The Constitutional Court ruling that it is unconstitutional to amend the Constitution is proof of the sacrosanct nature of the document, so unutterably perfect that no change could possibly be an improvement. Perhaps it is time to go back and review how this flawless piece of work came about.
If we recall those dark days after the 2006 coup, we may remember that the process for selecting the drafters of the 2007 Constitution started with the 2000 members of the National Assembly, all appointed by the military (no messy elections there). They then did have an election, among themselves, for 200 candidates for the Constitution Drafting Assembly. And as if to prove the military’s belief that voting is not a Good Thing, the military-appointed NA members indulged in one of the most shambolic votes in Thai politics.
Each NA member had 3 votes (in Thai elections it is quite normal for people to have more than one vote each; obviously the more votes each person has, the more democratic the system is). Envelopes were passed in the toilets, one woman was stopped at the entrance to the chamber with an unexplained 400,000 baht in cash in her handbag, and voting NA members were given ballots to mark outside the voting booths, possibly in the toilets.
The nominee who ended up with the greatest number of votes was a second-hand car dealer from Chachoengsao, with a BMW executive in second place and the owner of a construction firm in Nong Bua Lamphu in third. Apart from their personal connections with members of the military junta that had just ripped up the 1997 Constitution, they did not seem to have any special constitution drafting expertise.
All very sordid, but sometimes such things are necessary if we wish to avoid the horrors of a constitution that would allow a government to come to power through (gasp, shock, horror) vote-buying and corruption.
But no matter, in the best traditions of Thai authoritarian democracy, the military then whittled down the 200 elected candidates to a 100-member Constitution Drafting Assembly (CDA). This is in the best Thai tradition of ‘directed democracy’: you can vote, but there is always someone with greater authority to make sure you don’t vote the wrong way.
This complicated process of appointment-election-selection meant that the 100 CDA members included no representatives from workers or farmers, though there was a disproportionate number of judges and ex-judges among them. This lop-sidedness explains why one of the Constitutional Court’s reasons this week for rejecting the anti-democratic idea of electing a senate was that it would not guarantee representation by all professions.
One of the lucky 100 was former judge Wicha Mahakhun, despite his popularity being such that he had won all of 7 votes of the 6000 on offer in the election. But his qualifications for drafting a democratic constitution were impeccable. On the question of an elected Senate at the time, he commented, ‘We all know elections are evil. … Why don’t people want judges to help select senators?’
Thailand is truly blessed in having a goodly number of such far-sighted and broad-minded leaders with the wisdom and experience to guide it on the path to true democracy.
In this week’s decision, the Constitutional Court argued that the fully elected senate of the 1997 Constitution (aka the ‘People’s Constitution’, an epithet that the court clearly regards as indicating inferiority) was an error that was corrected in the 2007 version. This is no surprise since so much of the 2007 Constitution was the work of the judiciary, including 3 of the judges who sat in this case. These 3 were effectively judging whether those despicable politicians in parliament could improve on their own handiwork; it is only to be expected that they thought not.
So the draft Constitution was then put to a referendum. During the earlier rejection of another constitutional amendment, the Constitutional Court advised that this form of endorsement was necessary to ensure the amendment was what wanted. This is of course completely unlike the opinion polls that show a clear preference among the people for an all-elected senate.
Now the referendum on the 2007 Constitution was organized in the best tradition of ensuring that the true voice of the people was heard. Half the country was under martial law and the military (under a plan developed even before the Constitution was written) went door-to-door to make sure no one was ‘tricked’ into voting ‘no’. Billboards went up in the northeast linking support for the monarchy with a ‘yes’ vote. Criticizing the draft Constitution or campaigning against the referendum was made illegal. But it was legal to dragoon villagers into pro-Constitution rallies. And it was also legal for the military to transport voters to the polling stations, despite being a crime under the law on national elections, because Prime Minister (and coup leader) Surayud said it was legal.
The military-appointed government unleashed a flood of pro-Constitution propaganda (none of it in Malay). They did allow a television debate on the issue to be recorded but then banned it from free-to-air TV for fear it would ‘confuse’ voters. Former Senator Prateep Ungsongtham Hata, who was clearly not to be trusted after being elected like that, had posters printed saying ‘It is not illegal to vote no’ and then had them all confiscated.
But the best idea was leaving voters in the dark about what a ‘no’ vote meant. ‘Yes’ and we would get (and did indeed get) the 2007 Constitution. ‘No’ and the military, the same people behind this free, fair and transparent referendum, would write their own constitution. The choice was between accepting what the military wanted or not accepting and getting what the military wanted.
Amazingly some Thais, predictably those ‘uneducate people’ in the poorer areas of the country, still didn’t get it. In some provinces, many under martial law, a majority voted ‘no’. And the ‘no’ provinces which were not under martial law were promptly put back under it.
This is the Constitution that, despite promises at the time, now cannot, it seems, be amended. The Court’s ruling expresses a passionate commitment to not allowing the ‘tyranny of the majority’. The ruling was passed on a majority vote of 5-4, but that thinnest of majorities is of course in no way tyrannical.
About author: Bangkokians with long memories may remember his irreverent column in The Nation in the 1980's. During his period of enforced silence since then, he was variously reported as participating in a 999-day meditation retreat in a hill-top monastery in Mae Hong Son (he gave up after 998 days), as the Special Rapporteur for Satire of the UN High Commission for Human Rights, and as understudy for the male lead in the long-running ‘Pussies -not the Musical' at the Neasden International Palladium (formerly Park Lane Empire).