Impetus to Initiate the 2017 Constitution
Now, I assess how the gravitational pull between the RCP and the LDCP impelled the making of the 2017 Constitution. To some scholars, the NCPO's desire to end the long-drawn-out political conflict between royalist-conservative and rising prodemocracy advocates since 2006 by institutionalising a military rule and unelected institutions under royal auspices induced the creation of the 2017 Constitution.[1162] Another commentator notes that the making of the 2017 Constitution reflected the so-called abusive constitutionalism, in that, it was impelled by the holdover elites' intention to exploit a constitution-making faculty to subvert liberal democracy and secure their political hegemony.[1163] I however argue that by focusing largely on the ‘elitist impulse, these observations fail adequately to take into consideration the enduring catalytic impact of the defunct 1997 Constitution in reinforcing the gravitational strength of the LDCP on the making of the 2017 Constitution.
Meanwhile, for the NCPO itself, this recent constitution-building round was geared towards promoting by eradicating corruption among politicians.[1164] Nevertheless, this claim, I contend, serves principally as a cover for autocratic rule. To fully comprehend socio-political factors driving a process as such, events setting the stage for it must be primarily discussed.A. Turmoil, Coups, and Constitutions
The impetus to create the 2017 Constitution was intrinsically related to the post-1997 changing constitutional landscape. As discussed, given a participatory process in its making and far-reaching innovations it introduced, the defunct 1997 Constitution has dramatically enhanced the profile of the LDCP. Political stability and the new electoral system under the 1997 Constitution also facilitated the rise of Thaksin Shinawatra (2001-2006) whose set of welfare-populist policies attracted many voters.
Thaksin's popularity posed two main challenges to the traditional establishment. First, despite criticism of his assertive style of leadership and numerous corruption scandals, Thaksin, by drawing his legitimacy from ‘popular mandate' and the 1997 Constitution, reinforced a growing sense of popular sovereignty especially among the poor.[1165] Second, given his immense popularity, Thaksin's Thai-Rak-Thai Party clinched the outright victory in two consecutive elections in 2001 and 2005, making him the first PM ever to complete the four- year term of office. This challenge was novel for the country having long wavered between military dictatorship and weak civilian governments. In fear of losing their grip on power, the elites and the military hit back, staging a coup overthrowing both Thaksin and the 1997 Constitution on 19 September 2006.[1166]The new 2007 Constitution sought to decapitate Thaksin's political influence by reinstating senatorial appointments and a weak coalition government. It also endowed the CC with an increasing role in adjudicating political-related cases. Notwithstanding the elitist impulse to reinvigorate the RCP as such, an immense public appetite for popular sovereignty instilled by the 1997 Constitution could be felt. It gave rise to various anti-establishment movements, calling for the reinstatement of the 1997 Constitution, with Thaksin-backed political parties still securing a victory in the 2007 and 2011 elections. Interestingly, instead of mounting another coup, the royalist-conservative elites, in particular, between 2008 and May 2014 chose to suppress the pro-Thaksin governments and the pro-democracy protesters through the CC.[1167] This indicated the pro-establishment camp's growing awareness of the increasing costs and risks associated with military coups. Yet, the 2007 Constitution could not subdue huge liberal demands and Thaksin's political influence. King Bhumibol's post-2010 declining health, along with the looming succession, escalated the elites' fear of losing their privileges under the DRKH.[1168]
The above motivations cumulatively provoked a new round of anti-Shinawatra protests between October 2013 and May 2014, triggering another political crisis, eventually paving the way for another coup. The coup-leader-turned-premier Prayuth Chan-ocha replaced the 2007 document with the 2014 Interim Constitution which set the stage for drafting the new permanent constitution.
The post-coup authoritarian climate however did not quench the continued posthumous impact of the 1997 Constitution. Despite bringing street protests to an end, the 2014 coup, like its 2006 predecessor, provoked a series of anti-establishment protests and the formation of several left-wing political parties. This counterproductive outcome affected the direction of making the 2017 Constitution.B. Constitutional Afterlife and the Binary-Star Scenario
I argue that the impetus to initiate the 2017 Constitution was intrinsically related to the 1997 Constitution's afterlife impact. Its full theoretical understanding can be explained from the two angles of the binary-star scenario. At one pole, the recent constitution-making bout was driven by ‘elitist impulse' to ‘fix' the 2007 Constitution's failure in reasserting political stability under royal auspices. This could be forcefully actualised by weakening the two lasting legacies of the 1997 Constitution, namely the stronger ambition towards the popular constituent power and Thaksin's political influence.[1169]
Yet, the afterlife impact of the defunct 1997 Constitution in invigorating the gravitational strength of the LDCP is discernible, having increased the ‘costs and risks' of the RCP - the more it is exercised through a military coup followed by constitution-making, the more it spurs public backlash against the current establishment. This outcome undermines, rather than reinforces, the DRKH's own underlying ethos - the national unity under Thai-ness. The NCPO itself appeared to acknowledge this heavy price, thus announcing right after assuming power its intention to resolve the intractable political crises, especially by ‘[restructuring] the country, in such a way [...] that they would never have to mount another coup’.[1170] The magnitude of liberal forces also rendered the attempt to prolong the militarised expression of RCP under the 2014 Interim Constitution costly and illegitimate.
Against the globalisation of human rights, such prolongation elicited international pushback, resulting in a foreign trade ban, deteriorating Thailand's already ailing economy and breeding public dissatisfaction against the regime.[1171]Given the decline of extra-constitutional constitutional change and the military's growing awareness of ‘heavy costs' associated with it, the desire to initiate a post-coup permanent constitution was therefore subject to two conditions. First, it appeared that the RCP could legitimately be maintained only in the accommodation form. Unable to absolutely negate norms and institutions of the LDCP, the entirety of the constitution-making process instead had to ‘co-opt’, and where necessary ‘contain', them for the sake of its own legitimacy.[1172] Second, a corresponding decline in sympathy for post-coup military dictatorship distinguishes the making of the 2017 Constitution from most junta-initiated constitution-building episodes. While upholding the RCP as the primary aspiration, the 2017 charter must simultaneously avert its future reassertion through coups followed by new constitution-making rounds. To kill two birds with one stone, this process had to instead place its primary focus upon how to enable the logic and language of the RCP to be sufficiently firmly institutionalised as a substantive core of a constitutional order and how to immunise it from the challenge of rising liberal demands in a legal and institutional manner.[1173] The 2007 Constitution exemplified a shortfall both in institutionalising such a logic and in containing sturdier liberal forces to the sufficient extent that rendered another coup redundant.[1174] Below, I will show that the drafters of the 2017 Constitution learnt from this past mistake, whilst the above conditions determined its entire making process, from its design to its substantive contents and implementation.
IV.