Contents and Implementation of the 2017 Constitution

Now, we come to the final issues - the substantive contents and implementation of constitution-making. Typically, the contents of a written constitution are shaped by the impetus for and the design of its making process.^[1220] This is also true in the Thai case.

A. The 4Cs: The People as ‘Cloak’

Fundamentally, the substance of constitution-making involves designating what should constitute the ‘foundational principles’ of a particular constitutional order.^[1221] Obviously, the 2017 Constitution seeks to entrench the RCP as its hegemonic foundational principle. Throughout the chapter, I argue that given the post-1997 decline in sympathy for pure military rule, not only should the ‘dominant but increasingly challenged’ RCP be maintained in twenty-first century Thailand in the accommodation form, but this must be done in a more firmly institutionalised manner than before. The current Constitution actualises this aim by co-opting and containing norms and institutions of the LDCP through four techniques: crumbling, condemning, cutting off, and condoning. I call them ‘the 4Cs’.

i. Crumbling and Condemning

At the outset, the 2017 Constitution seeks to sustainably anchor the increasingly challenged RCP by co-opting norms and institutions of the LDCP. However, compared to other post-coup constitutions, it dramatically weakens the LDCP by introducing a new election system called ‘Mixed Member Apportionment System’ (MMAS). This is implemented through the Organic Act on Election of Members of the House of Representatives 2018. Under the MMAS, 350 MPs were directly elected by the people from constituencies nationwide, with another 150 chosen through a party list.

Despite preventing Thaksin-backed political parties from clinching elec­toral majorities, the MMAS precipitates unstable coalition governments and a pluralistic disintegration.^[1224] Against the rise of left-wing political forces, such fragmentation hinders the formation of parliamentary super-majorities to impel constitutional change which challenges the RCP. The scene of pluralistic disintegration simultaneously elicits classic elitist condemnation that popular deliberation induces antagonisms among self-interested, factional, and unpatri­otic politicians, thus threatening the collapse of the unified Thai state. The more the essence of Parliament and active citizenry is devalued, the less the LDCP can become entrenched as the primary ground of political authority. The MMAS further weakens such entrenchment by permitting the appointment of a non-MP, palace-endorsed figure as PM.^[1225]

The above reprimand justifies an intense degree of institutional vigilance and therefore the containment of the LDCP. The key institution of the RCP - the fully- appointed Senate of 250 members - is revived for this purpose. The first Senate under the 2017 Constitution comprises the Commanders of the Army, Navy and Air force and other NCPO-handpicked royalists and senior bureaucrats.^[1226] Apart from joining MPs in choosing the PM, they may veto a constitutional amendment motion purported to supplant the RCP. Without approval by at least one-third of an overall number of existing senators, this motion lapses.^[1227] The Senate also holds the authority to approve the appointment of ‘watchdog’ agency members, including the CC judges, thus ensuring their royalist complexion.^[1228] In the name of fortifying ‘moral standards’, the Senate-appointed watchdog agencies exercise extensive tutelage over politicians.^[1229] The 2017 Constitution entrusts the CC with novel roles in issuing, in collaboration with other watchdog agencies, notably the Election Commission and the National Anti-Corruption Commission, ‘the Code of Ethics’ for MPs, and in dismissing those failing to comply with it.^[1230] Calling politicians to pledge their rigorous allegiance to the DRKH, the Code as such reinforces the RCP.^[1231] In addition, the 2017 Constitution enhances the long-term elitist tutelage and institutionalisation of the RCP by mandating the NCPO-led government to adopt a 20-year national strategic plan with which policies of future elected governments must comply.^[1232] This strategic plan provides a guideline for national reforms on various issues.

ii. Cutting Off and Condoning

The 2017 Constitution also institutionalises the RCP and contains the LDCP by depoliticising society.^[1233] For the royalist-conservative camp, essential elements of the LDCP - political participation rights - permit movements against the 2017 Constitution and the RCP to participate equally and lawfully in politics, thus contributing to the country's long-drawn-out instability.^[1234] The 2017 Constitution debilitates such movements by abolishing the citizens' right to lodge an impeach­ment petition against individual senators previously guaranteed by the 1997 Constitution. It moreover adds ‘the protection of national security' as a novel legit­imate ground for restricting the right to freedom of assembly,^[1235] with the general right to resist peacefully an attempt to acquire political power through extra­constitutional means introduced in 1997 cut off. Besides, section 279 condones blatant acts of clamping down on pro-democracy movements calling for the revival of the 1997 Constitution carried out by the NCPO by bestowing constitutionality not only upon the 2014 coup itself, but also upon the repressive militarised form of the RCP and other uses of emergency powers to ban political gatherings and incar­cerate dissenters. The impunity as such is extended to future actions related to the takeover even after the new Parliament was convened, particularly the continuing enforcement of the aforesaid emergency powers. The 2017 Constitution may liter­ally guarantee extensive political participation rights and other basic rights such as the right to life and freedom from torture. Section 279 nonetheless creates a veneer of open-ended impunity to their encroachment for the sake of preserving the RCP.

Overall, the 4Cs share one trait: they drain norms and institutions of the LDCP of its intrinsic substance and worth, turning them instead into ‘a cloak' for enhanc­ing the legitimacy of the RCP.^[1236]

B.

