The Constitution after two years: dead from a thousand cuts?

12 October 1999

When parliament passed the constitution two years ago, Anand Panyarachun was exultant: "The quality of politicians will improve. The frauds in elections will decrease and more honest politicians will enter politics. Governments will be more stable." At the time, Chang Noi wrote in a more cautious vein: all three of Thailand’s previous "reform" constitutions were first watered down, and then torn up. The 1997 draft was opposed by almost every power-centre in Thai society—police, army, judges, senators, village officers, interior ministry, MPs, etc. Without the panic mood of the economic crisis, it probably would never have been passed. Continued opposition was to be expected. So on its second anniversary, how is the constitution doing?

The last two reform constitutions—of 1946 and 1974—each lasted around eighteen months. So by that standard, the 1997 charter is already ahead. Of course these days it is a little more difficult to carry out a coup and put the charter in the shredder. The opposition to this constitution takes a different strategy: death by a thousand cuts.

The new constitution has three main parts. First is an extensive cataloguing of human and civic rights. This part is written down and is relatively safe from change. The second is the structural reform of the parliamentary system, and the third is the creation of a raft of new judicial and quasi-judicial institutions. These latter two needed enabling laws. Here is where the thousand cuts were applied.

The Council of State has the duty to draft (or fine-tune) the bills, and the parliament has the power to pass them. The Council of State has represented the old bureaucratic mentality which distrusts people, distrusts democratisation, and wishes to retain the powers now concentrated in the hands of central officialdom. The Council has staged the last stand of bureaucratic paternalism. The parliament—particularly the lower house—has tried to water down new rules and new institutions which will limit its own power.

When the three main enabling bills on the political structure (on elections, political parties, and the election commission) came up for scrutiny around a year ago, the lower house rewrote as much of them as it could. One of the constitution-drafters complained this was "going back to square one". The senate reversed out most of the lower house’s amendments. But the government then deliberately under-funded the Election Commission. Another charter-writer believed this was a carefully laid plot to ensure this Commission would have a short life. The first election would be a disaster. The Election Commission would get the blame. And responsibility would be passed back to the Interior Ministry. Certainly the Ministry seemed to hope this was the case. Senior officials began actively campaigning to retain a large role for the Ministry in handling elections.

The bigger fights have been over the new judicial and quasi-judicial institutions which are needed to implement the rights and intentions written into the charter. The fundamental idea behind the cataloguing of rights and the invention of these new institutions is to shift the balance of power between individual and state. They enshrine a hope that those who now so easily abuse government power may be prevented or punished. Here the sandbagging has had three stages: in the drafting of enabling laws, in the choice of personnel, and in the first precedent-setting actions.

On the Human Rights Commission, the Council of State drafted a bill which totally ignored the constitution and totally ignored the conclusions of a thorough series of public hearings. Instead of the independent commission envisioned in the charter, the Council placed the body under the executive, and packed it with a majority of bureaucrats selected by bureaucrats.

On the Commission designed to manage communication frequencies on behalf of the people rather than on behalf of the military, the original draft again could not believe that the constitution really wanted such a body to be independent. It placed it under executive control, and packed it with bureaucrats and telecoms interests.

The Freedom of Information Act was blooded in a way that few would have predicted—a lone mother challenging a university school over the transparency of its admission exams. The school officials prevaricated, obstructed, back-pedalled, dissembled. The mother was subject to threats, a law suit, and very nearly a disciplinary investigation by her own employer. Of course the officials were protecting a corrupt system which helped to finance the school. But they also clearly found it difficult to accept that ordinary people really could demand access to information. So too did some in government. The official in charge of implementing the Act was removed for being too enthusiastic about this principle of freedom of access.

The first effort to activate the constitution’s provision to enable 50,000 signatories to initiate a corruption investigation met a similar fate. Again a sole woman fronted the effort. She collected the signatures before an enabling law had specified a procedure. The officials accepted the petition, but asked her to "verify" the signatures. The potential subject of the enquiry responded by slapping her with a lawsuit.

The new and exceptionally powerful Constitutional Court was blooded with the decision whether Newin Chidchob should lose his parliamentary seat because of a suspended jail sentence for defamation. Six judges ruled the constitution was clear he should be removed. Seven gave a pot-pourri of reasons why he should not. Newin announced this was the "beauty of democracy". The drafters who had designed this constitutional court could not believe that it would self-destruct on its first major decision.

The old Counter-Corruption Commission had never once managed to catch a big fish. Its successor has much better teeth. But when the personnel of the Commission were announced, some doubted that they would know how to gnash them. The Commission’s first test came over the Public Health Ministry scandal on overpricing of medical supplies. Few readers of the extensive press coverage of the scandal could have any doubt about the involvement of politicians in the scandal. The Commission could not find any evidence.

These are some of the thousand cuts. So is the 1997 constitution bleeding to death?

The short answer is a qualified no. While the opposition mounted in the defence of established power and privilege has been truly impressive, so too have been the efforts of small groups of people working to keep the constitution alive and kicking. Not one of these efforts to slash the constitution has passed without a howl of dismay from the constitution-drafters, activists and from NGO groups. The attempt to rewrite the political bills was conclusively blocked. The Frequencies Commission has been redesigned in a more acceptable form, though it will still face heavy military pressure when it begins to work. The government has reluctantly upped the funding for the Election Commission, though not yet to an adequate level to discourage the hopes of the Interior Ministry. The attempt to undermine the Human Rights Commission has run into a storm of opposition. The NGOs have vowed not to give up on the medical scandal.

Two years ago, the constitution was swept through on a wave of hope and emotion. But such waves break on the beach and disappear. The constitution is being kept alive in the face of some fierce reactionary swordplay by a small number of people with a large store of commitment.