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The Asian economic crisis in 1997 caused not only plunging stock markets, company bankruptcies, but also broad changes to governments and politics across the region. For Thailand, one of the earliest victims of the crisis, the crisis resulted in something deeper – the start of yet another constitutional reform – its 16^th since 1932, when the kingdom became a constitutional monarchy. According to Andrew Harding, a visiting professor at Singapore Management University’s (SMU) School of Law, each constitution has, so far, seen an average lifespan of four years.

Harding delivered a public lecture at SMU recently, where he discussed the state of Thailand’s constitution and its role in moderating the country’s longstanding political limbo. Referring to the clash between the two major camps, Harding observed that all the talk seemed to be centred on the “red shirts” versus the “yellow shirts”. But what about the views of the “orange shirts” – the mix of red and yellow: a representation of the ordinary, apolitical Thai folk?

The rise and fall of “the people’s constitution”

Politics in Thailand have been largely turbulent, marked by frequent military coups, sweeping changes of governments and enduring political crises. The 1997 constitution held out hope for the people, as it was designed to strengthen good governance, the rule of law and human rights, as well as providing for political stability, integrity among politicians and a removal of the military from politics. It was easy to see why it was dubbed “the people's constitution”.

The 1997 set of reforms was aimed at the Kingdom’s political and legal order. It was a move described by many to be highly ambitious because the charter was expected to eradicate what was perceived as widely entrenched corruption and the abuse of power. It was also expected to improve transparency in the electoral and legislative processes, and ensure executive accountability.

An interesting feature of the 1997 constitution was the introduction of new electoral rules which ordered that the Senate be comprised of non-partisan individuals –affiliation with any of the political parties, immediate or recent, was prohibited. This was for the Senate to guarantee the non-partisanship of all judicial and watchdog bodies. One such body is the constitutional court, which operated from 1998 to 2006 and decided on some 400 cases. It was deemed to be of great significance as it was to be the fourth branch of government, serving to keep a check on the executive, legislative and judiciary.

Promising as it seemed, the 1997 constitution was dissolved in 2006, following Thaksin Shinawatra’s ouster that year. The ex-prime minister had been widely blamed for alleged abuses of power under his Thai Rak Thai administration. People questioned the way in which he had addressed the insurgency problems that embattled southern Thailand. Controversial also was the sale of Shin Corporation – a telecom and media holdings company 49.6% owned by Thaksin’s family – to Singapore’s Temasek Holdings. This 73.3 billion baht deal, which was not taxed, aroused anger. They were also outraged with human rights violations by the police and the army, namely, the numerous street executions of drug traffickers – a move justified by Thaksin’s government as a means to maintain law and order.

The September 2006 coup d’état prompted the suspension of parliament and the constitutional court. However, independent agencies that were created via the 1997 constitution remained operational. Thaksin fled the country in an effort to distance himself from Thailand’s jurisdiction, which had fallen into the hands of the military. By October 2006, an interim charter was enacted.

Fruit of a poisonous tree

In appraising the fall of the 1997 Constitution, Harding questioned if it was due to failures in reform. For him, the 1997 charter might have failed to keep the administration in check, but it offered a real opportunity for democracy. The problem could be due to the large disparity, in terms of how the constitution was viewed, by the urban, middle class and the rural peasant class.

Following the 2006 coup, there have been expressions, sometimes violent, of the “red shirts” versus the “yellow shirts” – colours worn by opposing camps of demonstrators. The red shirts are pro-Thaksin whilst the yellow shirts claim to be pro-monarchy (yellow is the colour associated with Thai royalty). Harding believes that views from the middle ground, the “orange view” as he calls it, have been largely drowned out by the two opposing forces. And it is this nonpartisan view that could potentially point the way forward.

In 2007, a new constitution was passed to replace the interim constitution of 2006, marking the 18^th constitutional change in 75 years. Sharing his thoughts on the numerous constitutional changes, Harding wondered if a “Snow White” clause might eventually find its sway into the Thai constitution. The “Snow White” clause, common in the constitutions of African countries, mandates that the constitution must retain its validity even in the face of a coup, despite what the military usurper may decree. Such a clause might prolong the life of Thailand’s flagging constitution.

In the drafting of the 2007 Constitution, Harding noted that political parties were excluded from the process. It was a calculated move on the part of the National Security Council – a refined moniker for the military regime – which suggests the severance of politics in Thailand. The underlying assumption is that Thai political parties are corrupt by nature. So, to address this fundamental issue, the law would seek to curb political parties. It comes as no surprise, therefore, that Thaksin would later attack this constitution, calling it a “fruit of the poisonous tree”.

The 2007 Constitution was hailed to have plugged the loopholes of the 1997 Constitution: limiting the term of the Prime Minister to two terms (eight years) and increasing human rights guarantees. It also supports the “judicialisation of the state” – an increase in power of the judges – the “jurocracy”. Harding said he spoke to several Thai judges who had expressed worry about the power shift. The conundrum here is that the people regard the judges as uniquely reliable and dependable in Thai politics, but giving them too much power could destroy the government, which is split between the executive, legislative and judiciary branches in a democracy.

In between red and yellow

Even though the constitution has seen many changes, much of its text has remained the same. Harding reasoned that the text itself was not all that was problematic, yet there has been a tendency to attribute the problems to the text – which could account for why much effort had been put into polishing the text within the constitution. A well-polished constitution, however, holds less weight with each coup d’état, where amnesty is afforded to coup leaders. The use of constitutional devices such as the constitutional court to support and legitimise unconstitutional devices, such as the coup is problematic, as it strongly suggests that democracy and rule of law can be annexed or squashed by oppressors.

Constitutionalism is also challenged by polarisation in Thai society. A fundamental problem is the weakness of political culture among those in the rural areas and defects in the rule of law. In recent times, court orders have been largely ignored by demonstrators and the military has even issued an emergency decree. Despite the deeply-rooted clashes between factions, every grouping has professed loyalty to the king. Could it a sign that the Thais are looking to the monarchy for a resolution to the country’s political problems? Harding questions if this tacit reliance on the king’s intervention is sustainable in the long term (King Bhumibol Adulyadej turns 81 in December). And be that as it may, quo vadis democracy?

Eventually, the Thais’ trust may not rest in the constitution, any other document or democratisation process. In this regard, he said what holds Thailand together is not the constitution but the civic religion, involving the relationship between chat (nation), satsana (religion) and mahakesat (monarchy). Expounding on the relationship between culture and constitution, Harding pointed out the concept of “bun khun”, which refers to moral obligation to a person who has provided some kind of care, protection or assistance to another.

In his proposal for a solution, Harding suggests a broad-based agreement on the rule of law. The constitutional court could be the best option when such an agreement is achieved. Also, to uphold and respect the rule of law, military intervention should be avoided. On the role of monarchy, Harding posited that stability in Thai politics should come from the constitution, ergo, not from extra-institutional intervention. At the same time, party politics should represent and engage a spectrum of interests in the country’s political process. Politics should be at a national-level, not regional-level, he noted, alluding to the present divide between the urbanites and the rural folk.

Harding also implored that there should be no more polishing of the constitution’s text. Instead, he said, the focus should be on implementation, accountability standards, and the enforcement of the law and constitution. At the same time, “people power”, which has up till now weakened the country’s political stability, should be put to a stop. Moving forward, Harding contends that a two-party political system could emerge as a remedy to the country’s enduring political discord – an “orange” parliament, perhaps.

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