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The Thai constitution

I. Historical Background

The development of the modern Thai nation-state has its origins
in the reign of King Rama IV when the Kingdom was known to the
world as Siam. Siam in the mid-nineteeth century was essentially
a feudal state headed by the monarch who administered the country
through a hierarchy topped by minor royalty and aristocrats. They
in turn were paid tribute by various levels of officials and at
the bottom were the serfs who tilled the fields, paid a portion
of their harvests to the landlords and served in the Siamese army
in times of war.

This all changed in 1855 with the signing of the Treaty of
Friendship and Commerce, (the Bowring Treaty), with Great
Britain. By signing this Treaty with the British and the other
European powers, along with the Americans and the Japanese, the
King reluctantly acknowledged the arrival of Europeans, and
radically altered the status quo. Siam was forced to open its
economy to the world. In so doing, the royal monopoly of external
trade was destroyed. By the time King Chulalongkorn (1868-1910)
ascended the throne, the effects of this economic transformation
were already affecting Siamese society. The young monarch began
the step-by-step process to eliminate slavery and serfdom in
1874. This liberation of manpower resulted in further breaking
down the traditional hierarchy. A professional army was created.
The government took control of natural resources like teak and
tin and granted trading concessions directly, taking this power
out of the hands of provincial governors. Foreign traders dealt
directly with local trading houses and paid a 3% export tax..

In addition to its economic and social effects, the Bowring
Treaty effected judicial and legal reform. The old judicial
system was not trusted by foreigners. The Treaty imposed a system
of extraterritorial laws under which foreigners would not be
subject to the Thai courts. King Chulalongkorn realised if these
laws were ever to be lifted the system had to be modernised.
Western foreign legal experts were hired to adapt the Thai laws
to a more Western model. A codified system was adopted with the
beginnings of three major codes of law: the Penal Code; the Civil
and Commerical Code, and; the Civil Procedure Code and the
Criminal Procedure Code.

Along with legal and judicial reform, King Chulalongkorn
initiated wide ranging institutional reform of the Thai
government. A Council of State system was instituted in 1894. A
civil service based on merit attempted to replace the old system
based on patronage. This period truly marks the emergence of most
aspects of the modern Thai nation-state as we see it today.

The process of reform continued in the reigns of Rama VI and VII.
Rama VI pushed forth the legal reforms his father had fostered
and went further in promoting Thai nationalism and further
professionalising the Thai army. But the economy turned sour and
King Rama VII , ascending to the throne in 1925, inherited
economic recession from his brother and a growing restiveness
among a new elite of young graduates with foreign educations who
had witnessed the social and political ferment in Europe.

II. The Problems of the Thai Constitutional Regime since 1932

A. The Coup of 1932 and the Creation of the Constitutional
Monarchy

In 1932, a group of young reformists composed mostly of lawyers
and military graduates took the initiative and took over the
government. They created the first Constitution in Thailand and
forced the King to agree to reliquish his absolute status and
become a constitutional monarch. But the government that emerged
was essentially dominated by the military and noteworthy for the
non-participation of the people.

Since 1932, the Thai government has been largely a cabal between
the military and the technocrats making up the Thai bureaucracy.
The people have for most of the sixty years that followed, had
little participation.

B. The Beginnings of the Vicious Circle of Thai Politics

In 1947, a military coup overthrew a civilian government, and
this event marked the beginning of a vicious circle in Thai
political development that would repeat itself right up to the
last coup which occurred in February, 1991. This circle starts
with increasing public pressure on the civilian regime (normally
functioning with the approval of the military) usually fomented
by its social, political and economic dysfunction. This
dysfunction is typically exacerbated by the media reporting on
the regime's overt corruption. This in turn provokes increasing
political conflict between factions in the government coalition.
Finally in compliance with the bureaucracy, the military steps in
to restore order and establish a functional legislature, able to
pass the laws the bureaucracy has drafted. Usually an interim
constitution is quickly implemented followed by a permanent
constitution with possibly an election to create an ostensibly
civilian government. Once the government is up and running, it is
allowed a honeymoon period where everyone settles back to the
business of state affairs. But then rumours of corruption arise
yet again. And renewed social and political turmoil causes the
governmental factions to again turn on one another. And the
vicious cycle begins yet again.

