This post is part of New Mandala’s month-long feature on Thailand’s 2007 constitution referendum. More commentary and analysis from Red and White Stripes is available from his website.

Constitutions are a bohemian subject to tackle. One could go into detail about what makes a good constitution, what a constitution should cover, the nuances of media protection balanced against national security and still be nowhere near complete.

But when comparing the much vaunted 1997 “People’s Constitution of Thailand” against the new model, I think the most succinct summary came from a modest student in my grade nine class: “It’s the same, but the army made this new one”.

He really wasn’t far off the mark. To understand the importance of the referendum on August 19th, we first need to take a quick look at its predecessor. It’s hard to underestimate just how crucial the 1997 constitution was to Thailand in terms of human rights, democratic progress and a tip in the working class and aristocrat power struggle.

The ’97 constitution was largely borne from some of the horrific events that happened five years earlier. In 1992, a military manouvere saw General Suchinda Kraprayoon lead the army group known as the NPKC (National Peace Keeping Council) into Bangkok and sack the civilian government lead by Chitachai Chonhawaan. Less than two months later the group staged a dubious election. By this time it was already apparent that the NPKC’s promises to punish and expose corrupt politicians had become a farce. Not only had no convictions taken place, many members of the former cabinet had become members of the military backed Sammitkan party and been paid grandly to do so.

The ray of light still remaining was in the new constitution proposed by the new rulers. However, details of this had already been leaked and rumours circulated of the army granting themselves a large amount of power by allowing government officials (read: soldiers) to stand as PM , increasing the clout of the senate (which, then, was unelected and allied to the military) and setting up laws to stymie future amendments. The election resulted in a five party coalition that duly proposed coup leader Suchinda as PM. It all looked bleak.

Public outcry was immediate. In an attempt to calm tensions, the government announced plans for a new constitutional rule that forbid non elected individuals to become PM. After tensions simmered the government announced further plans for an exclusion clause allowing Suchinda to take the role of PM after all.

The rest is history, history known as “Black May” or “Bloody May”. Led by Chamlong Srimuang, a huge group of civilian protesters took to the streets to protest the junta rule and Suchinda’s renege on his promise not make himself PM. A standoff ensued as Chamlong’s group approached a blockade, and shots rang out from well placed military snipers. Officially, forty seven people were killed in the incident.

The international media covered the event far more efficiently than its Thai counterpart. Yet Thais knew enough to be angry. Even the middle aged could see the dark comparisons with the tragedy at Thammasat in 1976. Military figures enforcing the rule of unelected soldiers had used force to surpress unarmed protesters. What’s more, Thai media had been woefully slow and inefficient in its reporting. It was time for change.

Yet it was the power of the cry for that change – rather than the blatant need for it – that encouraged the Thai aristocracy to grant the 1997 constitution in its eventual form. For the “people’s” constitution was so named because it gave far greater rights to Thais than any of its predecessors. Some highlights included:

  1. Several major new bodies designed to combat corruption in parliament including The National Counter Corruption Commission and the Ombudsman Office.
  2. A pledge of free education up to age twelve for all citizens.
  3. A right to peaceful protest against coups or any other threats to democracy.
  4. A rule that all eligible citizens must vote (designed to stop politicians buying and using votes themselves).

It was warmly received, well touted and eagerly implemented. The election of successful businessman Thaksin Shiniwat was seen as further progression in the political sphere. Alas, many critics now believe that this was a downside, as many of the independent checking bodies invented in the constitution were seen as compromised and rendered dysfunctional by Thaksin and Thai Rak Thai’s wealth and influence. Such discussions are available in other articles, however.

Just as the middle classes of Bangkok were beginning to lose faith in Thailand’s most important legal document, history began to repeat itself yet again: an army rolled in under the guise of national peacekeeping. Power was seized, promises of corruption in the civilian government were disseminated and the constitution was effectively torn to pieces with a promise of a superior replacement that would be accepted or rejected by public referendum. The masses being allowed to reject the junta? As Michael Moore might say: “Was it all just a dream?”.

But is the new constitution really better? Putting aside the claims of various groups with vested agendas, the reality is that there are some improvements in the new legislation, as well as some grey areas and some possible backwards steps. Innovations include:

  1. A reduction in the number of MPS from 500 to 400.
  2. A clause stipulating members of the government cannot subsidise any privately owned media nor order its closure.
  3. The removal of the requirement for political candidates to hold a university degree.
  4. The removal of an elected senate. The senate will now be chosen by a “national selection committee” as well as regional sub committees.
  5. As mentioned, the new draft requires only twenty thousand signatures to remove an MP.
  6. Other new factors to consider include the heavy reference to “sufficiency economy” and amnesty for the coup leaders. Unlike its predecessor, the new document does not outlaw further coups.
  7. The above clauses are truly encouraging, enough to sway a “yes’ vote, perhaps, for some voters.

But if you’re still unsure which way you’d like to place your vote, if you can’t decide which is the lesser of two evils, perhaps you can use my check list of pointers below to help you decide. The following five questions – that odd number is deliberate to give you a definite verdict – may help you reach a final decision.

1. Can a document produced by dishonest means be honest?

I’m not talking about the coup per se. I’m referring to the disgraceful selection process of the CDA (Constitution Drafting Assembly) in which a virtual unknown received the highest number of votes in the secret ballot. It turned out the ‘unknown’ was a close associate of Sondhi. The selection process – at a delicate time for the nation – was nothing short of a farce, however good the end result is.

2. Is it worth the cost?

A shiny, pretty yellow covered copy of the draft has been delivered to each house in Thailand. Heck, we’ve had at least three arrive at our house. With rumours of profitable sub contracting amongst the printers combined with the attractive salaries afforded to the drafters, one can only imagine the total cost of the referendum experiment.

3. Is it right to hold a referendum at all?

Don’t get me wrong, I know how precious these decisions are. But as my spouse pointed out to me, the booklet contains a lot of complex language that a huge number of rural voters will be unable or unwilling to read. This puts them in a vulnerable position of being susceptible to vote buying. Bear in mind that a “yes” or “no” vote isn’t just for or against the document, it’s also an expression of opinion on the whole referendum process.

4) Is it progressive enough?

Ten years on from the “people’s constitution” what have the junta panel given us? What steps have we made towards lowering class gaps, checking corrupt politicians and ensuring basic human rights? You’ve seen some of the highlights above but it’s well worth taking the time to check for yourself. Thais need to decide if the steps forward are a) good enough and b) well in
excess of some sideways or even backwards measures in the new draft.

5. Does it matter?

When the most important legal bill in Thai history outlawed coups, it was hailed as a breakthrough. Then the coup makers destroyed the document that said their manoeuvre was illegal and ordered a new document that gave them amnesty. What’s to stop them doing it once more? What message can the people send to inform the junta such actions will not be tolerated ever again?

And there’s your list. The new constitution of Thailand undoubtedly contains some progressive democratic measures. Yet it is essentially the same document as its ten year predecessor and produced at great expense to Thailand both financially and democratically.

The people now have a choice. They can choose for a quick return to democracy under the hope that history will not repeat itself again and the new improvements set the nation on the road to mature democracy. Otherwise, they can send the junta a firm message that their anachronistic assaults on democracy will no longer be tolerated.

The various power cliques of the ‘new money’ civilian politicians and the ‘old brass’ of the junta alike will watch and learn from Bangkok and the upcountry Thais as they go to vote on August 19th. Whatever they decide, risks lie ahead.