A panel discussion on “Thai Political Situation: Wherefrom and Whereto?”

Presented by the Royal Thai Embassy and the SOAS Thai Society

Location: Brunei Gallery Lecture Theatre, SOAS

Date and time: Friday, 29 January 2010, 17.30-20.00

Panellists: Professor Suchit Boonbongkarn, Professor Duncan McCargo, Professor Peter Leyland ,and Professor Borwornsak Uwanno

Moderator: H.E. Mr. David Fall

Part I of this report is available here.

Professor Peter Leyland

Professor Leyland started his discussion by saying that although he agrees with Professor McCargo that there is some consensus about some of the approaches in dealing with Thai politics, his title of the talk “Thailand’s constitutional roller-coaster ride and the search for constitutionalism” suggests a feeling about how things have turned out to be in recent years. His talk addressed the following questions; why constitutionalism in Thailand has been so elusive; have the recent constitutions contributed anything to the Thai democracy; can a certain constitution offer more enduring solutions; and finally, is there a magic formula in a constitution that can guarantee a peaceful transition to Thai democracy?

He first suggested what he means by using the term “constitutionalism”. To explain this, he gave a quote from Professor De Smith saying that: “constitutionalism becomes a living reality to the extent that constitutional rules curb the arbitrariness of discretion and are in fact observed by the wielders of political power”. Constitutionalism, therefore, is not about the rules themselves, but refers to the fact that they are being observed by the constitutional actors. Another point he made is that the idea of constitutionalism is totally related to another principle which is the idea of “the rule of law”. Professor Leyland argued that the point about the rule of law is not the question of having the rule, but adhering to the rule and recognising it. It is apparent that constitutionalism and respect of the rule of law can partly be achieved through institution building such as having a parliament, a constitutional court, and an electoral system. However, it also needs to be achieved through establishing the mechanism of accountability, the conferment of individual liberty. And most importantly, the key element is conformity with the rules, not having the rules.

In relation to Thailand, Professor Leyland noted that the recent constitutions have been giving the country a wide range of modern institutions to deal with the specific problems related to Thailand before the 1997 Constitution. These institutions include, for example, the Electoral Commission, the National Counter-Corruption Commission, the Anti-Money Laundering Commission, the Administrative Court, and the Constitutional Court. In developing the 1997 Constitution, the drafters, apart from involving people in the participatory process, also looked around at what was happening in other constitutions and incorporated them into the Thai system. These institutions were intended to be powerful; to have power to suspend people for wrongdoings. The idea was that there will now be the rule of law in Thailand because these institutions can disqualify people. Some of these institutions also have the power to investigate wrongdoings. All these institutions have existed to create a system of constitutional accountability, separation of powers, establishment of constitutional principles, government responsible for elective parliament, accountability in public affairs, etc. All these features have been contained in the recent constitutions, but they need to be linked to the application of the rule of law, meaning that everybody should be subjected equally to the rule of law. However, Professor Leyland concluded, “this has not been achieved to date”.

Professor Leyland then explained the reasons why the rule of law has not been achieved in Thailand. One of the reasons is because, for many of these watchdog bodies, rather than remaining independent, their appointment process was not sufficiently insulated from political pressure. Some of them were captured, and therefore, were not necessarily successful in being able to introduce the kind of rules that were expected. Another reason may be that the local conditions, such as the hierarchical social relations, make it difficult to take action strictly according to legal procedures. There might also be a general lack of faith in the formal legal process. However, he also said that the course of constitution making, and the idea and commitment to the rule of law, means that nobody can turn the clock back to the absolute monarchy period as a solution to the problem.

Professor Leyland then briefly pointed out what went wrong with the 1997 Constitution. This included: failure in dealing with the conflict of interests; the failure of the senators to be politically neutral; and the fact that the appointment process of the watchdogs and courts became partisan. However, he argued that the 2007 Constitution was not the new beginning. Although the 2007 Constitution cannot claim the similar legitimacy as the 1997 Constitution, it retains some of the characteristics of the 1997 Constitution, especially all the watchdog bodies. It, however, has some critical points. It is less democratic in some respects. It is, however, more robust on conflict of interests.

In relation to the question “what is the way forward for Thailand?” Professor Leyland argued that the current situation in Thailand is framed by two conditions; the uncertainty of royal succession and the question of how to deal with Thaksin. At the same time the political aspirations of the military have reduced, and there is an increasingly prosperous and well educated electorate. Moreover, if the situation is looked at in a positive way, there is a well established civil service, a relatively competent and effective judicial system, and the existence of constitutional watchdogs. In overcoming the problems in Thai politics, Professor Leyland suggested that it is worth remembering first that a constitution generally comes about because of its significant role in leading to a new beginning. However, with the exception of the 1997 Constitution, Thai constitutions are semi-imposed. He then recommended a number of avenues that might be explored in making Thai democracy work better. There can be a strategy that allows more prominent public roles for the opposition. This means that there is a convention that would allow the opposition, as well as the government, to be genuinely represented in every public sphere, for example; the case of the BBC in the UK at the present, where the Chairman is from the Conservative side, while the Vice-Chairman is from Labour. There can also be the introduction of some degree of power-sharing, and the devolution of more power to the regions. There also needs to be a change to the rule of selection for the senate, and the rules for the dissolution of political parties.

