GETTING TO A NEW THAI CONSTITUTION

C O N F I D E N T I A L SECTION 01 OF 04 BANGKOK 006399

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E.O. 12958: DECL: 10/19/2016
TAGS: PGOV PHUM PREL PINR KDEM TH
SUBJECT: GETTING TO A NEW THAI CONSTITUTION


Classified By: DCM ALEX A. ARVIZU. REASON 1.4 (B,D)


1. (C) Summary. The new Thai constitution will only be the
fourth (of 18) that involves broader participation in its
production and the first to be approved by public referendum.
Estimates for how long this will take vary widely--the last
two constitutions each took 10 months from start to finish.
Accelerating the timetable may be possible, but at the
potential cost of public participation and careful review.
In fact, the drafting committee will already be under a six
month deadline to finish the bulk of the work--if they miss
this, the coup leaders of the Council on National Security
(CNS) get to write their own charter with no public role. At
this point, a consensus has to yet to emerge on how this
constitution will differ from its predecessor. End Summary.

A HABIT THAT'S HARD TO BREAK
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2. (SBU) The new, yet-to-be-drafted constitution will be
Thailand's 18th since the first was written in 1933. All but
a handful have lasted less than a few years. Before the
1990s, constitutions were temporary writs of legitimacy for
whichever military faction was in control at the time.
Indeed, the constitutions of the 1930s-50s were proxies for
the tug-of-war between monarchists and their opponents and
rival factions in the military.


3. (SBU) Only three charters have involved broader
participation in the drafting process--most have been written
by a small clutch of confidantes. In 1974, violent clashes
between the military and students calling for political
change forced the PM to resign. His successor--a Royal Privy
Councilor--began work on a new constitution, but wanted to
avoid using his disgraced predecessor's hand-picked
parliament to approve it. Instead, a collection of some 200
"notable public figures" appointed by the King produced a new
charter, which only lasted four years.


4. (SBU) The 1991 constitution--written under the direction
of the last junta to oust a civilian PM--was the first
charter actively debated in public and subject to a longer,
more transparent process. While the drafting committee was
relatively independent from the military government, the
junta's hand-picked legislature made several controversial
changes to the document before passing it in late 1991, thus
undermining its legitimacy.


5. (SBU) The 1997 constitution, the first actually written by
a democratically elected government, was widely hailed as the
best (and longest) so far, and involved regular public
participation and debate in the drafting process. The
drafting committee was composed of one representative from
each of the 76 provinces and 23 "experts" nominated by
universities and law societies--all chosen by the
democratically elected parliament of the time. While the end
product was widely respected, the process was rocky. The
drafting committee was accused of being inefficient and given
to longwinded debate on esoteric topics (indeed, the 1997
constitution seems to cover every right imaginable).

THE CURRENT PLAN
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6. (U) Under the current, interim constitution, a
just-appointed 17-member committee of civil servants and
legal experts will select a 2,000 member National People's
Assembly (NPA) that will, within seven days of meeting,
select 200 of its own members as candidates for the
Constitution Drafting Assembly (CDA). This NPA will select
100 of these 200 candidates to serve as the CDA (Note:
Members of the legislature cannot serve concurrently in the
CDA. End Note). The CDA, in turn, will select 25 people (not
necessarily members) to serve on the Constitution Drafting

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Committee (CDC); GEN Sonthi and the coup-makers will appoint
an additional 10 members.


7. (U) The 35 member CDC will draft the constitution and
present it to the public and 100 member CDA--with explicit
justifications for any changes from the 1997 charter--for a
30 day review period. At this point, CDA members are
allowed, on a limited basis, to make amendments to the
charter. If the 100 member CDA approves the new constitution
by a simple majority, a public referendum would be held 15-30
days later. If a simple majority of the population approves
the new constitution, it is sent to the King for signature
and promulgation. If the charter fails the referendum, the
CNS would select a prior constitution, and amend it in the
next 30 days, before passing it to the King for promulgation.

HOW LONG WILL THIS TAKE?
--------------


8. (SBU) The interim constitution says that the 100 member
CDA has 180 days from its first meeting to the completion of
the final text. (Note: If it fails to do so in this period,
the coup leaders again get to pick a previous constitution
and amend it within thirty days.) The referendum has to be
held within 15-30 days after that. Royal approval and
promulgation should take about fifteen days (in 1997, the
constitution had to be hand written and prepared in
triplicate for the King's signature). Overall, from the time
the CDA begins work, it could take as long as 7-8 months to
draft and approve the new constitution. This estimate,
however, does not include the time spent selecting members
for the NPA and CDA, which are not subject to any specific
timetable under the interim charter.


