The Paradox of Thailand's 1997 “People's Constitution”: Be Careful What You Wish For Author(s): Erik Martinez Kuhonta Source: Asian Survey, Vol. 48, No. 3 (May/June 2008), pp. 373-392 Published by: University of California Press Stable URL: http://www.jstor.org/stable/10.1525/as.2008.48.3.373 . Accessed: 18/03/2011 12:44
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http://www.jstor.org THE PARADOX OF THAILAND’S 1997 “PEOPLE’S CONSTITUTION” Be Careful What You Wish For
Erik Martinez Kuhonta
Abstract Thailand’s adoption of a new constitution in 1997 was meant to advance far- reaching reforms in the country’s democratic development. A decade later, it is clear that these constitutional reforms failed. The Constitution unintentionally consolidated Prime Minister Thaksin’s grip on power and indirectly precipitated the conditions for the 2006 coup. This article argues that the drafters’ search for a more stable democratic government helped produce an electoral author- itarian regime that triggered the military to intervene.
Keywords: Constitution, democracy, political parties, Thailand, Thaksin Shinawatra
Introduction “The Constitution of 1997, vaunted as the most democratic ever, delivered power into the hands of the least democratic leader of recent years.” ––Chang Noi, Nation columnist1 On the night of September 19, 2006, a military coup, executed with remarkable speed and precision, brought to an end the
Erik Martinez Kuhonta is Assistant Professor of Political Science at McGill University in Montreal. He thanks Netithorn Praditsarn, Paul Hutchcroft, Kazue Takamura, and an extremely thoughtful anonymous reviewer, for comments that helped im- prove this article. The article is a revised version of papers presented, respectively, at the an- nual meetings of the American Political Science Association in 2006 and the Association for Asian Studies in 2007. 1. “Two Stories on the Origins of Thai Democracy,” The Nation [Bangkok], July 24, 2006. Asian Survey, Vol. 48, Issue 3, pp. 373–392, ISSN 0004-4687, electronic ISSN 1533-838X. © 2008 by The Regents of the University of California. All rights reserved. Please direct all requests for permis- sion to photocopy or reproduce article content through the University of California Press’s Rights and Permissions website, at http://www.ucpressjournals.com/reprintInfo.asp. DOI: AS.2008.48.3.373.
373 374 ASIAN SURVEY, VOL. XLVIII, NO. 3, MAY/JUNE 2008 democratically elected Thaksin Shinawatra regime. In the early hours of the coup, the generals released a statement calling for the immediate annul- ment of the Constitution as well as the dissolution of the Constitutional Court. This was a strong indication that the coup group saw the Constitu- tion as an important element in the vast armory sustaining the Thaksin empire. The return of the military to civilian politics shattered a 14-year period in which democracy had become increasingly consolidated in Thailand. What were the reasons for this coup? The coup group listed four: Thaksin’s meddling with democratic institutions, his unprecedented polarization of society, his actions bordering on lèse majesté, and his corrupt behavior.2 All of these factors refl ect deep frustration with Thaksin’s authoritarian tendencies and monopoly of power. Although Thaksin’s behavior appears to have been the proximate cause precipitating the coup, it is important to look beyond his actions and place Thai politics in a broader context. In other words, what were the con- ditions that allowed Thaksin to act so despotically? How did the prime minister amass the degree of power that fi nally necessitated a response by the military? I argue in this article that the conditions that provided Thak- sin the means to rule in an autocratic fashion can be traced to the 1997 Constitution. It is this Constitution—the most democratic in Thailand’s history—that paradoxically provided the basis for Thaksin’s stranglehold on power and also ultimately the impetus for a military coup to take down his regime. In 1997, Thailand drafted a new constitution that was poised to make far-reaching reforms in the quality of its democracy. With ambitious goals, the “People’s Constitution” sought to structure a democratic system that would consolidate a strong check-and-balance system, strengthen political parties, and uphold political, social, and economic rights. A fully elected Senate, a party list system, and the creation of numerous independent watchdog agencies were key elements of the new Constitution. Yet by most measures, democracy in Thailand since 1997 had taken a turn for the worse. Although the rural poor fi nally felt enfranchised under the Thaksin regime’s populist programs, in terms of liberal values such as the rule of law, civil rights, freedom of expression, and a system of checks and balances, democracy took a heavy beating. Power became concen-
2. See the offi cial announcement of the coup group, initially called the Democratic Re- form Council, in “Coup d’Etat in Thailand,” Bangkok Post, September 20, 2006. See also “CNS Makes Its Case for the Coup,” The Nation, November 22, 2006. The Council for Na- tional Security’s White Paper explaining its motives for launching the coup is reproduced in ibid., November 27, 2006. ERIK MARTINEZ KUHONTA 375 trated in the hands of Thaksin Shinawatra and his Thai Rak Thai Party (TRT). The independent agencies failed miserably to serve as watchdogs of the state. The Senate ended up functioning as a second arm of TRT rather than as a check on Parliament.3 The media weathered perennial attacks on their rights to challenge the government, while human rights violations, especially in the war on drugs and the unrest in the deep south, increased signifi cantly. The main argument of this article is that the 1997 Constitution uninten- tionally provided the basis for Thaksin’s monopolization of power and for a subsequent military response. The Constitution’s concern with political stability ironically facilitated the consolidation of electoral authoritarian- ism. This period of electoral authoritarianism, coupled with charges of corruption, in turn generated a response by the military. The coup, there- fore, can be traced, at least indirectly, to the 1997 constitutional reforms. For the drafters of the Constitution, what plagued Thailand’s democ- racy was the prevalence of corrupt, patronage-based politicians