THE THAI CONSTITUTION OF 1997 SOURCES AND PROCESS

by Borwornsak Uwanno* & Attorney Wayne D. Burns**

I. Historical Background

The 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.

This 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..

In 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.

Along 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.

The 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

In 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.

Since 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

In 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.

C. Contitutional Components in the Equation

Constitutions 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

This 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."

The 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.

ithin 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.

Over 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.

Two 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)

After 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.

A new 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 of patronage.

The 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.

In 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.

General 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.

The 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 restored.

General 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

The 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 1992.

In 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.

B. Underlying problems to be addressed by reform

1. Introduction

The 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

The 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 electoral fraud

One 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.

The 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 analysis:

"Rural 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.

While 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.

The 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

While 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 promised.

c. Inefficiency of the political and legal process in punishing corrupt politicians

In 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 to it.

In 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.

The 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.

3. Instability of civilian government and the inefficiency of political institutions: the causes a. Coalition governments guarantee chronic instability

One 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.

Civilian 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.

b. Unproductivity of the Legislative process

Elected 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 the Constitution.

This Article continued in Part 2