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Let Thais choose their own constitution

The committee drafting Thailand's 20th constitution has high hopes of success. Its president claims heavenly bodies are positioned most auspiciously for its important work and its members have made sacred oaths to work for "the maximum benefit of the country and the people." But the Constitutional Drafting Committee will need more than just luck. Its membership, broadly representing the Bangkok establishment, is cut from a narrow swath of Thailand's population. Many of its members actively participated in protests organized by the People's Democratic Reform Committee, a pro-establishment organization identified with yellow-shirted protesters, which earlier this year sought to bring down an elected government led by Yingluck Shinawatra.

     The yellow shirts' rallying call was clean government, good governance, and no elections before "reforms" to the political system. They got their wish in a military coup on May 22. The ruling junta, which calls itself the National Council for Peace and Order, has started constructing a new Thailand, based more or less on the yellow shirt blueprint. It set up a National Reform Council, which will send recommendations to the drafting committee in December. Several months after the committee finishes a final draft, due by September next year, elections will be held. If nothing else, the new constitution will find ways to reduce the role of elected politicians, placing the key functions of government in the hands of unelected people.

     Up against the junta and the drafting committee are most of the country's voters, who handed Yingluck a landslide victory in 2011. With a majority of seats in the House of Representatives, her Pheu Thai Party used its mandate to deliver on its election promises: a more-than-generous rice subsidy program, a minimum wage and justice for families affected by a bloody 2010 crackdown on red-shirted anti-establishment protesters ordered by the previous government. Pheu Thai, which equally thought it was working "for the maximum benefit of the country and the people" had pledged to remove undemocratic sections of the 2007 constitution, itself a product of an earlier coup in 2006. That constitution placed immense power in the hands of the judiciary, which appointed members of independent watchdog agencies and a constitutional court. It omitted any mechanism for the public to keep in check the power of these appointed bodies and proved nearly impossible to amend. Indeed, Pheu Thai's attempts to amend it by making the Senate fully elected played a part in spurring on anti-government protests.

     For Pheu Thai and its red shirt supporters, reform means reverting to the 1997 constitution, known as "The People's Constitution." That document was produced after an admirable public consultation process. It was Thailand's most democratic constitution to date and it enshrined a more impressive range of civil rights than any previous version. For pro-democracy groups, constitutions became important after 1997 because that was when voting began to have meaning. In 2001, Yingluck's brother, Thaksin Shinawatra, offered a clear set of policies that had tangible benefits to voters and was rewarded with enough votes to form a coalition government; he then won a landslide victory in the next election in 2005. For voters, the system worked just fine from 1997 until the 2006 coup. If anything needed reform by the time Yingluck was ejected from office, it was the 2007 constitution. But just as fast as the majority of voters could put a prime minister or party into office, constitutional watchdog agencies took them out again. In the past eight years, two premierships have been ended by coups, three by court orders, and pro-Thaksin parties have been dissolved twice.

     The fate of the 20th constitution will depend on three things: whether it is seen as legitimate by the majority, whether the public has a chance to contribute to its final outcome and the degree to which it gives voice (and power) to the will of the majority. The military rulers have attempted to portray the drafting committee's selection process as representative. Yet 11 of its 36 members were handpicked directly by the junta, with another 25 coming from the reform council or the National Legislative Assembly, a rubber stamp parliament created by the coup leaders. In all, more than 70% of members are government officials, members of institutions known for their yellow shirt leanings, or have participated in that movement's rallies. Should they nevertheless fail to produce a constitution satisfactory to the generals, the junta retains the final say. The truth is that there is not a shred of democratic representation in the drafting committee. The new constitution will rightly be seen as a creation of the junta, with substantial input by those seen as close to the yellow shirts.

     The general outline of the Bangkok establishment's preferences for the new constitution has been clear from the start: The aim is to redefine democracy in a way that downplays the importance of elections and political parties. At its first sitting early last month, the reform council was presented with a report from the military on reforms that should serve as "groundwork" for its deliberations. Although the junta has said there is no "prepared script" for the new constitution, the drafting committee's members have already affirmed that Section 35 of the current interim constitution will serve as the "framework." One clause of Section 35 might block any policy attempting to redistribute wealth more equally, which could be seen as a forbidden form of "populism." Another says that state power may be exercised only "for national interest and public benefit." Most worrisome is a clause stating that an "efficient mechanism" will be put in place to prevent attempts to change "the fundamental principle" of the new constitution. Terms such as "public benefit" and "populism" are ambiguous and ideologically charged. In the hands of a constitutional court, the new constitution may well prove impervious to change.