who used electoral power for their own personalistic interests. These provincial poli- ticians gained power by assembling large factions that would then make demands for cabinet seats in order to ensure a free fl ow of kickbacks. To break this trend, the Constitution sought to create numerous rules that would strengthen executive power and political parties at the expense of individual politicians and their factions. The creation of a party list cou- pled with a 5% threshold level, of single-member districts, and the 90-day rule were all meant to strengthen institutions and government stability.4 While the Constitution writers sought to institutionalize political parties, they also held high hopes of creating a polity where politicians would not be swayed by party organization.5 Hence, they created a Senate that was meant to be impartial and whose members could not belong to any politi- cal party. The Senate was to act as a prestigious body that could check the partisan ways of the lower house. Most critical, the Senate’s impartiality
3. Thailand’s Parliament is bicameral, with a lower house, the House of Representatives, and an upper house, the Senate. 4. A 5% threshold means that a party must receive at least 5% of total votes in order to be allotted seats in Parliament. A single-member district is one where only one seat is contested per district, as opposed to a multi-member district where several seats may be contested. The 90-day rule is a rule that stipulates that a member of Parliament (MP) has to be part of a po- litical party for at least 90 days before registration for the next election. 5. Institutionalization is the process by which institutions and procedures gain value and stability. See the seminal work by Samuel P. Huntington, Political Order in Changing Societies (New Haven, Conn.: Yale University Press, 1968); and Scott Mainwaring and Timothy Scully, eds., Building Democratic Institutions: Party Systems in Latin America (Stanford, Calif.: Stan- ford University Press, 1995). 376 ASIAN SURVEY, VOL. XLVIII, NO. 3, MAY/JUNE 2008 would allow it to select the best candidates for the newly formed, indepen- dent watchdog agencies. It is in these confl icting goals that the Constitution drafters set the basis for the rise of electoral authoritarianism in Thailand. Their vision of strong parties came to fruition—but in a grotesque way. The party system was signifi cantly pared down to an effective number of three parties. Yet, the TRT became so dominant over the other two, the Chart Thai and the Dem- ocrat Parties, as to make their parliamentary opposition almost irrelevant. In the fi rst election, TRT won 248 seats and in the second election it won 377 seats out of 500.6 The Constitution drafters’ vision of an independent Senate never came to fruition. Instead, the Senate ended up operating like an arm of TRT. The idea that the Senate could be impartial was solidly put to rest by its appointments for the independent agencies. The Constitutional Court, Na- tional Counter Corruption Commission (NCCC), and Election Commis- sion (EC)—three key agencies created by the Constitution—all performed below par. After the fi rst batch of NCCC and EC commissioners was re- placed following the 2001 election, the actions of these agencies became considerably pro-government. The drafters never imagined that their efforts to break the cycle of weak coalition governments and ineffective leadership would lead to a period of electoral authoritarianism. In their effort to create the institutional foun- dations for a more stable polity, they ended up creating the conditions for one individual and his party to dominate the polity and emasculate the opposition. Not only was political stability overrun by political hegemony and authoritarian practices, but ultimately the polity became deeply un- stable as Thai society became sharply polarized. Duncan McCargo put it aptly: “Thailand’s new constitution . . . is haunted by the law of unintended consequences, as measures designed to promote political stability have the opposite effect instead.”7 It is critical to delineate the terms of the argument being advanced here. The analytical focus in this article is on Thaksin’s consolidation or mo- nopoly of power—not on his rise to power. Most of the recent research on Thaksin has focused on his path to power.8 These works have emphasized
6. TRT went down to 375 after it lost two by-elections. 7. Duncan McCargo, “Democracy under Stress in Thaksin’s Thailand,” Journal of De- mocracy 13:4 (October 2002), pp. 112–26. 8. An exception is Paul Chambers, who addresses Thaksin’s rise to power as well as his ability to monopolize power. See “Evolving toward What? Parties, Factions, and Coalition Behavior in Thailand Today,” Journal of East Asian Studies 5:3 (September-December 2005), pp. 495–520. ERIK MARTINEZ KUHONTA 377 the fi nancial crisis as the basis for Thaksin’s populist policies and nation- alist rhetoric, his wealth and business networks, and constitutional rules.9 What needs to be looked at more closely is how Thaksin was able to ce- ment and sustain his hold on power. Here a case will be made that the new constitutional rules helped to tighten Thaksin’s grip on power even if they did not initially sweep him into power. As with the debate on the factors that led to Thaksin’s rise, it is clear that constitutional rules were not suffi - cient to sustain the prime minister in power.10 Thaksin’s fi nancial resources and sheer willpower to manipulate the political system have been impor- tant factors in explaining the current state of affairs in Thailand. In this essay, I do not deny the relevance of such factors in maintaining Thaksin’s grip, but simply stress that institutions, specifi cally constitutional rules, provide one compelling explanation. Focusing on three aspects of the Constitution—the party system and the executive, the Senate, and the independent watchdog agencies—this article analyzes the tortured path of democracy in Thailand over the past decade. The article consists of two main parts: a description of the institutional reforms in the 1997 Constitution, and an analysis of how these new rules and new institutions strengthened Thaksin’s hold on power and conse- quently triggered a military coup. The conclusion addresses changes made in the drafting of the new Constitution under the military government.
