Dr. Michael H. Nelson

German-Southeast Asian Center of Excellence for Public Policy and Good Governance

(CPG), Faculty of Law, Thammasat University

Notes for presentation at the Southeast Asia Research Centre, City University of Hong Kong

19 October 2015

Email: mhnelson_kpi@hotmail.com Document download: https://cpg-online.academia.edu/MichaelHNelson

FB: https://www.facebook.com/mhnelson.bkk

Thailand’s 2015 Draft Charter: Abusive Constitution-Making of an Authoritarian Re-

gime

From the abstract on the poster announcing my talk, you will already know that the draft con-

stitution I was supposed to talk about has been aborted. On 5 October, the military rulers ap-

pointed another constitution-drafting committee comprising 21 members, which is chaired by

77-years old junta advisor Meechai Ruchuphan, a public law expert with extensive experi-

ence helping authoritarian governments. Among other things, he drafted the Interim Charter

made necessary by the coup of 2006. His committee will have a maximum of 180 days to

come up with a final draft, that is, by 1 April 2016. This time frame includes publishing an

initial draft in about January 2016, followed by input from the coup groups and the public.

The final draft will have to pass a referendum without any other body having to approve it

before. Given these circumstances, it might not be very useful to concentrate on details of the

aborted draft. I will still talk about the 2015 draft, but have opted to place it into some more

general context regarding Thai constitution-making.

Evidently, neither constitutions nor constitutionalism are purely indigenous Thai so-

cial constructs. Rather, they were mainly developed in the USA and in Europe, and have

since then spread worldwide, including to Thailand, partly as ideas, partly as practice. Since

they have become part of the globalization process, studying constitutions and constitutional-

ism has become an inherently comparative exercise. Moreover, the comparative element ex-

tends to other societal subsystems as well, because the expansion of constitutions, and to a

much lesser degree constitutionalism, constitutes part of the creation of modern world society

via the expansion of its component function systems and its respective characteristics. There-

fore, I will start my talk with briefly determining and distinguishing the concepts of constitu-

tion and constitutionalism, and (very briefly; some more information may be found in Nelson

2

2004) place this into the context of world societal processes. This will be followed by elabo-

rating two elements of Thai political culture that hinder the development of constitutionalism

in this country, namely the official state ideology of “Nation, Religion, Monarchy,” and the

political discourse of the Thai elite (aphichon). Subsequently, the drafting of the 2015 consti-

tution will be determined as a “means of struggle” (Luhmann) of the aphichon against those

socio-political forces in Thailand that advocate democracy, or, to use another expression

coming from Luhmann, an autonomous (meaning functionally differentiated) political system

(the earlier interest in military-civil relations went into a similar direction; see Crouch 1997,

Chambers 2013). Finally, I will turn to two concrete elements in the drafting procedure,

namely certain aspects of the drafting process, and a constitutional innovation called the “Na-

tional Strategic Reform and Reconciliation Committee.” A brief outlook concludes my lec-

ture.

Let me begin with a fairly general observation. Certain modern expressions—such as globali-

zation, world culture, or world society—denote the expansion of social codes, of social forms

and their content, respective role structures and organizations, and—especially important to

us here—decision-making programs from world-level centers to peripheral social formations.

As with the other elements, decision-making programs are specific to the societal function

systems in which they serve. Thus, the economy has prices, school education has curricula,

science has theories, bio-medicine has treatment regimes, art has styles, and the legal system

has laws. All these programs work to guide the selection of actions that are correct within a

given function system. The formal-legal decision-making programs of functionally differenti-

ated, that is liberal-democratic, political systems are called “constitution.”

3

They were devised to deal with the problem of sovereignty, especially when the previ-

ous center that had guaranteed the unity of the pre-modern state—the monarch—had to be re-

placed. There needed to be an absolute authority that would replace the monarch as the center

of unity. Again, this was to be achieved by constitutions (Luhmann). There could be no

power centers within the political system outside of the given constitutional framework.

