ACHIEVING MORE SUSTAINABLE CONSTITUTINALISM IN THAILAND
Stephen B. Young, Esq.
Due to the limited efficacy of its checks and balances, Thai Constitutionalism has to date been unable to achieve sustainable alignment with the Rule of Law. The Rule of Law prevents abuse of power and so is necessary for any just political order. Thus, Thai politics and governance have been subject to excessive exploitation for personal aggrandizement, causing the current protest movement demanding constitutional reform to achieve accountability in government.
Pure democracy – giving dispositive power to the people through elections – does not guarantee justice. This reality was noted by Aristotle, Cicero, Montesquieu and the framers of the US Constitution. The failures of democracy come when a majority abuses its power through selfish short-sightedness and self-subjugation to tyrants and other forms of oppressive authoritarianism, usually acting in the name of some “-ism” like Communism, nationalism, Fascism, or simply Populism.
Populist abuses of power do not lead to constitutional sustainability, but more often to heightened political opposition as independent thinkers come to protest one-sided use of public authority for narrow partisan purposes.
Where just constitutionalism is unstable, as in Thailand today, the concept of sustainability should be applied to a country’s fundamental norms of political participation. Sustainability in constitutionalism, as with the environment, is present enjoyment of advantages but not at the expense of future generations.
Generally, therefore, unsustainable constitutionalism is present enjoyment of the benefits of power but at the expense of future generations. Unsustainable constitutionalism exists when too much wealth and privilege are extracted from the society in the present and debts, social justice liabilities, conditions for fair economic growth, and inadequate institutions to serve the common good are not addressed but left for future remediation. Unsustainable constitutionalism often runs in tandem with corruption and abuses of human rights. It is the characteristic consequence of tyranny, oligarchy or cronyism, or other forms of authoritarian rule. When paper constitutions and political hierarchies fall into unsustainable constitutionalism, political conflict follows and system instability grows.
Thai Value Preferences Support Sustainable Constitutionalism
Buddhism
Thai Theravada Buddhism advocates the middle path in human decision-making, leading to equilibrium. The middle path excludes veering to extremes or towards any overconcentration of power in any one mode or setting. The middle path calls for multi-faceted engagement with, and appreciation of, different aspects of reality, recognizing that we live amidst “dependent co-arising” under which our lives are entwined with those of others and with natural conditions as they unfold one way or another. The middle path is not one of dominating nature or others out of selfish arrogance.
Buddhist mindfulness makes possible avoidance of one-sided excess and helps us find equilibrium and balance in our lives and decision-making. Such mindfulness is most conducive to acceptance of checks and balances in constitutional arrangements. Mindfulness, therefore, is a strong prop upholding the ideal of the Rule of Law whereby individual excess is to be tempered by concern for the common good.
Sufficiency Economy Principles of prudent restraint
Sufficiency Economy principles support sustainable constitutionalism. The Sufficiency Economy principle of moderation in decision-making reflects seeking the middle path and avoiding single-minded fixations that move towards extremes of conduct or judgment. The principle of reasonableness demands thoughtful consideration of all points of view and possibilities and eschews imposition of short-sighted or self-serving parochialisms on strategy and tactics. The principle of self-immunity calls for prudent risk-management to avoid unsustainable outcomes. The foundational principles of having knowledge and integrity further limit personalistic abuses of power in decision-making. Decisions are to be constrained by a search for truth and values are to be constrained within the compass provided by personal virtue.
The standards of integrity can, in Thailand, be set forth in the form of the 10 virtues of the Thosapit Rachathamma. These virtues, then, can ground sustainable constitutionalism in Thailand.
Two Rival Theories of Democracy
The West gave rise to two conflicting visions of Democracy – one from England and one from France. One version – the English one – supports sustainable constitutionalism. The French version does not.
The English version was authored principally by John Locke in his 1689 Second Essay Concerning Civil Government. Locke’s ideas on constitutionalism were then supplemented by Montesquieu’s writings on separation of powers and theFederalist Papers written in America by Alexander Hamilton, James Madison, and John Jay to explain the provisions of the US Constitution of 1789.
The French version of democracy was authored principally by Jean Jacques Rousseau in his 1762 book The Social Contract. It was given effect in the French Revolution and shaped all subsequent political movements that took their inspirations from that effort to re-conceptualize French politics and society around the two ideals of equality and liberty.
