Facts are facts. On 22 May 2014 the Thai military once again assumed the leading position to shape the country’s governing structure. Any hope of a constitutional resolution to Thailand’s ongoing political conflict became counterfactual when Gen. Prayuth Chan-ocha announced he was seizing power from Thailand’s elected government and suspending the constitution.
In a televised address one week after the coup, Gen. Prayuth promised the Thai public that “a general election” would eventually be held following a year or more enacted reforms. With the world watching, Prayuth also announced that such an election would be “under an absolute democratic system that is acceptable to all sides.”
So, “political reform before election” appears to be a fait accompli, at least as long as military force and its threat persist as effective tools of political control. A regime of compulsory silence now governs the country. And for all the clamor and talk of its possibility, “civil war” remains unlikely because only one side is fully armed. The lessons of May 2010 reverberate loudly to coup opponents –wrist rockets and bottle bombs are risky bets against the firepower of a modern military. Only an unexpected and dramatic split within the ranks of the military would create the possibility of civil war at this point.
Leaving aside the many questions about how the military will govern the country and conduct policy during its regime, Gen. Prayuth’s goal-oriented pledges raise serious concerns about the future of civilian government and democratic politics in Thailand. Because Thailand’s next election will be held after enacted political reforms, it is time to ask some questions about those intended reforms.
The following seven questions are posed to Thailand’s coup leaders. I submit each in a civil tone without cynicism or guile. Each question is followed by brief commentary to clarify why concern is justified. Inspired from Thailand’s past experience with civilian rule, the questions and commentary are offered in the context of many widely-accepted imperatives of constitutional democracy.
Thais and members the international community alike must now hold Thailand’s military government accountable to its own timetable and own reform goals to restore an “absolute democratic system” to the country. Throughout the coming months, answers to each will be revealed in unfolding initiatives, directives, and actions of Thailand’s new authoritarian command. My intention is to revisit these questions again on 30 May 2015, one year to the day when Gen. Prayuth made public commitments to hold new elections and restore democratic rule to Thailand.
Question 1. How do you plan to draft and legitimize Thailand’s nineteenth constitution?
Thailand has adopted and scrapped eighteen constitutions. Given past failures, what confidence should Thai citizens or the international community put in a nineteenth constitution to produce fair and stable democracy? For it to have any hope of success and durability, it will need to be drafted and adopted legitimately. Looking to the recent past, there seems to be two basic models to attempt such legitimacy. Which one will the 2014 process follow? Or, will the process be entirely different?
One model is the open and inclusive process used to draft and win public support for the 1997 “People’s Constitution,” the most democratic constitution in Thai history. That process was supported by the Chuan, Banharn, and Chavalit governments as well as the influential Dr. Prawase Wasi. It ultimately produced a full-blown Constitution Drafting Assembly (CDA) in 1997 that deliberated and drafted a new constitution in a fully participatory manner previously unknown in Thai history.
The 99-member CDA included 76 representatives indirectly elected by Parliament from nominee lists provided by each province–thus each province enjoyed representation. The remaining 23 CDA members were also selected by Parliament from nominee lists of legal and administrative experts submitted by universities and bureaucratic agencies. During its nine months of formal deliberation, the CDA invited public participation and encouraged input by civil society organizations. The “People’s Constitution” eventually passed Thailand’s Parliament with 578 votes in favor, 16 against, and 17 abstentions–an overwhelming result due to is open, deliberative, and inclusive drafting process.
The other model of constitutional reform was used recently to create the 2007 Constitution, a process made necessary by the abrogation of the once praised “People’s Constitution” during the September 22, 2006 military coup. The drafting process this time was led by the military and far less inclusive that the participatory model used in 1997. Drafted hastily by select appointees of the coup-backed government, the 2007 Constitution struggled to achieve legitimacy and barely passed a national referendum under the ominous threat of continued military rule if it failed.
To draft the nineteenth constitution, the 1997 model seems impossible to follow given that no elected parliament exists to vet, elect, or legitimize a new constitutional drafting assembly. Yet, at this point Thai political history, it would seem impossible to build a “democratic system acceptable to all sides” if its basic law is yet again drafted solely by military appointees. A more inclusive and participatory process than in 2007 is essential.