Therefore, constitutional rules are supposed effectively to constrain political institutions, ac-

tors, and processes (Heywood 2013, p. 337). They can do so, because the political order is

supported by a “commitment … to accept the legitimacy of and to be governed by, constitu-

tional rules and principles” (Stone Sweet 2014, p. 152). In the words of Dieter Grimm, the

well-known German constitutional law expert, “The regulation [of political action by the con-

stitution, M.N.] is comprehensive in the sense that no extra-constitutional bearers of power

and no extra-constitutional ways and means to exercise this power are recognized” (Grimm

2010, p. 8). When this situation really exists in a given political order, we call it constitution-

alism.

As with the expansion from the center to the periphery of the other function systems

mentioned above, the behavioral result in peripheral social formations often does not resem-

ble the outcome that we would expect given the original societal model. In other words, taken

out of their original societal context, the decision-making devices often do not program ac-

tions in the way one would have expected. In the center-periphery transfer, it seems, some-

thing important disappears. In Thailand, this observation is regularly made by both internal

and external observers, and often referred to as the difference between form and content. For

example, people would complain that the form of school-based education for children has

long been adopted in Thailand without, however, following its original content, or its spirit.

Or it is said that, though there are university lecturers, scholarly performance does not meas-

ure up to the world level since the Thai social formation supports a different concept of

knowledge. Applied to constitutional law, this means that even where constitutions do exist,

such as in Thailand, constitutionalism might very well remain a variable. While globalization

has indeed led to the almost universal adoption of constitutions, it has not necessarily pro-

duced constitutionalism. (In a general theoretical sense, this is the difference between isomor-

phism and homogenization; for the programmatic publication on this subject, see Meyer et al.

1997, while Luhmann (1997a:806f.) notes, “The more one looks at details, the more obvious

the deviations become from what the theory of functional differentiation would lead one to

expect.”). This has led to the question, for example, by Niklas Luhmann, whether constitu-

4

tions might perhaps be “specifically European institutions that, because of their cultural de-

pendence, cannot function elsewhere” (Luhmann 1990, p. 212). Again with Luhmann, we

might say that constitutions are often adopted merely in a “symbolic” way, or they might be

“used as an instrument of a governing elite (for example, a military regime) that does not

comply with the intended conditions, but governs ‘unconstitutionally’ with the help of the

constitution” (Luhmann 2000, p. 428). This statement referred specifically to Brazil, but it is

mirrored in a well-known phrase coined for Africa—namely “constitutions without constitu-

tionalism” (Okoth-Ogendo 1993, p. 65)—or in the book title “Constitutions in a nonconstitu-

tional world” (Brown 2002), which refers to the Arab word.

This set of issues is considered in a book published last year, entitled Constitutional-

ism in Asia in the Early Twenty-First Century. The editor, Albert Chen, wants to go beyond

the phrase “constitutions without constitutionalism” in assessing the situation in Asia. Partly

based on a reconsideration of earlier ideal-versus-reality classifications by Karl Loewenstein

(1957) and Giovanni Sartori (1962), Chen comes up with his own version, distinguishing be-

tween “genuine constitutionalism,” “communist/socialist constitutionalism,” and “hybrid

constitutionalism.” The latter, following usual practice, is said to be “practiced in states in

which both elements of liberal constitutionalism and authoritarian elements that subvert or

are inconsistent with such constitutionalism exist” (Chen 2014, p. 14). Using this classifica-

tion, Thailand is said to be a country displaying “hybrid constitutionalism.”

Of course, this does not come as a surprise for scholars working on Thai politics.

