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Part 2 III. Demands for Reform Take Shape
A. The various forces demanding change
The background to the current efforts to turn around the tide of Thai political and legal history rises out of this vicious cycle which is now seen as self-perpetuating as long as no substantial reform of the system underlying it is left untouched. The Black May incident of the 16 to 20 May 1992 provided only a glimpse of what had to be done. The demonstrators had no agenda for change and though the need for a radical overhaul of the status quo was recognised, the movement lacked any depth of analysis of the root causes of the current embroglio.
With a second new parliament in place in 1992, the reform movement began to gather momentum. In 1993, the House of Representatives nominated an ad hoc committee, the Constitutional Reform Committee, specifically mandated to analyze the needed steps for fundamental reform. While many forces were working behind the scenes to derail this process, too much had happened to forsake real change and revert back to the cycle of the past. In 1995, the Constitutional Reform committee tabled a report just as the ruling coalition of Prime Minister Chuan Leekpai began to unravel.
2. The Committee for Developing Democracy (CDD)
The elections that followed placed Prime Minister Banharn Silpa-archa at the helm of the new government and rumours were rife that the new regime would try and derail the reform process. One of the major factors ensuring that a reversion to the past would no longer be tolerated was the emergence of powerful interest groups largely drawn from the academic and political community in Bangkok. Led by such luminaries as Prawase Wasi, a well-known social activist with a nation-wide reputation for forthrightness and honesty, the Committee for Developing Democracy followed the tabling of the Constitutional Reform Committee's report to Parliament by staging a nation-wide series of public hearings to bring the people into the process. This was a first. The hearings guaranteed that the debate was not limited to the Bangkok cognoscenti alone. And the process de-personalised the debate. It concentrated on issues rather than factions or individuals. It did not limit its focus to only the contents for reform but instead dealt with the strategies for reform.
3. Constitutional Amendment and formation of the Constitutional Drafting Assembly
The most contentious issue that arose and provoked debate in Parliament was the vehicle for accomplishing reform. Who would be involved in drafting an amended Constitution? And how would that drafting institution be created? The debate dominated Parliament for 1995 and 1996. Accusations flew from side to side that the other was trying to sabotage the entire reform process. But in September, 1996, the activists prevailed with an amending process approved by Parliament and a Constitutional Drafting Assembly receiving approval as the way to accomplish the task. The success of the Drafting Assembly can credited to a strong triumvirate of reform advocates, Prawase Wasi leader of the CDD, Uthai Pimchaichon, an ex-MP with a reputation for honesty and a base in the provinces, and Anand Panycharayun, an ex-prime minister well-respected in Bangkok.
4. The Drafting Process and mass participation in the process
Behind these figures stood the restive public which was unwavering in its support of reform. Their pressure took the form of focusing on specific areas needing reform. An Assembly of the Poor had farmers march on Bangkok during the debate. Groups demanding justice for loss of land because of dam construction added their voices. Three projects were scrapped as a result of this grass roots pressure.
Responding to this pressure and the groundswell of support for reform, the parliament passed a Constitution Amendment Bill in May, 1996. It provided for the formation of a Constitutional Drafting Assembly (CDA) made up of ninety-nine members. Seventy-six members were drawn from the provinces, one from each. The others were experts in public law, political science and public administration shortlisted by universities, to be chosen by Parliament. This formula seemed to satisfy all sides. The CDA was to conduct a survey of public opinion through hearings and was to finalise a draft for presentation to Parliament in 240 days. If Parliament voted short of a majority, a public referendum would be held. A simple majority of eligible voters would be sufficient to approve it. The people had finally gained a real place in the process.
IV. The New Constitution and its main features
A. Introduction
The task was as the Secretary of the CDA, Borwornsak Uwanno put it "...all about decoding what the people are saying and producing a legal document...". Working at sifting the results of going through documents submitted by various pressure groups and NGO's, was the work of the CDA's Public Opinion and Academic Committees. But the Constitutional Drafting Committee (CDC) was able to complete a draft by May, 1997. There followed a series of "public hearings" organised by the provincial members of the CDA. Members of the CDC travelled up and down the length of the nation to listen to opinions on the first draft. The two stages of public opinion gathering provided an unprecedented exposure of constitutional issues to the public and assisted enormously in bringing the process to the attention of a wide spectrum of the Thai population.
