Thailand's controversial draft constitution explained
- 6 September 2015
- From the section Asia
Thailand's National Reform Council has voted to reject a new constitution drafted over the past nine months to replace the one annulled after last year's military coup. The BBC's Jonathan Head looks at the controversy surrounding the charter.
By some counts Thailand has had on average a new constitution every four years since the end of the absolute monarchy in 1932.
No other country has changed its fundamental legal charter with such frequency. With such an apparently casual disregard for the sanctity of constitutions it is perhaps surprising that any Thais took the latest incarnation seriously.
But they did.
"This charter totally disregards the sovereignty of the Thai people," said the Puea Thai party, whose government was deposed by the coup.
"Many provisions are contrary to international democratic principles and the rule of law."
Puea Thai's rivals, the Democrat Party, are no more enamoured of the new charter.
Party leader and former Prime Minister Abhisit Vejjajiva had urged the National Reform Council, tasked with final approval of the charter, to reject it, pending further revision.
What ordinary Thais thought about the constitution was harder to gauge. For one thing, the military government would not allow it to be discussed in public.
That it was rejected, by a council selected by the military government, which had backed the new constitution, surprised some observers.
But in the days leading up to the vote sentiment swung suddenly against the charter, particularly among military members of the council.
It seems the generals who run the country had decided it was not worth trying to get their charter through at this stage.
This extends their rule now through to mid-2017 at the earliest, and of course their next draft, to be competed by April next year, might also falter in the referendum required to approve it.
So what were the most important changes in this latest constitution?
The most controversial of the 285 articles was the creation of a National Strategic Reform and Reconciliation Committee (NSRRC).
Ostensibly this 23-member committee, which would have included the commanders of all the military services and the police, was supposed to guide the still vaguely defined reform process, the leitmotif of the military government, through a transitional phase after the return of electoral democracy.
But the committee would also have had the authority to take over executive and legislative power in times of crisis - in effect a legal coup. One opponent likened it to an all-powerful politburo.
This authority would have lasted for five years, and could have been extended by approval through a referendum.
But almost all of Thailand's existing political parties condemned it.
The chairman of the drafting committee Borwornsak Uwanno had defended it as a "special tool" essential to ensure a smooth transition.
The question is why was such a provocative article was included only at the last minute into the draft? And will the military insist on including it in the next version?
The new charter also significantly weakened political parties - no surprise then that all the parties were strong critics.
A new electoral system, loosely modelled on Germany's, using a mixed member proportional allocation of seats, would have been used to elect the 450-470 seat lower house of parliament.
Under this system people cast votes for a constituency candidate and for a party - 300 of the seats would be chosen on a first-past-the-post basis.
The remainder would be chosen from party lists - with the total number of seats a party can win capped to a percentage equal to its share of the overall share of the vote.
This would have made it harder for one party to win an overall majority, and force the formation of multi-party coalitions.
The rejected charter would also have allowed a non-MP to become prime minister, giving scope for bargaining coalition partners to choose a non-politician, perhaps even a military officer, as their compromise candidate.
Some believed this would allow Prayuth Chan-ocha, the military-backed prime minister, to extend his term.
Punishments for politicians were toughened too.
Those who have been impeached, or found guilty of electoral fraud, would have been be banned from political office for life, not just five years as at present. A simple majority of votes in parliament was enough to impeach someone.
The upper house, or Senate, would have been largely appointed; of the 200 Senators - up from 150 - 123 would have been appointed, 77 elected, and those 77 chosen from a pre-assigned list.
The Senate would have had greater powers to block legislation and scrutinise the cabinet.
Indeed, if there was one underlying sentiment behind this constitution, it was a deep mistrust of politicians, and of parliamentary democracy.
"Politicians have been notoriously untrustworthy, non-transparent, and seem lacking in morality, ethics and honesty," said Bowornsak Uwanno. However he has now ruled himself out of any involvement in drafting the next charter.
The renowned Thai scholar Duncan McCargo described the thinking behind the constitution as "a quest for a system in which benevolent and morally upstanding elites are able to exercise very substantive control and jurisdiction over what's going on in society", in a presentation to the US Brookings Institute.
"As though it was always clear who the good guys were and the bad guys were, and as though people who were not elected politicians, people who were bureaucrats, people who were military offices, people who were close to the monarchy, people who were judges, would in some way be inherently morally superior to anybody who had been elected".
In some ways this constitution harked back to a past many conservative royalists and military officers believe was a golden age of stability and growth; the decade of the 1980s when former army commander and favourite of King Bhumibol, Prem Tinsulanonda, was a powerful, unelected prime minister.
As if to echo that idea Mr Prem, who is 93 but is still an influential member of the King's Privy Council, recently urged Thais not to show any respect to corrupt or wasteful politicians.
For those who believe in the primacy of an elected parliament and strong political parties, this constitution was seen a huge step backwards.
But for those Thais who dislike what they see as the venality and moral flexibility of elected politicians, and who fear the dominance of a successful prime minister like Thaksin Shinawatra, whose parties have won every election for the past 15 years, the constitution was seen as a necessary correction to the excesses of democracy.
In fact, despite the military's assertion that its coup was a neutral intervention in an intractable conflict between two political factions, this constitution would have reshaped Thailand's political machinery almost exactly as the yellow-shirt protesters who helped bring down the last government wanted.
No wonder Suthep Thaugsuban, the leader of that protest movement, is one of the few who is happy with the new charter.
As they go back to the drawing board, Thailand's military rulers will have to ponder how much of the rejected constitution to include in the next.
But it may be they prefer an endless cycle of controversial drafts being rejected, allowing them to stay in power for many years while they confront the delicate challenge of managing a historic royal succession.