Process of Making the 2017 Constitution
This section intends to examine how the impetus to initiate the 2017 Constitution as driven by the binary-star scenario shaped the entire process of constitutionmaking. I ask: How and by whom was the 2017 Constitution made? To what extent was the public allowed to participate?
A.
Design and InclusivenessTo answer the above questions, I assess the authoritative basis of the recent constitution-making round and all of its stages, from the phase of draft preparation to its adoption. Representing the case of a domesticated approach to constitution-making, the 2017 Constitution was not written under the auspices of international organisations nor foreign advisors. Rather, the entire drafting process was governed by the logic and language of the RCP and the attempt to bring the LDCP under its embrace.
i. Basis of Legitimacy
Fundamentally, it is explicit that the RCP constituted the ultimate source of legitimacy for the recent constitution-making round. Following his predecessors, NCPO leader Prayuth sought the blessing from King Bhumibol shortly after the successful takeover. Issued on 24 May 2014, the royal proclamation endorsing the takeover immensely leveraged the legitimacy of all actions performed by the NCPO, including its scheme to make a new permanent constitution.[1175]
Unlike revolutionary constitutions, the 2017 Constitution was not enacted in a vacuum, but was governed by a transitional framework set out in the NCPO-drafted 2014 Interim Constitution.[1176] Yet, this did not mean that this interim charter transmuted the RCP into a ‘constituted’ one.[1177] Rather, the charter mainly ‘[created] a veneer of legality over what [was] really [sanctioned by] the political elite... not ultimately constrained by law’.[1178] An important point is that unlike other interim constitutions, the 2014 charter, as I will show below, set a material scope for drafting a new permanent constitution.
This strategy indicates the ruling elites’ increasing willingness to espouse the cloak of legal-rational legitimacy to stabilise and rationalise the norms and institutions of the RCP in the constitution-making process.ii. Draft Preparation
Turning to the draft preparation process, some scholars have attempted at deriving its distinctive traits in the twenty-first century. Their observation provides a useful springboard for uncovering problems associated with the drafting of the 2017 Constitution. Given the global norms of democratic legitimacy, they suggest that twenty-first century constitution-building has to deal with the following challenges. The primary challenge for designers of a constitution-building bout is how to properly combine the expertise of a constitution-drafting body with elite involvement and popular legitimacy.[1179] Another challenge is how to prevent constitution-making from being totally ‘captured by ordinary political interests’, while simultaneously ensuring that the drafting body sufficiently represents divergent interests within society.[1180] The drafting of the 2017 Constitution, I argue, took almost no account of these concerns.
The 2014 Interim Constitution set up the initial 36-member Constitution Drafting Commission (CDC) to initiate a draft constitution. It also required the CDC to address several matters in the draft constitution. Among the most notable are the preservation of the ‘unity and indivisibility’ of the Thai polity, the maintenance of the DRKH, the imposition of ‘efficient mechanisms’ for ensuring good governance, and the establishment of mechanisms for completing ‘national reforms’ on various issues, including the making of a 20-year national strategic plan.[1181] However, neither did the 2014 charter establish the CDA to monitor constitution-writing. Nor did it guarantee the general right to participate in constitution-building. Instead, the drafting process was elite-led and highly bureaucratic.
Only the NCPO and other junta-appointed bodies, namely the National Reform Council (NRC), the National Legislative Assembly (NLA), and the Cabinet, could be involved directly in the drafting process.[1182] The CDC had 120 days after receipt of recommendations from the NRC to complete the draft constitution before presenting it to the President of the NRC, the Cabinet, and the NCPO for recommendations and opinions.[1183] The NRC must deliver opinions and recommendations on the draft within 10 days. Afterwards, its members were given 30 days to file a motion for amendment. Likewise, the NCPO and the Cabinet had 30 days from their obtainment of the draft to propose its amendment. Within 60 days as from the expiration of the period available for NRC members to submit an amendment motion, the CDC may consider revising the draft before resubmitting it to the NRC to make within three days following a deferential period of 15 days an approval.[1184] If it was rejected, the NCPO must appoint the new 21-member CDC to complete the new draft constitution within 180 days.[1185] Apparently, while the entirety of drafting the 2017 charter was insulated from ‘ordinary political interests’, it was otherwise captured by ‘elitist impulse’.[1186]The CDC appointment too was dominated by the NCPO. Regarding the composition of the original 36-member CDC, names of its chairperson and five other commissioners were picked by the NCPO. Another 20 commissioners were chosen by the NRC, while the NLA and the Cabinet each nominated five names. All 36 names were to be approved by the President of the NRC.[1187] The method of appointing the second CDC was even more autocratic as the NCPO exclusively picked all 21 drafters.[1188] Owing their appointments to the NCPO, both CDCs suffered apparent deficiencies in political independence and inclusiveness. The 2014 charter also barred political party associates from appointments to the CDC.[1189] This prohibition mirrored the assumption underlying the RCP that democratic constitution-making accommodates a political space for corrupt politicians to pursue their private gains.[1190] Meanwhile, by designating the minimum age requirement for CDC candidacy at 40 years old, the 2014 charter facilitated ‘conservative older men’ to take the lead in constitution-making.[1191]
In practice, the initial CDC was formed on 4 November 2014, with a famous constitutional law professor, Borwornsak Uwanno, selected as its chairperson.