C. Contitutional Components in the Equation

Constitutions have figured in this equation as instruments
drafted by the current regime, be it military or civilian, to
ensure that they retain power. The formation of an interim
constitution followed by a so-called permanent constitution, may
seem strange to a Westerner. But there have been fifteen
constitutions since 1932 and the 1997 Constitution represents the
sixteenth. While some of the essential truths of the Thai reality
have been repeated in every one of these constitutions,
especially regarding the monarchy and religion, these previous
constitutions have not been written as guarantees of the
fundamental freedoms and obligations of the people, as
constitutions are regarded in the West. They have been guarantees
that the current regime can remain in power.

D. The Student Uprisings of October 1973 and 1976

This cycle of coups, new constitutions, new civilian regimes, and
coups again, began to unravel in 1973. In October, 1973, a
student uprising took place protesting the egregious corruption
and martial law of the Thanom regime of the time. Tens of
thousands of students from Thailand's three major universities
converged on Democracy Monument in Bangkok. The uprising resulted
in the deaths of many students. A new government was formed but
unlike previous changes in the regime, this event marked a
turning point. As Wright stated: "It was the first time in modern
Thai history that the masses had rallied to take up arms against
the ruling elite and to demand a change in leadership."

The period that followed was a time of euphoria and promise. The
students and the media which had witnessed this transformation,
proclaimed the beginning of an era of mass politics. But their
shared view proved to be too simplistic. There was a wide
divergence between the Bangkok view of the uprising and its
reasons and the views from the provinces. While there were
demonstrations in towns and campuses in the provinces, agitation
outside Bangkok arose for different and even more complex reasons
than those of the Bangkok elite.

within a fortnight of the October 1973 incident, a committee was
established to draft the latest version of Thailand's "permanent"
constitution. The National Convention as it was called, dominated
by a majority of conventioneers drawn from the rural majority,
created a Legislative Assembly made up of 81% of residents of
Bangkok. This betrayed the traditional client-patron loyalty and
deference to authority which was still strong among the rural
classes and far exceeded their longing for democracy.

Over the next few years, disillusion with the change in
government began to grow among students, labour and the
newly-galvanised middle classes which had participated in the
October, 1973 uprising. It became progressively obvious, that the
new so-called "liberal" regime while replacing a rigid military
dictatorship was actually a perpetuation of control by the
wealthy elite largely centered in Bangkok. Agitation for reforms
again began to gain momentum in mid-1975. But the agitators were
no longer buttressed by the Bangkok bourgeoisie who had watched
in horror as one after another of the Indochinese governments
fell victim to communist regimes.

Two civilian governments came and went during this period. The
Bangkok elite became increasingly polarised along
rightist-leftist lines with extreme acts of violence rising in
frequency as months of unrest, spiralled toward the climax which
occurred on October 6, 1976. Dubbed the Six October Massacre ,
the Thai police and a mob of rightist gangs, marched on
demonstrators gathered at Thammasat University campus in central
Bangkok.The Thai police shot, clubbed to death and even hanged
hundreds of students. They followed this mayhem by arresting
1,700 protesters. Many of the others who had avoided death or
arrest, retreated to the mountains to mount further resistance.

E. Steps Leading to a New Order (1978-1992)

After the October 6, 1976 incident, the military stepped in yet
again to restore order. Within days the junta had installed a new
cabinet, prime minister and constitution. But that would last
only a year. Too much had changed in the preceding three years
and constitutionalism had taken root among the people. The
violence of the 1976 events shocked the nation. Although not well
understood ,even by the educated elites, the taste for mass
participation had taken hold and a return to the former ways of
rigid oppression was no longer tolerable.

A new Constitution was drafted in 1978. This marked the beginning
of an era of rapprochement with the students who had exiled
themselves after the massacre of 1976 and had joined the
Communist Party of Thailand (CPT) insurgency in the mountains.
This period was an extremely important one in the constitutional
transformation of Thailand. Wright stated it as follows: "It
marked a significant realignment in the relations between the
rulers and the ruled.Thai democracy was not born on that Sunday
in 1973 any more than it suffocated in its crib [ with the
massacre] three years later." If anything, the relationship
between the elite and the masses was clarified. They increasingly
saw their interdependence as part of the social contract that had
arisen out of the age-old Thai tradition of patronage.

