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Can Thailand end its 80-year search for constitutional order?

Can Thailand end its 80-year search for constitutional order?
Published 11 Mar 2014 

General Prayuth Chan-ocha, the head of the Thai Army, having just three days earlier urged all parties to act within constitutional limits, on 28 February hinted at the possibility of resorting to 'a special method' to resolve the political crisis in Thailand, now in its fourth month.

He declared that 'one can envisage that the situation might end up with a coup…I admit it would not be legal. But every coup is meant to end a crisis.'

General Prayuth's declaration is doubly significant. First, it makes clear that the army, or more specifically its upper echelons, still envisages its role as a central force in Thai politics. Like its counterparts in Myanmar and previously in Indonesia, the army sees itself as the custodian of national unity. Second, it once again demonstrates that there is scant regard on all sides for constitutional rule and thus the foundations of the rule of law. Both of these factors have been permanent features of the modern Thai political system.

One way at looking a the evolution of Thailand since the end of the absolute monarchy in 1932 is to see the last eighty years or so as a constant search for a political framework (and social contract) capable of ensuring Thailand's sustainability as a unitary state. Eighty years to a century is a similar time-frame to that required after the French Revolution of 1789 for a stable (republican) system to be put in a place, or for the Britain to establish a parliamentary system based on universal suffrage.

In Thailand, the absolute monarchy was shoved aside in a bloodless military coup in 1932. Since then Thailand has experienced at least another ten coups, the last being in September 2006 which saw the overthrow, six months after its re-election, of the government of Thaksin Shinawatra, elder brother of the present caretaker prime minister, Yingluck Shinawatra.

Successful military coups (ie. those with the blessing of the monarchy) have become the circuit breakers in Thai political life, allowing one part of the elite to take over from another while preserving the class interests of the Bangkok establishment. [fold]

In a largely Buddhist society impregnated with the notion of merit and the custodians of merit, government by the virtuous is legitimate. And since popular elections offer no guarantee that the virtuous will triumph (as recent Australian experience demonstrates), the discarding of representative democracy is tolerated if it achieves good governance. (If such a view appears overly culturalist, recall that in 2012 Italy too appointed an interim government of respected technocrats to help rid Rome of its Thaksin equivalent, Silvio Berlusconi.)

Suthep Thaubsuan, leader of the People's Democratic Reform Committee, said in a speech on 3 March that he was a 'medium who incarnated the people's aspirations'. Suthep's sense of his own virtuous self-importance has grown over the last four months in inverse proportion to the number of anti-government demonstrators and of decline in the funding provided by the Bangkok business community.

Government by self-appointed virtuous leaders without a stable legal framework and the consent of the governed is, to say the least, problematic, and at worst, prone to abuse. Since the end of absolute monarchy in 1932, Thailand has had nineteen constitutions. If the anti-government protesters achieve their aims through provoking, once again, a military or judicial coup, then one would expect a twentieth (interim) and then a twenty-first constitution to be put in place. One does not have to be a Tea Party nutter who believes that the US Constitution was dictated by God to feel that changing constitutions as if they were nappies is neither conducive to effective rule nor, more importantly, to obtaining the consent of the governed.

Thai constitutions have been drafted, discarded and redrafted to serve the interests of competing political elites. This was not always the case.

I remember vividly in Bangkok and in Chiang Mai in 1997 sensing the excitement of electing a Constituent Assembly and then the enthusiasm with which the People's Constitution of that year was greeted. With its multiple safeguard clauses, the 1997 constitution was designed to encourage programmatic party politics, as opposed to the clan-based neo-patrimonial politics of the past, and put in place an elected Senate to reduce the power of Bangkok. Alas, it led to the populist political party of Thaksin Shinawatra, with its power base in the north and north-east, receiving in 2001 an absolute majority in the lower house of parliament, for the first time in Thai history.

When there can be no agreement on a fundamental constitutional document and, above all, on the social contract it expresses, then the parameters of political action and political debate are lacking. In contrast, in neighbouring Malaysia there is an arduous debate occurring on the question of Malay supremacy, but at least the various protagonists in this debate agree that there is a need to look at both the letter and the spirit of the Merdaka constitution.

The lack of agreement on the 'rules of the game' in Thailand has been exacerbated by decreasing trust in the institutions designed to act as the neutral referees such as the Constitutional Court, the Election Commission and the National Anti-Corruption Commission. They are seen to have been co-opted by both Thaksin and his opponents to pursue their own elite interests. For example, charges in the Anti-Corruption Commission against Yingluck Shinawatra for dereliction of duty in the rice-buying scheme have been fast-tracked, with her needing to answer those charges before mid-March, while charges against members of the previous Democrat-led government have been held in abeyance since 2010. In September 2008 the Constitutional Court famously dismissed Prime Minister Samak Sundaravej, a member of Thaksin's party, for hosting a TV cooking show.

One final point needs to be made. The anti-government protesters and the military both claim to be ardent defenders of the Thai monarchy. Yet with the constant debasing of the rule of law (that is, the constitutional part of constitutional monarchy), they run the risk of weakening the very institution the claim to protect.

Thailand's cult of the monarchy, created after World War II by the military leadership with some prompting from the CIA, could ultimately be counter-productive. Making the monarch the ultimate source of legitimacy has been successful because King Bhumiphol has been astute, respected and credible in the role of paternal authority figure above the fray. But if his successor is incapable of performing that role, then the unresolved questions of legitimacy and an inclusive political order will once again be posed.

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