Question 2. In your view, what percentage of seats in Thailand’s next parliament should be appointed versus elected?
In recent years numerous proposals floated by anti-Thaksin groups recommend Thailand create a new legislature designed with fewer elected seats. Some proposals advocate a parliament where appointed seats outnumber elected seats in the lower house. Some vocal groups have gone so far as propose that country’s national assembly be comprised of a 70:30 split between appointed versus elected seats, respectively. Given that such a system would not constitute a democracy, how does the military intend to manage competing desires between a minority of Thais who crave an undemocratic, appointed legislature versus the majority electorate who expect (minimally) that Thailand’s lower house remain fully elected?
Relatedly, Thailand’s post-coup history dating back to the 1970s includes periods when political parties have been banned and chief executives gained appointment through the king or his designees. Should Thai citizens be concerned that a resumption of such undemocratic practices is on the horizon? Will political parties again freely compete for legislative seats in the next election? Will Thailand’s chief executive be a prime minister elected from among the majority coalition of Parliament? Will political reform challenge the one-person, one-vote principle?
Question 3. How do you define democracy?
Thanks to the widely-accepted work of American scholar Robert Dahl, political scientists have long distinguished “procedural democracy” from “substantive democracy.” The question is which of the two Thailand’s reformed political system will aspire to achieve? To aspire to achieve both is admirable. However, only one, procedural democracy, is possible to achieve.
Procedural democracy includes the set of minimum procedures associated with democratic practice: constitutionally-based representative government, free and fair elections, and full civil liberties including the freedom of information, the right to political association, and the right to criticize government and society without fear of official sanction.
Substantive democracy, by contrast, is defined by wholly democratic outcomes politically, socially, and economically. It is sometimes called “ideal democracy.” No modern democracy to date has yet to fully achieve substantive democracy. The consolidated democracies of the world are all procedural democracies. (Try it out: Can you name a single successful democracy where the equality of outcomes is assured by democratic processes?) Longstanding procedural democracy usually brings societies closer to substantive democracy but the two are distinct and only the former is possible to objectively achieve. Neither military praetorianism nor endless rounds of “political reform” will ever bring about “absolute democracy” in Thailand or anywhere else. Both coercion and idealistic expectations of democratic perfection harm the consolidation of procedural democracy.
Thus, any political reform effort in Thailand that sets substantive democracy as its measure of success is bound to failure. Democratic societies accept the results of procedural democracy. These results may not always be equal or fair and invariably involve winners and losers, but the outcomes in procedural democracies are legitimate. They are acceptable to citizens because they can seek remedy to injustice and inequality through free institutions, elected governance, and impartial courts.
Thus, democracy is not an outcome; it is a process designed to peacefully manage political conflicts derived inevitably from inequities inherent to large-scale societies and government action. It requires good winners and good losers and unbiased referees who follow legitimately established rules.
Question 4. Should Thailand embrace “rule by law” or the “rule of law”?
The “rule of law” does not exist in a society until all individuals, groups, and institutions are subject to the constraints and limits of basic law. Constitutional democracy is the “rule of law” because no actor enjoys authority beyond what is defined by constitutional procedure. Societies governed by the “rule of law” resolve major political conflicts constitutionally, every time.
By contrast, “rule by law” exists when certain leaders, often self-appointed, assume authority to make laws by decree or demand rigged legislatures to do their bidding. Thailand’s frequent suspension of constitutional procedures, its constant drafting and re-drafting of basic law, and the failure of electoral and policy losers to submit to constitutional-correct strategies to change outcomes renders Thai society closer to the “rule by law” than the “rule of law.” In one of its most insidious forms, “rule by law” is employed strategically over time by powerful actors to prevent the “rule of law” from ever constraining their interests.
Question 5. Will you invite international observers to monitor Thailand’s next parliamentary election?