Locke’s constitutionalism sought to resolve the problem of abuse of power. Rousseau, on the other hand, sought to provide an ideal standard of absolute justice along with a recommendation to concentrate power in the sovereign in order to achieve that ideal.
Locke’s constitutionalism was “bottom up” while Rousseau’s prescription was “top down”. Lock’s constitutionalism leads to sustainability; Rousseau’s to conflict and instability.
When Thailand moved from absolute to constitutional monarchy in 1932, its leaders adopted Rousseau’s constitutionalism. King Prajadipok had explored an Angle-American version of constitutional monarchy as outlined by a consultant from the Harvard Law School. But the anti-monarchy reform leaders rejected this approach in favor of a French style constitution. The principal reform leaders – Pridi and Phibul – had received their Westernizing and modernizing education in France. Pridi, the civilian, followed the intellectual imagination of Jacobins like Robespierre and St Just of the Jacobins. Phibul attended the French artillery academy where the tradition of Napoleon was passed on. Napoleon had adopted Rousseau’s ideas for autocratic rule in the name of France as a civilization under the ideals of reason and equality.
Now, after 1932 other influential Thai opinion-leaders and politicians preferred to infuse into the country’s new Rousseauist constitutionalism more English practices associated with Locke’s concern for preventing abuses of power. Royal princes from the Chakri family and their partisans assumed that the written constitution could be implemented with English practices of self-restraint and collegiality. They resisted moves to govern Thailand by French romantic idealism and absolutist methods of imposing government preferences.
But English practices in the tradition of Locke were part of an unwritten constitution supported only by habit and culture. That English culture of prudence where elite and gentry families educated their sons for rule by sending them to Eton and Oxford and similar schools and colleges had very limited penetration of Thai society. Thailand did not have an English culture to inculcate Lockean virtues in its politicians.
Thus, since the 1930s, Thai constitutionalism has never settled into place due to unresolved
tensions over the legitimacy of the Rousseauist model of governing. Phibul and subsequent military autocrats followed the Napoleonic model of nationalizing authoritarianism. Thaksin has followed in this tradition as well. Those on the “left” in Thai politics have followed Pridi with his preference for mass based electoral majoritarianism not dependent on either the monarchy or the military. Today this tradition manifests itself in the Red Shirts and the Phue Thai party.
On the other side a third tradition, associated with the Democrat Party (Seni Pramoj), the Social Action Party (Kukrit Pramoj), and others from the educated middle class sought to use the English cultural code of propriety and decorum coupled with service of the common good.
Tensions between these two approaches to constitutionalism have recently exploded into mass protests over abuses of power by Thaksin Shinawatra and his followers and allies. On the one side are Rousseauist populists encouraged by Thaksin and the Red Shirt movement. On the other side are Thais who reject corruption and the concentration of power in the hands of one man and his cronies.
Rousseau’s Constitutionalism
Rousseau’s central constitutional concept is “The General Will”. This idea, which is to animate all decisions by government, is defined as the highest and the sole explanation of the common good of all. It is to be accepted by all, which makes everyone equal and the same. There are to be no “particular wills” of individuals or cliques or factions or social orders or special interests that can contest the supreme legitimacy of The General Will.
Rousseau begins his argument with the warning that he is not seeking to analyze how power is used but only how it should be used legitimately: “I mean to inquire if, in the civil order, there can be any sure and legitimate rule of administration …” His analysis considers what is abstractly right and his starting proposition is the famous one that “Man is born free; and everywhere he is in chains.” Under the law of nature, Rousseau says, each person is the sole judge of the proper means of preserving himself and consequently becomes his own master.
Rousseau’s objective, then, is to derive a constitutional order that will eliminate the chains that prevent people from being free. Thus, by convention, each person is to submit himself or herself to an ideal order – The General Will – and not to any actual person. Thus, each person, argues Rousseau, preserves his or her self-mastery while still becoming part of an association:
“Each of us puts his person and all his power in common under the supreme direction of the General Will, and in our corporate capacity we receive each member as an indivisible part of the whole.” All those under the General Will make up a body politic.
