In order to understand why the National Council for Peace and Order (NCPO), formal name of the Thai junta, chose to stipulate that the draft constitution be passed by a referendum, we must return to the first period after the coup.
The soldiers who fomented the coup realized that they would face opposition. They were especially aware that hardcore red shirt groups would oppose the coup. So the anxieties of the soldiers honed in on armed resistance rather than demonstrations. They dispersed demonstrations as part of their duties before they announced the seizure of power. Then, during the first period after the coup they dedicated themselves to seizing weapons and putting individuals they believed to be leaders of armed opposition out of commission. But the Thai military has never been very good at collecting intelligence. They did not intercept any armed uprisings and their actions looked absurd, like the Khon Kaen Model case and the case of Khun Kritsuda.
The soldiers failed to imagine that there would be opposition by a not insignificant number of middle-class people. These are people who are not part of red shirt networks. They live in the cities and access the media. Some joined the opposition directly and others accessed it through joining activities reported on by the media. The number of those who came out during the first demonstrations, including those who went to the Victory Monument and raised three fingers in protest and those who went to protest at McDonald’s near Ratchaprasong, was much higher than that anticipated by military intelligence. The NCPO failed to fathom how much energy and fortitude the middle class has for protest.
Further, since middle-class people have relationships with those at a higher level than red shirt villagers, their protests take place in view of the national and international media. This then places limits upon the NCPO’s use of force against them. For example, the military cannot surround and massacre the middle class the way they suppressed red shirt protestors in May 2010. The NCPO has therefore chosen to extend the law in excess of the text to arrest and detain those they think are the leaders of these opposition groups.
The reaction of the Western world has also been stronger than the junta and their followers were able to anticipate. The NCPO anticipated that the Western superpowers would have to express a stance against the military coup. For many, their laws compel them to do so. For countries without such laws, taking this position benefitted them with respect to the politics of international relations. But if it was only this, then the NCPO could take it, just as the junta did in 2006.
But whether it is because the NCPO used harsh measures in beating down their middle-class opponents (the junta declined to do so in 2006) or because supporting democracy in the region is in the political interest of the superpowers, the West’s reactions to the military coup have been sharper than they were in 2006. Their criticism has been more direct and they have chosen to apply sharper pressure. The NCPO also made a significant error in supporting the expansion of China’s influence in Thailand, which in turn forced Western superpowers to further increase their pressure.
These are the circumstances under which the NCPO stipulated that the draft constitution be approved in a referendum before entering into force. If the people give a seal of approval to the constitution, the pressure from outside will have to immediately dissipate. If the Thai people accept the constitution, expressing concern ceases to be the business of the superpowers. Simultaneously, this would deprive the domestic opposition of nearly any standing. If the majority of Thais accept the constitution, then this will indicate that the opposition is in the minority. This will be particularly the case for the Pheu Thai Party, which will sacrifice a place in a democracy and they will lose their political standing as well.
In sum, the decision to hold a referendum was a political one from the very beginning. The NCPO made the decision with the hope that it would be politically beneficial for them.
Nidhi Eoseewong, a prominent academic, joins the campaign for a ‘No’ vote in draft charter referendum at Chiang Mai University (source: LACMUD’s Facebook page)
Although I possess no evidence to confirm this, I have significant doubts that the NCPO’s only political intention in deciding to hold a referendum was to foreclose their “enemies” from gaining political power. In other words, they do not only aim to keep Thaksin and his followers from securing political power. The “enemies” who fill these soldiers with dread and anxiety were not particularly numerous during the first period after the coup. Therefore, the first constitution that was drafted was not so distasteful that it would fail. At the very least, various political parties, perhaps even including parts of the Pheu Thai Party, would have assented to it in the interest of moving towards elections.
But as the NCPO has remained in power, rather than expanding their network of friends or turning enemies who are not followers of Thaksin into their friends, they have done the opposite. Their enemies increase daily. Their enemies now include even those who used to be their friends and used to support military coups. Their former friends have withdrawn their support. Some have proclaimed themselves as enemies of the NCPO and some simply stand idly by.
This quickly shrinking base of support and the increase of non-Thaksin-connected “enemies” means that the NCPO does not know how they are going to exit power. It is no longer enough to simply keep Thaksin outside the country. If the NCPO’s crimes can be erased with the passage of an amnesty law, the amnesty law can vanish with the passage of another law revoking it (such as the proposal of the Khana Nitirat to make the 2006 coup “null and void”). A transformation such that laws cannot be bound in place in perpetuity has taken place in Thailand, especially with respect to laws made by a junta. An increasing number of people in the country view the sanctity of law as being constituted by more than simply being printed in the Ratchakitchanubeksa [Royal Thai Government Gazette, a record of all of the laws, orders, and other related instruments enacted.—trans.]. The importance of the process by which laws are enacted has increased in the eyes of many. (To put this in the language of the common people: it is not enough to hold power, one must also have legitimacy. This is perhaps one of the legacies of the yellow shirt movement.)
This may be the reason why the constitution drafts, promoted from behind the scenes by the NCPO, grew in respective ruthlessness from the draft of Bowornsak Unno to that of Meechai Ruchuphan. The increased starkness is also evident in the inclusion of proposals made by the NCPO itself and the accompanying questions from the satellite branch of the NCPO in the National Legislative Assembly in the current draft.
Those with legal knowledge can offer many reasons why this constitution should not be accepted with respect to both the terms of constitutional law and the structure of power that will result from the enactment of this constitution. I do not have anything additional or better to offer. I simply want to point out that this referendum is the “politics” of the NCPO and the draft constitution is the “politics” of the NCPO.
We, as the people [of this country], who hold the right to vote in the referendum for the political reasons of the NCPO, should therefore enter the polling booth with the political thinking and understanding of the people and the country.
A constitution that does not take the political interests of a given side into consideration at all does not exist, even among those that have been drafted well. How long this constitution will be around will depend on how long Thai society will allow the junta to “remain at large.” [Note: Ajarn Nidhi uses the word “ลอยนวล,” in Thai, which is a compound word which means to get away with something wrong without punishment or to operate with impunity.—trans.]
Society includes many groups of people from many backgrounds and with many kinds of imagination. Conflict is therefore natural in human society. If we allow a group to form that uses force to tear up the rulebook to which we have agreed to get away with doing so, then we are a society without a future. He who has held the upper hand will hold the upper hand in perpetuity. He who has been disadvantaged will be disadvantaged in perpetuity.
A society without justice and without the energy to fix or transform anything using the intellect and knowledge of the people is a society of drudges that cannot go anywhere except backwards.
On 7 August, we will walk into polling booths with full political consciousness in order to transform the future of the country. We will create a society with justice and a society in which people can hold differing opinions built on our wish for the productivity of such a society. We will do so for our own children and grandchildren.
With political consciousness and understanding, we will walk into the polling booths on 7 August for the children and grandchildren of everyone in the country.
This article was originally published in Thai in Matichon on 1 August 2016 (นิธิ เอียวศรีวงศ์, “การเมืองของประชามติ”) and was translated into English by Tyrell Haberkorn.