Finally, Professor Leyland gave answers to the magic formula question. He argued that any wrongdoing by the elite has to be punished. Then the constitutional actors must negotiate and agree on the modified constitutional framework and then stick to it. A constitutional framework cannot be imposed upon them. There must be genuine and inclusive engagements that result in an agreement on the constitution, and also an agreement on the compliance by all the major parties. All the parties then must agree to follow whatever comes out from the engagement. Professor Leyland concluded his talk by reminding the audience of the experiences from Western Europe that constitutionalism does not happen overnight. And only when all the parties under the Thai constitution finally agree to follow the rule, can constitutionalism be launched in a meaningful way.

Professor Bawornsak Uwanno

Professor Borwornsak Uwanno began his presentation by stating that he would address the “Where to” part of the “Thai Political Situation: Where from and Where to”. We shall see later, however, that most of his presentation was devoted to analysing the cause of the political crisis (the “Where from”), rather than predicting what would come next (the “Where to”). At the end of the presentation, he would give some solutions that he believed would help Thailand out of what he called an “endless circle of political uncertainty and divisiveness”.

Professor Borwornsak laid out his interpretation of the cause of the current Thai political conflicts as follows. What on the surface seems to be the conflict between the pro- and anti-Thaksin movements, he said, was in fact a symptom of deeper socio-economic and ideological divides. In particular, the conflict was, in his view, a result of pervasive income inequality and a disparity between different conceptions of democracy held by different groups.

He then drew attention to some figures that would elaborate the economic imbalances that, he would claim, were the root of the political fray. He first cited the difference in income between the richest 20% and the poorest 20% of the population. In 1962, he said, the richest 20% earned 60% of the country’s income, while the poorest 20% lived on a 3% slice of the GDP, and the 2006 figures showed no improvement. He also cited that in terms of asset ownership the richest quintile of the population own 69% of the country’s assets, while the poorest quintile own only 1%. He also showed that the trend in Thailand’s Gini ratio (a measurement of income inequality) has been increasing, while those of several ASEAN neighbours have been falling. He argued that this equality of income had an impact on politics in that the poor would elect the local rich as their representatives, allowing them to accumulate more wealth through corruption.

Professor Borwornsak then argued that the populist policies of Thaksin’s administrations worsened the disparity between the poor and the rich. Income growth, he claimed, was concentrated on export-oriented businesses, while small and medium enterprises gained little. Thaksin’s populist policies, he claimed, while having the virtue of making the poor realise for the first time that their votes mattered, kept the poor “dependent on and even addicted to” Thaksin’s Thai Rak Thai party. This, Professor Borwornsak argued, enhanced the granter-receiver relationship that is central to the “patronage system”. Moreover, Professor Borwornsak argued that Thaksin’s populist policies had “no longer-term impact on the economy” and would be unsustainable since they “required spending future money”.

Then Professor Borwornsak went on to narrate that Thai people failed to keep their elected government in check. The “civil society sector”, he claimed, was weak, which allowed Thaksin’s government to interfere with independent checks and balances and the media. It is not clear whether he meant these to be elaborations of the harm of populism.

Coming to the final phase of his presentation, Professor Borwornsak proposed some solutions to the political impasse. He argued that we need not only political reform to find a democratic system in which people would have their voices heard, but a more comprehensive reform that would “correct the ingrained structural imbalances in Thai society” – the economic imbalances that have “kept the patronage system alive”. He then ended the presentation by saying that the Constitution and the related laws should have provisions that “give the poor to access resources without having to wait for government’s handout”. In other words, the Constitution should institute a “welfare state” so as to reduce populism.

At the end of the presentation, a watchful audience might remember that, while Professor Borwornsak had proposed from the start that there were two factors contributing to the prolongation of the political crisis – i.e. socio-economic inequality and different conceptions of democracy. By the end he had only analysed the former but not the latter. A critical audience might also question Professor Borwornsak’s analysis of the cause of the political crisis. If the structural socio-economic imbalances have existed for over four decades, then why did the crisis only break out four years ago? If the socio-economic imbalances were to be the sole, or even a major, condition for a political crisis, then Thailand should have been immersed in political crises for decades and not only in the past four years. It seems that to make sense of the cause of the political crisis, Professor Borwornsak would need a greater explanation than mere economic inequality. It is also worth noting that while Professor Borwornsak advocated a welfare state, he dismissed populism on the grounds that it kept the poor dependent on the government, and that it was unsustainable given that it had to be financed using future money. A curious audience would question how Professor Borwornsak’s “welfare state” would be any different. Indeed, if populism means only a “popular” welfare state, then one may ask why it should be worse than an unpopular one.

Thorn Pitidol and Prach Panchakunathorn are students at Oxford University.