The events which led up to the "Black May" incident sixteen years
later in May, 1992. certainly had their roots in the events of
the Seventies. Under the Constitution of 1978, an era of relative
moderation seemed to take hold. Although the government that
brought in this latest version, was militarily controlled, the
military had set a timetable for the eventual devolution of its
control to a truly civilian government. Nevertheless, in 1980 the
elected Parliament chose as the successor to General Kriangsak,
General Prem Tinsulanonda who was the Commander-in-Chief of the
Royal Thai Army. His ascendancy came about while the military and
civilian elites grappled with reaching compromise on
constitutionalism in Thailand.

In spite of General Prem's military connections this still did
not protect his regime from several coup attempts.From the end of
absolute monarchy in 1932 up until a coup attempt in 1981 there
had been fifteen coups, with nine of them overthrowing the regime
of the time. This hearkens back to the vicious circle mentioned
at the outset. And the question which most legal observers
continued to ask was, how would Thailand break out of this
syndrome once and for all.

General Prem survived many challenges during his term as Prime
Minister. After several years in office, General Prem became the
first military prime minister to resign his commission and still
keep his premiership. He also became the first such prime
minister to hand over his office voluntarily, to an elected
civilian Prime Minister, albeit also a former general.

The Prime Minister who formed the newly-elected government, Prime
Minister Chatichai Choonhavan would be the last Prime Minister to
be overthrown by a military coup. After barely three years in
office, the Prime Minister began a heated feud with the two Army
leaders, Generals Suchinda and Sunthorn over the armed forces
displeasure with the departure of General Chavalit Yongchaiyudh
from the cabinet as defence minister. This dispute reached a head
on 23 February, 1991, just as the prime minister was taxiing for
take-off to fly to Chiang Mai to present the credentials of his
new deputy defence minister to the King. Arrested and put under
house arrest, the prime minister was forced to step down and the
new military government abolished the 1978 Constitution. An
interim constitution, to be replaced with the Constitution of
1992, was followed by assurances by the new regime that they
would return powers to a civilian government, once order was
restored.

General Suchinda, who led the coup promised late in 1991 that he
would never seek to put himself in the premiership. But in May,
1992 he did just that. This resulted in demonstrations in around
Democracy Monument, the scene of many of the demonstrations in
both 1973 and 1976. But this time around the demonstrators were
dominated by members of the Bangkok middle classes. So much so
that the popular media dubbed it the "hand held" revolution in
Thai, referring to the prevalence of hand held mobile phones
among the crowds. The incident became known as "Black May" and
the army was brought in to crush the uprising in the heart of the
city. Only after the King intervened and called General Suchinda
to an audience, together with General Chamlong who was seen as a
key leader of the opposition, did the situation calm down. But
the main result of this incident and its aftermath was the
beginning of demands for profound political and social reform.
When calm was restored, quiet pressure began to mount to once and
for all rid the nation of the destructive cycle of coup after
coup that had characterised Thailand's history since 1947.

III. The Movement for Political Reform

A. Beginning steps

The movement for reform started in earnest in 1992 with four
amendments being passed by the Parliament after the bloodshed in
May. Two of these amendments were aimed squarely at ensuring that
what had led to the 1992 demonstrations would not be repeated.
The first required that only an elected Member of Parliament
could become Prime Minister. The second attempted to deal with
the problem of an unelected Senate, dominated by the military
clique. It required that the Speaker of joint sessions of
Parliament no longer be the Speaker of the non-elected Senate,
but rather the elected Speaker of the House of Representatives.
This momentum for reform continued through 1992.

In 1993, responding to rising public support for the political
reform movement, an ad hoc committee for constitutional reform
was formed by the House of Representatives. The committee was
empowered to deal with setting up the main issues to be addressed
in any reform of the system and came up with 45 proposed issues
to be addressed in the form of amendments to the recently created
1992 Constitution.

B. Underlying problems to be addressed by reform

1. Introduction

The initial steps toward reform were taken alongside a debate
among Thai academics, lawyers and politicians, largely centered
in Bangkok to pinpoint the problems inherent in the Thai
political culture which had to be addressed if the reform
initiative was to mean real change. The first problem has already
been discussed in the first section of this article: the vicious
cycle of civilian governments replaced by coups and the lack of
genuine constitutionalism as a result. But as the debate grew,
deeper problems were singled out as needing to be confronted.

