Allen Hicken looks at how the new charter attempts to fight vile and venal politicians, much like an infectious disease.

Thailand is once again considering a controversial new constitution.

The nation’s two largest political parties have each condemned the draft charter as an attempt by the military to extend its time in power. Meanwhile, the ruling National Council for Peace and Order (NCPO) has all but banned criticism of the draft, even as it gears up for an aggressive nationwide pro-draft campaign ahead of an 7 August referendum.

The draft (available in Thai here) reflects a widely shared view among Thailand’s conservative elite regarding the problems at the root of recent political crises. This new charter can be read as a response to a two-fold diagnosis of what ails Thai democracy.

First, political parties have been too large and too strong. Second, ignorant voters keep electing “bad people”. Given this diagnosis, the new constitution is designed to provide the appropriate treatment by fragmenting and weakening political parties, and minimising the power of elected politicians.

The first complaint is that democratically elected governments since 1997 have been too powerful. Specifically, the ruling party has been too big and too strong, leading to a “parliamentary dictatorship” or “tyranny of the majority.” The drafters appear to be using constitutional reforms to try and re-fragment the party system and ensure that no party ever again captures a majority. The primary means for doing this is changing the electoral system from a mixed-member majority system to what is being called a mixed member apportionment system (MMA).

Together with Bangkok Pundit I’ve written elsewhere about the effects of a switch to MMA. In brief, the big winners from the change are likely to be medium-sized parties like Bhumjai Thai and Chart Pattana Pheu Paendin. Pheu Thai, on the other hand, would be the big loser. Under our simulation Pheu Thai goes from a 53 per cent majority of seats to only 45 per cent of the seats, making coalition government a necessity and opening the door for someone from a party other than Pheu Thai to become Prime Minister.

In addition to trying to re-fragment the party system the draft appears designed to weaken political parties and the connections between parties, voters and candidates. For example, with the switch to MMA the constitution removes the ability for voters to cast a separate party list vote–an act that has helped voters to think about parties, not just candidates. And most controversially, the draft once again opens the door to a non-elected individual to become Prime Minster (more on this below).

Let’s turn to the second diagnosis: ignorant voters keep electing “bad” politicians. The fundamental problem with Thai democracy, according to many of the ruling elite, is that ignorant, backwards, immoral voters (particularly from the North and Northeast) keep electing the wrong people. These bad people then come into office and (predictably) make a mess of things. The reason that these voters keep voting for the wrong side is traced back, in this line of thinking, to their lack of knowledge–their ignorance. This oft-expressed sentiment was most recently given voice by Prime Minister Prayuth Chan-ocha during his New Year’s speech:

Do gardeners working outside of the Parliament’s building or farmers know anything about democracy? Of course not…Don’t talk to me about citizenry. Those people only go to vote because they were paid.

Given these attitudes, it is not surprising that the junta has placed so much emphasis on re-education. These efforts come in a variety of forms, from the frequent (and now expanded) use of “attitude adjustment” for regime opponents, to the promotion of Prayuth’s 12 Core Values, to the campaign to teach citizens about the virtues of the new charter while prohibiting any public discussion of the draft.

But despite its best efforts, the junta is learning that re-education is much harder than anticipated. The NCPO seems genuinely surprised and puzzled that people still disagree with them, even after all the their efforts to help people come to a “correct understanding.” Deputy Prime Minister Prawit Wongsuwan recently lamented the slow progress towards attitude adjustment, noting that those who underwent sessions still “expressed their thoughts.”

So, the draft charter contains a back-up remedy, just in case the junta can’t induce voters to vote correctly: namely, containment.

The drafters of this constitution seem determined to go much farther than their predecessors were willing or able to in 2007 to try and contain or put a hedge around the power of elected politicians. The idea is to circumscribe the power of elected politicians while putting more power in the hands of “good people” (almost by definition, unelected people).

The keystone of this effort is the 250-seat Senate. Under this draft the Senate will be a completely appointed body with six seats reserved, ex-officio, for: the commanders of the army, navy, air force, police; the armed forces commander-in-chief; and the permanent secretary of the Defense Ministry. When combined with the 500-seat House this means that a third of the Parliament will be populated by people chosen by the junta.

In addition, this unelected Senate will enjoy unprecedented powers over the elected government, including the responsibility to ensure that the junta’s reform agenda is carried out by its elected successor. Under the charter the cabinet is required to report to the Senate every three months on the progress of reforms. The Senate is empowered to speed up the process if they deem progress unsatisfactory.

If both questions posed to voters in the August referendum pass, the Senate will also play a role in selecting the prime minister. Interestingly, in the original draft the Senate only participates in choosing a prime minister if the parties in the House cannot agree on a candidate. However, this was not enough for the junta-appointed National Legislative Assembly, which passed a resolution adding the following question to the August referendum.

In order to ensure continuity in the implementation of national reform under the national strategy during the five-year transition period, do you agree that a joint sitting of parliament should be allowed to vote to select a prime minister and that this should be included in a provisional clause [of the draft charter]? [Official English Translation].

If passed, this would give unelected senators the power to join with MPs in choosing a prime minister right from the start. Under this rule a party would need to secure 376 votes in order to select its candidate for prime minister (Pheu Thai captured 265 seats in 2011). In practice this means it would be very difficult to select a prime minister that the military doesn’t approve of.

In addition, the five-year transition period means that the Senate will be guaranteed a role in the selection of at least two prime ministers. The motive behind giving the unelected Senate a role to play in selecting the prime minister is spelled out clearly by NLA member Wanchai Sornsiri: “Senators can help screen out not-so-good or not-so-intelligent persons. At the same time, they can help support a good prime minister who in the past was usually not elected or toppled by street protests.”

The Senate is just one part of a multi-pronged strategy to ensure rule by “good people”. Other provisions in the charter include:

  • A constitutional obligation for elected government to carry out policies and reforms begun by the NCPO.
  • New restrictions and oversight on government spending.
  • A Constitutional Court with more authority to intervene in the political sphere.
  • A byzantine amendment process that makes it nearly impossible for future governments to amend the constitution.

At the end of the day Thailand’s constitution leaves elected representatives with much less power and room to manoeuver. The purpose, it appears, is to contain vile and venal politicians, much as you would an infectious disease, while empowering “good people” to manage Thailand’s affairs.

Allen Hicken is Associate Professor in the Department of Political Science, University of Michigan.