The General Will governs the sovereign power controlling the body politic. No law can constraint the Sovereign power to cramp its ability to implement the General Will. Thus, Rousseau sets forth a structure where the supreme authority is above the law. Nor, argues Rousseau, need the Sovereign provide any guarantee such a Bill of Rights to protect its subjects. Since it is the General Will, by definition it can only will the common good. However, to advance the General Will, the Sovereign can compel individuals to be submissive: “… whosoever refuses to obey the General Will shall be compelled to do so by the whole body.” The social contract gives the body politic absolute power over all its members.
Here indeed is a moral formula for tyranny.
Now, this tyranny is a real possibility for Rousseau recognizes that, in reality, people are not part of the General Will for each individual, as living independent person, has a particular will contrary or dissimilar to the General Will. “His particular interest may speak to him quite differently from the common interest.” Thus Rousseau poses the possibility of endless conflict between individuals as they really are in life and their duty as citizens to follow the General Will. “Particular will tends, by its very nature, to partiality, while the General Will tends to equality.” Thus any expression of self-regard is an affront to the General Will. “Now, the less the relation the particular wills have to the General Will, that is morals and manners to laws, the more should the repressive force be increased.”
To advance the General Will, therefore, tyranny is necessary under Rousseau’s constitutionalism.
Rousseau goes so far as to conclude that citizens must give up their lives for the State if the State so requires them to do so. Under his social contract, people live not through the accident of natural birth but have their lives as a gift from the State. Moreover, one who attacks social rights forfeits his or her rights and becomes a traitor and deserves to die.
So too for any separate and autonomous communion of people with one another within the body politic. There are to be no associations that can contest the General Will: “It is therefore essential, if the General Will, is to be able to express itself, that there should be no partial society within the State,…”
Now Rousseau must tie the General Will to real people if his recommendations are to have any substance in our lives. Thus he posits that a majority of voters can determine the General Will.
But he does not consider how big a majority will be given supreme and arbitrary power to fix the content of the General Will and then rule society. Can a plurality of, say, 35% of the people make a majority sufficient to support absolutism? Or, is 98% of the voters the minimum required to find the General Will?
Since few families and few communities can find absolute consensus, it follows that, in practical application, there will never be total consensus in a society on the content of its General Will. Thus, some will have the power to repress others in the name of the majority. Seeking the General Will is a process that must lead to failure. But in achieving ultimate failure, much conflict and perhaps even killing will be engendered.
This is what happened historically to Rousseau’s constitutionalism. Beginning with the Jacobins in the French Revolution who presumed to speak for the General Will binding all citizens of the Republic and following through with Napoleon who claimed for himself the right to interpret and impose the General Will of the French nation, Rousseauism became the basis for modern totalitarianism.
Hitler used a version of Rousseau’s argument in creating German Fascism. He argued that the spirit of the German people, the Volk, was the General Will for all Germans; that one state was needed to carry out with will of the Volk, and, third, that one leader alone – the Furher – could interpret the will of the Volk. Hitler’s mantra was therefore “ein volk, ein reich, ein Furher”.
Once in power, Hitler oppressed his opponents on various grounds so that he won majorities in the elections and so confirmed his right to give voice to the General Will of the German Volk as well as implement its commands.
Mussolini with his Black Shirts in the 1920’s asserted the right to articulate and enforce the best interests of the Italian people because he and his associates had superior skills and insights into the General Will of Italians.
Lenin adopted a General Will theory for Communism. Karl Marx was not an idealist and argued that Communism would only come in time when the capitalist form of production would collapse from internal contradictions. Lenin, on the other hand, argued that the arrival of proletarian revolution could be accelerated through the provocative and destabilizing actions of a vanguard party. Lenin’s Communist Party assumed that it knew the General Will of history tending towards Communism and so was authorized to impose its dictates first on all Russians and then on the rest of the world. Since the General Will revealed by history was applicable to all peoples, vanguard Communist parties, coordinated by the Third International, were organized to accelerate the collapse of capitalism around the world in the name of social justice and a better future for workers.
In China, Mao used Mao TseTung thought as canonized in the “Little Red Book” of Cultural Revolution fame to be the General Will for all Chinese. Those who expressed a particular will contrary to Maoism, were sent for re-education to learn how to align their thoughts and desires with the General Will or to punishment as renegades and traitors. Mao’s two principal assistants – Deng Xiaoping and Chou En Lai – had shaped their political thinking as students in France.