2. Lack of transparency in Government: the problem of corruption

The first major problem which analysts agreed would require
reform was the lack of transparency in government and the
corruption that this fostered. The forms of corruption which the
reformers focused on were:

a. Vote-buying and electoral fraud

One of the primary manifestations of corruption which went to the
very heart of the political process was vote-buying and electoral
fraud. During elections, politicians have traditionally sent
their cronies out to the rural areas with bucketfuls of cash.
This has demonstrated very starkly the electoral profile of the
Thai voting public. Bangkok is important as the nation's
political capital and business center, and therefore exerts
enormous influence over national policy makers, if for no other
reason than their proximity to the scrutiny of the nation's
national media concentrated in the city. The towns are important
only because they spawn provincial leaders. Their weight during
elections is minimal. Not so the countryside where the vast
majority of Thais live.

The view from Bangkok of electioneering in the countryside is
skewed by the bias against what the urbanites see as their
country bumpkins, the lower-educated rural voters who persist in
sending corrupt politicians to the capital and in so doing, help
to perpetuate a system of patronage and corruption. This view was
presented by Christensen and Siamwalla in the following
analysis:

"Rural voters are poor and susceptible to bribery by candidates:
therefore candidates bribe voters and spend enormous sums of
money to get elected and spending more money means a better
chance of winning; therefore having lots of money, winning
candidates try to recoup the cost of electioneering; therefore
they engage in corrupt activities when they come to Bangkok, and
widespread corruption is thus explained.

While there is some truth to this portrayal, it also illustrates
the differences which divide the rural populace from their urban
cousins. First of all, Bangkok has persistently lower voter
turnout percentages than the rural areas. Citizens of Bangkok are
richer and better-educated. Criticism of politicians especially
when they are accused of corruption, is much louder in Bangkok
than the rural areas. Although the majority of Members of
Parliament come from the rural areas, they must face a barrage of
media attention, especially if they are accused of corruption. In
trying to appease the urban media, Members of Parliament often
seem to forget the rural voters' needs which can have adverse
effects on the age-old system of patronage which they were
elected to maintain.

The patron-client relationship has been a facet of Thai law since
the Three Seals Law of the last century. And this relationship
lies at the heart of politicians relationships with their rural
constituents. It is an exchange. There is an exchange. The voters
sell their votes to their candidate. By getting elected, the
candidate promises to repay the constituents loyalty with
protection. While one patron may have many clients, this does not
lessen the importance of the relationship with one client. The
patron is more powerful than the client. The relationship can
persist through many transactions or in the electoral sense, many
elections. And it is relationship with many facets. It is seldom
specialised.

b. The lack of legal measures to prevent corruption

While the patron-client relationship between Members of
Parliament and rural voters lies at the heart of the flawed
political system, the lack of legal measures within the system to
prevent corruption guarantees that system's continuity. For
example, the media often headlines yet another lavish gift given
by a prominent business personality to a Minister who holds a
Cabinet post key to the interests of that businessman. Or
commercial interests are famous for offering foreign study tours
abroad to a selected group of officials in a key ministry as a
way of buying their way to being chosen to complete lucrative
government contracts. Another example is the lack of any law
against government officials holding passive directorships in
private companies under their control. In 65 years of government
preceding the 1997 Consitution's passage, only once has there
been a Minister tried and convicted of corruption, and only
because the man who paid the bribe came forward because the
Minister did not follow through on what he had promised.

c. Inefficiency of the political and legal process in punishing
corrupt politicians

In addition to the systematic abuse this pattern of corruption
has had on the administration of government, it has also worked
its way into the very fabric of politics. When corruption rumours
reach a crescendo, which the government can no longer ignore, a
vote of no confidence is usually brought against the ruling
coalition. But when the vote is called, habitually the majority
prevails and in spite of a new coalition being established,
nothing really changes. It merely gives members of the coalition
an excuse to pull out of the coalition and maneuvre to secure a
more advantageous position in the formation of the coalition
which replaces the one previous to it.

