The Evolution of Constitutional Law & Thai Democracy
Assist Prof Dr Prinya Thaewanarumitkul is the director of the Thammasat Law Center and lecturer on constitutional law at the Faculty of Law, Thammasat University. Recently, the Elite+ magazine editorial team met this distinguished academic and scholar at the university campus to discuss his background and perspectives on the evolution of Thai democracy and the Thai constitution.
Can you tell us something about your background and what led you to become a constitutional scholar?
I have had an interest in democracy and bringing it to the people of Thailand since I was a student activist at Thammasat University. In the “Bloody May” or “Black May” protests in 1992, as the secretary-general of the Student Federation of Thailand, I was the student leader protesting against the government of General Suchinda Kraprayoon, who attempted to maintain the coup makers' power following the general election. Unfortunately, the military conducted a harsh crackdown and a number of protesters’ lives were lost.
These protests could be compared to the student uprisings of October 1973, and after our protest, I felt nothing had really changed during the period of 20 years between these demonstrations and calls for democracy. Thus, I decided to pursue post graduate degrees in constitutional law and become a lecturer, where I could teach our future generations and contribute to Thailand’s quest for a fair and free democracy.
I then next began to examine the forms of government of different democratic countries. The US with its presidential system was not my choice because the government form of Thailand is a parliamentary system. Apart from that, I think that a two-party system as in the US does not provide the people with a complete, or comprehensive choice. England was also not my choice, although the British government form is a constitutional monarchy and parliamentary system like Thailand, but they don’t actually have a written constitution, just a series of acts, charters and conventions, what we call an uncodified constitution. Then there were France and Germany. The French government form is a semi-parliamentary system, with both its elected president and parliament in which the president chooses his prime minister who then forms the government.
The German government form is a parliamentary system more similar to Thailand’s system. Apart from that, after the Second World War, Germany, which had lost the war, had more developments in democracy and constitutional law. The Germans had been dictated by an authoritarian regime and how they could overcome this was quite interesting for me. Therefore, I made the decision to go to Germany to pursue my studies.
First, though, I needed to learn German, first taking an intensive course at the Goethe-Institut here in Bangkok and then eight more months of all-day German classes in Germany. Once I passed the required certification, I earned both a Master’s degree and Doctorate of Juristic Law from Göttingen University.
Yes, of course it was hard. At the beginning I couldn’t understand the lectures and so spent a lot of time reading and re-reading the textbooks, and over time, I became fluent enough to succeed in my studies. My doctorate dissertation focused on comparing the political parties in Germany and Thailand. After this, I returned to Thailand and became a lecturer at the Faculty of Law, Thammasat University.
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Can you now explain what you believe the Thai constitution should entail?
Let me begin by saying I am opposed to authoritarian rule, where someone or a junta dictates the rules and does not listen to the people. A democracy should be like a family where the parents instruct and make decisions by also listening to their children more and more as they mature. Politics, or a democracy, must have a system of checks and balances. An autocratic system does not allow for this. Governing must be by the people and for the people, the populace, not a select few. The government must be transparent and free from corruption.
To better explain, let me give you a simple anecdote. There are two men, A and B. A goes to a doctor for an examination and learns that he is ill. Because A was examined and could be treated, he was cured. B, on the other hand, has similar symptoms, but doesn’t go for a checkup and just continues his daily life, thinking all is fine, until he dies. So, without checks and balances, there is a good chance ultimately for failure.
What about Thailand’s current constitution?
First of all, the Constitution of 2017 is the country’s twentieth since the revolution of 1932 and the establishment of Thailand’s constitutional monarchy. This constitution was drafted by a constitution drafting committee appointed by the coup makers of 2014 led by Gen Prayut Chan-o-cha, then the commander-in-chief of the Royal Thai Army who later became prime minister. The people did accept the constitution with its flaws because they wanted to return to some form of democracy. But under this constitution, the senators were all appointed by the junta and were included in the vote to select the prime minister. That was why the coup makers could prolong their power after the general election in 2019.