In Vietnam, Communist leaders Ho Chi Minh and Vo Nguyen Giap also learned politics from the French. Ho was a founding member of the French Communist Party, which came directly from
the Jacobin tradition of social renovation.
In Cambodia, Pol Pot, Ieng Sary, and Kieu Samphan were similarly products of French education. Kieu Samphan wrote his PhD thesis on Babeuf, the progenitor of Communist class warfare at the time of the French Revolution. Their Khmer Rouge movement took the name of Angka as the organization to realize the General Will for all Cambodians. To prevent the emergence of particular wills on the part of real Cambodians, Angka took control of all property. Khmer Rouge Cambodia issued no money while people were told that their clothes, food, and housing were provided to them by Angka. If they expressed any selfishness, they were eliminated as an inconsistency with the General Will. Angka’s rationalization (which I learned from Khmer refugees in refugee camps in Thailand in 1978) was: “If you live, we gain nothing; if you die, we lose nothing. So, why not kill you today?”
In Latin American, Rousseauist constitutionalism came in a more Napoleonic form. Starting with Liberators like Simon Bolivar who admired Napoleon and his politics of nationalism and social equality, military autocrats seized political in the name of the people to oppose the social and cultural hierarchies of the Catholic Church and landowning families. This Rousseauist model of populist autocracy found notable expression in Juan Peron of Argentina and later in Cuba’s Fidel Castro. More recently it was at work under Hugo Chavez in Venezuela.
Rousseauist Constitutionalism in Thailand
Thailand’s Rousseauist constitutional tradition has left the country vulnerable to abuses of power.
First, starting in 1947 military autocrats could easily use centralized mechanisms of sovereignty to declare themselves guardians of the General Will of anti-Communism and efficient economic development.
Second, as Thailand passed from the military authoritarianism to the half democracy of the 1980’s and early 1990’s and then transitioned further to the more full majoritarian coalitionism of the later 1990’s and the first decade of the 21stCentury, the country’s Rousseauist constitutionalism was not an effective barrier to the rise of corrupting money politics.
The majoritarian nature of the National Assembly without constraint of the Rule of Law and checks and balances between the executive and the legislative branches made purchase of elected office through money politics and clientism very profitable for its practitioners.
Using financial patronage to gain control of client voting blocs enabled faction leaders to access positions where lucrative opportunities for rent seeking is aHiscame with the job. Centralized government authority permitted rent extraction through the use of regulation and preferential treatment of clients.
Upon his election as Prime Minister, Thaksin Shinawatra brought money politics to a new degree of concentrated exploitation under his control and a new scale of comprehensive coordination across the government. In the words of New York City’s Tammy Hall ward heeler George Washington Plunkett: “He done seen his opportunities and he took them.”
Thaksin and his allies, especially in the Red Shirt network, used populism as the source of a General Will which justified such concentration of power in one man. Majoritarianism in popular elections was used to justify high-handed use of government authority after the elections were over and done with. This majoritarianism on behalf of a General Will was used to belittle and undermine the independence of the courts and the media. Rousseauist constitutionalism provides only weak mechanisms for impeachment of elected officials for malfeasance in office.
Thus, Rousseauist constitutionalism has produced the present crisis where a significant “particular will” of the Thai people refuses to countenance continued abuse and personal profiting from centralized public power under the excuse that such profiteering is only acting for the General Will of the Thai people.
In Rousseauist terms, one could argue contrary to the Phue Thai and Red Shirt faction leaders that, as the Thaksin administration in its various forms grew more and more self-seeking, it
reduced itself to the status of being only a “particular will”. As such a particular will, it lost its right to justification under a General Will seeking the equal good of all Thai citizens without succumbing to discrimination among them in any way.
Locke’s Constitutionalism
Locke’s central constitutional concept is that public office is a public trust. His objective was to ratify and justify the compromise reached in England in 1688 when Parliament contracted with William of Orange to become king of England subject to the restraint of Parliament and under a Bill of Rights. Locke was not concerned with abstract justice, only with how to institutionalize a balance of power between monarchy and the realm represented in Parliament with a view towards national tranquility and prosperity.