The Genesis of the “People’s Constitution” The 1997 Constitution was spurred by the events of May 1992. General Suchinda Kraprayoon’s manipulation of the Constitution that year allowed him to become an unelected prime minister. The subsequent middle class uprising that led to bloodshed on Bangkok’s Rajadamnoen Avenue also
9. Arguments that emphasize the role of the fi nancial crisis in paving Thaksin’s path to power include the following: James Ockey, “Change and Continuity in the Thai Political Party System,” Asian Survey 43:4 (July/August 2003), pp. 663–80; and Kevin Hewison, “Crafting Thailand’s New Social Contract,” Pacifi c Review 17:4 (2004), pp. 503–22. Studies that put considerable importance on wealth and business networks are the following: Pasuk Phong- paichit and Chris Baker, Thaksin: The Business of Politics in Thailand (Chiang Mai: Silkworm Books, 2004); and Duncan McCargo and Ukrist Pathmanand, The Thaksinization of Thai- land (Copenhagen: NIAS [Nordic Institute of Asian Studies] Press, 2005). The case for the Constitution propelling Thaksin to power is made in Allen Hicken, “Party Fabrication: Constitutional Reform and the Rise of Thai Rak Thai,” Journal of East Asian Studies 6:3 (September-December 2006), pp. 381–407. 10. See Michael H. Nelson, “Institutional Incentives and Informal Local Political Groups (Phuak) in Thailand: Comments on Allen Hicken and Paul Chambers,” ibid., 7:1 (January- April 2007), pp. 125–47, and the replies by Hicken and Chambers in the same issue. 378 ASIAN SURVEY, VOL. XLVIII, NO. 3, MAY/JUNE 2008 set the backdrop for a movement of political reform. Following the events of May 1992, Dr. Prawase Wasi, a leading royalist intellectual, began to push for political reform.11 Heeding his call, Marut Bunnag, the president of Parliament, appointed Prawase chair of the Democracy Development Committee (DDC). The DDC then went on to recommend to Parliament the rewriting of the Constitution to implement political reform. Although the Democrat Party government of Chuan Leekpai failed to act on the DDC’s recommendations, Banharn Silpa-archa, leader of the Chart Thai Party, promised in the 1995 electoral campaign that his party would fol- low through on the reforms advocated by Prawase. Once Banharn became prime minister, Prawase fl attered him into fulfi lling his campaign pledge. Under the Banharn administration, Article 211 of the Constitution was amended, allowing for the formation of the Constitution Drafting Assem- bly (CDA). The most contentious issue in the formation of the CDA was the role of the MPs. After much debate, a compromise was struck between politi- cians and the reform movement. MPs would not be part of the CDA but would be allowed to choose 76 provincial representatives from a group of 760, as well as 23 legal and academic experts from a list compiled by universities. Much of the tension within the CDA resulted from the diver- gent interests of the provincial representatives and the experts, but eventu- ally Thailand adopted its 16th Constitution on September 27, 1997, at the height of the fi nancial crisis. While the government of Chavalit Yongchai- yudh appeared initially opposed to the Constitution, the momentum in favor of reform compelled Parliament to adopt the new document. It was dubbed the “People’s Constitution” because of the drafters’ direct en- gagement with the public. Regional seminars and questionnaires were used extensively to gauge public opinion on political reform. No other Thai Constitution had ever sought to address civil society’s interests in such a bottom-up approach. The aim of the 1997 Constitution was to create a solid check-and-balance system underpinned by strong institutions that would effectively end two pathologies in the Thai political system: the history of bureaucratic- authoritarian dominance and the cycle of corrupt, provincial politicians exploiting the state for personal interest. Although the immediate catalyst for the new Constitution was the 1991 military coup, the real focus of re- form, particularly in terms of institution-building and checks-and-balances,
11. Prawase Wasi narrates his personal account of how the reform process began in “An Overview of Political Reform,” in Duncan McCargo, ed., Reforming Thai Politics (Copenha- gen: NIAS Press, 2002), pp. 21–27. ERIK MARTINEZ KUHONTA 379 was the provincial politicians, whom many had blamed for opening up space for a military coup in the fi rst place. The Constitution drafters concentrated on three areas for reform: rights, accountability, and the political structure. In terms of rights, citizens were entitled to sue the state over projects harmful to the environment; to gain access to public information from state agencies; and (through a 50,000 sig- nature drive), to petition the NCCC to have a politician or high-ranking offi cial removed from offi ce.12 At the heart of the political reforms necessary for creating accountabil- ity through a check-and-balance system was the formation of numerous independent agencies. These would serve as watchdogs of the state. The most signifi cant included the EC, the NCCC, the Constitutional Court, and the Administrative Court.13 The fi ve-member EC replaced the Ministry of the Interior, the bulwark of Thailand’s “bureaucratic polity,” as the agency in charge of elections. The EC had the authority to order recounts of votes, annul election re- sults, and call new elections, as well as investigate and take action in cases of electoral fraud. The head of the EC, as the Registrar of Political Par- ties, also had the power to dissolve parties that were found to have com- mitted fraudulent acts. The nine-member NCCC was authorized through the Senate speaker to investigate petitions of complaints against MPs, senators, cabinet mem- bers, and high government offi cials, including those in independent gov- ernment bodies and law courts. The Constitutional Court’s responsibility was to rule on actions or laws believed to contradict the Constitution and on disagreements over the authority of state organizations under the Con- stitution. The Administrative Court’s writ of authority encompassed cases that stemmed from disputes among government agencies, local adminis- trations, or offi cials, involving performance/non-performance of duties. Under the new Constitution, the Senate formed a critical part of the emerging check-and-balance system. The Senate was to be remolded as an elected nonpartisan body with broad powers to scrutinize legislation from the lower house (but lacking the authority to reject it). The upper body could also appoint members of independent agencies, initiate corruption investigations, and conduct impeachments. Two hundred senators were elected directly from Thailand’s 76 provinces, with each province forming one constituency and electing at least one senator. The defi ning trait of