The term of junta appointed senators was five years, while that of the elected MPs was only four years. Thus, the people’s first choice by the general election in 2023, the Move Forward Party and their leader, Pita Limjaroenrat, had no chance in forming a government. Furthermore, the members of the Election Commission, like many of the supposedly independent agencies, were appointed by the Senate and, therefore, not as independent as we would have hope they would be.
Last year, we did have an election for a new group of 200 senators. While the candidates were not supposed to have a party affiliation, 150 of those elected are seen as conservative allies to the to the Bhumjaithai party. Now, while the senators will not be included in the parliamentary selection of a new prime minister following the election in 2027, they still wield power as they can halt, at least temporarily, the enactment of legislation approved by Parliament.
We do need a new constitution, one that has not been written by the coup makers, one that again adjusts the selection and powers of the Senate to achieve a much better check and balance of power.
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How can the Thai constitution be improved?
Well, first of all, the Thai constitution is too long; it’s over 42,000 words. This makes it quite complex and confusing. The best constitutions are short and concise and right to the point. Sweden’s constitution is 7,000 words, South Korea’s 9000 and Japan’s 10,000. Germany’s is a little longer with about 20,000 words while the US constitution is less than 5,000 words. With its 27 amendments, it is still just over 7,500 words.
In my research, I discovered that successful constitutions have between 10,000 - 20,000 words. I also learned that eight of the ten best, most successful democratic governments are constitutional monarchies, like Norway, Denmark, Sweden, the Netherlands, Belgium as well as Commonwealth countries with King Charles III their head of state, like Canada, New Zealand and Australia.
Think of politics like a football game with two teams competing and the referees controlling the action. The footballers and the referees must follow the rules because the fans know the rules of the game. So, this is what we call “the rule of law”, and it is much the same in politics in a democracy. Again, like I said, the Thai constitution is over 42,000 words. Who can know and remember it all? Decision making can thus become quite convoluted, confusing, as the laws can often lead to multiple interpretations. Therefore, we need to make changes.
Unfortunately, constitutional amendments according to the 2017 Constitution or to draft a new constitution requires a referendum. Just look at the conflict right now between the Senate and Parliament over a referendum to amend the constitution. They are still fighting over whether the vote should be determined by a simple or double majority. While Pheu Thai and People’s Party are calling for a simple majority for the vote to change or not change the constitution, the Senate wants an absolute majority of the populace and then an absolute majority of the voters of the populace to answer yes or no. Therefore, it is still not possible to begin to amend the constitution.
Can you explain a little how the judicial branch of government works in the system of checks and balances?
The 1997 constitution introduced changes to our judicial system, establishing the Administrative Court, which handles grievances against state agencies and public officials, and the Constitutional Court to review parliamentary legislation in addition to the existing Court of Justice and Military Court.
In Thailand, if a person wants to become a judge, they must study law and pass the bar exam. They must then pass a selection examination to become a judge. However, judges of the Constitutional Court do not need to be lawyers. The nine constitutional judges are appointed to serve seven-year terms after selection and endorsement by the Senate. However, they don’t work like judges because they make their decisions based on a majority vote, not on legal justification. But they are very powerful.
Since we have had the Constitutional Court, it has removed four prime ministers, annulled two general elections and dissolved more than 100 political parties. So, that is a big problem.
In the US, Supreme Court justices are also approved by the Senate and then appointed by the president. But with lifetime terms, they should be independent from politics. And, definitely, the US Supreme Court makes its rulings based on legal justification and precedent. Germany’s Federal Constitutional Court consists of 16 judges, eight selected by their upper house and eight by the Bundestag (parliament). So, as you can see while we hope for our judges to be unbiased, independent thinkers, politics does get involved. Just look at the US Supreme Court and the six conservative justices appointed by Republican presidents and the remaining three liberals appointed by Democratic presidents.
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How would you describe Thailand’s evolution towards democracy over the past 25 years?
First of all, Taksin Shinawatra formed his Thai Rak Thai party in 1998 and then won a landslide victory in 2001. He was removed in a coup d’état in 2006. Since then, the country had become divided between the Red Shirts, supporters of Taksin, and the Yellow Shirts, who supported the coup makers. Five years after the coup in 2006, Taksin’s sister, Yingluck Shinawatra, as the leader of the new incarnation of Thai Rak Thai, the Pheu Thai Party, became the first female prime minister of Thailand. She was then removed by the Constitutional Court in May 2014 and two weeks later, Gen Prayut Chan-o-cha led a military coup following major protests by the Yellow Shirts and became prime minister.