There has even been a special expression applied to the Thai situation, namely “Thai-style

democracy,” which denotes the existence of both democratic and authoritarian elements in

the overall political order. Just consider the following brief quotes:

5

Thus, it seems that the military and the monarchy are the main institutional counter-points of

Thai constitutionalism. Yet, they do not merely act as pure power elites (as opposed to func-

tional elites) that oppose the constitutionalization of the Thai polity. Rather, they have their

very own ideological support structure that does not only compete with the constitution in

representing the highest, or unifying, value of the political order. This ideological support

structure is also actively reproduced throughout the state apparatus, and it is widely propa-

gated in schools etc., in order to shape the minds of the Thai people into that of obedient and

conformist subjects, thereby trying to counter the constitutional model of independent-

minded citizens. This ideology is the trinity of “Nation, Religion, and Monarchy” (chart,

satsana, phramahakasat). Most basically, Thais are reminded of it every time they see their

national flag, which is many times every day, since the red stripes represent the “Nation,”, the

white stripes symbolize the purity of “Religion,” and the big blue stripe in the center stands

for the “Monarchy.” The Thais also see the latter component, the monarchy, many times

every day—on their banknotes:

In the state apparatus, the cultural arrangement symbolizing “NRM” seen in the next slide is

found in meeting rooms and offices:

6

Until today, Thai state officials do not legitimize their actions with reference to the constitu-

tion—which would be the case if constitutionalism prevailed—but by placing them into the

context of “Nation, Religion, and Monarchy.” In this context, many Army areas in Bangkok

have this sign at the entrance:

And after General Prayut had toppled the democratically elected Yingluck government, he

issued his infamous “12 core values,” to be recited every morning in front of all schools as

part of the daily morning flag roll call:

7

The basic ideological arrangement of “Nation, Religion, and Monarchy” is shown in the next

slide:

The coup plotters’ directorate has come up with another illustration of the “three pillars” idea,

as shown in this slide:

8

As you can see, the main task of the Thai people is to unify in their defense of the three pil-

lars so that the Thai nation may survive. Required are “love and unity from all Thais” (quot-

ing from a TV address by military dictator Prayut Chan-Ocha), and the Thai population is

easily divided into people who have “love towards our motherland” and those “people who

don’t really love the country” (Prayut again, as quoted in The Sunday Nation, 11 October

2015). In this sector of Thai political culture, constitutionalism or democracy, for that matter,

have no systematic space. Finally, the contested nature of constitutionalism in Thailand, as

seen from the perspective of “Nation, Religion, and Monarchy,” is nicely expressed in the

following two quotes by Thai academics:

9

One could, of course, imagine that the military constituted a force that is largely separate

from society, and reliant on its weapons, the power hunger of its leading personnel, and its

esprit de corps. However, when a military has broader goals regarding, as Negretto (2014, p.

1) states for South American authoritarian regimes, “broad transformations in the political,

social, and economic order,” and therefore aims to write a constitution to “preserve their re-

forms and protect their personal and corporate interests after leaving power” (ibid.), then they

“must be able to mobilize popular and partisan support for the authoritarian regime” (ibid.).

As we have seen, in the Thai case, the military is not separate from society, but—with the

help of the civil bureaucracy—reaches deep down in society, and is thus able continually to

access the minds of people even in remote villages with the official ideology as promoted by

the state apparatus. As a result, there is a thick layer of political culture in Thailand that sup-

ports that ideology, of which military coups are a necessary component. The mass protests of

the People’s Alliance for Democracy (PAD) (which led to the military coup in September

2006) and the People’s Democratic Reform Committee (PDRC) (which led to the military

coup in May 2014) are the most recent and significant manifestations of this situation. The

PDRC protests, in particular, were a manifest rejection of the idea of constitutionalism,

namely that all political actors in the polity support and are committed to the constitution as

limiting and programming framework for their actions (Nelson 2014). This meant that, during

the aborted elections of 2014, citizens who tried to rely on their constitutional rights had no

chance against people whose actions occurred in the context of NRM (and the more practical

political intentions of the instigators), as shown in this slide.

10

Constitutionally contextualized citizens ID cards, as shown in the right-hand slide, were no

match for NRM, as symbolized by the national flag, as seen in the left-hand slide, and also

shown in the two T-shirts stating “For nation and throne,” and “People of the king,” respec-

tively. In other words, the people on the left slide and the two slide in the middle thought that

their particular view of national needs, including the connected support for the monarchy,

somehow ranked way higher than what the constitution stipulated in terms of citizens’ rights.

From their perspective, when the ideology of “the nation” and “the monarchy” takes prece-

dence, “constitutionalism” must wait.

