pattern been altered. The new Constitution of 1997 expressly prevented
any dissolution and new elections, until the organic laws enabling it,
had been passed.
of the Legislative process
MP's in contrast to non-elected or appointed legislatures had little incentive
to grapple with new legislation. It is an arduous task passing laws and
elected MP's have historically betrayed a singular distaste for the law-making
process which can be seen dramatically in Appendix A comparing the volume
of laws passed by elected versus non-elected governments since 1958. With
the frequent turnover of governments through the constitutional history
of Thailand, since 1932, government has with each change of regime had
to draft a new Constitution as well as new laws. The process of drafting
15 Constitutions up to 1992, has certainly represented a time-consuming
distraction to the normal legislative drafting function of Thai parliament.
And even that process has been persistently inefficient, with parliament
burdened by an aricle by article approach to the burden of re-drafting
continued in Part 2