Locke wrote: “ Political power, then, I take to be a right of making laws … for the regulation and preserving of property and of employing the force of the community in the execution of such laws, and for the defense of the commonwealth from foreign injury, and all this only for the public good.” In other words, political power was to serve the community as it rested on the self-interests of its many members.
Locke’s challenge was to constrain human nature that selfishly seeks its own good and often leads to abuse of office. His central insight was much later taken up by Lord Acton in his dictum that “power tends to corrupt and absolute power to corrupt absolutely.”
Locke specified that public power is an office to be used to benefit the people. It is not a form of private property open to personal exploitation for mean purposes. The holder of office is a steward and fiduciary. Locke wrote that “The end of government is the good of mankind, and which is best for mankind – that the people should be always exposed to the boundless will of tyranny, or that the rulers should be sometimes liable to be opposed when they grow exorbitant in the use of their power?”
In Thai terms, Locke’s rule is that public office is “suan ruam” and not “suan tua”. To hold an
office is to have duties –nathi – of service to the community.
Locke said that: “The natural liberty of man is to be free from any superior power on earth and not to be under the will or legislative authority of any man, but to have only the law or nature for his rule. The liberty of man in society is to be under no other legislative power but that established by consent in the commonwealth; nor under the dominion of an will or restraint of any law, but what that legislative shall enact according to the trust put in it.” No person need be subject to the “inconsistent, uncertain, unknown arbitrary will of another man affirmed Locke.
Absolute monarchs are inconsistent with civil society for their powers are not held in trust but only as a personal prerogative for self-gratification. When princes learned to have distinct and separate interests from their people, Locke wrote, “men found it necessary … to find ways to restrain the exorbitances and prevent the abuses of that power, which they having entrusted in another’s hands only for their own good, they found was made use of to hurt them.”
So too any legitimate legislature may not be absolutely arbitrary over the lives and fortunes of the people. A legislature’s power in its utmost bounds is limited to the public good of society.
Authority over others, then comes from serving them, not ourselves, in positions of public trust. To breach the trust contained in our office is to lose authority.
Whenever the legislative or the executive acts “contrary to their trust”, their government dissolves and the people are at liberty to erect a new one. The legislative acts against the trust reposed in its members when they “make themselves or any part of the community masters or arbitrary disposes of the lives, liberties, or fortunes of the people.” Such a legislative puts itself into a state of war with the people, who are thereupon absolved from any further obedience. Said Locke: “When they by ambition, fear, folly or corruption endeavor to grasp themselves or put into the hands of any other an absolute power over the lives, liberties, and estates of the people, by this breach of trust they forfeit the power to the people had put into their hands, and it devolves to the people who can establish a new legislature.”
An executive acts against his trust “when he goes about to set up his own arbitrary will as the law of the society”. “He also acts contrary to this trust when he either employs the force, treasure, and offices of society to corrupt the representatives [in the legislature] and gain them to his purposes, or openly pre-engages the electors and prescribes to their choice such whom he has by solicitations, threats, promised, or otherwise won to his designs, and employs them to bring in such who have promised beforehand what to vote and what to enact.” Locke continued that” to endeavor to set up the declared abettors of his own will for the true representatives of the people and the law-makers of the society, is certainly as great a breach of trust and as perfect a declaration of a design to subvert the government as is possible to be met with.”
Locke protested that “thus to regulate candidates and electors and new-model the ways of election, what is it but to cut up the government by the roots and poison the very fountain of public security?”
Thaksin Shinawatra’s maneuvers to concentrate power in his hand by means of bringing elected officials under his personal sway as Locke recounted in 1689 caused his government to lose its legitimacy under Locke’s constitutional system. So, under that system, by seizing too much power Thaksin forfeited his authority and the people of Thailand were within their rights to withdraw allegiance from him and his ministers and seek to replace his government with one more faithful to upholding the public trust.
Locke was willing to tolerate government under the will of a majority but only if the majority was limited in its powers to further the public good as steward of the commonwealth and not its own interest.
And part of any trust responsibility is to be subject to law. The trust given to government by Locke was to have the government itself governed by declared laws and authorized judges. . Locke notes that oaths of obedience only call for obedience according to the law so that an official who violates the law has no longer any right to obedience. When such an official acts by his own private will, he degrades himself and is but a single person without power said Locke,
adding that “wherever law ends, tyranny begins.”