All this mainly concerns the ideological level, and a certain willingness to go along

when the military abrogates the constitution. In this sense, “NRM” increases the compliance

with a coup when it is justified in this context. While a coup is illegitimate from the perspec-

tive of constitutionalism, it is legitimate from the perspective of NRM. However, beyond

compliance, coup makers also need people who do the work, for example, sit in the National

Legislative Assembly, the National Reform Council, and on the Constitution Drafting Com-

mittee. And it is perhaps surprising to see that there is no dearth at all filling all those posi-

tions with highly qualified people of good social status. To the contrary, those positions are

much thought after, and thus include heavy lobbying. This is contrary to what one would ex-

pect from people with a firm foundation in a political culture characterized by constitutional-

ism and democracy. Such people might not be willing to compromise their ideals and princi-

ples by serving as the tools of military dictators.

Yet, this view is foreign to a strong stratum of people who perceive themselves as

“true navigators” (Plato), meaning technocrats, academics, and members of non-governmen-

tal organizations, who think that they have the most sophisticated knowledge in all policy ar-

eas, and are thus entitled to determine the direction of the country, but are nastily denied the

opportunity to serve the nation by the corrupt and incompetent politicians. People helping the

coup plotters are immensely proud of what they believe is a great service for their nation.

This “service” will increase their social status among and networks with other members of

the elite, it will be proudly mentioned in their CVs, and they will fondly remember their (very

well-paid) “sacrifices” in regular meetings of fellow-members in years to come. In a sense,

this group has a similar outlook as soldiers and civil servants in that its members view, “polit-

ical parties and politicians …as a disturbing element in the traditional scheme of things. They

do not fit the ordered hierarchy of rank and status” (Girling 1981, p. 157f.). But the “true nav-

igators’” view differs in that they principally accept the necessity of constitutionalism and de-

11

mocracy. They only insist on political parties and politicians adopting an outlook and prac-

tices that are as close as possible to that of the technocrats (in Thai, they are also categorized

as khon dee, or “good people,” in contrast to the “bad people,” meaning politicians). Until

this has not been achieved, members of this stratum—or aphichon in Thai—feel justified in

taking active roles not only in governing the country, but also in determining the rules of the

game, and be this based on a military coup. Fundamental constitutional ideas, such as the

“sovereignty of the people,” are irrelevant in this context, although Thai constitutions nor-

mally say in the first sentence of article 3 that “The sovereign power belongs to the Thai peo-

ple.” But, then, even the military dictators’ Interim Charter says “The sovereign power be-

long to the Thai people” (the Interim Charter also says that “Thailand adopts a democratic re-

gime of government with the King as Head of State,” instead of using the more accurate,

“Thailand, for the time being, is a military dictatorship with the King as Head of State”). So,

this is not to be taken too seriously.

The political culture of these aphichon has been formed since the early 1980s, with

the increasing significance of elections (for an analysis using the constitution drafting com-

mittee minutes of 2007 as empirical material, see Nelson 2013). Thailand’s latest three con-

stitutions of 1997, 2007, the draft of 2015, and the document that is currently being drafted,

are importantly informed by this political world view. That is, the future 2016 Constitution, if

it will pass the referendum, to a large extent will reflect a political discourse that has lasted

for around 35 years.

One of the first manifestations of this worldview, mirroring the experiences with the elections

of 1983, 1986 and 1988, was Sombat Chantharawong’s trend-setting book of 1993 entitled,

“Thai elections in crisis: problems and solutions.” The author saw elections as being domi-

nated by “deviant behavior,” meaning “local customs and traditional practices,” in which

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vote-buying was generated “within the existing framework of relationships [the “patronage

system”] between vote canvassers and voters” (Sombat 1993, p. 15). Therefore, “an average

voter can see nothing wrong with such forms of political manipulation” (ibid., p. 16). The so-

lution, then was, “to make it possible for the Thai citizen at large to attain certain degree of

social, political and economic independence so they can exercise their political right freely”