12. Michael Kelly Connors, “Framing the ‘People’s Constitution’,” in ibid., pp. 37–55, at p. 43. 13. Other agencies comprised the Parliamentary Ombudsman, the National Human Rights Commission, and the Public Finance Audit Commission. 380 ASIAN SURVEY, VOL. XLVIII, NO. 3, MAY/JUNE 2008 the Senate was meant to be its neutrality. As a consequence, senators could not be members of political parties, nor could they have been MPs within one year before the Senate election. Senators were not allowed to cam- paign other than placing their posters on designated billboards and giving self-introductions without a microphone. For the drafters of the Constitu- tion, this neutrality was crucial to ensure the Senate maintained its moni- toring function over the political shenanigans of the lower house. The third area for reform was the institutional structure. The drafters of the Constitution, especially the group of experts with an academic back- ground, wanted to ensure that governments would have signifi cantly greater stability and staying power. The way to do this was to break the ties between the executive and the legislature and to institutionalize political parties. The Constitution writers were thus focused on weakening the stranglehold on power of provincial strongmen. The route to power for these MPs was to gain control of a ministry, which would ensure the necessary revenues through kickbacks or commissions on development projects. This would grease the political future of the individual and his faction. The way to gain a ministry was to control a large number of members in one’s faction and thereby hold hostage the government, based on the raw power of numbers. If the leader of the governing coalition refused to address the demands of a faction for a particular ministry, that faction would often cause havoc for the coalition by reneging on its support of the government or eventually defecting en masse to another party. The Constitution drafters believed that this cycle of holding a government hostage for purely personalistic purposes had to be short-circuited once and for all. A critical means for weakening this corrupt cycle of politics was to break the link between the executive and the legislature. The fi rst step in doing this was to prohibit cabinet members from remaining MPs. Cabinet members would henceforth no longer be able to funnel patronage to their factions. Cabinet members would also be more beholden to the prime min- ister than to fellow faction members because—shorn of their parliamen- tary seats—the ministers could be sent into political oblivion if the prime minister dumped them in a cabinet reshuffl e. To further dilute avenues for patronage, the number of cabinet seats was reduced from 45 to 35. The government was furthermore given an incentive to pick cabinet members from the party list. A cabinet member picked from a constitu- ency MP would automatically trigger a by-election, while a party list MP who gave up a seat would simply be replaced by someone further down the list who had not been elected. Party list MPs were meant to showcase the likely cabinet choices of the party and thereby further strengthen parties as institutions catering to national goals. By creating incentives for pick- ing cabinet members from the party list, the Constitution drafters further ERIK MARTINEZ KUHONTA 381 tightened the screws against personalistic politicians by making it clear that those from the party list had greater national merit than those from con- stituencies. Thaksin’s fi rst cabinet in 2001 consisted completely of party list members. Other important rules were added to further buttress the executive over the legislature. One of the most signifi cant was the 90-day rule. This re- quired a candidate for the lower house to be a member of a political party for at least 90 days prior to the date of registration for an election. Because the law required the EC to hold an election within 45 days of the dissolu- tion of Parliament, any MP who resigned from his or her party would be automatically disqualifi ed from standing again if the prime minister de- cided to hold a snap election within 45 days of an MP’s resignation. The 90-day rule now provided the prime minister with a disciplining tool that severely constrained MPs in their action. For a party member or faction to jump ship, they would have to do it very early in the game, with the prospect of losing signifi cant parliamentary perks that are vital for an election. Other rules instituted to protect the smooth functioning of the executive included a rule for no-confi dence debates. Two hundred members, or two- fi fths of the House, would now be needed to launch a censure motion against the prime minister, while one-fi fth of the House (100 members) would be required to censure a cabinet minister. Furthermore, no-confi dence motions by the opposition were now limited to one per year. To further strengthen institutions over individual leaders, the Constitu- tion made major changes in the electoral system. The drafters of the Con- stitution realized that the prior electoral system based upon the Block Vote had to be replaced because it emphasized individual candidates rather than political parties. Under the Block Vote system, the country’s electoral districts were broken down into one-, two-, and three-seat districts, with most districts having more than one seat. The consequence of the Block Vote system was twofold. The multi-seat districts ended up producing multiple parties in each district, which led to the presence of a large number of parties in Parliament. Between 1975 and 1986, the average effective number of parties was more than six. Gov- ernments thus often lacked a clear majority and had to be built upon a co- alition of parties. This created perpetual instability, as various factions within parties often jockeyed for better positions in the government, lead- ing to the coalition’s quick demise.14
14. The role of the Block Vote and its effect is explained in Allen Hicken, “Thailand: Combating Corruption through Electoral Reform,” in Andrew Reynolds, Ben Reilly, and Andrew Ellis, Electoral System Design: The New International IDEA Handbook (Stockholm: International Institute for Democracy and Electoral Assistance, 2005), pp. 105–07. 382 ASIAN SURVEY, VOL. XLVIII, NO. 3, MAY/JUNE 2008 The second problem with the Block Vote system was that it forced can- didates from the same party to compete against each other in the same district. The fostering of intraparty competition made party labels largely irrelevant. With party cohesion virtually nonexistent and with the pros- pect of intraparty competition always present, it made sense for MPs to switch parties when convenient.15 Intraparty competition within relatively small districts created incentives for MPs to focus only on their narrow constituencies. Lacking a concern for the public good, MPs concentrated on providing particularistic goods for their constituencies in order to strengthen their electoral base. To replace the Block Vote system, the new Constitution established a parallel system where 400 members would be elected in single-member dis- tricts, while another 100 members would be elected through a party list sys- tem. The party list system would be based on proportional representation and a 5% threshold. Voters cast two ballots, one for the candidate in their district and one for the party on the party list. Overall, it was hoped that the reform of the electoral system would institutionalize national political parties, weaken provincial strongmen, and signifi cantly curb vote buying.
