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Nidhi Eoseewong: A Constitution for the Deep State

There is little to be gained from further interpretation and evaluation of Meechai Ruchuphan’s draft constitution. The drafters felt no need for concealment or obfuscation concerning who they want to hold power and who they would prevent from gaining power. On these points it is the clearest of any constitution we’ve ever had, so clear that interpretation is hardly needed.
 
The contents of the draft are not as interesting as are its intentions and political objectives. What conditions do the drafters, taking a broad perspective, seek to establish vis-à-vis the changes currently occurring in Thai society?
 
I address the issue drawing on Eugenie Merieau’s well-known work on Thailand’s “deep state”.
 
Concealed beneath the regular state, the deep state carries out its own operations with its own mechanisms of management and control, yet is dependent upon the functioning of the regular state. For example, it does not have armed forces of its own, but relies on the regular police and military in the pursuit of its goals. It collects no taxes directly, but specifies taxation policies and utilizes the proceeds without being answerable to anyone. The deep state does not have its own Ministry of Education but is able to dictate to the regular Ministry educational content and methods at every level.
 
The deep state does not exercise power openly. Openly exercised power must take responsibility and answer to society at large; those who exercise power openly must seek recognized legitimacy, something the deep state cannot do. The deep state consists of various groups that already hold power within the regular state. These groups cooperate under the direction of their leaders to utilize the regular state to maximize the interests, prestige and cultural capital of those leaders. The regular state floats, as it were, on the surface, controlled by the deep state hidden below.
 
Defined in this way, one might suppose any regular state anywhere would have a deep state hiding underneath. For example, however much it may be denied, large corporations in the United States have a disproportionate level of influence on regular-state policies and operations.
 
This is true, but the relations among those with unofficial power are not organized into focused entities. There are rather loose relations forming networks unable to function as a single entity pursuing unified goals. Moreover, they depend on the mechanisms and actions of the regular state, the United States of America. State officials are responsible to and must secure legitimacy from society as a whole. For example, the universal health care policies of Presidents Clinton and Obama could only be blocked through votes in Congress. Those members of Congress who voted against universal health care had to answer to the citizens who voted them into office. Their legitimacy derives from the American people.
 
Back-door influences on American politics do not reach the level of a deep state. In other words, political, economic, cultural and social entities in the United States may have sufficient strength to wield a degree of subordinate power but are not able to set up a state of their own able to challenge the authority of the regular state.
 
Many, but not all, countries have a deep state. Deep states take root only where the socio-political institutions supporting democracy are insufficiently developed. For any society, an initial transition to democracy must be followed by a second stage, the consolidation of democratic institutions, without which democracy cannot take hold. Following Thailand’s initial transition in 1932, networks of the upper classes consolidated into strong organizations forming a deep state standing in the way of democratic processes. Thailand continues to harbour a deep state today.
 
Ms. Merieau suggests that the network monarchy model of power in Thailand proposed by Duncan McCargo is an inadequate construct for analyses of Thai politics. At least since 2006, she claims, the deep state provides a better model. The difference is that in a deep state, the relationships that make up the network are more fully organized and thus do not necessarily rely exclusively on the leadership provided by the meritorious power (barami) of individuals. This is because a Thai monarch does not necessarily have as much as meritorious power as the current monarch, and Thai politics is transforming itself into a governing system by majority. 
 
Therefore, the philosophy of a deep state is that the Thai state which is above and is seen by the general public as a democracy that has elections, political parties, parliament, a free press, etc., is actually controlled by the deep state from behind the scenes. Control by an institution, endorsed by the constitution and under the deep state, makes it look like a normal democracy. Majority government from election is therefore not controlled by the majority, but is controlled by the deep state -- and the majority unwittingly knows about it, or gives consent to such a state. 
 
The recent institutionalization and consolidation of the Thai deep state is a response to the fact that it is no longer necessarily the case that the person of His Majesty the King has as much influence as does the government and to the fact the Thai political model is moving in the direction of majority rule. 
 
The deep state wants a surface state that, to most people, looks democratic—that is, it has elections, political parties, a parliament, freedom of expression and the like—but where actual direction and control resides with the deep state. The deep state must remain hidden while institutions given powers of regulation and enforcement by the constitution are in reality under the control of the deep state. What appears to be the normal functioning of a democratic state, then, limited by the will of the majority as expressed in elections, would not, in fact, be conducted under the authority and control of the majority, but rather under the authority and control of the deep state, with the majority either not realizing it or with their acquiescence. 
 
Merieau suggests that deep state efforts to create such a situation began in 1997 with the creation of the Constitutional Court as its surrogate, controlling the process while maintaining the appearance of majority rule. Interestingly, that constitution specified that nearly half of the judges, seven of fifteen, would be selected by a board of judges, the other eight nominated by a committee that included unelected members, for example, judges and university deans. The Senate, in turn would approve eight judges from 16 nominated by the committee. The Senate, which was fully elected, had no voice in selecting or approving the seven judges appointed by the board of judges. 
 
