Anti-Thaksin draft Charter is a Dead End

Thitinan Pongsudhirak | 30 Apr 2020

Instead of providing a way out of the Thailand's protracted political crisis, the first draft of the post-coup Thai constitution appears headed towards a dead end. The more its contents are scrutinised, the greater the opposition from myriad pressure groups. As the draft is discussed, deliberated and amended acrimoniously in both the public sphere, the Constitution Drafting Assembly and the Constitution Drafting Committee over the coming weeks, its fundamental premise is clear. The first draft of the new charter is designed to prevent the monopolisation of Thai politics that was seen under deposed Prime Minister Thaksin Shinawatra's five-year rule. It practically represents revenge on the so-called Thaksin regime and a rejection of the hard-won principles enshrined in the previous 1997 charter.

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The new charter draft unwittingly tosses aside policy continuity and effectiveness. It places a two-term or an eight-year limit on the prime ministership, an odd clause for a parliamentary democracy. Such term limits are common in presidential, not parliamentary, systems. Under this draft, it is conceivable for future prime ministers to be forced out of office for good within a year under unworkable coalition governments with just one snap election. This is a veiled rebuke against Thaksin's once-vaunted ambition to hold down his invincible premiership for 12 to 16 years.

The prime ministership is now much weakened. The 90-day rule, an executive prerogative to impose discipline by deterring party hopping and promoting party institutionalisation, has been scrapped. It used to give the prime minister an option to hold a snap election within 45 days whereas MP candidates were required to belong to a party for 90 days to contest the poll. Politicians now can sign up under party banners for just 30 days to run in an election. This practice, which prevailed prior to the 1997 charter, is likely to encourage party swapping and defections, transferring more leverage to unruly political factions and undermining party deepening and discipline.

This clause appears to stem from the experience of Thaksin's omnipotent and unstoppable Thai Rak Thai party, which became the only one-party government in Thai political history when it won more than 75 per cent of MP seats in the February 2005 election.

Another deterrence against the rise of another TRT is the provision discouraging party mergers and takeovers. A party may absorb others after election time but the merger will not take effect until the lower house's term expires. The TRT juggernaut, of course, gobbled up Seritham, New Aspiration, and Chart Pattana parties during Thaksins' first, completed four-year term from January 2001. The new requirement would mean that big, dominant parties will be hard to come by. It suggests the return to the days of weak, smaller parties joining unwieldy post-election coalition governments that never lasted a complete term. It undermines the aim of government stability and effectiveness.

The electoral landscape is also markedly altered. The appointed senate, as opposed to the elected upper chamber under the 1997 charter, is already a conspicuous source of controversy. A seven-member panel comprising the heads of two state agencies, anti-graft and election commissions along with three courts are to vet the senatorial appointments. The 160 appointed senators – one for each of the country's 76 provinces and 84 others – are supposed to represent a diverse and balanced range of professions, although such an outcome is not guaranteed.

In turn, the senate is tasked to endorse the nomination and selection of the most senior members of these agencies. Such an arrangement may lead to quid-pro-quo outcomes and collusion in high places. The previously elected senate is under punishment here because it is perceived as having allowed the Thaksin regime to take hold and Thaksin to usurp the various senate-supervised independent agencies. The appointment of the senate is likely to be the fiercest and most visible rallying point for the opponents of the draft charter.

The election of the 400-member lower house, too, is problematic. The universal concept of "one-man, one vote", whereby each constituency had one MP representing roughly 150,000 people, is gone. Despite all of its flaws, the previous MP election system promoted a bond and direct accountability between voters and their single representative in parliament, cultivating democratic norms and practices at the grassroots level. The new draft harks back to the past of multi-member constituencies to come up with 320 lower house MPs. In addition, 80 more MPs, divided into 20 MPs per each of the four roughly equivalent voting zones in the country, will be elected from party lists. This provision has a two-pronged contrast to the 1997 configuration.

First, the idea of the party-list serving as each party's campaigning tool – its prospective cabinet team, if elected – has now been rejected. The old 100-member party-list system meant that people were essentially voting for their cabinet choices when they marked which party they wanted. It encouraged a truly national party, and promoted party differentiation and policy platforms. It allowed qualified experts to enter cabinet without being muddied in the cut-and-thrust of electoral politics and constituency campaigning. In the new proposal, the 80 regionalised party-list MPs are not geared for cabinet appointments. When voters go to the polls, they will just be voting for MPs under party-lists, not prospective cabinet members.

Second, the 80 list MPs leave room for gerrymandering and the dilution of voter impact in the northeast region, Thailand's most populous. It is as yet unclear how the four voting regions are to be grouped, but it seems the quota system will apparently benefit the relatively less populous southern region, the Democrat Party's stronghold which always voted against Thaksin. The TRT's power bases were in the northeast, the north, and Bangkok. The proposed quota system may be gerrymandered to provide more MP representation to the south and central regions. Such an outcome would run counter to proportional representation.

Moreover, Article 76 blatantly provides the military with an elastic constitutional guarantee for "modern" weaponry and a role in "national development". A number of quirky articles intend to encourage and enforce morality and ethics in politics and to prevent "conflicts of interest", again echoing the drafters' view on the faults and flaws of Thaksin and his regime. Yet another vague article would set up an elite panel of senior bureaucrats to resolve political crises, such as the one in 2006 prior to the coup. Overall, political power has shifted from political parties and the electorate to the military and the bureaucracy. The judiciary, in particular, has been given new and unprecedented authority.

As it stands, the new draft charter is unlikely to be amended wholesale as it would be a loss of face for the drafters. But cosmetic changes are unlikely to satisfy the growing columns of charter opponents. As heated debates ensues over the merits of the draft, the Thai people are likely to miss the 1997 charter. It remains the best constitution Thailand has ever had. Its fatal flaw was that it allowed Thaksin's rise and abusive five-year rule. Everything that was wrong with Thaksin, however, was not rooted in the 1997 constitution. The Council for National Security would be well-advised to re-employ the 1997 charter in the event the new draft fails the referendum set for early September -that too if it is not derailed along the way.

Thitinan Pongsudhirak is Director of the Institute of Security and International Studies, Faculty of Political Science, Chulalongkorn University, Bangkok. 

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