An Executive Out of Control The Constitution drafters’ goal of creating a more robust democratic sys- tem through numerous checks and balances and institutional changes was the most far-sweeping movement of reform ever conducted in Thailand. But the Constitution’s aim of strengthening the executive vis-à-vis the leg- islature went far beyond what the Constitution drafters imagined. What the drafters did not foresee was that Thailand’s wealthiest businessman would use his capital to build a massive party that would then be in the best position to take advantage of myriad constitutional rules that were meant to institutionalize strong parties. By buying out numerous factions in the lead-up to the fi rst elections held under the new Constitution, TRT ballooned into a mammoth party.16 After winning almost half the seats in the 2001 elections, it went on to gobble up three medium-sized parties: Seritham, New Aspiration, and Chart
15. A classic, almost comic, example of the emptiness of party labels is provided by Som- bat: in 1986, three prominent candidates from different parties competing in the same constitu- ency in the province of Phitsanulok shared a campaign billboard, complete with a common slogan. See Sombat Chantornvong, “The 1997 Constitution and the Politics of Electoral Re- form,” in McCargo, ed., Reforming Thai Politics, pp. 203–22, at p. 222, fn. 8. 16. See Michael H. Nelson, “Thailand’s House Elections of 6 January 2001: Thaksin’s Landslide Victory and Subsequent Narrow Escape,” in idem., ed., Thailand’s New Politics: KPI Yearbook 2001 (Bangkok: King Prajadhipok’s Institute and White Lotus Press, 2001), pp. 283– 441. ERIK MARTINEZ KUHONTA 383 Pattana. By 2002, TRT had established a grand coalition—something un- seen in previous governments. Unlike the minimum winning coalitions that dominated before Thaksin, the TRT government now had ample room with which to play divide-and-rule with its rebellious factions.17 Govern- ment would thus no longer live under the constant threat of factions pull- ing out and ending its term in power. With the infl uence of factions reduced by a grand coalition, Thaksin went on to stamp his authority on the composition of the cabinet. Instead of faction leaders making their demands on Thaksin, this time the prime minister asserted his control. In his fi rst term, most of Thaksin’s cabinet members were party list MPs but by his second term, Thaksin had begun to take full advantage of his executive powers. While the Constitution cre- ated incentives for selecting cabinet ministers from the party list, Thaksin took this even further by forming a cabinet of largely non-MPs. This led one political analyst to argue that the Thai political system had begun to resemble the presidential rather than the Westminster system.18 At the be- ginning of Thaksin’s second term, 27 of the 35 cabinet ministers were non- MPs. The infl uence of faction leaders, most notably kingmaker Sanoh Thienthong—who had precipitated the rise and fall of both the Banharn and Chavalit administrations—had clearly been eclipsed.19 As they found themselves politically neutralized, provincial strongmen in TRT grumbled about their loss of infl uence. In the past, they would have been able to easily jump ship and join another party, but another constitutional innovation, the 90-day rule, had broken their urge to fl ee. Factions unhappy with the government now had to think twice before leaving the party, since the prime minister could call a snap election soon after their departure and effectively disqualify them from the election.20 Like the 90-day rule, the 5% threshold for the party list was meant to in- stitutionalize the party system. Its effect was quite clear. After the 2001 elections, only the TRT Party and the Democrat Party won over 100 seats.
17. Thailand’s shift from a minimum winning coalition to a grand coalition is analyzed in Ockey, “Change and Continuity in the Thai Political Party System.” 18. Chang Noi, “From Westminster to Washington,” The Nation, April 25, 2005. 19. For an excellent analysis of factions and their decline under Thaksin, see Chambers, “Evolving toward What?” 20. Despite the calls by MPs for the 90-day rule to be discarded, it is not completely clear that this rule has really hindered politicians from bolting out the door. The planned October 15, 2006, election (which was made irrelevant after the September coup) was called on May 31, giving MPs enough time to switch, but surprisingly, most did not. Quite notably, the Wang Nam Yom faction, which had been threatening to leave TRT, did not do so. This can be ex- plained by the fact that TRT remains a highly popular party, and party members know that were they to go off on their own they would not benefi t from the fi nancial backing that Thak- sin provides for this party nor would they gain from Thaksin’s popularity in the countryside. 384 ASIAN SURVEY, VOL. XLVIII, NO. 3, MAY/JUNE 2008 Chart Thai, New Aspiration, and Chart Pattana had become medium- sized parties. Undoubtedly, Thaksin’s pre-election poaching had wounded rival parties, especially New Aspiration, but the Constitution’s 5% thresh- old completed the trick. In the 2005 elections, of the 100 party list seats, TRT took 67 seats, the Democrats 26, and Chart Thai seven. While clearly institutionaliz- ing the party system, the downside of the 5% threshold rule was that it weakened the opposition. One new opposition party, Mahachon, received 1.3 million votes out of 31 million in the 2005 elections. This was slightly below the 5% threshold and therefore Mahachon received absolutely no seats. Perhaps, some analysts argued, the efforts of the Constitution draft- ers to create a few strong parties went too far in keeping out parties that could provide the opposition with some ballast. The effect of the 5% threshold was to increase the proportion of seats of the dominant party at the expense of minor parties. This meant that it became more diffi cult for the opposition to muster the requisite number of votes to launch censure debates. Again, in order to provide greater sta- bility for the government, the Constitution drafters created a higher thresh- old to launch censure motions. With TRT controlling over three-fi fths of the lower house, it became impossible to launch a no-confi dence motion against the prime minister. Despite numerous allegations of corruption and confl icts of interest, during fi ve years in power Thaksin was never censured by the opposition. In his second term, the Democrat Party, with only 97 seats, was also unable to launch a censure motion against any cab- inet members.