B. Turning government by politicians to government by the people
After the public hearing process was completed, the CDA members submitted their own recommendations for amending the draft Constitution. The final draft was approved by the deadline on August 15th, 1997.
The draft Constitution was clearly aiming at fundamental reform. It recognised more rights and freedoms than any other previous Constitution. It also was clear in its committment to make elected politicians and public officials accountable. This was designed to create greater transparency while making the Thai political process open to more public participation. Civil liberties were for the first time linked to the idea of "human dignity". Slavery, and torture are prohibited. Arrested persons must be brought to court within forty-eight hours after arrest. The state's duty to nurture the family was affirmed. As was an individual's right to privacy.
With the addition of many more civil liberties were added practical guarantees to ensure that the public would have access to the means to air their views. Access to media is guaranteed through a number of measures including efforts to end state and private monopolies of radio, television and telecommunications. The state is required to provide twelve years of free education. Other social rights included health care for the poor, pensions for the elderly without means of support and guarantees for accessible facilities for the handicapped.
Direct citizen participation in the political process is provided for in a number of provisions. Fifty thousand electors can now submit a piece of legislation to Parliament, or can ask the Senate to remove high officials in three levels of government if they should appear "unusually wealthy". Or in instances where such individuals exercise their powers unconstitutionally.
C. Making government more transparent through anti-corruption provisions
1. Anti-vote-buying measures
Compulsory voting was introduced for the first time in Thailand. This guarantees a high turn-out which militates against buying votes because it would require too much cash to be feasible. An independent Election Commission has been created to administer and oversee elections using the assistance of NGO's. It will have wide-ranging investigative and prosecutorial powers. It can also call for new elections. There is provision for limiting campaign monies and providing candidates and parties with support to guarantee fairness.
In addition to the above provisions as Jumbala describes it, a mixed electoral system was imported from Germany for elections to the House of Representatives. One hundred members are elected from party lists, and the other 400 M.P.'s are chosen from single-member constituencies The party list system is aimed squarely at deterring vote-buying, allocating seats more fairly, strengthening the party system and giving an opportunity for parties to choose candidates for their knowledge and quality rather than their electability. The single member constituency is seen as fairer than the old multi-member method and constituencies will be smaller in size bringing M.P.'s closer to their constituents.
2. Anti-corruption measures
In order to address the sources of corruption in previous governments, codes of conduct for politicians are to be drawn up defining conflicts of interest. Parliamentarians are prohibited from receiving state concessions or monopolies and Ministers must transfer corporate holdings into blind trusts. An asset and liability reporting mechanism is established for all politicians and senior bureaucrats and a National Counter Corruption Commission (NCCC) given the power to investigate and charge any official suspected of being unusually wealthy.
The NCCC will have nine members nominated by the King on the recommendation of the Senate. Their terms will be for nine years and are non-renewable. Their positions cannot be revoked except by a motion of impeachment initiated by one-fourth of the House of Representatives and decided by the Senate by a three-quarters majority. An inquiry into impeachment can be started by a voters' petition or by the House of Representatives.
3. The institution of various control authorities
In addition to the NCCC mentioned above, which is an enhanced version of the old Counter Corruption Commission, the Constitution provides for a number of independent agencies to ensure accountability. A Constitutional Court is to be established which is empowered to deal with all laws challenged as unconstitutional and to decide issues involving overlapping authority. The National Human Rights Commission is to be formed to protect and promote human rights. The Commission will have eleven members and will be empowered to look over complaints arising out of violation of human rights arising out of international treaties and conventions which Thailand has signed. An Ombudsman will be appointed with jurisdiction over maladministration, and the power to report to Parliament on any official's failure to comply.
Whenever an ordinary citizen has a dispute with government officials, a special Administrative Court has been established to deal with such matters. It also has jurisdiction of other matters of maladministration.
