Charter intricacies and electoral delicacies
Thailand has witnessed 20 constitutions since 1932. The most recent, the 20th, came into effect last year, after an interim constitution, the 19th, which emerged as a result of a coup d’etat in 2014. A recurrent intricacy in Thai constitutional history is that most constitutions have been overturned by coups d’etat. It is thus not surprising (but still disquieting) that this pinnacle of the national legal framework is much to do about powersharing and constraints imposed on those who ruled before, alias “instrument d’etat”, rather than a “social contract” guaranteeing rights and responsibilities between those in power and the rest of the population anchored on democratic participation.
A salient challenge is that the new Constitution is still being tested by an overriding provision of the 19th constitution, Section 44, which enables Prime Minister Prayut Chan-o-cha to issue orders to adjust laws and policies as a fast track measure, bypassing legislative scrutiny and tantamount to a “fiat”. The shadow of this provision looms today, even though in principle the 19th constitution and its Section 44 should be superseded by the current constitution.
Moreover, both the 19th and 20th constitutions have key amnesty provisions absolving those who overturned the previous constitution. Section 48 of the 19th constitution and section 279 of the 20th constitution provide that validation, even though this goes against the tide of accountability voiced internationally. Intriguingly, the issue was dealt with recently by the country’s Supreme Court. A group of citizens claimed that the most recent coup was a breach of various provisions of the Thai penal code which forbid insurrection. The court rejected their claim, underlining that the two sections mentioned apply, thus preventing the court from having jurisdiction.
Another intricacy is the perpetuation of the current power base through stipulations in the charter and related instruments. The first batch of 250 senators, who will serve during the first five years following an election planned for next year, will be handpicked by the military regime rather than a process based on elected candidates. There is also the 20-year national strategy which underlines national security, while casting a pall over future governments which fail to follow its strictures. Implied or otherwise, those in power plan to remain in power, assisted by various modalities and technicalities entrenching the “fait accompli”.
To be fair, even under the current non-democratic government, progress in regard to national development and human rights are visible on some fronts. The most
ostensible is the range of measures taken against human trafficking. This administration has been able to improve and enforce the law to protect victims and to prosecute an array of traffickers, including those in quite high ranking circles.
It is also commendable that the UN’s sustainable development goals have been taken up in the national planning process, for example, so as to press for more commitment to help children access not only primary education but also pre-school and secondary education. There is also the hope that the country’s widely praised universal healthcare scheme (known as the 30-baht medical care for all Thais) will be enhanced, together with its open policy to help care for those with HIV/Aids and to counter discrimination.
Yet, the paradoxical crunch lies with the non-implementation of key political rights, such as freedom of expression, peaceful assembly and self-determination in relation to an elected system.
In the midst of all this, what are some of the prospects for free and fair elections soon? Some delicacies are already being offered by the judicial process to open the door to the electorate. Firstly, the Constitutional Court recently had to deal with complaints from the older political parties
questioning the new electoral law and an order of the National Council for Peace and Order (NCPO) which now compel all political parties (including the long established ones) to register their members within 30 days, as well as to establish local branches. The court found that these stipulations do not conflict with the constitution.
Secondly, in another case before the Constitutional Court concerning the draft law on senator selection, the question concerned the constitutionality of the provisions in the new law allowing persons to propose themselves as senatorial candidates or to have their names proposed as candidates by various organs listed by law. The court found that this process does not
conflict with the constitution.
Thirdly, there was an enlightening interpretation by the Constitutional Court recently in a case concerning electoral rights. There were two questions before the court concerning the draft organic law on elections of members of parliament (MP). Where the law limits those who fail to vote from becoming, in future, a MP, is this a breach of their rights under the constitution? Moreover, if persons with disabilities are to be assisted to vote particularly at polling booths, does this violate the rule of direct and secret ballots under the constitution? The court found that in both cases, there are no violations of the constitution.
In a sense, those judicial decisions offer delicacies tempting us to accelerate the longed-for elections, while not being disingenuous. Of course, there are additional anomalies at play. The appointment of two more election commissioners (EC) is still awaited, but this process should not take too long. There remains also an issue of whether political parties will need to carry out “primaries” to institute, at the local level, mini-elections for candidates who would then possibly become MPs one day. This needs a flexible solution, given that it is the first time the country is experimenting with the process.
And there is a final conundrum. Is Thailand heading towards a realignment of its power politics and the emergence of new players in the democratic process? Whatever the surprises, there is an overarching international precept which invites responsive local wisdom: It is elected civilians who should govern the country, and it is our shared responsibility to nurture, from a young age, respect for democratic space — for which there can be no substitute.
The paradoxical crunch lies with the non-implementation of key political rights.