Wolves as Gatekeepers: The Failure of the Senate The reform of the Senate was perhaps the key to the sweeping changes that the Constitution drafters envisioned for Thai democracy. Because it was now directly elected, the new Senate was a strike against the country’s bureaucratic/military political heritage. The body was also meant to take a huge step in ensuring a cleaner democratic system because of its role in scrutinizing and appointing members of independent agencies. Senators would serve as a check on the lower house not just through their authority to scrutinize legislation but through their position as the gatekeepers for the powerful independent agencies. The Senate, however, ended up becoming one of the greatest disap- pointments of the constitutional reforms. The idea that the Senate could serve as an august body of statesmen above the fray of political partisan- ship was easily thrown to the wind when the inaugural election in 2000 ERIK MARTINEZ KUHONTA 385 took place. Seventy-eight winners were suspended for cheating after the fi rst round of voting. The fact that it then took six more rounds of voting before the Senate was fi nally complete—with the EC suspending candi- dates only to see them run again—indicated the extent of cheating that was taking place.21 In many cases, those suspended eventually won by large margins. Instead of acting as a neutral arbiter in the polity, the Senate became just as partisan as the Parliament. Most senators had ties to TRT either through past affi liation with the party or through family connections. In the January 2001 parliamentary elections that followed the March 2000 Senate elections, the Thai Post noted that some 50 close relatives of sena- tors were running for offi ce.22 Out of these, 28 were elected to the lower house, including 22 TRT members. Political analysts estimated that about 80–90 senators were neutral at the beginning of their term in 2000, but at the end of their term only 30 – 40 were still considered neutral.23 As the upper and lower house became entangled through spouse and kin, one could not but wonder whether Thailand’s political makeup was going to look increasingly like the family dynasties that dominate the Philippines. The idea that the Senate would end up as partisan as the lower house was especially problematic, because the Senate was entrusted to be the gate- keeper for the independent agencies. The failure of the Senate to act as an effective gatekeeper was most evident in the corruption and partisanship that penetrated the independent agencies. The Senate failed to properly screen those nominated to the independent agencies, often appointing those who had close ties to the government. In one of the most recent selections, the Senate was called on to appoint new members of the NCCC after the former commission was forced to resign for having given itself a hefty sal- ary raise. The Senate confi rmed nine new nominees in November 2005, many of whom were closely linked to Thaksin. The problems with the Senate stem from the process of drafting the Constitution. The CDA was deeply split over how to select the Senate. Re- fl ecting their more elitist vision, the academic experts on the CDA, led by Anand Panyarachun and Borwonsak Uwanno, were in favor of an indi- rectly elected Senate. They argued that the Senate needed to maintain a high
21. The EC had initially sought to disqualify Senate candidates accused of cheating, but the Constitutional Court overruled the Commission’s authority, claiming that it could only suspend but not disqualify. 22. Duncan McCargo, “Thailand’s January 2001 General Elections: Vindicating Reform?” in idem., ed., Reforming Thai Politics, pp. 247–59, at p. 249. 23. “Charter’s Ideals Fine, but System of Senate Election Must Change,” The Nation, April 23, 2006. 386 ASIAN SURVEY, VOL. XLVIII, NO. 3, MAY/JUNE 2008 level of expertise and neutrality and only by choosing senators through an indirect process could this be ensured. One of Anand’s recommendations was to have indirect elections for senators through three groups. The fi rst group would include 70 specialists, the second group 60 representatives of various occupations, and the third group 70 representatives of local ad- ministrative organizations. On the other side of the aisle were the provincially elected members of the CDA who strenuously rejected the idea of an appointed Senate. They bolstered their position by pointing out that public opinion polls strongly favored a directly elected Senate. After much debate, the CDA voted 42–30 in favor of a directly elected Senate. Foreshadowing the problems that such a vote would create, Senate Speaker Meechai Ruchuphan commented: “I think election of senators will be affected by vote buying. The CDA em- powers the Senate to appoint key monitoring agencies, but if we don’t get neutral senators, the whole system may collapse.”24
The Collapse of the Independent Agencies The creation of the independent, watchdog agencies was intended to en- sure accountability of the legislature and the executive, but soon after Thaksin came to power it became clear, through the Constitutional Court’s ruling on Thaksin’s concealment of assets, that the agencies’ independence had already been compromised. The Constitutional Court revealed its true colors when it voted 8–7 in August 2001 to acquit Thaksin of charges of concealing his assets. Quite notably, in seven previous cases, the Constitu- tional Court had upheld similar charges fi led by the NCCC, including an- other case of concealment of assets of former Democrat Deputy Prime Minister Sanan Kachornprasart. Although the Constitutional Court ruling was a major disappointment for the reform movement, Pasuk Phongpaichit and Chris Baker note that in 2001 only fi ve out of the 15 judges on the Constitutional Court were clearly pro-government. By March 2003, the situation had changed. Four of the more independent judges had resigned and were replaced by three judges with close ties to Thaksin: one had been a customs offi cial who had defended Shin Satellite against charges of tax evasion; another was a po- lice offi cer who had worked in the Prime Minister’s Offi ce; and the third had been Thaksin’s business partner.25