(ibid.). One year later, Anek Laothamatas’s enormously influential brief text on “song

nakhara prachathipattai” appeared, published in summary form in English in 1996 under the

title, “A Tale of Two Democracies: Conflicting Perceptions of Elections and Democracy in

Thailand.” Anek viewed Thailand’s political system as being characterized by a strong differ-

ence between urban or middle class voters and those who live in the countryside. Whereas the

middle class stressed political principles, policies, and the national interest, rural voters aimed

“to bring greater benefits and official attention to themselves and their villages” (Anek 1996,

p. 202). This made the middle class angry because they perceived the resulting government as

“corrupt and unqualified” (ibid., p. 203). Villagers “are to be convinced that principle- or pol-

icy-oriented voting brings them greater benefit than what they may get from local patrons”

(ibid.). Also, efforts must be directed towards rural development in order to turn poor farmers

into “middle class farmers or well-paid workers” (ibid.). After all, if they became members of

the middle class, they might adopt its political outlook automatically.

This outlook is also expressed in a programmatic statement of the Democracy Devel-

opment Committee of 1995, which prepared the ground for the 1997 Constitution:

Moreover, this perspective has substantially informed the “New Politics” proposals of the

PAD in 2008 (Nelson 2010), and the “political reform” demands of the PDRC in 2014 (and

was then carried over into the 2015 constitution drafting exercise). The following slides illus-

trates this:

13

The title on the left-hand side (coming from the PAD side) combines a very offensive prefix

for low-status women with the word “stupid,” while the subtitle approximately reads, “How

stupid you may be…the buffaloes will love you,” the insulting “buffaloes” here denoting ru-

ral voters. And the title page on the right-hand side says, “One man one vote cannot yet be

used with Thai people.” This voter-related perspective is complemented by a view that con-

cerns the electoral personnel and institutions. Number 2 in the following slide denotes politi-

cians who are mostly elected by rural voters.

The aphichon and their followers think that they cannot allow politicians to dominate politics

since they have come into their positions by what they see as blatant cheating in elections.

14

Number 5 is one of the most-beloved clichés in the aphichon discourse—“parliamentary dic-

tatorship.” Even twenty years later, in October 2015, military dictator General Prayut Chan-

ocha would still declare that the second round of constitution drafting should solve the “prob-

lem of ‘parliamentary dictatorship’” (The Sunday Nation, 11 October 2015). One might think

that these people do not understand the issue of “stable government” in a parliamentary sys-

tem. However, this point goes deeper. Since the aphichon, as mentioned above, combine a

strong sense of entitlement with the feeling of agony about being excluded from the policy-

making process, they cannot allow election-based institutions to be the main players in the

political order. These institutions, from their point of view, may have popular legitimacy. But

both based on the perceived cheating in elections and their own sense of superiority, the

aphichon demand an important place in the political process. In fact, it was Anek Laotha-

matas—who was a prominent member of the Constitution Drafting Committee of 2015—

again, who outlined the political system that the aphichon are most comfortable with (as

shown in the following slide).

What we see in this slide is precisely the problem of Thai constitutionalism as briefly de-

scribed above. That is, we are confronted with a situation in which there are “societal

forces”—especially the military and, broader, the aphichon—“against which autonomous

politics cannot prevail, because such influences do not proceed via elections and neither oper-

ate in the form of different political parties within the political system” (Luhmann 1990, p.

213). Under these conditions, “solutions for politically unresolvable problems” (ibid.) might

well be pursued in a military coup. In such a situation, moreover, constitutions might turn out

merely to be “symbolic politics” or a “means of struggle” (ibid.). And this is what the draft-

ing of the 2015/2016 Thai constitution is all about: The aphichon (including the military) op-

15

erate outside of the constitutional political system, and they use the drafting of the new con-

stitution in their struggle against those forces and institutions that Anek, in his model, catego-

rizes as “democracy.” In other words, we are witnessing a class struggle of the aphichon

against those forces that advocate autonomous politics. In this struggle, the power holders use

constitutional law as an important tool. In other words, this draft constitution represents the

seizure of a very substantive part of state power and the sovereignty of the people by the

aphichon. In doing this, the military and the drafters’ acts are “abusive” in the sense of Lan-

dau (2013), because their constitution will fall back behind a standard of democracy that

seemed to have been achieved in Thailand.