During this time, the Red Shirts and Pheu Thai formed the opposition as the party considered to be supporting democratic principles. In the 2019 election following the coup, Gen Prayut and conservative parties, with his self-selected senators, were able to form a government through some manipulation, that is through changes in the interpretation of certain articles in the Constitution. But the country now had the formation of a new, young, progressive party, Future Forward, joining the opposition. However, this party was dissolved and its leaders banned from politics. Still under a new banner, Move Forward, it joined the opposition. Here now, we also saw how the younger generation, now more informed through new media and more educated, no longer supported the patronage system of representative selection. In the 2023 election, Move Forward recorded the highest percentage of votes, followed by Pheu Thai. It won the most parliamentary seats, but was unable to form a government because the Senate under the Constitution was included in the vote to select the prime minister. As they were appointed by the governing junta, their allegiance was to the military and conservative factions, and they would never allow Pita Limjaroenrat, the party leader, to become the next PM.
Meanwhile, Pheu Thai dropped its support for Pita and joined the military and conservative parties to gain a house majority and formed the current government. With this alliance, Taksin was allowed to return, and this is where we stand today. The Romance of the Three Kingdoms by Luo Guanzhong, which describes three kingdoms in ancient China fighting for supremacy, is a good illustration of our current situation. Currently, in Parliament, we have three major parties, the People’s Party, the new incarnation of Move Forward, which was also banned; Pheu Thai and Bhumjaithai. The latter is conservative and aligns with the conservative powers. Pheu Thai could be called neoconservative, but it is now trying to win back its progressive, democratic image after many of their populist followers felt deceived when Pheu Thai joined the military and Bhumjaithai parties.
Together, the People’s Party and Pheu Thai along with some smaller opposition parties captured around 70% of the electorate in the last election. So, what could happen in the next election in 2027? Will those who voted for Pheu Thai because they believed they were anti-military change their allegiance to the People’s Party or will Pheu Thai reassert its leadership position? This is what is challenging for both parties. The younger generation voters may vote for the progressives, but right now Pheu Thai has the state power to introduce policies and actions, like the 10,000 baht handout, to regain and increase their votes in the next election.
However, it’s incredible for me to see the changes, the evolution that has taken place in the populace’s political savvy and belief in bringing free, fair, sustainable democracy to Thailand. Social media has done wonders. Today, there is so much more discourse. Patronage politics still exists, especially in the provinces, people voting for a certain family, now the children of the older political lineages. But, meanwhile, the party list election has shown that the people want change. I’m waiting to see how the next election will unfold.
I do believe we are moving towards what I call a “Smart Democracy”. As I said earlier, people have become much more dependent on their “Smart Phones". They keep up with the news, do their business, order food and products, conduct digital banking and, in the near future, we might be able to even vote in elections via our Smart Phones.
So, while Thai politics on the surface might not look so positive, if we compare Thai politics now to 30 years ago, let’s say beginning with 1992’s “Black and Bloody May”, it has truly evolved. At that time, as a student leader, I, along with my friends, went out to talk to the voters and asked them not to vote in the next election. We were opposed to the military and their political allies and supported those in the opposition who wanted to achieve a fair election. But we were unsuccessful changing the minds of the voters, especially in the rural areas, where they continued to support the patronage system. We did see some change in Bangkok, but nowhere else.
But comparing that time to the last election in 2023, we have seen major changes in the results. The voters in the urban areas voted without any allegiance to the patronage system. Even in the rural areas, while they voted for constituency MPs according to patronage, they voted for the progressive parties’ listed MPs.
So, we need and I think can bring change, though it will still be quite hard. First, we must ensure that there is never another coup. Then, we need to gain the support of at least one third of the Senators to make changes in the constitution. At the same time, we must help unite the progressives, those who truly support smart democracy. Of course, it will be hard, but I still believe it is possible.