Claims of campaign violations and electoral fraud have long troubled Thailand’s elections. However, the current system of court-ordered removal of parties, politicians, and cabinet members–often long after elections–has been ineffective. Instead, it has politicized judicial institutions and contributed to greater polarization of Thai society. It disrupts the work of Parliament, outrages voters, and creates political martyrs. Political parties disbanded by courts simply reconstitute under new names and the politicians forcibly removed or barred from politics still influence their political networks behind the scene as phuuyai.
It seems one way to increase confidence in the electoral process and settle debate over foul play is to invite impartial international observers to monitor campaigns and polling. The international community, of course, has a long record of assisting countries seeking to legitimize election results to ensure robust and democratic outcomes. Given the endless claims alleging electoral fraud and the long tail of consequences that accompany those claims, subjecting Thai elections to greater international scrutiny could not only legitimize and identify violators but could further incentivize parties, candidates, and the Election Commission itself to conform to global standards of democratic practice.
Question 6. Would you agree that the time is now to give legal definition to the terms “parliamentary dictatorship” and “policy corruption”?
When parliamentary governments do function in Thailand, accusations of “parliamentary dictatorship” and “policy corruption” regularly surface by government opponents. Thailand would benefit constitutional or legal definitions of these terms so such claims can be measured against established criteria. Alternatively, these terms should be perhaps scrapped from official lexicon altogether. In the Thai case, it is clear that allegations of parliamentary majorities acting “dictatorially” is a politically consequential act–it has become a powerfully notion used to justify military coups and suspend constitutional democracy.
In accepted democratic theory, parliamentary supremacy is the hallmark democratic value of parliamentary systems. The ability for the governing coalition in a parliamentary system to pass legislation over the wishes of the elected minority is not akin to dictatorship, but the very essence of majoritarian rule. The idea of a “parliamentary dictatorship” thus could only be legitimate if the ruling parliamentary majority willfully and explicitly exceeded its constitutional authority or otherwise abused its powers through illegal actions. Even then, when bad behavior is authentically proven and properly adjudicated it could simply be deemed “unconstitutional” or “illegal” and then dealt with constitutionally. There would thus be no need for the politically dubious term “parliamentary dictatorship” at all.
Similarly, allegations of “policy corruption” should be weighed against some clarified legal definition or standard criteria of what this term actually means. While graft, embezzlement, bribery, and other forms of official corruption are clearly intolerable and demand oversight and constitutionally-proper adjudication, the practice of democratically elected majorities rewarding political constituencies and supportive districts with favorable legislation is not “policy corruption” but a long accepted product of representative democracy.
Question 7. Are all Thai citizens politically equal?
This last question may be the most important one. Alexis de Tocqueville, the nineteenth-century foreign observer of American democracy offered many profound conclusions about stable democratic governance. Within his canon of work–writings to allay the fears his fellow French aristocrats harbored toward democracy–Tocqueville observed that successful democracies assume people are “born socially equal, instead of becoming so.” In other words, political equality through citizenship is granted at birth; political rights do not come from family name, place of residence, education levels, or occupational role.
The triple mantra of “liberty, equality, and fraternity” used by French masses during Tocqueville’s time grew from lower class indignation to the social and political superiority assumed by an aristocratic class resistant to popular democracy. That Thailand’s pro-democracy protestors now adopt the same slogan by flashing a three-finger gesture is significant.
If indeed the military’s intention is to create an “absolute democratic system that is acceptable to all sides,” then it really has no choice but to accept political equality and the full range of civil liberties that stem from it. It must accept that all Thai people are “born socially equal.” Any political inequality engineered into a reformed system should be rejected as undemocratic. Moreover, the responsibility to ensure social order does not justify any discriminatory application of political freedoms and civil liberties as long conformity to democratic practice is claimed.
Democracy is indeed more than elections. Even as it guarantees the one-person, one-vote principle essential to elections, democracy must assure that all citizens enjoy the same free access to political office, to information, to assembly, and to political speech, as well as to habeas corpus and due process. If such rights cannot be infringed by parliamentary action, then they neither can be violated by military decree, bureaucratic action, court order, or any other form of “rule by law.” Under the rule of law, such rights are sacrosanct and inviolable.
Dr. Robert Dayley is Professor of International Political Economy and Asian Studies at The College of Idaho in the United States