Locke’s understanding of the purpose of public office had been well-articulated by the English Calvinists in their struggle with Charles I, and had earlier roots in both the medieval political thought of Bracton and John of Salisbury, and in the Old and New Testaments of Christian faith.
If office is to be a public trust, then officials must be persons worthy of holding powers as fiduciaries. In Thai, such people are believed to have “baramee”. The Thosapit Rachathamma of 10 virtues of probity and equitable conduct provides specific standards of stewardship for those who would hold office in Thailand.
The problem Locke faced was that people are not always trustworthy and can and will abuse power put in their hands. So similarly in Thai Buddhism, individuals may use their personal powers to make good merit (bun) or to incur the consequences of bad merit (bap). Federalist Paper #55 put this reality of human nature matter-of-factly: “ As there is a degree of depravity in mankind which requires a certain degree of circumspection and distrust, so there are other qualities in human nature which justify a certain portion of esteem and confidence.”
Locke separated the power to enact laws from the power to enforce them. The executive has no arbitrary power depending on his good pleasure said Locke but only power held “with this trust always to have it exercised only for the public weal as the occurrence of times and change of affairs might require.” Locke agreed that an executive may have such prerogative to provide for what the law did not foresee, but only to be used as the public good and advantage shall require. The legislature may place the executive power in such hands as it sees fit but retains authority to resume it upon any maladministration by the executive.
To hold the line against abuse of power, Locke recommended removal from office, or impeachment, even revolt. A government which, or a ruler who, turns away from good stewardship of the common good loses legitimacy and so releases the people from continued obedience. They may put the powers of governance in other hands. This Lockean constitutionalism provided the basis for the 1776 assertion by the North American colonies that they no longer need acknowledge the overlordship of King George III and, by his abuses of trust, were released from further obedience to his dictates.
Locke insisted that “ the legislative being only of fiduciary power to act for certain ends, there remains still in the people a supreme power to remove or alter the legislative when they find the legislative act contrary to the trust reposed in them; for all power given with trust for attaining an end, being limited by that end, whenever that end is manifestly neglected or opposed, the trust must necessarily be forfeited, and the power devolved into the hands of those who gave it who may place it anew where they shall think best for their safety and security.”
This same use of impeachment applied to the executive power as well: when an executive claims a power to exercise at his pleasure to make or promote an interest distinct from that of the public, he gives the people an occasion to claim their right and limit that power. An executive, said Locke, must not look upon the people “as a herd of inferior creatures under the dominion of a master who keeps them and works them for his own pleasure or profit.”
Locke asked “Who shall be judge whether the executive or the legislature act contrary to their trust? He answered: “The people shall be judge: for who shall be judge whether the trustee or deputy acts well and according to the trust reposed in him but he who deputes him, and must, by having deputed him, have still the power to discard him when he fails in his trust?”
The protests which broke out in Thailand in the fall of 2013 when the Administration led by Thaksin’s sister pushed through the National Assembly a law giving amnesty to Thaksin for his corruption as Prime Minister embodied this Lockean principle of withdrawal of trust when a government does not seek the ends of the public good but rather pursues its own interests.
The difference between Lockean constitutionalism and Rousseauist constitutionalism is that Locke makes it very certain that elections cannot justify subsequent abuses of power. Legitimacy founded on election evaporates once power is abused. Thus, the 2006 military coup which removed Thaksin Shinawatra and his associates from their public offices was in
conceptual harmony with Locke’s method for control abuse of public trust.
Short of impeachment, Locke’s constitutionalism used separation of powers to defend public offices from abuse by their incumbents. Federalist Paper #51 argued cogently that “Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place [position]” “…the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist the encroachments of the others.”
Second, the principle of separation of powers should be applied to society at large to guard one part of the society against the injustice of the other part. “The society should be broken into so many parts, interests, and classes of citizens, that the rights of individuals, or of the minority, will be in little danger from interested combinations of the majority.” Where the stronger faction can oppress the weaker ones, there is no justice. This need to prevent concentrations of power in the society at large was adroitly addressed as well in Federalist Paper #10.
