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What you need to know about Thailand’s controversial constitution referendum + Draft Thai constitution threatens to cement military might

by Thitipol Panyalimpanun
13th July 2016

Asian Correspondent

JUST a few weeks from now, on August 7, Thailand will hold a referendum on the latest draft constitution for the coup-ridden nation – one that has scrapped 19 constitutions since 1932.

Counting down to the big day, authorities under the junta’s rule have arrested 16 activists campaigning against the draft constitution, and a number of international organizations have denounced the referendum for its undemocratic process.

As Thais prepare to cast their votes, here is what you need to know about the referendum that isn’t quite a referendum:

What is Thailand voting on?

The ballot has two questions. The first asks if the voter accepts or rejects the draft constitution, which was penned by a committee appointed by the junta which abolished the old constitution after staging a coup on May 22, 2014.

The second question is rather ambiguously worded. It essentially asks if voters accept or reject the idea that senators, who will be appointed by a selection committee under the junta, can vote with elected MPs to choose the prime minister.

Are these questions too complicated for voters? The election committee has been informing the public about the draft via 34-page booklets and an infographic mobile app. The complete draft has 105 pages.

Key points

Written by a committee selected by the junta, the draft is being touted as an anti-corruption mechanism, with more power given to the constitutional court and independent organizations and stronger measures for corrupt politicians. Its critics, on the contrary, point out how the constitution will take away power from people and give it to the selected few.

The most debated point is that it will allow the junta to appoint all of the 250 senators, who will be in position for the first five years and have a say in choosing the next prime minister, who doesn’t have to be elected as an MP. The provisional clause also guarantees the junta’s authority until the new parliament is formed. The handout distributed by the election committee says that the reason is to ensure stability during the transitional period.

A referendum you cannot talk about

The fact that the draft is long and not easy to read is made even worse by how public debate is restricted. At least 113 people have been prosecuted for charges related to the referendum, according to Thai Lawyers for Human Rights. Last month, 13 activists were arrested for handing out leaflets calling on voters to veto the draft. Earlier this week, authorities arrested a reporter from Prachatai along with three student activists for violating the referendum law, before raiding Prachatai’s office two days later.

Under the junta’s rules, political parties are also prohibited from political activities, and local and international groups are not allowed to monitor the referendum. Criticism of the referendum is largely silenced by fear and arbitrary arrests. The election commission seems to have no problemwith this.

How will the vote go?

Junta supporters, along with those believing that getting rid of corrupt politicians is the answer to Thailand’s political problems, will likely vote ‘yes’ for the draft constitution. Pro-democracy activists, junta critics and Pheu Thai supporters, on the other hand, are in the ‘no’ camp; however, there are mixed opinions whether to vote ‘no’ or boycott the referendum completely. Thai citizens outside the country are ineligible to vote.

What’s next?

No instant change. If the draft is accepted, it will take another six months to draft legislation to go with the new constitution before an election can be scheduled. A ‘yes’ result will allow the junta to wield more legitimacy.

If the draft falls through, the junta will still remain in power, but the result will imply a rejection of its authority. It remains unknown what the junta would do in that case, but a new draft is very unlikely. Whatever the result may be, junta leader and Prime Minister Prayuth Chan-ocha has made it clear that he won’t step down.

Although the referendum is part of the junta’s so-called roadmap to return democracy, which promises an election in 2017, there is nothing democratic about a process that denies the basic right to freedom of expression. Without open discussion and public participation in the drafting process, it is hard to see how the country’s 20th constitution will last much longer than ones that came before it.


Draft Thai constitution threatens to cement military might

Weighty responsibility: Thienchay Kiranandara, chair of the military-appointed National Reform Council, is in charge of drafting the constitution. Photo: EPA/Narong Sangnak

POSTED ON: July 6, 2016
Source: SEA Globe

Thailand is writing a new constitution for the 21st time in 84 years, threatening to wrest democracy from the electorate and into military custody

In 1996, the Thai political scientist Anek Laothamatas published an influential essay titled A Tale of Two Democracies. He reasoned that the Bangkok middle and upper classes opposed corruption and embraced democracy, while the ignorant rural masses were susceptible to electoral manipulation by self-serving populist politicians.