24. Ibid., August 2, 1997, quoted in John Laird, Money Politics, Globalization, and Crisis: The Case of Thailand (Singapore: Graham Brash, 2000), p. 183. 25. Pasuk and Baker, Thaksin, p. 175. ERIK MARTINEZ KUHONTA 387 By contrast with the Constitutional Court, the NCCC was one of the in- dependent agencies that quickly proved to be worth its mettle. The NCCC successfully kept political interference at arm’s length for several years. In 2000, before Thaksin was elected prime minister, the NCCC under Klana- rong Chantik charged Thaksin with concealing his assets when he had been a cabinet minister in an earlier administration. Although the Constitutional Court narrowly rejected these charges, the NCCC had proved that it was up to the task of political reform. The body showed its resolve to pursue corruption when in April 2002 it took on the Constitutional Court by sus- pending four of the judges who had acquitted Thaksin. Once a new round of commissioners had to be appointed and with the Senate increasingly under Thaksin’s grasp, the NCCC was gradually de- fanged. In November 2003, Police Major-General Wichienchote Sukcho- trat was appointed to the commission. Wichienchote’s ties to Thaksin were extensive: he had been a friend since cadet school, and his previous boss had been Thaksin’s brother-in-law. In a second round of appointments, fi ve of the seven nominees had close links to the government. Wuthichai Sri- rattanawut became the NCCC chairman. He was a former deputy police chief who had mentored Thaksin at the cadet school and overseen his early business contract to sell computers to the police department.26 Klanarong, the former secretary-general, who had charged Thaksin, was rejected. In the most recent appointment of the NCCC in November 2005, most appointees were once again considered to be closely linked to Thaksin. Although criticized from many different corners, the EC had actually conducted itself fairly well in its fi rst term, using its authority quite force- fully to suspend many candidates in the parliamentary and Senate elec- tions. But after the EC’s fi rst term ended in May 2001, its character changed drastically. Two commissioners who stood for reelection were rejected. The new group of commissioners comprised General Sirin Thoopklam, whose election to the Senate in 2000 had been voided by the EC and who argued that senators should not be impartial fi gures; a judge whose promotion had failed to gain royal approval; a bureaucrat being investigated for cor- ruption; and an Interior Ministry offi cial who had been accused of print- ing fake election ballots.27 The second group of EC commissioners immediately came under sus- picion when they endorsed all of the winning candidates in the 2005 elec- tions. This was at odds with the fi rst group of EC commissioners, who had been more forceful in suspending or disqualifying cheating candidates. In the April 2, 2006, elections, which were boycotted by the opposition, the
26. Ibid. 27. Ibid., p. 174. 388 ASIAN SURVEY, VOL. XLVIII, NO. 3, MAY/JUNE 2008 EC was accused of having helped the government by calling an election only 37 days after the dissolution of Parliament and by positioning the vot- ing booths in such a way as to make it easy for others to see how one was voting. Another criticism leveled at the EC was that it sat on a report from an investigative subcommittee that had recommended the dissolution of TRT. The EC subcommittee, chaired by Nam Yimyaem, the former vice presi- dent of the Supreme Court, had found TRT guilty of having paid minor parties to run in the April 2006 elections after the main opposition parties had boycotted the contest. For a month, the EC took no action on the re- port, and then sent it to the Offi ce of the Attorney General with no rec- ommendation. The chair of the EC, as the Registrar of Political Parties, was legally required to take action on the report but chose not to do so. After the attorney general pressured the EC to make some recommenda- tion, the commission did—but included charges of electoral fraud against the Democrat Party, thereby compelling the attorney general to call for the dissolution of both parties. The troubles with the EC fi nally came to a head in May 2006 when the Constitutional Court, after having been called to a special meeting with the king, ruled 8–6 that the April 2006 election was invalid because of the EC’s actions favoring the government. On July 25, 2006, a second bomb- shell was dropped. The Criminal Court jailed the remaining three EC commissioners for malfeasance. The court ruled that they had organized a second round of elections in April that were blatantly favorable to TRT. Of all the independent agencies established by the Constitution, the Ad- ministrative Court emerged as the least subject to political interference. It made several rulings that challenged the legality of government action. Its independent stance became clear when it ruled in June 2002 against the Anti-Money Laundering Offi ce’s (AMLO) investigation of the assets of several journalists who had been critical of the government. In November 2005, the court blocked the initial public offering of shares of the Electric- ity Generating Authority of Thailand (EGAT). This in effect ended the government’s attempt to privatize EGAT and was considered a major blow to the Thaksin government. The Administrative Court argued that the attempt to privatize EGAT was riddled with clear confl icts of interest because those in charge of the sale were poised to gain from it. The ruling against the AMLO and against privatization of EGAT was a forceful re- jection of the government’s actions, fulfi lling the Constitution’s promise of an institutional check on the state. By contrast with the other independent agencies, the Senate was not in charge of appointing the members of the Administrative Court. The com- mission that appoints administrative judges has 13 members: three are ERIK MARTINEZ KUHONTA 389 appointed by the legislature but 10 are judges elected from among their peers. The autonomy of the commission that selects members of the Ad- ministrative Court ensured that political interference was kept at bay.