A great bulwark then against abuse of trust is the judiciary as an independent branch of government which measures the conduct of officials against constitutional norms to ensure that the norms guide the officials rather than have the officials make norms protective of their private interests. This constitutional formula is known as the Rule of Law. It’s origins in English constitutional practice go back to Magna Carta and Bracton’s summary of that constitutional arrangement asNon sub homine sed sub deo et lege – “Not under man but under God and the law.”
Locke’s constitutionalism presumes different interests and points of view in the electorate, reflecting differing realities in society. He believed that compromise and negotiation leading to agreements and contracts would produce laws and regulations from the bottom up. A majority could not impose its will for that would be an abuse of trust and duty in governance of the entire body politic.
Locke’s constitutionalism, therefore, presumes pluralism, not centralization of thought and behavior under a conformist and constricting General Will managed by sovereign authority. The function of government is to execute its limited powers to serve the commonweal in which all these interests and factions must seek enjoyment and happiness.
Achieving more sustainable constitutionality in Thailand
To achieve more sustainable constitutionality in Thailand, the country’s constitution should be amended to use more Locke and less Rousseau.
Augment the separation of powers
The executive branch of the national government should be removed from direct dependence on the National Assembly. The chief administrative officer of the cabinet of ministers should be directly elected by the people for a 3 year term of office. The duties of the chief administrative officer should be specified in the Constitution and limited to what is necessary to manage the executive branch in implementation of laws passed by the National Assembly. The chief administrative officer would appoint ministers and sub-ministers with the advice and consent of the Senate. The election of the chief administrative officer would be held in years when the House of Representatives is not elected.
This separation of the executive from the legislature will diminish the possibility that winning a majority in the House of Representatives or the Senate will lead to lucrative government appointments. The profits to be made from gaining power in the central government would be thus reduced.
Second, central ministries should be decentralized to reduce their capacity for rent extraction. In particular, the Ministry of the Interior should be abolished in large part with many of its powers transferred to Changwats and local communities. The centralized Ministry created by Prince Damrong during the era of French and British colonial expansion in order to protect the territorial integrity of Thailand is no longer needed. Thailand is not threatened by its neighbors
and its educational, social and economic development can support more self-reliant and sophisticated units of local government. Local ability to raise revenue through taxation and fee based enterprise should be provided for by the constitution. Training in management and in the 10 virtues of the Thosapit Rachathamma can enhance the abilities of local elected and administrative officials.
Third, the national police must be converted to community policing, both in structure and in tactics. A police force organized as light infantry along Cold War lines is no longer needed by Thailand. Such a police as envisioned by General Phao has long since outlived its usefulness and has become a support for corruption and money politics. As is well-know, Thaksin was trained and acculturated in the ways of power exploitation and intimidation by the police culture initially formed by General Phao. Khunying Pojamon, Thaksin’s now divorced wife but still his political partner, is the daughter of a police general groomed under General Phao.
Thailand does not need an army-style police force with many generals but a more normal and decentralized public security organization dedicated to service of local communities. The constitution should set forth the duties and responsibilities of the government to safeguard the lives and property of the citizens and these duties and responsibilities should shape a new police culture with concomitant conduct.
Reform of the judicial branch is also necessary to enhance the social presence of the Rule of Law. So that the opinions of courts can gain more respect for their probity and logical correctness and that judges will be more accountable for excellence in their decision-making, all court opinions should be published in full as signed by the judges on the day of decision. Second, the constitution should specify deadlines for the final resolution of litigated cases and appeals thereof.
The legislature needs reform of its tenure arrangements. Both the House and the Senate should have fixed terms of office. The entire House should be elected every 2 years. A provision for staggered elections might be considered to further dilute the ability of one faction to use money power or demagoguery to sweep a majority into power. One half of the House could be elected each year which would give more control to the people to vote their opposition to abuses of power.
Senators would have 4 year terms with one third being elected or appointed every 2 years.
The constitution should specify the duties of the National Assembly to limits its ability to dominate personnel selection and decision-making in Government ministries. The National Assembly would have limited functions to enact general legislation only, raise taxes, approve budgets, and advise and consent on major government personnel appointments.
For general provisions to provide for more effective checks and balances, the constitution should provide for a robust process of impeachment of the chief administrative officer, ministers, senior bureaucrats, army generals, senior police officers, and senior local administrators.