But Anek was wrong. When Thaksin Shinawatra was overthrown by a military coup in 2006, and his sister Yingluck in 2014 – both of whom were elected prime minister on the back of populist policies that resonated with rural constituents – it was the urban elite that was “manipulated by wayward politicians” and “voters from the countryside who [backed] electoral democracy,” wrote Duncan McCargo, professor of political science at the University of Leeds, UK, in the New York Times.

The opinion that Thailand’s political tableau is divided in two is an enduring one. The country’s colour-coded cleavage in now into its second decade, fractured between class and ideology. On one side are the ‘red shirts’, who claim to be pro-democracy, tend to support the Shinawatras, find support amongst the rural masses and urban poor, and opposed the 2006 and 2014 military coups. On the other are the ‘yellow shirts’, supported by the urban middle and upper classes who mostly rally behind the Democrat Party, are self-professed royalists and were leading proponents of the two military coups.

When the military junta came to power in May 2014, it revoked the 2007 constitution and imposed an interim one, giving it absolute governmental power. The following year, it ordered a committee to begin drafting a fresh constitution but, months later, rejected the draft outright. A new one was unveiled on 29 March, and the Thai electorate will vote on whether or not to accept it in a referendum scheduled for 7 August.

Constitution by coup

Maintaining power: Thai Prime Minister Prayuth Chan-ocha has been at the helm since a 2014 military coup. Photo: Reuters

The constitution proposes that Thailand’s upper house, the Senate, would be unelected and nominated by the junta – with dozens of seats reserved for the security forces’ top brass. This continues an erosion of the country’s democratic system: under the 1997 constitution, the Senate was wholly elected, before a 2007 constitution reduced this to half of the seats.

As for the National Assembly’s lower house, the House of Representatives, significant changes would be made to how MPs are elected. In the last election, in 2011, lawmakers were chosen using a ‘mixed member majoritarian’ system, which allowed Yingluck’s Pheu Thai Party, after securing 48% of votes, to gain 265 seats – compared to the Democrat Party’s 159 – and to form a majority government.

But the draft constitution would introduce a ‘mixed member apportionment’ (MMA) system, making it difficult for another majority government to be formed and signalling a future of coalitions.

Allen Hicken, a professor at the University of Michigan, recently ran a simulation of what the 2011 election results would have looked like under a MMA system. Instead of 265 seats, the Pheu Thai Party would have won only 225 – the difference going to smaller parties.

The Pheu Thai Party “would be the big loser,” Hicken surmised on the New Mandala website. He added that the draft constitution is predicated on the belief of the junta and its supporters that “political parties have been too large and too strong” and that “ignorant voters keep electing ‘bad people’”.

“The new constitution is designed to provide the appropriate treatment by fragmenting and weakening political parties, and minimising the power of elected politicians,” he concluded.

Pavin Chachavalpongpun, associate professor at the Centre for Southeast Asian Studies at Kyoto University, Japan, goes one step further. “The constitution is part of the junta’s plot to maintain its position in politics,” he said.

Of course, the junta does not see it this way. “The constitution is not meant to give sole power to citizens but to ensure the well-being of the citizens,” Meechai Ruchupan, head of the junta-appointed Constitution Drafting Committee, told reporters in March.

If the constitution is accepted, almost one-third of the National Assembly would be unelected; the House of Representatives would be forced to report to the Senate every three months with updates on reforms; senators would have a say in who becomes prime minister; and the prime minister would not need to be an elected politician, leaving the option open for an unelected official say, perhaps, a military general to take the role.