In addition to inadequate legal mechanisms to deal effectively
with corruption in the past, the general inefficiency of the
political and legal process to cope effectively with corrupt
politicians has also been a persistent feature of the old order.
And this was pinpointed by the reformers as requiring a thorough
overhaul. It is the supreme irony that some of the most corrupt
politicians in Thailand are also its most popular. It would be
foolish to blame this on the gullibility of rural voters. A
sounder explanation is rooted in the continued viability of the
patron-client relationship, especially as it exists between the
rural electorate and its elected representatives. If a
representative continues to bring back resources from rich
Bangkok to the provinces, it does not matter to the rural
electorate if the candidate creams off a little for himself.
That's just a fact of political life.

The lack of political will to deal effectively with this problem
was rooted in the very nature of the political process that
preceded the recent impetus for reform. Until 1973, most
governments were non-elected, usually surviving under the wing of
a strong military clique. While non-elected governments have
passed more laws than their civilian counterparts, these
governments are characterised by a dirth of political debate.
Most of their members come from the bureaucracy after appointment
to the government by the military. Parliamentary debates over
laws in non-elected legislatures were suitably short because
non-elected MP's did not have to grandstand for the media. Their
popularity was not contingent on the whim of a distant rural
constituency.

3. Instability of civilian government and the inefficiency of
political institutions: the causes a. Coalition governments
guarantee chronic instability

One of the prime culprits militating against establishing
effective measures to deal with corruption, has been the
instablity of civilian government and the resultant inefficiency
of political institutions. A pattern can be seen by surveying the
list of prime ministers and the various governments they led, as
contained in Appendix __. Junta governments have been extremely
stable. Dominated by dictators enjoying the support of the
military and the bureaucracy, they have also been buttressed by
the support of relatively compliant non-elected parliaments.
Civilian governments in contrast have been very unstable. Usually
their tenure is marked by strife and factionalism, reducing their
effectiveness and ensuring a frequent turnover. For example
during the last four years, there have been four prime ministers
and seven ministers of finance.

Civilian governments have survived only as long as the coalition
dominating the House can survive. Prior to the current
government, the government of Prime Minister Chavalit had to
constantly balance the interests of six coalition partners with
many internal conflicts of interest. Each party in the coalition
wanted a piece of the action, i.e. a key ministry portfolio out
of which would flow lucrative mega-projects through which the
minister's clients would receive contracts. The conflicts this
division of the spoils generated, reduced the shelf life of
civilian governments and perpetuated the destructive cycle of
corruption and patronage. It meant that the "super-ministries",
those with the biggest slices of the state fiscal pie, are the
ones most sought after by any party participating in the
coalition, ministries such as Agriculture or Telecommunications.
When these machinations are too egregious for the public to
stomach, a vote of no confidence is the usual tool used by
coalition parties to extricate themselves from a tainted
coalition. Only in the last government of Prime Minister Chavalit
has this pattern been altered. The new Constitution of 1997
expressly prevented any dissolution and new elections, until the
organic laws enabling it, had been passed.

b. Unproductivity of the Legislative process

Elected MP's in contrast to non-elected or appointed legislatures
had little incentive to grapple with new legislation. It is an
arduous task passing laws and elected MP's have historically
betrayed a singular distaste for the law-making process which can
be seen dramatically in Appendix A comparing the volume of laws
passed by elected versus non-elected governments since 1958. With
the frequent turnover of governments through the constitutional
history of Thailand, since 1932, government has with each change
of regime had to draft a new Constitution as well as new laws.
The process of drafting 15 Constitutions up to 1992, has
certainly represented a time-consuming distraction to the normal
legislative drafting function of Thai parliament. And even that
process has been persistently inefficient, with parliament
burdened by an aricle by article approach to the burden of
re-drafting the Constitution.

III. Demands for Reform Take Shape

A. The various forces demanding change

The background to the current efforts to turn around the tide of
Thai political and legal history rises out of this vicious cycle
which is now seen as self-perpetuating as long as no substantial
reform of the system underlying it is left untouched. The Black
May incident of the 16 to 20 May 1992 provided only a glimpse of
what had to be done. The demonstrators had no agenda for change
and though the need for a radical overhaul of the status quo was
recognised, the movement lacked any depth of analysis of the root
causes of the current embroglio.

