Rather than acting for the people, Thailand’s latest constitution drafting committee are the junta’s loyal servants, writes Khemthong Tonsakulrungruang.
Thailand’s 1997 and 2007 constitutions both contained elaborate protections for the rights and freedoms of the people. The 2016 draft constitution represents a major overhaul in the in this area, often for worse. Meechai Ruchupan, the President of the Constitution Drafting Committee (CDC), has chosen a different path from his predecessors.
The most striking change is the general provision for the restriction of rights. Normally, rights can be restricted only if the constitution has providedn explicit written ground for it — for example, concerns over public health, national security, or public morals. But the new draft allows the government to restrict rights and liberties even when the constitutional text is absent, provided that such restriction complies with the rule of law.
By citing the rule of law as a justification, the draft has broadened the government’s power beyond any imagination. However, the rule of law has never been concretely defined in Thailand. In the past, there are records of this term being abused to harass political enemies.
The draft imposes more restrictions on freedom of expression, under the broad idea that the expression shall not lead to hatred or division within society. Controlling hate speech is an admirable endeavour, long overdue amid Thailand’s conflicts. But how this new clause will play out in the country known for double-standards remains to be seen. Moreover, according to the new draft academic freedom, for the first time, must not be run contrary to citizens’ duty or public morals.
The draft’s stringent standards have severely limited political rights. The CDC demands that an MP must truly be the representative of the people and an honest man. A candidate must gain more votes than votes of abstention to win an election. Otherwise, that election is void. A re-election shall be held, but candidates of the first round will be disqualified. In the case of suspected electoral fraud, the Election Commission can ban that candidate for a year. If a candidate is found guilty, a ban from politics is extended from five to 10 years. Under this constitution, the life of a politician can’t be more perilous.
Less obvious is freedom of religion. While the draft recognises religious freedom for people of all beliefs, as always, the duty of the state has changed tremendously. Instead of promoting religious unity among Buddhism and other religions as the 2007 constitution did, the 2016 draft mandates the government to protect Buddhism from all forms of threats. Although the protection of religious freedom remains intact, the shift in religious policy should be red-flagged as it indicates less tolerance and more influence for radical Buddhist groups.
Absent as well is the right of individuals and communities to conserve a healthy environment. One of the most effective mechanisms of the 2007 Constitution, this right provided the ground for local communities to participate in the deliberation of policies that might be harmful to their well-being. Large-scale constructions had to carry out health studies and environmental impacts before they commenced. This clause did have any bite because it enabled individuals and communities to petition directly to the court and several projects were halted.
The 2016 draft does not recognise this right. Although the state still has the duty to exercise diligence in carrying out any project that might impact people, it is not the fundamental right of the people. It is not clear what this change means, but the level of protection is obviously reduced. The channel for direct petition to the courts is also taken away.
One improvement might be an upgrade of the National Human Rights Commission (NHRC). The NHRC was created by the 1997 constitution as an independent agency but was downgraded in the 2007 constitution into the category of “Other Constitutional Agencies.” Meechai has returned the NHRC’s independent agency status.
But the body has the duty to defend the country in case a human rights report concerning Thailand is inaccurate or unfair. This new addition makes the NHRC more like a mouthpiece for the regime than a safeguard.
The CDC has also stood firm on not adding sexual orientation to the constitution’s equality clause. The previous draft claimed it was huge progress in LGBT rights when it decided to prohibit discrimination on the ground of sexual orientation. However, the term was taken down in the final draft of 2015, a disappointing defeat for LGBT advocates who saw the move as the triumph, again, of the conservatives.
Despite his protests, Meechai deserves his reputation as the junta’s lawyer.
Drafting committees for the 2007 constitution and the 2015 draft both expanded the protection of rights and liberties. This expansion was intended as a compromise. Previous drafters all hoped that more rights and liberties would appeal to wide array of interest groups including environmental, consumer protection, and energy activists to overlook an undemocratic or unstable political system.
But, Meechai has made no attempt at compromise. His draft accurately reflects Prayuth Chan-Ochan’s vision of how to run Thailand successfully. Economic growth is the priority so rights and liberties are considered an annoyance. Environmental protection must go. Dissent is not welcome. Academics are suspected of instigating the younger generation to rebel against the establishment so they shall be suppressed too.
For Prayuth, obedience is a virtue and strong government with full discretion is necessary. Ironically, this idea of government is contrary to what the draft constitution has designed the next government to be — a weak institution suffering heavy oversights.
Thailand’s junta does not seem concerned about a supposed referendum and its dwindling alliances. All mechanisms are work in unison to coerce approval. The Election Commission is planning to register persons who wish to campaign for or against the draft, probably for future prosecution.
Prayuth has already expressed his wish that the public accept the draft. Too vocal politicians were summoned for another round of attitude readjustment. Meechai threatened that any parties which contributed to the rejection of the draft shall be held liable. Obnoxious and condescending, he also reminded the public that this was not the worst yet for he could be harsher.
Drafting a constitution is all about power sharing. Unfortunately, all too often in Thailand the people are not involved in this process, and power is only shared by the military, technocrats, bureaucrats, judges, and business corporations. Meechai might be a loyal lawyer. But his loyalty extends only to his master, not the country as a whole.
About the author: Khemthong Tonsakulrungruang is a constitutional law scholar in Thailand.