Acknowledging that the “process of constitution-making matters” (Ginsburg, Elkins,

and Blount 2009) for the desired outcome, the coup plotters did not follow the approach of

their predecessors of 2006, namely assigning the task mainly to conservative legal experts

and largely giving them a free hand. The current crop of military dictators is a lot more deter-

mined (in Negretto’s sense). They selected 36 people (including three extremists from the

PAD/PDRC), who had a solid foundation in the aphichon ideology, and who combined this

with a strong will to create a respective constitutional order. This Constitution Drafting Com-

mittee held 158 meetings, which is a lot more than its equivalent committees in 1997 (56

meetings) and 2007 (62 meetings). Importantly, this time, the “Interim Charter” included de-

tailed instructions about the expected content of the constitution. These instructions, in Sec-

tion 35, listed ten points, among them the points listed in the following slide.

16

The fifth point concerns the attempt to impose the constitution on the people, without their

subsequently elected representatives being able to amend important components of the docu-

ment. This goes back to the controversy surrounding the attempt of the Yingluck Shinawatra

government to redraft the entire coup constitution of 2006 and, when this was rejected by the

Constitutional Court, to amend individual sections, especially turning the mixed elected-ap-

pointed Senate into an entirely elected body. This was also rejected by the Constitutional

Court that argued that making the Senate an entirely elected body would violate key princi-

ples of the 2006 Constitution concerning the checks-and-balances system. While this sixth

point is about the perpetuation of the military dictators’ idea of the political order, the seventh

point concerns their attempt—following the core demand of the PDRC protests that prepared

the ground for their coup—to impose their political agenda on the population—that is, be-

yond the time the military rulers would have transferred their power to an elected govern-

ment.

Now, the idea that the elected politicians in the government cannot be trusted to draft

and implement policies that the aphichon think are needed for the “national interest and pub-

lic benefit” is an old one. Many Thai constitutions since 1949 have included increasing lists

of “directive principles of fundamental state policies” that any elected government had to use

as the framework for its own policy declarations in Parliament. As a drafter of both the 2006

Constitution and the 2015 draft constitution quite frankly declared, this section had the pur-

pose, “to ensure continuity and consistency of the administration of public affairs of the

country, without being subject to illogicality and idiosyncrasies of each administration” (Pa-

korn 2008, p. 88). However, the constitution drafters of 2015, in following point seven of the

instruction from the Interim Charter, lifted this negation of the politicians’ policies to a whole

new level. They did so by creating an entirely novel section on “Reform and the Creation of

Reconciliation,” especially its part on the “National Strategic Reform and Reconciliation-

Committee.” This section was supposed to be applicable for five years, but could under cer-

tain circumstances be extended to ten years. The Strategic Reform Committee would have

comprised 23 people, including a chairperson, the Speaker of the National Assembly, the

Speaker of the Senate, the prime minister, the commanders of Army, Navy, Airforce and the

Supreme Commander, the national police commander, three people comprising former speak-

ers of the National Assembly, prime ministers, supreme court presidents, and eleven “ex-

perts” appointed by the National Assembly.

The Strategic Reform Committee was to be empowered to make policy proposals and

budget demands to the National Assembly, the Cabinet, and concerned state agencies. It was

17

also empowered to order the discontinuation of acts that interfered with its reform agenda, or-

der the Cabinet and state units to act on its strategies, and to follow up on its policy proposals

and, in case of non-compliance, bring a case to the Constitutional Court. In case the Cabinet

rejected acting on the Strategic Committee’s proposals and budget demands, it had to explain

the reasons to the National Assembly and inform the committee. If the Strategic Committee

insisted on its proposals, they could, with a three quarters majority of its members, enforce

compliance with the Cabinet. This essentially meant that 17 or 18 appointed members of the

aphichon could force their will upon a popularly elected government.