With a second new parliament in place in 1992, the reform
movement began to gather momentum. In 1993, the House of
Representatives nominated an ad hoc committee, the Constitutional
Reform Committee, specifically mandated to analyze the needed
steps for fundamental reform. While many forces were working
behind the scenes to derail this process, too much had happened
to forsake real change and revert back to the cycle of the past.
In 1995, the Constitutional Reform committee tabled a report just
as the ruling coalition of Prime Minister Chuan Leekpai began to
unravel.

2. The Committee for Developing Democracy (CDD)

The elections that followed placed Prime Minister Banharn
Silpa-archa at the helm of the new government and rumours were
rife that the new regime would try and derail the reform process.
One of the major factors ensuring that a reversion to the past
would no longer be tolerated was the emergence of powerful
interest groups largely drawn from the academic and political
community in Bangkok. Led by such luminaries as Prawase Wasi, a
well-known social activist with a nation-wide reputation for
forthrightness and honesty, the Committee for Developing
Democracy followed the tabling of the Constitutional Reform
Committee's report to Parliament by staging a nation-wide series
of public hearings to bring the people into the process. This was
a first. The hearings guaranteed that the debate was not limited
to the Bangkok cognoscenti alone. And the process de-personalised
the debate. It concentrated on issues rather than factions or
individuals. It did not limit its focus to only the contents for
reform but instead dealt with the strategies for reform.

3. Constitutional Amendment and formation of the Constitutional
Drafting Assembly

The most contentious issue that arose and provoked debate in
Parliament was the vehicle for accomplishing reform. Who would be
involved in drafting an amended Constitution? And how would that
drafting institution be created? The debate dominated Parliament
for 1995 and 1996. Accusations flew from side to side that the
other was trying to sabotage the entire reform process. But in
September, 1996, the activists prevailed with an amending process
approved by Parliament and a Constitutional Drafting Assembly
receiving approval as the way to accomplish the task. The success
of the Drafting Assembly can credited to a strong triumvirate of
reform advocates, Prawase Wasi leader of the CDD, Uthai
Pimchaichon, an ex-MP with a reputation for honesty and a base in
the provinces, and Anand Panycharayun, an ex-prime minister
well-respected in Bangkok.

4. The Drafting Process and mass participation in the process

Behind these figures stood the restive public which was
unwavering in its support of reform. Their pressure took the form
of focusing on specific areas needing reform. An Assembly of the
Poor had farmers march on Bangkok during the debate. Groups
demanding justice for loss of land because of dam construction
added their voices. Three projects were scrapped as a result of
this grass roots pressure.

Responding to this pressure and the groundswell of support for
reform, the parliament passed a Constitution Amendment Bill in
May, 1996. It provided for the formation of a Constitutional
Drafting Assembly (CDA) made up of ninety-nine members.
Seventy-six members were drawn from the provinces, one from each.
The others were experts in public law, political science and
public administration shortlisted by universities, to be chosen
by Parliament. This formula seemed to satisfy all sides. The CDA
was to conduct a survey of public opinion through hearings and
was to finalise a draft for presentation to Parliament in 240
days. If Parliament voted short of a majority, a public
referendum would be held. A simple majority of eligible voters
would be sufficient to approve it. The people had finally gained
a real place in the process.

IV. The New Constitution and its main features

A. Introduction

The task was as the Secretary of the CDA, Borwornsak Uwanno put
it "...all about decoding what the people are saying and
producing a legal document...". Working at sifting the results of
going through documents submitted by various pressure groups and
NGO's, was the work of the CDA's Public Opinion and Academic
Committees. But the Constitutional Drafting Committee (CDC) was
able to complete a draft by May, 1997. There followed a series of
"public hearings" organised by the provincial members of the CDA.
Members of the CDC travelled up and down the length of the nation
to listen to opinions on the first draft. The two stages of
public opinion gathering provided an unprecedented exposure of
constitutional issues to the public and assisted enormously in
bringing the process to the attention of a wide spectrum of the
Thai population.

B. Turning government by politicians to government by the people

After the public hearing process was completed, the CDA members
submitted their own recommendations for amending the draft
Constitution. The final draft was approved by the deadline on
August 15th, 1997.

The draft Constitution was clearly aiming at fundamental reform.
It recognised more rights and freedoms than any other previous
Constitution. It also was clear in its committment to make
elected politicians and public officials accountable. This was
designed to create greater transparency while making the Thai
political process open to more public participation. Civil
liberties were for the first time linked to the idea of "human
dignity". Slavery, and torture are prohibited. Arrested persons
must be brought to court within forty-eight hours after arrest.
The state's duty to nurture the family was affirmed. As was an
individual's right to privacy.

