Charter change: learning from Thailand’s errors

During my first trip here as a PhD student 14 years ago, a German foundation asked me to discuss with members of the House of Representatives my research on constitutional reform in Thailand. In the  talk, I reflected on lessons the recent Thailand experience could offer the Philippines, which was then engaged in its own constitutional debate.
The 1997 Thai “People’s Constitution” marked a distinct juncture in Thai constitutional history, not just in terms of its innovations in establishing a liberal system of checks and balances and horizontal accountability, but also for the process of public consultation and civil society involvement – which had been inspired by the 1986 experience of the Philippines – that ultimately secured its passage with high public support.
Drawing on previous studies, I concluded by pointing out that, while certainly the “choice of constitutional design impacts policy outcomes”, it should not be forgotten that “process matters as much as content” – that there is a need for careful consultation throughout the drafting.
Although I may then have been carried away by my enthusiasm for the 1997 Thai constitution, the principles still stand: As we know, the 1997 constitution, which had lasted longer than most other Thai constitutions, was replaced in 2007 when a military coup produced a new draft; last year, that, too, was altered by the junta.
The Thai experience under these three constitutions offers not only unexpected parallels, but also cautionary tales as the Philippines renews constitutional debate in 2018 – so much so that I cannot help but worry.
In contrast to the 1997 constitution, the drafting of the 2007 and 2017 Thai constitutions lacked transparency, public participation and open debate, not unlike what is currently happening in the Philippines. With the drafting shrouded in secrecy and heavily influenced by the military junta, the constitutional drafters faced widespread scepticism and growing opposition from the public. And because the drafters handpicked by the junta were perceived as not fully representative of society, the legitimacy of the process was eroded.
Rather than rectifying the situation, the public referendums on the drafts exacerbated the social and political divisions in society. Although the 2007 constitution passed with a majority of 57 per cent of national votes cast, and the one in 2017 by 61 per cent, voter turnout in both never reached 60 per cent. The result was negative in several provinces, despite severe martial law restrictions on critics. Having failed to provide an inclusive new social contract, Thailand is now sunk in a political quagmire – a conclusion quite possible in the Philippines given the lukewarm public support for a new constitution.
Finally, the post-1997 Thai constitutional reforms failed to improve liberal and democratic practice in any way. To the contrary, both constitutional revisions induced a gradual illiberal turn in which elections were repeatedly delayed, giving way to transitional provisions and executive empowerment.
A reminder: A constitution that seems liberal can be used for authoritarian purposes, and the two Thai replacement constitutions illustrate the danger that authoritarian regimes will use constitutional reform for their own ends.
Observers may rise to remind us that the Philippines has a very different constitutional history from Thailand, and that it learned much from the sham 1973 drafting process under the Marcos dictatorship. However, the current assault on oversight institutions, the lack of transparency in the drafting process, and provisions that empower the president during an unspecified transition period suggest that the Philippines might also consider Thailand’s experience as a warning. It certainly looks that way to me.

Dr Bjorn Dressel is an associate professor at the Crawford School of Public Policy at Australian National University, researching comparative constitutionalism, judicial politics and governance and public sector reform in Asia. He is the editor of “The Judicialisation of Politics in Asia” and coeditor of Politics and Constitutions in Southeast Asia. Follow him on twitter @BjoernDressel.