I essence, this institutional set-up would create a policy-making structure in parallel

and even above the elected government, thereby achieving the aim indicated in the two slides

about voters above, namely to limit the weight of voters in governing the country. It would

also double the entire ministerial bureaucracy. After all, all the areas for reform, which were

comprehensive, are already covered by the ministries. The key criticism, then, was that the

constitution drafting committee would create “a state within the state.” The committee made

this worse, if this was possible, by also assigning the Strategy Committee a special role in

case a self-defined political “crisis” occurred. In this case, the committee was empowered to

take over the powers of the executive and the legislature. Some observers called this the

“constitutionalization of a military coup.” Like with coup groups, all actions taken by the

Strategy Committee in its role as crisis committee were deemed to be legal and constitutional.

Nevertheless, the drafters of the constitution were very proud of their work—no sign of feel-

ing guilty that they had served military dictators and thus helped to suppress the Thai people

(as seen in the following slide). From their perspective, they had done their best in serving the

Thai nation. Or, in the words of the chairperson of the newly appointed Constitution Drafting

Committee, Meechai Ruchuphan, rejecting to work on this committee “would be perceived as

18

being ungrateful to the country” (The Nation, 15 October 2015). So, again, we have this ten-

sion between “the people” and “the nation”/”the country” as very different points of orienta-

tion for one’s political actions.

Opponents, however, were less impressed (as seen in the following slide).

Very soon, it became clear that the critics had the last laugh. Public reactions on the draft

constitution were almost unanimously negative. In fact, the only real support seemed to have

come from Suthep Thaugsuban, the chief of the PDRC, whose battle cry “reforms before

elections” was well-reflected in the draft’s sections on the Strategic Reform Committee. So,

he could be satisfied. However, this was not enough to make the draft survive the vote in the

19

National Reform Council. In a vote of 135 to 105 the NRC rejected the draft constitution. In-

terestingly, almost all military members of the NRC rejected the draft. CDC chairperson Bor-

wornsak Uwanno noted afterwards that it was little surprise that soldiers would follow orders,

indicating that the draft was toppled on the orders of the coup makers themselves. As to the

question why, many observers speculated that the military had real concerns that the draft

could be rejected in the referendum, given the almost universal rejection by the Thai public.

From this perspective, toppling the draft was the lesser evil than having the military rulers be-

ing beaten in a popular vote. Be this as it may, a new constitution draft must be produced

within 180 days, or by 1 April 2016. This leaves us with the question whether the most con-

tentious—almost the only really big issue of contention—issue of the Strategic Reform Com-

mittee would be thrown out. Based on four statements made by coup leader Prayut in August

(The Nation, 14 August 2015), September (The Nation, 15 and 19 September 2015), and Oc-

tober (Bangkok Post, 11 October 2015), this seems very unlikely since he reiterated the need

for an organization that would continue the reforms started by his military regime and inter-

vene in a political crisis. Moreover, the new CDC must act on Section 35 of the Interim Char-

ter, just as its predecessor did. And this might well lead to the same result, that is, something

like the Strategic Reform Committee, though the new CDC’s chairperson said, “We will

avoid creating a state within a state” (Bangkok Post, 14 October 2015). Yet, he also said that

the CDC was pondering the inclusion of a “duty of the state” section, “in a bid,” as The Na-

tion remarked, “to force governments to serve the people efficiently” (The Nation, 23 Octo-

ber 2015). “When asked how this would differ from the chapter on ‘fundamental state poli-

cies,’ he [Meechai] explained that ‘duties of the state’ would be mandatory, while the policies

are optional” (ibid.). In any case, a constitutional design similar to the 2015 draft will proba-

bly prompt the public to reject the new draft yet again, just as it rejected the first version.

Soon enough, we will know.

References

Anek Laothamatas. 1996. “A Tale of Two Democracies: Conflicting Perceptions of Elections and Democracy in Thailand.” In The Politics of Elections in Southeast Asia, ed. by R. H. Taylor, pp. 201-223. Cambridge, New York, Melbourne: Woodrow Wilson Center Press and Cambridge University Press.

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