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Thailand: Draft of New Constitution Completed

(May 5, 2015) On April 17, 2015, Thailand’s Constitution Drafting Committee (CDC) completed the first draft of a new Constitution. Relevant stakeholders, including the Cabinet, the military, and the National Reform Council, will have the opportunity until May 25 to review the document and submit proposals for amendments to the CDC. (Aukkarapon Niyomyat, Draft Thai Constitution Complete, but Strife Seen Ahead, REUTERS (Apr. 17, 2015); Constitution of the Kingdom of Thailand [unofficial translation] [draft text], CONSTITUTIONNET (Apr. 17, 2015).)

The 36-member CDC, appointed by the junta that took control of Thailand in a May 22, 2014, coup, is to submit the final version of the draft Constitution to the King on September 4. (Khaosod, New Thai Constitution to Be Enacted by 4 September 2015, CONSTITUTIONNET (Mar. 15, 2015).) The King has traditionally “signed” and enacted Thai constitutions. (Prashanth Parameswaran, Thailand Completes Troubling New Constitution: The First Draft of the Charter Contains Some Worrying Provisions, DIPLOMAT (Apr. 18, 2015).) The military has reportedly ruled out a referendum; instead, it will solicit opinions from a thousand selected respondents from the country’s 77 provinces. (Thailand’s Military-Backed Council Debates New Constitution, BBC (Apr. 20, 2015).)

If adopted, the draft Constitution would replace the interim Constitution that entered into force on July 22, 2014, which itself replaced the 2007 “permanent” Constitution. (Anuchit Nguyen & Suttinee Yuvejwattana, Thai Junta Retains Sweeping Power Under Interim Constitution, BLOOMBERG (July 23, 2014); Khaosod, supra; 2014 Interim Charter to Re-Engineer Thai Political Landscape, PRACHATAI (July 24, 2014); Constitution of the Kingdom of Thailand (Interim) B.E. 2557 (2014), Office of the National Human Rights Commission of Thailand website (last visited Apr. 30, 2015) [scroll down for hyperlink].) The new charter would be the 20th to be put in place since 1932. (Khaosod, supra; Somchai Preechasinlapakun, Dynamics and Institutionalization of Coups in the Thai Constitution, V.R.F. Series No. 483 (July 2013), at 4 [Table 1: Constitutions and Charters in Thailand 1932-2012].)

Selected Features of the Draft Constitution

The draft Constitution has a number of controversial provisions, including:

  • Immunity would be allowed for the generals who seized power in May 2014 (a similar proposal made in 2013 triggered mass protests and led eventually to the 2014 military coup);
  • The House of Representatives would have the power to nominate via a two-thirds vote anyone it deems suitable for appointment as Prime Minister (that is, the individual would not have to be elected nor be affiliated with any political party);
  • Future elections would be held under a proportional representation system, which would favor smaller political parties and coalition governments;
  • 123 of 200 Senators would be appointed, with only the rest elected;
  • Election campaign rules would be stricter, with the Election Commission requiring campaigns to be authorized in advance, public debate being mandatory, and “populist policies” filtered out (through methods yet to be defined), among other requirements;
  • Impeachment rules would be relaxed to require only a simple majority parliamentary vote for a motion for impeachment to pass;
  • A National Moral Assembly (provided for under § 74) will prepare or approve a Code of Ethics, carry out background checks, and establish moral standards for public officials, among other tasks; and
  • Section 7 of the 2007 Constitution, which provided that if no constitutional provision were applicable to a case, it would be decided in accordance with a constitutional convention of the democratic regime, with the King as Head of State, would be reinstituted, but the CDC has made the clarification that the Constitutional Court would be fully empowered to interpret such a constitutional convention.

(Thailand’s Military-Backed Council Debates New Constitution, supra; Niyomyat, supra; Khemthong Tonsakulrungruang, Turning Back the Clock: Thailand’s 2015 Constitution, CONSTITUTIONNET (Feb. 20, 2015); & No Big Changes Planned for Junta-Ruled Thailand’s Draft Constitution, STRAITS TIMES (Apr. 24, 2015).)

The provisions defining the rights and liberties of Thai citizens would remain the same as those found in the 2007 Constitution. (Tonsakulrungruang, supra.)

Criticisms

While the CDC had as a major concern preventing “parliamentary dictatorship,” critics argue that the document “will not heal Thailand’s deep political divisions and could usher in a period of weak and short-lived coalition governments.” (No Big Changes Planned for Junta-Ruled Thailand’s Draft Constitution, supra.) Moreover, according to the conservative Democrat Party spokesman Chavanond Intarakomalyasut, “[t]here are a lot of issues in the new constitution that might not be suitable for Thai politics, including the weakening of political parties.” (Id.)

Other critics had warned that the draft charter “includes anti-democratic provisions designed primarily to prevent any group loyal to Thaksin Shinawatra and his sister Yingluck from assuming power,” and that publication of the document “reportedly confirms these fears.” (Parameswaran, supra.) There is also concern that the establishment of certain new bodies under the Constitution, the appointment of a Prime Minister who is not elected, and the screening of officials based on the “right moral standard” will enable the elite to manipulate the government. (Id.)