With the addition of many more civil liberties were added
practical guarantees to ensure that the public would have access
to the means to air their views. Access to media is guaranteed
through a number of measures including efforts to end state and
private monopolies of radio, television and telecommunications.
The state is required to provide twelve years of free education.
Other social rights included health care for the poor, pensions
for the elderly without means of support and guarantees for
accessible facilities for the handicapped.

Direct citizen participation in the political process is provided
for in a number of provisions. Fifty thousand electors can now
submit a piece of legislation to Parliament, or can ask the
Senate to remove high officials in three levels of government if
they should appear "unusually wealthy". Or in instances where
such individuals exercise their powers unconstitutionally.

C. Making government more transparent through anti-corruption
provisions

1. Anti-vote-buying measures

Compulsory voting was introduced for the first time in Thailand.
This guarantees a high turn-out which militates against buying
votes because it would require too much cash to be feasible. An
independent Election Commission has been created to administer
and oversee elections using the assistance of NGO's. It will have
wide-ranging investigative and prosecutorial powers. It can also
call for new elections. There is provision for limiting campaign
monies and providing candidates and parties with support to
guarantee fairness.

In addition to the above provisions as Jumbala describes it, a
mixed electoral system was imported from Germany for elections to
the House of Representatives. One hundred members are elected
from party lists, and the other 400 M.P.'s are chosen from
single-member constituencies The party list system is aimed
squarely at deterring vote-buying, allocating seats more fairly,
strengthening the party system and giving an opportunity for
parties to choose candidates for their knowledge and quality
rather than their electability. The single member constituency is
seen as fairer than the old multi-member method and
constituencies will be smaller in size bringing M.P.'s closer to
their constituents.

2. Anti-corruption measures

In order to address the sources of corruption in previous
governments, codes of conduct for politicians are to be drawn up
defining conflicts of interest. Parliamentarians are prohibited
from receiving state concessions or monopolies and Ministers must
transfer corporate holdings into blind trusts. An asset and
liability reporting mechanism is established for all politicians
and senior bureaucrats and a National Counter Corruption
Commission (NCCC) given the power to investigate and charge any
official suspected of being unusually wealthy.

The NCCC will have nine members nominated by the King on the
recommendation of the Senate. Their terms will be for nine years
and are non-renewable. Their positions cannot be revoked except
by a motion of impeachment initiated by one-fourth of the House
of Representatives and decided by the Senate by a three-quarters
majority. An inquiry into impeachment can be started by a voters'
petition or by the House of Representatives.

3. The institution of various control authorities

In addition to the NCCC mentioned above, which is an enhanced
version of the old Counter Corruption Commission, the
Constitution provides for a number of independent agencies to
ensure accountability. A Constitutional Court is to be
established which is empowered to deal with all laws challenged
as unconstitutional and to decide issues involving overlapping
authority. The National Human Rights Commission is to be formed
to protect and promote human rights. The Commission will have
eleven members and will be empowered to look over complaints
arising out of violation of human rights arising out of
international treaties and conventions which Thailand has signed.
An Ombudsman will be appointed with jurisdiction over
maladministration, and the power to report to Parliament on any
official's failure to comply.

Whenever an ordinary citizen has a dispute with government
officials, a special Administrative Court has been established to
deal with such matters. It also has jurisdiction of other matters
of maladministration.

D. Rendering Government more stable and strengthening political
institutions

1. Strengthening the position of the Prime Minister

In the previous regime, there was one Prime Minister and 48
Ministers making up the Council of Ministers. Under the new
Constitution, the Prime Minister and 35 Ministers will make up
the Council of Ministers. They will be collectively responsible
to the House of Representatives and remain in office as long as
they retain the confidence of the House. But they also have the
power to recommend the dissolution of the House, but no power to
recommend the dissolution of the Senate. A two-fifths vote of the
existing members of the House is required for a vote of a no
confidence debate to be initiated against a Prime Minister. Such
a motion must also contain the name of the next Prime Minister
who will replace the current one, in case the vote is successful.
This is followed by the requirement for a petition to be
submitted under Section 304 if the motion is based on charges
against the Prime Minister for unusual wealth or malfeasance
while in office. If all procedures are followed and the vote of
no confidence can proceed, a successful vote of no confidence
requires a majority of one half of the total number of existing
members of the House of Representatives. A similar process can
initiate a no confidence motion against an individual Minister
but with only one fifth of the signatures of the House members.

