Why is the constitution such a hot issue?

24 January 1997

The constitution is an emotionally charged issue. Consider the CDA so far. Just forming sub-committees has generated fierce debate. Choosing a president occasioned bitter personal attacks, accusations of rigging, and one high-profile resignation. Before all this there was a two-year battle over setting up the CDA, ending with the heated clash between Chai-Anan Samudavanija and Chumphol Silpa-archa in the parliamentary scrutiny panel.

And before this again was the May 1992 crisis which was sparked by the military’s rewriting of the constitution.

Dr Prawase Wasi led the pressure for political reform. When the CDA was finally formed, he issued an appeal for calm.

Why is the constitution such a hot issue? For the most part, Thai political life is boisterous without being emotional, more about money than ideas, more shaped by patronage than by principle. But talk about changing the constitution, and tempers quickly rise.

The constitution has played a big role in modern Thai history, and especially in the two great turning points of this century. The first constitution was written in 1932 following the revolt against the absolute monarchy. It was totally rewritten in 1973-4 following the student revolt against the generals. The constitution has been at the core of the movement to overcome absolutism and dictatorship.

The constitution is also a battleground. Since 1932, it has been completely revamped eight times (1946, 1947, 1949, 1952, 1968, 1974, 1979, 1991). In between there have been numerous amendments, failed amendment attempts, two reversions to the 1932 draft, and many related legal enactments like the political parties laws. Except in the decade when the military totally suppressed parliament, the constitution has been fiddled with constantly.

All constitutions evolve with their societies. But the chopping and changing of the Thai constitution reflects something more than this - the lack of consensus on what form the nation’s political life should take. In short, do we need more democracy or less.

This is the landmine hidden on the path to political reform. There is wide agreement that we need political reform. Over the last two decades, Thailand has evolved a particularly ugly form of "money politics" marked by vote-buying, mafia MPs, ministries run as businesses, and heavy looting of the budget. Many people fear that politics are the major constraint on national development.

But what shape should this political reform take? Here there is still some sort of general agreement. We need more good men and fewer bad men as MPs and ministers. We need to rejig elections, redefine the separate spheres of politician and bureaucrat, and make corruption riskier and more difficult.

But once we get into the details of how to achieve all of this, the consensus breaks down. The different solutions are shaped by conflicting political philosophies and historical traditions. We come up against the great divide in Thai politics which runs back through the constant battles over the constitution to the 1932 revolt and beyond.

On one side of this divide, there’s an international concept of democracy founded on the proposition that each citizen has the same basic civic rights and the same equal political value. On the other, there’s a paternalist philosophy deeply rooted in Thai traditions.

This paternalist philosophy starts from the idea that people are unequal. In the traditional political system of Siam, every person had a rank, a specific political value. At the upper end of the scale, ranks were tied to administrative positions. Those with high rank had the right and duty to rule - to control and look after those of lesser value.

Across the world, democracy has had to wrestle against inegalitarian traditions inherited from the past like this. But in the west, these inequalities were associated with landholding. They faded when the great landed estates disintegrated. The Thai tradition has not been so vulnerable. Inequality was bound up with office-holding not land. Modern bureaucrats have clung onto this concept. You can see the result every day in the deferential bowing and scraping before officials. For half a century, military rulers invested heavily in keeping this paternalist tradition alive, including the idea of the fundamental political inequality between people of different rank.

This paternalist streak runs through the history of the constitution. The first constitution in 1992 started with a declaration of popular sovereignty, but then imposed delays and limitations on the creation of an elected parliament. These qualifications were justified on grounds that the mass of people were not yet ready for democracy. This may have been a very practical proposal at the time. But it also established a trend. Ever since, the ruling elite has tried to counterbalance the power of elected representatives with nominated officials - with men of rank.

At first, half of the Assembly was nominated. Later the nominated half was removed to a separate but powerful Senate. And for a long time, officials dominated the Cabinet. Only recently have these trends been reversed. In 1983 and 1991-2, the paternalists fought to preserve the role of officials in the Cabinet, and finally lost. The domineering position of an official-laden Senate was diminished only in 1995.

The struggle between the democratic and paternalist traditions bubbled to the surface in the incident of Ukrit Mongkolnavin’s resignation from the CDA. Ukrit is part of the paternalist tradition. He clearly expected to become president of the CDA on grounds of noblesse oblige. He had already dismissed populist ideas like referendums as inappropriate for Thailand. He expected no problem being chosen by the carefully selected club of 99. He ducked out when he discovered the CDA was subject to close public scrutiny. As its head he would be exposed to open criticism.

Samak Sundravej, who also belongs to the paternalist tradition, suggested that criticising Ukrit might amount to lese majeste on grounds that Ukrit had previously been a royal appointee. This was manifestly absurd. The jails would soon be overflowing if the charge made sense. But both Ukrit’s reaction and Samak’s outburst showed the paternalist tradition’s distrust of popular participation, open debate, and public scrutiny.

Paternalists always argue that Thailand is not ready, not qualified, or not suitable for full-blown democracy. They believe that Thailand’s political problems of recent years stem from too much democracy, too much power devolved onto the wrong people. In the redrafting, they will back measures which limit the powers of MPs and ministers, and which insulate officials from political pressures.

By contrast, the liberal-democrats believe Thailand’s problems arise from too little democracy. Past attempts to limit popular participation have created the patronage politics we have today. The over-centralised and over-powerful bureaucracy is at the root of corruption and bad governance. The liberal-democrats will back measures which increase popular participation and threaten official fiefdoms.

The contest between the two sides is finely balanced. Uthai Pimchaichon, the president of the CDA, clearly belongs to the liberal-democratic tradition. But the CDA as a whole is a funny mixture. There is a big core of old bureaucrats, ex-politicos and conservative academicians. There is a much smaller ginger group of liberal academics and professionals.

And presiding over all of this is a prime minister whose whole career straddles this deep divide. He has clambered to the top through democratic process - forming a political party, winning an election, cobbling together a ruling coalition. But in the past, he has been openly sceptical about parliament and about too much democracy. In the 1983 constitutional amendment debate, he played a leading role on the paternalist side. He wanted to keep officials in the Cabinet because elections tended to give power only to "capitalists and big bosses".

The conflict between the paternalist and liberal-democrat traditions will underlie the debate in the CDA. It probably will not emerge as a dispute over principle. But it will shape the skirmishes over specific drafting issues. And it may bubble up into some major issues which become the focus of open public debate.

This redraft may become the third great event in Thai constitutional history, successor to 1932 and 1973-4. Both the previous events are significant not only in the context of legal-constitutional history, but as turning points in the development of the nation. But the process is unlikely to be smooth, because of the big divide between paternalist and liberal-democrat views on how Thailand should be governed.