A special division of the Constitutional Court could be established to try impeachments and remove officials for breach of trust. A barrier to frivolous accusations needs to be in place but the burden of proof on meritorious complaints of abuse of power needs to be carried by the official so charged with dereliction of duty to prove his or her innocence of the charges.
The standard of expected conduct on the part of those in elected and appointed office must be clearly set forth in the constitution along the lines now provided by Article 270 but expanded to in include the concepts of breach of trust and mal-administration of office through malfeasance or non-feasance. When there is a duty to act, the official must act and not countenance wrong-doing or corruption by just looking the other way.
Whistleblowers who bring information to light that leads to successful impeachments should be protected by the constitution.
The duties of the government should be set forth as a standard by which voters can assess performance of those elected to office. The 10 virtues of the Thosapit Rachathamma should be added to the oath of office taken by all public servants or placed in Art 270 as part of the ethics
expected of all officials.
Initiate Reform Process
The sequence of the reform process to make constitutionalism more sustainable in Thailand is: 1) resignation or replacement of the Yingluck administration; 2) appointment of an interim administration; 3) drafting of a new constitution; 4) ratification of the new constitution by referendum; 5) election of a government under the new constitution.
Immediate Difficulties: 1) refusal of the Yingluck administration to step down; 2) constitutional selection of interim administration and creation of constitutional drafting committee.
The Yingluck administration has no constitutional authority to govern as of March 2, 2014. If the Yingluck administration refuses to resign, who can constitutionally remove them from office? There is no sitting House of Representatives to act by law. The Senate is in transition in its membership.
Unhelpful options:
1) use February 2, 2014 elections for the House augmented by special elections to obtain a constitutional sitting of a House of Representatives; 2) a military coup to dissolve the government; 3) recourse to Royal prerogative.
Each of these options will lack support from important constituencies and so will prolong the conflict over a just and widely accepted constitutional order for the country.
Possible option:
creative use of Article 7 to authorize some unorthodox use of power.
Soft power option:
A soft power option would be to use Article 87 of the current constitution. That article permits
the government to appoint advisors. Thus, the Yingluck administration would appoint special advisors to the Prime Minister and all Ministries with powers of appointment to include plenipotentiary authority to veto acts and decisions of the Prime Minister and Ministers.
Khun Yingluck would remain as Prime Minister in name only. She would resign as Minister of Defense. The Ministers of Interior, Finance and Foreign Affairs would also resign and would not be reappointed.
Prime Minister Yingluck with consent from her Special Advisor would appoint a new set of ministers so that 30% of the cabinet would come from the Phue Thai Party, 30% from the opposition, and 30% from respected civil society leaders.
The new interim cabinet again under Article 87 would appoint members of a constitutional convention and charge them with advising the government on the draft of a new constitution. After receiving the draft, the government would present it to the people for approval. Upon approval, the government would organize elections to step down when a new legislature and chief administrative officer have been elected.
The appointed to advise the government on a new constitution would be selected from civil society organizations and geographic regions. Important government sectors such as the central ministries, the army, the police, public universities, would also be tapped to provide distinguished persons to serve in the advisory body drafting the new constitution.
Third, the interim government would appoint under Article 87 advisors in each changwat to convene and submit suggestions and recommendations to the constitutional convention. This process would follow the historical precedents of the American committees of correspondence setting the stage for American constitutionalism and the submission ofCahiers to the Estates General at the beginning of the French revolution.
Hard power option:
If the Yingluck administration refused to compromise and yield power, then impeachment
proceedings should be immediately commenced under Article 270. The grounds for impeachment are 1) contumacious malfeasance for remaining in office without constitutional authority; 2) malfeasance in the rice purchase scheme and other government projects; 3) abuses of power in corruption and refusal to compromise with protestors and use of repressive tactics to intimidate those seeking redress of grievances; 4) passage of self-serving legislation to aid and comfort corrupt officials, including Thaksin Shinawatra.
A petition of 20,000 voters can initiate such impeachment proceedings with the Senate, which will have a duty under Article 164 to act immediately with its sitting members. Upon the removal from office of the Prime Minister and her cabinet, the Senate would send nominees for a new government for the approval of His Majesty under Article 7.
Article 87 would then be used by the new government to start the constitutional reform process.
บันทึกนี้เขียนที่ GotoKnow โดย Prof. Vicharn Panich