2. More emphatic separation of executive and legislative
functions

The previous Constitution permitted a Minister to retain his seat
in the House of Representatives and still become a Minister on
the Council of Ministers. This was pinpointed as weakening the
role of the Prime Minister and encouraging conflict among the
coalition parties. The new Constitution although permitting MP's
to become Ministers, prohibits them from retaining their seats in
Parliament. As Jumbala puts it, "This is to encourage ministers
to adhere to the conventions of individual ministerial
responsibility and cabinet collective responsibility, for they
would become ordinary citizens if sacked." Ministers can also be
drawn from the MP's on the party lists. Jumbala says, "Since
Ministers can also come from the party list, the provision stands
to be an incentive for parties to put senior party men and
competent people on the party list---party list members who
become ministers are replaced by the next on the list, whereas a
[by-election] is required for those appointed from constituency
seats.

3. Efforts to make the law-making function more effective

Due the unproductivity of the previous law-making process, the
new Constitution created several vehicles to render the
legislature more productive. Before Parliament sat for two 90 day
sessions. Under the new regime, two sessions of 120 days have
been instituted. The second of these will be devoted to the
passage of legislation, interpellations and removals from office
of public officials. Their is also provision for legislation
which is undecided when the House is dissolved, to be carried
over to the new government. All votes on bills will be open to
public scrutiny except for certain instances when secret ballots
will be mandated.

Conclusion

The new Constitution went through a rocky passage. While the
draft was tabled on time, on August 15, 1997, many of its
provisions excited widespread controversy. The requirement that
all MP's hold bachelor degrees was one stumbling block for some.
The party list system reaped the ire of the leaders of the
smaller parties in Parliament. Most criticism concentrated on the
accountability provisions and the decentralisation sections which
would have altered the powers of the village leaders. In the end,
the Chavalit government decided that if its coalition was to
survive the debate over the draft in Parliament it would have to
acquiesce to its passage. On 27 September, 1997 the draft won
parliamentary approval in a joint sitting of the House of
Representatives and the Senate with 518 votes for, 16 against and
17 abstentions. The King put his signature to the Constitution on
October 11th, 1997 and the new Thai Constitution became law.

Since its passage, the new Constitution has already started to
influence the operation of government. Most recently two scandals
involving the Ministers of Public Health and Agriculture, have
resulted in the Minister of Health resigning and possibly facing
corruption charges over inflated prices for the purchase of drugs
for the national health program. The new Charter has also become
useful for local interest groups empowered with greater control
over natural resources and the environment.

But there is still a long way to go. In order to create many of
the regulating authorities and courts responsible for
administering many of the checks and balances inherent in the new
Charter, eight organic laws must be drafted and approved by
October 11, 1999, two years exactly after the Constitution became
law. These laws must be drafted by the old regime which is
constituted under the previous Constitution. The first three have
already been approved. But the next five must be drafted and
passed by a rather reluctant forum, not very happy with the new
regime they assisting in forming. Also the old non-elected Senate
is responsible for nominating members of the newly formed
Election Commission and Constitutional Court and their
nominations have already provoked public criticism. In the next
months, nominees for the National Counter Corruption Commission
and the Ombudsman will be presented.

But the most important limitation on the effectiveness of the new
Constitution is the nature of the Thai political culture itself.
It remains to be seen whether this change in the law can alter
the historical reliance of Thais on patron-client relationships
within their political culture. It is unlikely that rural peoples
in particular will change their behaviour and no longer vote for
their patrons. Beyond the culture itself, is the issue of good
governance among corporations. If the private sector does not
comply, the eradication of corruption will be difficult whatever
the checks activated by the Constitution. The most positive
developments are the encouragement the new Constitution offers to
pressure groups and NGO's such as consumer protection and
environmental protection groups to have their opinions heard.
This hopefully will empower consumers to better deal with greedy
commercial interests, and environmental groups to push for more
sustainable resource management.
 

For more information, E-mail: torben@thai-center.dk

02. December 2004