The constitutional politics of two democracies

This section provides the political background leading up to the amendment attempts. The period of 2011-13 was a rare moment in Thai politics. These years were relatively calm, wrapped between two large street protests, the 2010 pro­Thaksin protest and the 2014 anti-Thaksin protests, and the two coups of 2006 and 2014.^[562] This hiatus allowed civilian politicians to endeavour to bring about constitutional change via a formal channel.

Why would Thais then wish to amend the 2007 Constitution, which had been enacted only a few years earlier and approved by a national referendum? It turned out that the 2007 Constitution was deeply unpopular for several reasons, not least because it represented an ideology that was averse to the beloved previous charter. Thus, the latter half of this section discusses a battle between Thai-style and liberal democracies that has haunted Thailand for decades.

9.2.1 The unpopular constitution

The 2007 Constitution was the conservatives’ reaction to politics in the final years of the 1997 Constitution (1997-2006). The 1997 Constitution was

Thailand's unamendability 171 part of a post-authoritarian reform that enjoyed a decisive mandate to consolidate Thailand’s fragile democracy which had often been interrupted by the military. The consensus was clear: to rid Thailand of military coups, the country needed a strong and capable civilian government with even stronger checks and balances.^[563] The 1997 Constitution adopted an electoral system that favoured large-sized parties that would result in a less fractious government. It also broadened public participation, most notably replacing senatorial appointments with popular elec­tions. Many new courts and watchdog agencies were also introduced. Although the 1997 Constitution eventually led to the rise of Thaksin Shinawatra, a con­troversial strongman prime minister (2001-6), it left a deeply positive impression on the public.

The major goal of the 2007 Constitution was to prevent Thaksin, who was in self-exile, from returning to politics. While the drafters feigned the participa­tory drafting procedure of the 1997 Constitution, they dismantled the spirit. The government was significantly weakened through a new electoral system that favoured small to mid-sized parties.^[567] The people also lost their right to vote for senators as the new senate would be half-appointed, half-elected.^[568] A political party could be dissolved if a single member violated an election law.^[569] Executive

prerogative was subject to an unelected judiciary and watchdog agencies.^[570] In sum, the 2007 Constitution displayed a disdain for electoral politics. Yet, as Tom Ginsburg has shown, the drafters decided to retain some features of the 1997 Constitution in the 2007 one as a form of afterlife in order to boost its legitimacy.^[571]

Calls to reject the 2007 Constitution began as early as the drafting council convened - a fact that the drafters must have known. The 2007 Constitution was unpopular because of its design as well as its origin.

Despite the high likelihood of amendment, the amendment rule was sur­prisingly simple.^[574] There was no requirement for a special council or another referendum. Procedurally, it required 50,000 voters to petition the Parliament, where both the House of Representatives and Senate must consider the motion together. If the motion was filed by the people, public opinion had to be sought. It required an absolute majority from the Parliament. As for substance, all was allowed except changes to the form of the state. An amendment must not over­throw the democratic regime with the king as the head of the state. In other words, Thailand must always be a democratic kingdom.

Most importantly, the 2007 Constitution assigned no body to review amend­ments. Amendments were not ordinary legislation so they were not subject to the Constitutional Court's judicial review.^[575] Was this simplicity in the amendment

Thailand's unamendability 173 procedure a mistake when the drafters were aware of the likely prospect of amendment?

9.2.2 Politics of two democracies

The 2007 Constitution must be understood in a broader context of fierce con­testation over election and political legitimacy.^[576] The democratic revolution in 1932 ended absolute monarchy and introduced constitutional democracy. Unfortunately, infighting as well as resistance from the royalists prevented suc­cessful consolidation.^[577] The royalist camp could not reintroduce absolute mon­archy but they began instead to offer an alternative to liberal democracy by adopting a relativistic approach.