The 2007 constitution preserved the Court (as the Constitutional Tribunal under the interim constitution and as the Constitutional Court with the promulgation of the constitution itself) as an agent of the deep state. The Court began by invalidating the election of 2006 and using laws passed after the alleged misdeeds to bar certain individuals from political participation; it then removed the prime minister from office, dissolved the governing party so as to create conditions under which the electoral choice of the majority could not be implemented, barred amendments to the constitution, forced another prime minister out of office, and invalidated the 2014 election. Through this long series of decisions, the Court helped to create the crisis leading to the military coup d’etat of 2014.
 
Interestingly, Merieau indicates that in the end, both coups, 2006 and 2014, must be seen as failures of the deep state strategy of using the Constitutional Court as a surrogate, in that with a coup d’état the deep state floats up near the surface where it can be seen, although its “heroes of democracy” continue to promote their deceptions.
 
The failure of hidden, deep power to solidify control has had many causes. I describe a few of them below.
 
The deep state’s agenda has been roundly defeated in elections. We need to understand that the deep state is not a political party and its goals do not include winning elections. Rather its agenda is that no party wins decisively, resulting in coalition governments. Given that political alliances change constantly such governments are divided and weak, and that serves the deep state’s interests. Only with a weak government is the deep state able to insinuate itself into and exert control over the political process, for example through an unelected or easily intimidated prime minister. 
 
Nevertheless, in spite of massive protests sustained over several months towards the end of Thaksin’s administration, Thaksin achieved a decisive electoral victory. The Constitutional Court invalidated that election and new polls were slated for October 2006, but everyone knew that Thaksin’s allies would sweep the seats of parliament as they had before. Going forward, in spite of removing Thaksin and his Thai Rak Thai party from power and making multiple accusations against them, the deep state did not achieve its electoral objectives. Even though the 2007 Constitution was crafted to prevent any party from achieving a decisive victory, Thaksin-allied parties decisively won every election held under that constitution. Elections have been the primary cause of the deep state’s failure to achieve its objectives.
 
Nevertheless, the deep state wants elections as they are necessary to maintaining the appearance of democracy. The problem then is how to have elections such that those elections have no political impact. It seems to me that the draft constitution proposed by Meechai is an effort to resolve the conundrum. Although not as deeply clever as those imposed by military dictatorships of the past, this draft constitution solves the problem: Under it, how could any party achieve a decisive electoral victory?
 
Another cause of failure for the deep state has been that its mechanisms are not sufficiently developed to maintain control over the agencies of the surface state. Given that the agencies of the Thai bureaucracy are themselves not very effective, it is even more difficult for the deep state to control them effectively.
 
Even more importantly, the bureaucracy is infused with political influences to the extent that agencies often cannot respond very well to the needs of the deep state (which itself has internal political influences). I offer two examples below.
 
Judges on the Constitutional Court, whether under the constitution of 1997 or 2007 or under an interim constitution following a coup, who have been expected to act as agents of the deep state, are not well respected by their colleagues in their own circles. It is said that some state agencies see it as an opportunity to get rid of senior colleagues from their agencies, resulting in written decisions of the Court that are not of a quality acceptable by law professionals. We may well be concerned that such decisions will be studied by law students in the future.
 
The reasoning given for judgments, however, is as important to the deep state as are the actual decisions in that the reasoning must be sufficiently authoritative in form to be acceptable to the populace. Having an agent that is unacceptable to the people would have profoundly negative impacts on the deep state.
 
The deep state cannot do without the Army. When it fails to achieve its goals, it uses the raw power of the Army to finish the job. In the end, the Army protects the deep state, as does the Constitutional Court. The deep state consequently does not choose military commanders from among the most capable soldiers but rather from those it most trusts. As a result, the best that the Army can do is what we see here. I would suggest that this is unfortunate for the deep state as well, particularly when faced with the masses seeking a return to majority rule. On the other hand, if military commanders were chosen from a wider field of candidates, as they were from 1932 through 1963, then with bold, smart leaders they would be able to create a deep state of their own, bringing in other groups in subordinate roles.
 
There are many other internal contradictions within the Thai deep state forcing it to emerge into visibility where it must accept responsibility and seek legitimacy. It is perhaps impossible for it to retrench ever deeper, remaining invisible while manipulating the surface state to do its will.
 
I believe that we will understand Meechai’s draft constitution better by considering the problems currently faced by the deep state and seeing the draft as an effort to implement reforms through which it would avoid defeats of the kind it has suffered repeatedly since late in the Thaksin administration.