D. Rendering Government more stable and strengthening political institutions
1. Strengthening the position of the Prime Minister
In the previous regime, there was one Prime Minister and 48 Ministers making up the Council of Ministers. Under the new Constitution, the Prime Minister and 35 Ministers will make up the Council of Ministers. They will be collectively responsible to the House of Representatives and remain in office as long as they retain the confidence of the House. But they also have the power to recommend the dissolution of the House, but no power to recommend the dissolution of the Senate. A two-fifths vote of the existing members of the House is required for a vote of a no confidence debate to be initiated against a Prime Minister. Such a motion must also contain the name of the next Prime Minister who will replace the current one, in case the vote is successful. This is followed by the requirement for a petition to be submitted under Section 304 if the motion is based on charges against the Prime Minister for unusual wealth or malfeasance while in office. If all procedures are followed and the vote of no confidence can proceed, a successful vote of no confidence requires a majority of one half of the total number of existing members of the House of Representatives. A similar process can initiate a no confidence motion against an individual Minister but with only one fifth of the signatures of the House members.
2. More emphatic separation of executive and legislative functions
The previous Constitution permitted a Minister to retain his seat in the House of Representatives and still become a Minister on the Council of Ministers. This was pinpointed as weakening the role of the Prime Minister and encouraging conflict among the coalition parties. The new Constitution although permitting MP's to become Ministers, prohibits them from retaining their seats in Parliament. As Jumbala puts it, "This is to encourage ministers to adhere to the conventions of individual ministerial responsibility and cabinet collective responsibility, for they would become ordinary citizens if sacked." Ministers can also be drawn from the MP's on the party lists. Jumbala says, "Since Ministers can also come from the party list, the provision stands to be an incentive for parties to put senior party men and competent people on the party list---party list members who become ministers are replaced by the next on the list, whereas a [by-election] is required for those appointed from constituency seats.
3. Efforts to make the law-making function more effective
Due the unproductivity of the previous law-making process, the new Constitution created several vehicles to render the legislature more productive. Before Parliament sat for two 90 day sessions. Under the new regime, two sessions of 120 days have been instituted. The second of these will be devoted to the passage of legislation, interpellations and removals from office of public officials. Their is also provision for legislation which is undecided when the House is dissolved, to be carried over to the new government. All votes on bills will be open to public scrutiny except for certain instances when secret ballots will be mandated.
Conclusion
The new Constitution went through a rocky passage. While the draft was tabled on time, on August 15, 1997, many of its provisions excited widespread controversy. The requirement that all MP's hold bachelor degrees was one stumbling block for some. The party list system reaped the ire of the leaders of the smaller parties in Parliament. Most criticism concentrated on the accountability provisions and the decentralisation sections which would have altered the powers of the village leaders. In the end, the Chavalit government decided that if its coalition was to survive the debate over the draft in Parliament it would have to acquiesce to its passage. On 27 September, 1997 the draft won parliamentary approval in a joint sitting of the House of Representatives and the Senate with 518 votes for, 16 against and 17 abstentions. The King put his signature to the Constitution on October 11th, 1997 and the new Thai Constitution became law.
Since its passage, the new Constitution has already started to influence the operation of government. Most recently two scandals involving the Ministers of Public Health and Agriculture, have resulted in the Minister of Health resigning and possibly facing corruption charges over inflated prices for the purchase of drugs for the national health program. The new Charter has also become useful for local interest groups empowered with greater control over natural resources and the environment.
But there is still a long way to go. In order to create many of the regulating authorities and courts responsible for administering many of the checks and balances inherent in the new Charter, eight organic laws must be drafted and approved by October 11, 1999, two years exactly after the Constitution became law. These laws must be drafted by the old regime which is constituted under the previous Constitution. The first three have already been approved. But the next five must be drafted and passed by a rather reluctant forum, not very happy with the new regime they assisting in forming. Also the old non-elected Senate is responsible for nominating members of the newly formed Election Commission and Constitutional Court and their nominations have already provoked public criticism. In the next months, nominees for the National Counter Corruption Commission and the Ombudsman will be presented.