After having garnered input from all junta-created organs, the final draft was presented to the NRC for approval in September 2015, but met with rejection. According to Borwornsak, the rejection was the junta's gameplan to prolong its stay in power.[1192] For others, it resulted from the NCPO's awareness of public discontent towards Borwornsak's idea to create the 23-person committee, including top military commanders, to decide on a volatile political situation. To critics, this idea accommodated a constitutional space for a coup in disguise.[1193] As a result of the rejection, the NCPO convened the new 21-member CDC chaired by a veteran technocrat, Meechai Ruchuphan, in October 2015.The final draft was completed in March 2016. Overall, the draft preparation was conducted in a highly secretive manner, not to mention forms of crowdsourcing. As the NCPO had made a political gathering of five of more people a criminal offence, public forums launched by political parties to discuss the drafts were thereby prohibited.[1194] Resting on the logic of the RCP, the process revealed the NCPO's depoliticising strategy as only technocrats, military officials, former civil servants, and academics were nominated to both CDCs.[1195] Names of many commissioners however raised concerns over whether their appointment was awarded on the merit of expertise. Many drafters, including Borwornsak himself, had previously joined anti-Thaksin rallies in December 20 1 3.[1196] Meechai is also notorious as the military's legal advisor. Other figures included former junta- appointed senators, anti-Thaksin military officials, a former CC judge who had consistently voted against the Thaksin faction, and a law professor who co-founded the pro-monarchy Siamprachapiwat group. Most of the drafters were men of over 60 years old. Only six women were appointed to the Borwornsak commission, with the number reducing to two in the Meechai commission.
Anti-junta public law experts, notably scholars of the Nitirat group, were excluded. Nor were there representatives from marginalised groups such as ethnic minorities (northern hill tribe members and southern Muslim minorities), persons with disabilities, or non-governmental organisations. The composition of both CDCs, I argue, indicates that for the NCPO, constitution-drafting is not a matter of power-sharing, but a vehicle to assure the hegemony of the RCP, with the drafters apparently representing the royalist-conservative elites.[1197]iii. Adoption
The adoption of the 2017 Constitution more explicitly revealed the gravitational pull between the LDCP and the RCP. Given the global expectation of popular involvement in constitution-making, a public referendum has increasingly become international practice for constitutional approval.[1198] For some scholars, this mechanism enhances the legitimacy of a new constitution and the shared sense of its ownership among different segments within society by facilitating the flesh-and- blood people to deliberate qua the holder of constituent power in debating over a new constitution and deciding whether major constitutional changes should be actualised.[1199] Initially, the 2014 Interim Constitution granted the NRC the exclusive authority to decide on ratifying the draft.[1200] Rising liberal demands fostered by the defunct 1997 Constitution however pressured the NCPO to revise this provision.[1201] Under the amended charter, providing the NRC endorsed the draft constitution, a ratification referendum must be subsequently arranged.[1202] This provision did not apply in reality as the NRC rejected the Borwornsak draft. Nevertheless, the people still had a say via a referendum on the Meechai draft.[1203] On the surface, such amendment reinforced the gravitational pull of the LDCP upon the RCP. Yet, the story was much more complicated than this, and should be examined in tandem with a referendum’s own limitations.
A referendum ‘is a blunt instrument’ by its very nature.[1204] As citizens merely vote ‘yes/no’ to posited questions, it might be manipulated as ‘a veneer of legitimacy’ for autocratic constitution-making and an authoritarian turn.[1205] The problem as such normally results from misinformation, public intimidation, vote manipulations, and ambivalent referendum questions.[1206] Ultimately, without rules guaranteeing democratic openness and transparency, effective education and information campaigns, scrupulous question design, and extensive civic education/consul- tations, a referendum would hardly reflect the people’s genuine will.[1207] The referendum for the Meechai draft was marred by the absence of these guarantees.
The ratification referendum was scheduled on 7 August 2016. Details of the draft constitution were advertised through various media, with factsheets summarising its facts and pros distributed to households nationwide. The CDC thereby claimed that it had effectively educated the public on details of the new constitution, and that the referendum was free and fair.[1208] However, in reality, hundreds of referendum critics were reportedly charged with sedition under the Criminal Code, or prosecuted under section 61 of the Draft Constitution Referendum Act 2016 which prohibits impartment of information related to the August referendum in ‘a violent, aggressive, vulgar, inciteful, or intimidating manner’.[1209] The fact that the amended 2014 charter was silent on consequences if the draft was repudiated heightened uncertainty towards Thailand’s volatile politics.