Junta in ‘panic mode’ – Abhisit

Thailand Election Commission’s mascot attends an event to kick off the distribution of five million copies of a controversial military-written draft constitution, ahead of the August 7 referendum in Bangkok, Thailand, May 25, 2016. Photo: Reuters

In June, the Nikkei Asian Review posited that “the country’s main political parties have put aside their differences to close ranks against the [constitution]”. Indeed, one might have expected the claqueurs of the 2014 coup to support its natural by-product, but recent months have witnessed several members of the Democrat Party voicing their disapproval of the constitution. Abhisit Vejjajiva, a former prime minister and current leader of the party, described the junta as being in “panic mode” and said “it’s clear that we’re not going to get the kind of constitution that many of us want” in a speech to business leaders in March. Two months later, senior Democrat Party member Kasit Piromya publicly called the draft “illiberal” and “unacceptable”.

Some red shirts have dismissed this as a lakorn – ‘soap opera’ – and pure face-saving by those who believe themselves to be liberal and do not want to be seen endorsing an undemocratic constitution. However, Pavin suggested such disapproval is genuine; many are “disappointed with the junta, not because of political rights being denied, but the decline of the Thai economy”, which has faltered significantly since the military coup.

According to Khemthong Tonsakulrungruang, a constitutional law scholar in Thailand, criticism of the draft constitution by Democrat Party members is only natural, as changes to the electoral system will harm its ability to form a majority government in the future.

A similar motive exists on the other side of the divide as well. Thaksin has publicly called for his adherents to oppose the constitution. “It’s a charade to show the world that Thailand is returning to democracy,” he recently told the Wall Street Journal. “In reality, it would be like Myanmar before its political reforms. There would be a prime minister, but the real power would be in some politburo above him.”

It now seems as if Thailand’s two largest political parties are reading from the same page on the question of the draft constitution. But how much sway the parties have on their typical supporters is less assured.

Khemthong told Southeast Asia Globe that a good number of yellow shirts are “quite angry” at the Democrat Party’s stance since they believe the draft constitution is “not extreme enough” in curtailing populism and the red shirt masses.

There is also good reason to believe the yellow shirt movement is splitting factionally, said James Buchanan, a lecturer at the Department of Asian and International Studies at the City University of Hong Kong. A power struggle is purportedly taking place between Prawit Wongsuwan, a former commander-in-chief of the Royal Thai Army and now deputy prime minister – who many believe to be the real power behind the junta – and Prem Tinsulanonda, head of the Privy Council, who has the ear of the ailing king.

As for the red shirts, some are no longer following the Pheu Thai Party’s instructions, Khemthong said, as they “feel it has deserted them and compromised with the junta”. This may be a small minority, but the question of how to vote in the referendum is arguably more difficult to answer for the red shirts than for the yellows.

A democracy divided

The pro-democracy activists could appear undemocratic if they reject the notion of a plebiscite altogether. But by voting against the constitution, the junta will no doubt continue ruling the country until another is accepted. There are suggestions it might either force one through internally or seek another referendum. This would most likely further postpone elections supposedly planned for late 2017 or 2018.

The alternative may be far graver, however, and this is by far the most important issue for Thailand’s future. One could reason that even if this draft constitution is accepted at the referendum there is no guarantee that it will not go the same way as previous constitutions. Thailand has had 20 since 1932 and few have survived for longer than a decade. “I sincerely doubt that this will be Thailand’s last constitution,” said Buchanan.

Certainly, there is the optimistic view that if elections are held in the coming years, a new government could feasibly introduce its own constitution, reversing the anti-democratic nature of the current draft. But there may be an excess of confidence in this view. The changes to Thailand’s parliamentary system the draft intends could render political parties unable to achieve a parliamentary majority, making future democratic reforms difficult to achieve in an electoral system tilted toward military oversight.

What is clear, however, is that Thailand’s fractured political scene will not be agglutinated by the constitution, accepted or not. “The division is so severe, so grave,” said Khemthong, that neither the constitution nor changes in direction by the main political parties will have much impact.

And should the referendum be accepted by the electorate, then Thailand’s two ‘democracies’, divided between class and ideology, will be reinforced by a schizophrenic political system with an unelected third comprised of those backed by the yellow shirts and the urban elite, and an elected two-thirds that will most likely be occupied by politicians loyal to the Shinawatras and the rural masses.

“Thailand needs to first emerge from its current crisis and then consolidate a meaningful democracy,” Buchanan said, “before its constitutions are worth the paper they are written on.”