Conclusion The irony of the September 19, 2006, coup is that the military promised— and many had hoped—that it would restore a more effective democracy than existed under the Thaksin regime.28 In the wake of the coup, the mili- tary regime created a CDA that would write a new constitution as a step toward restoring democracy. The selection process for the CDA was tightly controlled by the military, whose overarching goal was to create a constitu- tion that would weaken politicians and prevent the reemergence of a dom- inant, charismatic fi gure. The CDA eventually made a number of important decisions that have overturned signifi cant aspects of the 1997 Constitution. In order to diminish the power of the prime minister, the new Constitu- tion limits the offi ceholder to two terms or eight years. Although there was much debate since the coup about the merits of an unelected prime min- ister, in the end the CDA voted overwhelmingly that the prime minister should still be an elected MP. Refl ecting popular opinion, one Constitution drafter noted: “The public hearings show a clear mandate that the public wants only an elected PM.”29 Within the same ambit of weakening the power of the prime minister, the Constitution made it signifi cantly easier for the opposition to censure the executive. To censure the prime minister, the minimum number of MPs was reduced from two-fi fths to one-fi fth of the Parliament. To censure a cabinet minister, it was trimmed from one-fi fth to one-sixth. The CDA also put forth two new clauses that appear as contingency plans if Parliament cannot muster the requisite number of votes to launch censure motions. Half of the opposition MPs can now censure the government if the num- bers fail to meet the minimum requirement for submitting censure motions, but this clause only comes into effect if the government has been in offi ce for at least two years. Furthermore, one-third of the Senate is allowed to hold a general debate to force the government to answer questions regard- ing its tenure.
28. Rodney Tasker, a veteran journalist of Thailand, notes that General Sonthi and his fellow coup-plotters launched this coup largely to restore democracy under constitutional monarchy rather than for political self-interest. See Rodney Tasker, “Why This Military Coup Is Different,” Asia Times Online, October 19, 2006,
30. The judges themselves appear unhappy with this prospect. See “Judiciary Opposed to Being Nudged from Bench to Soap Box,” ibid., June 17, 2007. ERIK MARTINEZ KUHONTA 391 the politics of factionalism and weak coalitions—precisely what the 1997 Constitution had sought to stamp out. With multi-member constituencies, party discipline will again be stymied, while factions will take center stage in deciding who gets elected. An executive that can be more easily chas- tised may also diminish the prime minister’s authority vis-à-vis contending faction leaders. Yet at the same time, the new Constitution has not fulfi lled the worst fears of liberal democrats. Initially, the Constitution drafting process seemed to be a completely top-down affair. However, the Constitution Drafting Com- mittee (the smaller body within the CDA that drafts the Constitution) de- cided to seek public consultation on a number of important issues.31 The Constitution also gives citizens ample room for political participation. Al- though the 1997 charter required 50,000 voters to sponsor a bill in Parlia- ment, the CDA lowered this to 10,000 voters. It also requires only 20,000 signatures, as opposed to 50,000 previously, to sponsor an impeachment motion against a political offi ceholder. The CDA furthermore soundly re- jected a strong push to enshrine Buddhism as the national religion of Thai- land. Most importantly, the CDA did not cave in to elitist sentiment that an unelected offi cial should be allowed to hold the prime ministership. The Constitution was eventually presented to the public and voted on in a national referendum on August 19, 2007. The results of the referendum were a shock to the military government. Although the Constitution was approved by almost 58% of voters and rejected by 42%, the signifi cant number of “no” ballots was a clear indication of discontent with the mili- tary regime. Furthermore, the difference across the regions was striking. In the northeast, where Thaksin has remained extremely popular, the Con- stitution was rejected by 62% of voters, while in the north, it was barely approved. In the south, an overwhelming 88% approved the Constitution, while Bangkok and the central region also registered strong approval.32 On December 23, 2007, the military regime formally came to an end as Samak Sundaravej of the People Power Party, the stand-in for the banned TRT, swept to power.33 The remarkable turn of events in Thailand in which the allies of Thaksin have come back to power indicates yet again the dan- gers of tinkering with the Constitution in an effort to ensure a particular outcome. The drafting of the new Constitution was largely intended to eliminate any chance that the Thaksin empire might see the light of day again. While the 2007 elections have led to a smattering of small parties
31. See “People’s Views to Be Sought on 20 Issues,” Bangkok Post, February 6, 2007. 32. “Referendum Leaves Thailand Deeply Divided,” The Nation, August 20, 2007. 33. TRT was dissolved and its executives banned in May 2007 in a ruling by the Constitu- tional Tribunal stemming from electoral fraud committed during the April 2006 polls. 392 ASIAN SURVEY, VOL. XLVIII, NO. 3, MAY/JUNE 2008 once again, it has not been able to prevent Thaksin’s allies from storming back to power. The use of constitutions to structure political outcomes should in the end be highly questioned. As the new Constitution seems poised to bring back the old days of factional infi ghting and coalitional instability, while resurrecting the power and privilege of elite bureaucrats, it has not suc- ceeded in driving a stake through the Thaksin empire. The diffi culty of structuring the Thai political system through constitutional engineering ultimately raises some fundamental questions concerning how one can achieve political reform in a developing democracy. Constitutional rules remain an important avenue for advancing political change, but they can- not be held up as the only, or primary, basis for reform. If the Thai elite really seeks reforms that will prevent a charismatic populist from once again claiming the popular will, then it behooves members of the elite to look more deeply at the very reasons Thaksin was—and remains—so widely idolized.