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Progress undone

In 1997, the new constitution of the Kingdom of Thailand was widely hailed as a milestone of democracy. In addition to a specialised administrative court system, it also provided for a Constitutional Court, which was largely independent of the government. Regrettably, the coup in September last year turned the clocks back again.

[ By Clauspeter Hill ]

To understand democracy as it is practised in Thailand, it is important to be familiar with the country’ s constitutional history and the role of the king. The current monarch, King Bhumibol Adulyadej (whose name means Strength of the Land, Incomparable Power), has been on the throne for more than 60 years. He has had great influence on Thailand’s political culture.

In Thailand, absolutist monarchy ended in 1932. Young academics, who had studied in Europe, had held mass demonstrations demanding change. During the early years of constitutional monarchy, power shifted constantly between the royal family and various groups of high-ranking bureaucrats and the military.

Bhumibol Adulyadej, who studied in Switzerland, came to the throne in 1946 at the age of 18. He has always been considered a stalwart defender of democracy. Nonetheless, during his reign, the country has experienced 18 military coups – the second last of these in 1991. The year after, there was violent unrest. After three days of clashes between the military government and the pro-democracy movement, the king summoned rival leaders to an audience at the palace. He demanded that they end the violence, and agree on charting a course to democratic rule in Thailand.

For the first time, the right of common people to participate in political decision-making was recognised. Previously, the country had endured an inefficient and corrupt combination of control by political and business elites, and the military. These groups carefully agreed on a balance of power, with the king pulling the strings in the background. This arrangement was only possible due to the deep reverence Bhumibol inspired in the entire population, along with the Buddhist belief that a strong, Buddha-like leader is needed to lead the nation.

Exemplary guiding rules

Next, a Constituent Assembly was established with the explicit task of reforming the political system from the ground up, rather than merely correcting the power balance. This time, the general public was included in the contentious public debate.

On 11th October 1997, the new constitution came into effect. It broke with the old tradition of the military working hand in glove with the administration. This tradition had often seen former soldiers or high-ranking police officers occupying key positions in government. The new constitution introduced a more rigorous system of checks and balances, and in particular it provided for a more independent judiciary. Norms designed to protect the rights and liberties of citizens were elements of the new system, along with procedures for moving the courts in cases of doubt. The constitution also included important provisions to involve the people in political processes and make office-holders more accountable to the public – elections, for instance.

To a large extent, the constitution ended the bureaucracy’s dominance in terms of making and interpreting laws. Its wide discretionary and regulatory powers were restricted by clear-cut rules. Article 29 explicitly decreed that rights and liberties may only be restricted as provided by the constitution itself. Even before clarifying the status of the king, Article 6 ruled that the constitution was the highest law of the land, and that all provisions contravening those of the constitution were invalid.

Article 27 legally bound all state authorities to this constitution. For the first time, the principle of directly applicable constitutional law was introduced. A crucial element of this principle is that rules are backed up by legal processes. Without judicial mechanisms to enforce them, even the most clearly-articulated norms will remain ineffective.

Previous constitutions of Thailand had left it to Parliament alone – which was often not directly elected – to interpret the constitution. Before the 1991 coup, this right had been transferred to a Constitutional Tribunal, which was, however, subordinate to the executive. The Tribunal was by no means part of an independent justice system.

German experience

In 1997, in contrast, an independent Constitutional Court was established. The essential advantage of such an institution is that it motivates lower courts to actually base all of their decisions on constitutional norms. In case of doubt, after all, the final decision rests with the Constitutional Court and not the government or its agencies, which might have a vested interest in giving precedence to questionable, obsolete norms.

Independent constitutional courts proved to be very useful in both Germany and Austria after the Hitler dictatorship. Germany’s Federal Constitutional Court has often served as a model – in Spain and several Latin American countries for instance – when a democratic constitutional state was established after authoritarian rule (Schoeller-Schletter, 2004).

So it was in Thailand in 1997. Certainly, Konrad Adenauer Foundation contributed to that happening by engaging Thai partners in an ongoing dialogue on rule-of-law matters. Obviously, the Constitutional Court’s judges were themselves inspired by the German model. When handling specific cases, they frequently wanted to share experiences. The Constitutional Court was composed of 15 full-time judges, making it clear that their position was strong, especially when compared with the part-time function of the previous Tribunal. The members of the Constitutional Court were appointed by the king on the recommendation of the elected Senate.