Thai-style democracy first appeared in the administration of Field Marshall Sarit Thanarat (1959-63). Sarit was a staunch royalist military man who staged a coup in 1957 against Pibun, the last member of the 1932 Revolution Party. In contrary to the republican Pibun, Sarit hailed the monarchy supreme. He rejected the Western notion of democracy while creating his own version that justified his repressive despotic regime.^[578]

Central to Thai-style democracy is the king as the core of the political arrange­ment. Based on the traditional belief in a hierarchical socio-political pyramid,^[579] people are not equal. The basis of one's power is not popular consent but per­sonal virtues. The king reigns at the top of the pyramid because of his exalted cha­risma and wisdom.^[580] Thai-style democracy directly attacked the 1932 revolution by claiming that the revolution was premature. Most ordinary Thais were illiterate and therefore were not ready for self-governance. Meanwhile, King Prajadhipok was said to be already contemplating introducing democracy to the nation via a Meiji-style constitution but his goodwill was overlooked by the 1932 revolutionaries.^[581] Regardless of truth, this narrative of Thai-style democracy identified prematurity and unpreparedness as the cause of democratic failure. The

majority voted for the wrong or selfish MPs who failed to represent the people's interest. Ultimately, an elected government was ousted by the military.

To uplift Thai-style democracy, electoral democracy is framed as an adversary. Thai-style democracy portrayed the military government in a much more positive light than elected politicians. The military presented itself as the guardian of the crown.^[582] Sarit, in particular, claimed that he, with his father-figure characteristics, was a better representative of the people.^[583] Politicians are guided by their vot­ers' short-term interests, he argued, not the nation's long-term genuine benefit.

By the 1980s, Thai-style democracy was successfully in operation. Constitutionalism was foreign and not fully compatible.^[586] Collective prosperity was preferred over personal freedom. Thai politics oscillated between elections and coups. Elections were regular, so were coups. Whenever parliamentary dis­putes or corruption scandals loomed, the army staged a coup - the safety valve to release tension. Following some of the worst clashes, the king personally inter- vened.^[587] Therefore, while the minimum element of democracy was maintained, it was not the only game in town. The king and the army served as a deus ex machina. Civilian politicians learned to coexist with conservative elites in the palace, military, and business world, as well as the bureaucracy.

But the spirit of liberal democracy, instilled since 1932, had not gone away either. It manifested intermittently through mass uprisings in the 1970s.^[588] Eventually, in the 1990s, political and economic liberalization in East Asia ren­dered military dictatorship obsolete. The middle class, who received a western­ized education, began to demand full democracy. Thus, when the army staged the 1991 coup, and in 1992, appointed the junta leader as prime minister, thou­sands rose up against the army in the bloody uprising known as the Black May.^[589] The king, sensing the change, intervened in the bloodshed by urging the junta

Thailand's unamendability 175 leader, General Suchinda Kraprayoon, to resign.

Thus, the 1997 Constitution was not born from a popular revolution that defeated the authoritarian past. It was a social experiment sanctioned by the more progressive wing of the conservatives. With its emphasis on rights and liberties, strong leadership, and rigorous checks and balances, the 1997 Constitution introduced a different model of democracy. It was more liberal, with a long list of rights, and newly founded administrative and constitutional courts to enforce these rights.^[590] It strengthened the leadership of the government by adopting a new electoral system that favoured mainly a few large parties. It instilled the sense of constitutionalism with a participatory drafting procedure and new designs of many state apparatuses to replace the king and the army as arbiters of political disputes.^[591] Nonetheless, Thai-style democracy did not simply vanish. It was rec­ognized in the clause pertaining to the democratic regime with the king as the head of the state which the Constitutional Court invoked often.^[592]

The 1997 Constitution was hugely successful. But its success, unfortunately, led to its demise. Thaksin utilized the aforementioned electoral rule to strengthen his position so much that he monopolized Thai politics.^[593] When Thaksin dared to challenge the old powerful conservative network, they reacted with the 2006 coup to revive Thai-style democracy.^[594] The year 2006 was a watershed year in Thai political history as the tide turned against liberalization.^[595] The conserva­tives were convinced, once again, that liberal democracy was not compatible with Thainess. But notably this time, the judiciary, not the military, would lead the attack as discussed below.

In this sense, Ginsburg’s constitutional afterlife is simply a compromise between the two democracies. The series of constitutional amendment cases is only a small part of a larger ideological and physical battle that raged from 2006 to 2014. While Yingluck, with a popular mandate vested in her, tried to amend the 2007 Constitution to regain control over politics, the Constitutional Court, spurred by distrust in the majority’s wisdom, struck down all her govern­ment’s attempts. Meanwhile it accepted the 2014 coup as a normal component of Thai-style democracy. This inconsistency showed how Thai-style democracy worked. On the ideological front, Thai-style democracy condemns the idea of majority rule. During normal politics, it enlists the Constitutional Court,

among other apparatus, to contain the government. At its most extreme, it permits a coup.

9.3