Initially, voters were mainly asked to decide only whether to endorse or reject the draft constitution. Later, the second question was added to the referendum ballot paper by the NLA. It asked:
Do you agree that, for national reform continuity in line with the national strategy, it should be prescribed in provisional clauses that in the first five years from [when] [P]arliament is formed under this charter, a joint meeting of Parliament shall consider an appropriate person to be prime minister?[1210]
Long and convoluted, few people could comprehend jargons like the national strategy, provisional clauses, or a joint meeting of Parliament. Its approval would permit the NCPO-appointed 250 senators to join MPs in selecting the PM. As discussed, the appointed Senate is instrumental for institutionalising the RCP. Conservative voters’ fear of Thaksin’s return, right-wing propaganda against left-wing movements, blatant clampdown of dissenting voices, misinformation, a crude desire for post-coup civilian rule, and fear of uncertainty if the draft was rejected cumulatively propelled the approval ofboth referendum questions, with rampant vote-buying and manipulation of ballots also reported.[1211] Nonetheless, rather than serving as a platform for expressing the LDCP and attenuating social polarisation, the 2016 referendum trapped the Thais in a dilemma. Rejecting the draft would prolong direct junta rule. However, like jumping out of the frying pan into the fire, its approval entailed a post-election stealthy military-supervised rule. Both choices reserve the space for the form of RCP, either militarised or accommodation.
To come into effect, the 2014 charter required the PM to present the ratified draft to the King. Should the royal endorsement be withheld, it lapsed.[1212] A textu- alist interpretation of this provision suggests that neither the Government nor the people could veto the King's decision. This prerogative to decide on the final draft did not appear in the 2006 Interim Constitution which governed the making of the 2007 Constitution. Reality indicated that the prerogative as such was not symbolic but actual. King Bhumibol's passing in October 2016 delayed the adoption process. In mid-January 2017, his son, King Vajiralongkorn (2016-present), requested the NCPO to reconsider some provisions of the ratified draft on royal powers. In response to the royal request, the CDC added a clause in the 2014 charter, permitting the PM to initiate a draft revision with the King as the final authority to decide on its adoption.[1213] Eleven members of the Council of State, including Meechai and Borwornsak, were appointed by Prayuth to complete the amendment by mid-February. The final draft removed a clause requiring the King to appoint a regent during his stay outside Thailand. Neither were factsheets summarising key information of the amendment publicly circulated. Nor was another ratification referendum arranged.[1214] The signing ceremony was organised on 6 April 2017 which was the Chakri day - the day on which the current dynasty was founded. It was nonetheless only the fourth time in history that this ceremony was held. The deference to the King's request and the ‘unusual' arrangement of the signing ceremony indicated that while the referendum provided a cloak of popular legitimacy for the draft, its adoption was ultimately steered by the RCP.[1215] In total, the entire process of its making took nearly 1,000 days.
B. Cloak, Shield, and Institutionalisation
Here, I conclude the consequences of the gravitational pull between the RCP and the LDCP on the preparation and adoption of the 2017 Constitution. Apparently, the lasting impact in terms of the afterlife of the 1997 Constitution in invigorating the strength of the people's power makes the LDCP a tenacious political benchmark for measuring the legitimacy of the making of the 2017 Constitution.[1216] Despite their preference to subject the people's role in constitution-making to acclamation, the arrangement of the ratification referendum in 2016 indicates that the ruling elites have increasingly realised the importance of mobilising the public to preserve their hegemonic status and therefore of ‘co-opting' norms and institutions of the LDCP. However, given the still dominant royalist culture, this process was susceptible to manipulation by these elites to cleanse the tarnished image of the junta-engineered constitution-making process. In fact, they drew the legitimacy of the 2017 Constitution primarily from the 2016 referendum rather than its substance.[1217] The LDCP hereby serves as ‘a cloak of legitimacy' for autocratic leaders to maintain its power, claiming the mandate of 16 million voters as the foundation of the 2017 Constitution.[1218]
Apart from the strategy of co-optation, the holdover elites did not hesitate to ‘contain' staunch attempts to supplant the RCP. They reified this scheme not by ‘totally negating' the LDCP but by reinterpreting its organisational structure in such a way that mainstreams their anti-liberal project. Presenting the 2016 referendum as a platform of expressing constituent power, the NCPO branded vote-no campaigns and critics as its disturbers and therefore the enemies of the people to justify their containment. It also exploited the rhetoric - the mandate of 16 million voters - to vilify and restrain liberal calls for abolition of key institutions of the RCP, notably an unelected PM and a 250-member senate, installed by the 2017 Constitution.[1219] Having been turned into a bulwark against political liberalisation, the LDCP also becomes a ‘shielding mechanism' which lends its legitimacy to the sacred space of the RCP.
Lastly, it is important to point out that as the trends towards liberalisation and democratisation have increasingly made pure military dictatorship outdated, the imposition of the RCP can no longer be legitimately perpetuated in the militarised form. Accordingly, there is a growing need to institutionalise its norms and institutions so that it can be reified in a more legal and rational manner. The delineation of a material scope for drafting a new permanent constitution in the 2014 charter provides proof.
V.