Article 28 introduced an entirely new constitutional right, by entitling citizens to lodge complaints with the Constitutional Court if they believed their civil liberties had been hurt. On top of that, there were other ways of initiating judicial review of legislative and executive decisions. For instance, the Parliamentary Ombudsman was empowered to bring cases before the administrative courts if he felt constitutional norms had been violated. He could, of course, also appeal to the Constitutional Court.

These reforms enhanced the standing of the judiciary considerably. The state bureaucracy was from now on subject to objective control. In fact, the courts often decided against government agencies, especially when they breached the constitution and other new laws by excluding citizens from the planning of infrastructure projects, or disregarding environmental impacts. The people began to view the judiciary as a useful component of the modern constitutional state. Courts of all instances began to base their decisions on fundamental rights.

Thailand thus became an international model. Many development experts hoped that it would serve as an example for other Asian countries ruled by non-constitutional, authoritarian regimes.

Turbulent Thaksin era

However, during the term of Prime Minister Thaksin Shinawatra (2001-2006) conflict once again erupted. The military and bureaucratic establishment regarded him as an upstart, but he enjoyed strong support among the rural poor. In early 2006, he gained huge profits for himself and his family by selling their controlling stake in telecom giant Shin Corp to a Singapore company, after law changes, which Thaksin himself had initiated, permitted the sale of majority stakes to foreigners. According to Thai law, the proceeds of the €1.6 billion deal were tax free.

To defuse the growing criticism, Thaksin called snap elections in April 2006, although he had been confirmed in office only a year earlier. The major opposition parties boycotted the general election, and thus the minimum voter quorum prescribed by law was not reached. Ultimately, the Constitutional Court declared the April elections invalid. New elections were scheduled for mid-October 2006. Meanwhile the Supreme Administrative Court dismissed the Election Commission amid allegations of corruption. It looked as if the highest echelons of the judiciary proved themselves to be custodians of the constitution and constitutional principles. However, the king also played his part by demanding that the judges find a solution.

The generals intervene

On 19th September last year, however, a military coup put an end to democratic progress in Thailand. By wearing the royal colour of yellow and making the appropriate announcements, the army signalled that it had the king’s support. The “Council of Democratic Reform under the Constitutional Monarchy” as the junta called itself at first, revoked the 1997 Constitution, and dismissed Parliament and the Constitutional Court. Today, the military junta calls itself “National Security Council.”

It is ironic that the coup leaders claimed to be heroes of democracy. To back up their claim, they spoke of a damaged democratic culture, made allegations of corruption against Thaksin, and warned of civil unrest further escalating among Muslims in the south.

On 1.October 2006, an interim constitution came into force. It provides for the appointment of a National Assembly and a Constituent Assembly by the king. At the same time, a transitional government under former General Surayud Chulanont was put in place. Ultimately, however, all government decisions depend on the consent of the military junta led by General Sonthi Boonyaratglin.

Article 18 of the interim constitution declares the judiciary to be an independent body, but this means very little. The Constitutional Court, which served a real watchdog function, has been replaced with a Constitutional Tribunal, the members of which were carefully selected by the military. The Tribunal’s primary task was to decide whether political parties should be dismissed. In particular, this concerned the Democrats – the oldest party in Thailand – and Thaksin’s party Thai Rak Thai (Thais love Thais).

On 30th May, the verdict on the Democrat Party was announced. It was acquitted of all allegations of violating election legislation or the constitution. Late in the evening of the same day, the decision regarding Thai Rak Thai was also made public. That party was dissolved, and 111 of its leading members – including Thaksin – were banned from all political activity for five years. These decisions are dubious in legal terms, however, as the military leaders only issued the respective directives concerning political parties and activities after the coup. By their very nature, retroactive rules are constitutionally suspect.

Moreover, the king stepped in again. Some days before the verdict was announced, he publicly cautioned the judges to consider the consequences of their decisions. Fierce protest was expected, but so far has failed to materialise.

A new draft constitution foresees the people electing only the National Assembly in future, while the king will appoint the Senate as the upper house of Parliament. Supreme Court judges will be appointed from both bodies, which will again leave plenty of leeway for manipulation.

No doubt, Thailand’s constitutional democracy had already suffered considerable damage under the Thaksin government. The September coup, however, has repudiated all the democratic principles of the rule of law. Sadly, there are no promising signs of Thailand returning to constitutional democracy any time soon.