But the most important limitation on the effectiveness of the new Constitution is the nature of the Thai political culture itself. It remains to be seen whether this change in the law can alter the historical reliance of Thais on patron-client relationships within their political culture. It is unlikely that rural peoples in particular will change their behaviour and no longer vote for their patrons. Beyond the culture itself, is the issue of good governance among corporations. If the private sector does not comply, the eradication of corruption will be difficult whatever the checks activated by the Constitution. The most positive developments are the encouragement the new Constitution offers to pressure groups and NGO's such as consumer protection and environmental protection groups to have their opinions heard. This hopefully will empower consumers to better deal with greedy commercial interests, and environmental groups to push for more sustainable resource management.
* Dean and Prof. of Law, Faculty of Law, Chulalongkorn University; former CDA member and secretary to the Drafting and Scrutiny Committee of the CDA; former member of the House Ad Hoc Committee on Constitutional Reform(1993-94); former member of the CDD
**Foreign expert, Faculty of Law, Chulalongkorn University; LLM-UBC/'92
Interview: Borwornsak Uwanno,(Sept. 23, 1998), Bangkok
.J. Horrigan, Local Government and Administration in Thailand: A Study of Institutions and Their Cultural Setting, (PhD, Political Science, Dept. of Government, Indiana University, 1959) [unpublished} 17-18.
Ibid.
Ibid at 19-20
Interview with Borwornsak Uwanno (Sept. 23, 1998) Bangkok.
Ibid at 21-22
Ibid.
Joseph Wright Jr., The Balancing Act: A History of Modern Thailand, Pacific Rim Press, Oakland Calif. 1991, p. 211
Ibid, p. 213
Ibid, p. 218
Ibid, p. 219
D. Morrell and Chai-anan Samudavanija Political Conflict in Thailand, Reform, Reaction, Revolution. Cambridge, Mass.: Oelgeschlager, Gunn & Hain, Publishers, Inc., 1982, p. 102-105
Wright, supra at. p. 221
Ibid, p. 229
Ibid, p. 230
Morell and Chai-anan, supra at p. 275
Wright supra at pp. 240-254
Ibid, p. 257-58
Ibid. p. 259
Ibid. p. 260
Ibid.
Prof. Dr. Borwornsak Uwanno, Interview, Sept. 23, 1998
Wright, supra at p. 262
see Chai-anan Samudavanija, The Thai Young Turks (Singpore: The Institute of Southeast Asian Studies, 1982) p.2
Wright, supra at p. 262
Ibid, p. 323
Interview Borwornsak Uwanno, (Sept. 25, 1998) Bangkok.
Ibid.
Borwornsak Uwanno, Interview on Sept. 24th, 1998.
Ibid
Ibid
Ibid
S.R. Christensen and A. Siamwalla, Beyond Patronage: Task for the Thai State, a paper prepared for the Thailand Development Research Institute, Dec., 1993, p. 32
Interview: Borwornsak Uwanno (Sept. 24, 1998), Bangkok.
Christensen and Siamwalla,supra at p. 33.
Borwornsak Uwanno, supra.
Ibid
Ibid.
Ibid.
Christiensen and Siamwalla, supra. at p.36
Ibid.
Uwanno, supra
Ibid.
Christensen and Siamwalla, supra. at pl 56
Uwanno, supra
Ibid
Ibid
Prudisan Jumbala, Thailand: Constitutional Reform Amidst Economic Crisis, Southeast Asian Affairs, Singapore, 1998, 269.
Ibid at 271.
Ibid.
Ibid at 273
Ibid at 274
Ibid.
Ibid at 275
Ibid
Ibid
Ibid at 276
Interview: B. Uwanno, (Sept. 29,1998) Bangkok.
Ibid
The Constitution of the Kingdom of Thailand , Government Gazette, Vol. 114, Part 55a, Section 185-86, 11 Oct. B.E.2540 (1997) ( hereinafter The New Constitution)
Ibid
Interview, Uwanno, supra at (Sept.29, 1998) Bangkok.
Jumbala, supra at p. 276.
Ibid.
Ibid at p. 277
Ibid at pp.280-284
Interview: Borwornsak Uwanno (Sept.29, 1998) Bangkok.
Ibid
Ibid
Ibid