Another important issue related to the substance of constitution-making concerns its amendment. Some constitutions, including Thailand's 2017 Constitution, seek to institutionalise and insulate their fundamental principles from constitu­tional change by including the so-called ‘eternity clause' or rigid rules on their amendment.^[1237] The clause as such epitomises a point of convergence between ‘structural elements meant to ensure a certain rigidity of [a] constitution' with ideological parameters such as the protection of the monarchy.^[1238] By barring an amendment which amounts to altering the DRKH, section 255 of the 2017 Constitution makes the RCP unamendable. Meanwhile, other revisions not alter­ing the DRKH but affecting the structure housing the RCP are subject to rigid amendment rules. These include amendments to royal power, rules on constitu­tional amendment themselves, authorities of watchdog agencies, and qualifications of persons holding office in these agencies. For amendments as such to be passed, not only is approval by the Senate required, but consent from no less than 20 per cent of existing opposition MPs too is needed. Afterwards, they must undergo a ratification referendum.^[1239] Given the ruling elites' ability to manipulate polls together with the post-2020 resurgence of nationalist-royalist mobilisation, it is uncertain whether these types of amendments would pass a referendum. The rigid amendment conditions ultimately enable the RCP qua the substance of constitution-making to be ‘super-entrenched', with a mechanism of the LDCP, a referendum, serving as a platform to mobilise conservative segments of society to ‘shield' royal hegemony from constitutional change.^[1240]

C. Actualising the Un-democratised Constituent Power

Without their actual implementation, the notion of constituent power would be nothing but a nominal concept. As commentators have proven, the ruling elites have formed a solid alliance with the CC - an institute endowed with the authority to set a binding legal precedent for the interpretation of constitutional norms, dragging it into the ongoing ‘political fray' between them and their anti­establishment rivals.^[1241] The first cohort of CC judges under the 2017 Constitution was appointed either directly by the NCPO or later by the Senate.^[1242] The royalist complexion turns them into agents for implementing the RSP as the primary guid­ing line for constitution-making.

Under the 2017 Constitution, the CC is authorised to decide whether indi­vidual acts and a motion for constitutional amendment amount to overthrowing the DRKH.^[1243] In 2021, it became a central figure in determining conditions for post-2021 constitution-making after being asked by the Speaker of Parliament to determine the constitutionality of constitutional amendment drafts seek­ing to establish the new CDA. Frustrated by an oligarch system under the 2017 Constitution, opposition MPs and more than 100,000 Thai citizens submitted a number of drafts as such before Parliament. Despite differences in content, these submissions similarly proposed adding Chapter 15/1 on constitution-making in the 2017 text to advance the creation of the elected CDA to write a new and more democratic constitution.

According to the CC, section 256 of the 2017 Constitution only permits consti­tutional amendment. Paving the way for constitutional replacement, the addition of Chapter 15/1 therefore contravened the principle of constitutional supremacy.^[1244] Following the previous precedent in 2012,^[1245] the Court however opined that if Parliament wished to commence a new constitution-making episode, it must primarily consult the holder of the constituent power - the people - in a refer­endum as to whether a new charter was desired.^[1246] The final draft must undergo ratification in another referendum.^[1247] This conclusion tacitly rested on the ration­ale that the 2017 Constitution is the product of the LDCP expressed in the 2016 referendum. Its replacement then requires the people's consent. Such decision was however judge-made and advisory - nowhere in the 2017 charter explicitly speaks about ‘the mandatory two-referendum requirement’.^[1248] More importantly, it establishes procedural requirements which effectuate the institutionalisation of the RCP through the language of the LDCP. By declaring the addition of Chapter 15/1 unconstitutional, the decision restrains the self-determining demos from mobilising extra-legally as the holder of the constituent power to initiate a new constitution.

Another landmark decision in 2016 further confirmed that the RCP is not symbolic but real. Here, the CC stated that without royal approval, no draft consti­tution in the DRKH may come into effect.^[1250] The ruling, in effect, justified the process of adopting the 2017 Constitution, that is, King Vajiralongkorn's exclusive exercise of his prerogative to approve the revised Meechai draft. Other precedents defend the tutelage of the agents of the RCP, thus effectuating the ethos behind the 4Cs and establishing substantive hurdles for the people seeking to exert the unrestrained LDCP to inaugurate democratic constitution-making. In 2013, the CC ruled that constitutional amendment motions seeking to replace the appointed Senate (then under the 2007 Constitution) with the fully-elected one would under­mine checks and balances by paving the way for a ‘husband-and-wife Parliament' whereby relatives or spouses served as members of either House of Parliament.^[1251] Given its royalist complexion and the post-2014 leaning towards more radical right-wing politics, it is very unlikely that the current CC would deviate from this pre-2017 precedent. In 2021, the CC also equated calls for the revocation of a constitutional prohibition against bringing lawsuits against the King with the exer­cise of political rights to dismantle the DRKH.^[1252] Based on these rulings, demands for a new democratic constitution seeking to curtail royal powers and/or abolish the appointed Senate incline to be classified by the CC as individual acts aimed towards disintegrating the DRKH, with their proponents potentially prosecuted for violating the lese-majeste law and a political party with which they are affiliated disbanded.

Lastly, the CC's precedent also undermines the status of a referendum as a mech­anism of the LDCP. In 2016, it ruled that a referendum law may lawfully permit the Government to include within a referendum law a provision which criminally prosecutes attempts to impart information related to a forthcoming poll in an inciteful, violent, or aggressive manner. Despite the vague and imprecise character of these terms, the Court cited the necessity of the provision as such in preventing chaos and vote manipulations.^[1253] If a referendum for a new constitution-making round happens, this precedent nonetheless equips the ruling elites with extensive statutory authority to repress pro-democracy advocates. It ultimately actualises the elitists' strategy to turn a referendum into a vehicle for shielding the RCP qua the core substance of the 2017 text for constitutional change.

Overall, the Court's advisory decision and textualist interpretation of law add more hurdles for the LDCP to those already existing in the 2017 text. Not only do they block the exertion of the LDCP to create a new democratic constitution, but its housing structure is also turned into ‘a bulwark' against the disintegration and even democratisation of the RCP.

VI.