     Lacking the legitimacy that might be conferred through elected representatives, the process could be seen as legitimate only if there was effective public consultation, or if the final draft was subject to a referendum. However, although the regime has portrayed itself as open to ideas from all sides, there is no mechanism in place to show that such ideas will have any influence on the outcome. An editorial in the conservative newspaper The Nation recently said, "Just listening to the public does not ensure people will actually have a say [in the constitution], or take part in its composition." Martial law prohibits groups from getting together to come up with suggestions for reform. And the 10,000 cases of alleged lese-majeste handled by the police since 2011 do not encourage truthful discussion about Thai politics.

     Thailand's referendum on the 2007 constitution was deeply flawed. Much of the country was still under martial law after the 2006 coup; criticizing the draft or advocating a "No" vote was prohibited; and the junta of the day threatened to revive any past constitution it chose if the result was negative. This time round, it is clear that constitutional suggestions will influence the drafting process only if they fall within the parameters of the political "reform" envisaged by the pro-coup groups. Late last month, Paiboon Nititawan, a former appointed senator with strong connections to the yellow shirts, was selected by the reform council to serve on the drafting committee. He laid out a remarkably detailed version of the Bangkok establishment's vision of political reform, arguing that the blame for the "conflicts that have troubled the nation for years" lay squarely with political parties. Hence, the solution was to find a way to reduce their power. He predicted "drastic changes" that would make it harder for any single party to prevail in elections. There may also be a requirement that the prime minister and members of the cabinet must not be members of parliament, thus opening the door to unelected prime ministers, a hallmark of semi-democratic rule in Thailand in the past. Overall, electoral "reforms" will probably make any future elected politicians beholden to a majority of appointed legislators. They may also apportion votes to ensure that no political party can achieve a majority of parliamentary seats, or strengthen watchdog bodies sufficiently to paralyze whatever shadow remains of a properly elected government.

     The question is not whether the constitutional drafting will be a disaster. It will. If the 2007 constitution was unacceptable to pro-democracy groups, this one will be even worse. However, there is a way to avoid this disaster-in-the-making. The junta has hinted that it might hold a referendum, which would allow a direct democratic verdict. But a simple Yes/No vote on a proposed charter without a clear alternative is not a fair test in an environment in which the junta controls the mechanisms of government. The junta should be challenged to take the bold step of announcing a referendum between its draft and the 1997 constitution. Competition between ideas stimulates awareness, innovation and even compromise. But the marketplace of ideas must be free, so martial law must be lifted and restrictions on freedom of expression must be suspended for the campaign period. An all-out, government-funded campaign between promoters of each constitution would flood Thai society with the kind of debate, discussion and disagreement it has long needed to have.

     If proponents on each side were wise, they would find ways to appeal to the other side by pledging to make amendments if their side prevails. For example, pro-1997 constitution advocates could concede some ground on the qualifications of elected senators, which is a concern voiced by their opponents. Faced with real competition, the drafters of the new constitution might offer clauses that would appeal to a wider constituency. Whatever the result, there should be a reasonable mechanism for future constitutional amendments, thus allowing Thai society to grow with the times rather than being locked into the politically divided present.

     Such an approach does offer an advantage for the generals. Rather than insisting on having its own way and simply suppressing dissenting views, the junta could end this latest chapter of ignominy in Thai politics by embracing a real challenge to be freely fought out by equals. The military would emerge with credit as the harbingers of a more united and peaceful state. The two sides could each give the campaign their best shot, reaching out -- at least to some degree -- to the other side. And, at last, Thais would decide their own future.

David Streckfuss is an honorary fellow at the University of Wisconsin-Madison in the U.S. and author of "Truth on Trial in Thailand: Defamation, Treason, and Lese-Majeste."

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