On July 13, Thailand’s Constitutional Court decided to allow the current government to continue making minor amendments to the 2007 constitution, but forestall a complete rewriting. Thais from both sides of the political divide have welcomed this ruling as a compromise that would calm the tense atmosphere. But it actually sets a precedent that could later destabilise Thai politics.
The opposition Democrat Party earlier accused the government of prime minister Yingluck Shinawatra of scheming to use the constitutional amendment process to topple the monarchy. This would violate Article 68 of the constitution, which restricts attempts “to overthrow the democratic regime of government with the King as Head of State.” But the Court clearly rejected this argument and ruled that the government’s move to amend the constitution was not “unconstitutional,” thus allowing the amendment process to continue.
However, the opposition Democrats welcomed another part of the court’s decision. The government is not allowed to rewrite the whole charter without a prior referendum. The need to seek public approval would give the opposition an opportunity to manipulate public opinion.
It’s true that moving forward with a new constitution without a nationwide vote might have brought on a new round of street protests by both sides. But at the same time, the delay in charter amendment will deepen the sense of political uncertainty.
The Yingluck government wants to reduce the power of appointed bodies it thinks are undermining elective institutions to serve the interest of royalists who backed the 2006 military coup. So amending the constitution is an urgent task.
By not allowing this, the court has again had a direct impact on Thai politics, signalling that enemies of the Yingluck government and her brother, former prime minister Thaksin Shinawatra, will continue to resist the Thai electorate’s demands for a new political order. In 2008, the Constitutional Court ordered two pro-Thaksin governments, those of Samak Sundaravej and Somchai Wongsawat, to step down on absurd grounds. Samak was disqualified because his appearances as a celebrity chef supposedly created a conflict of interest, and Somchai was forced to resign because a member of his party had been found guilty of electoral fraud.
There is nothing to stop the court from doing the same to the Yingluck government. However, the royalists are reluctant to unseat Yingluck so soon after her resounding victory in last year’s election. They want her to see the Constitutional Court’s decision as a warning shot to dissuade her from challenging the royalist establishment.
The problem is that this intervention sets a new precedent that could have longer-term effects. The court determined that it has the authority to accept petitions directly from the opposition and indeed any Thai citizen, instead of solely from the attorney-general. This represents an expansion of its power.
Growing anti-military sentiment following the last coup means that the generals are unlikely to be willing to stage another coup, as their public statements confirm. So the establishment must rely even more on cases in the Constitutional Court to control, and if necessary remove, Thaksin-backed regimes. The court’s ruling may have allayed fears of violence for now. Yet the next step in Thai politics will depend on the extent to which amendments to the constitution attempt to reshape a political structure dominated by the palace-military alliance.
Yingluck and Thaksin have so far executed an effective double game, with the former frequently bowing to the traditional elite while the latter maneuvers behind the scenes to consolidate power at the expense of establishment interests. The thrust to amend the constitution is part of Thaksin’s carrot-and-stick tactics, which are splitting the establishment camp.
The military has remained conspicuously silent about the government’s plan to pass reconciliation bills to grant amnesty for crimes committed during political upheavals. That would allow Thaksin to return to Thailand, reclaim assets confiscated by the courts and re-enter politics. Given that the military staged a coup in 2006 to remove him, its acquiescence now might seem surprising.
But the military would be one of the main beneficiaries of an amnesty, since it would be “off the hook” for any culpability in the deaths of almost 100 pro-Thaksin protesters in 2010. In May, state prosecutors said that they had compiled enough evidence to implicate the military in as many as 18 of 92 protest-related deaths. One military insider has said publicly that the top brass and all generals in line for promotion want the reconciliation bills to move ahead.
With the military reluctant to stymie the Yingluck government’s legislative agenda, the royalist elite have had to rely on the courts to defend their status. But this also comes with a cost. Many Thais have supported the latest campaign recently launched by a group of law professors from Thammasat University called Nitirat to dissolve the Constitutional Court. More could become disillusioned about the rule of law.
This trend of ruling institutions discrediting themselves could put Thailand on a path to lawlessness. It is especially dangerous because the country is approaching an uncertain royal transition. When the final conflict comes, who will be left to referee the democratic process and prevent a descent into civil war?