9. (C) Estimates about how long it will take to have a new
constitution vary among government leaders and outside
observers. Defense Ministry Permsec and CNS Secretary
General Winai told the Ambassador on October 11 that Thai
legal experts recommended a period of eight months and
fifteen days to complete the new constitution. This estimate
appears to be based on an old formulation for drafting the
constitution. In the initial briefings to the international
community after the coup, Winai also laid out this timetable.
The interim constitution actually lopped at least 6 weeks
off that process, by including the time for public
consultation and amending the draft within the 6 month limit,
rather than taking place after six months of drafting. (Note:
many government interlocutors, including Winai seem confused
about the timetable; this may be a reflection of how
overtaxed the CNS and government are at this point. End
note.) Activist Gothom Arya told poloff on October 16 that
the drafting committee would need about three months to "get
the ball rolling" and another three months to write the
actual draft.

CAN IT MOVE FASTER?
--------------


10. (C) Our contacts are divided on this question. Gothom
believes that the process can be shortened, but not by much.
Respected constitutional scholar and Vice Rector at Thammasat
University, Dr. Prinya Thaewanarumitkul says that it is
unlikely that the interim government will be able to
significantly alter the process laid forth in the interim
constitution, and given that process, it is doubtful that
elections could be held in less than one year.


11. (C) It is not clear whether it would be faster for the
100 member CDA to merely update the 1997 constitution, or
start with a clean slate. When asked about this, General
Winai admitted that the commission would likely base its work
on the 1997 document, because starting from scratch would
take too long. This seems consistent with the interim
constitution, which requires the CDC to justify differences

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between their product and the 1997 charter. In contrast,
Thai Rak Thai leader Chaturon Chaiseng, in a meeting with the
Ambassador on October 17, expressed doubt that the drafters
would work off of the 1997 charter. According to Chaturon,
the drafters would soon find that too many provisions were
interrelated and it would prove too difficult to pick and
choose elements, trying to preserve some while discarding
others. It would be simpler to start from scratch, he said.


12. (C) Either way, a lot will depend on the CDA's work
ethic. The 1991 drafting body, working twice a week, was
able to complete its draft in 143 days, but with minimal
public input. The 1997 commission was officially given 240
days to complete its draft, including comprehensive outreach
efforts to the public; it completed the draft under a
grueling schedule within 210 days or so. Both efforts
included lengthy parliamentary reviews and debates: four and
half months in 1991, but only a month and a half in 1997.
All told, both the 1991 and 1997 charters took about 10
months to draft and approve. The process for the new
constitution avoids the legislative approval step, but adds
at least 15-30 days for a public referendum to approve the
document.

CAREFUL WHAT YOU WISH FOR
--------------


13. (C) Indeed the new CDA members will already be under the
gun to complete the draft in near-record time. If they do
not finish it--including 30 days of public
consultations--within six months, the CNS gets to write and
approve its own constitution without public participation, a
setup that Thai civil society would strongly resist. We are
reminded that the push to accelerate approval of the 1991
charter and hold a new election following that coup led to
the inclusion of several controversial, pro-military
amendments--as well as outright contradictions between
clauses--that inspired deeply felt public grievances which
eventually bubbled over into the bloody clashes of May 1992.
In contrast, the drafting committee in 1997 was widely
criticized for its plodding pace and for starting from
scratch. But in hewing to the principles of careful
deliberation and public participation, it provided Thailand's
best constitution to date.

WHAT WILL THEY ACTUALLY DO?
--------------


14. (C) Timing aside, the substance of the new charter is a
major question. CNS chairman Sonthi and his cohorts have
justified the coup in the name of political reform and a
fight against the corrupting influence of money politics, but
there is little consensus on how these sentiments translate
into new laws. (Note: This is not new, shortly before the
drafting of the 1997 charter, a respected poll found that
nearly 40% of Thai people didn't understand what 'political
reform' actually stood for. End Note.) Indeed, the 1997
charter, while establishing a stronger chief executive and
punishing the party-switching that bedeviled past
governments, established a number of independent
institutions, such as the National Counter Corruption and
Election Commissions to provide a check on the PM's power.
Thaksin was clever (and rich) enough to subvert these
institutions. A new formulation that maintains a strong PM
(avoiding the shaky coalitions of the 1990s) while subjecting
executive power to sufficient checks has yet to be elucidated
(though Thaksin did joke to the Ambassador before the coup
that his opponents simply wanted to add a clause barring
anyone with his name from serving as PM.)

IT ALL FALLS DOWN
--------------


15. (C) The new constitution may present an opportunity to

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enhance Thai democracy, but that is hardly assured. While
the coup makers' desire for "stability" is paramount and
their thinly-veiled attacks against the populism of
Thaksinomics are frequent, these are unlikely to
automatically translate into public support for a
constitution that allows for a non-elected PM, or permanent
controls on political liberties. Widespread frustration with
the failure of the 1997 constitution's directly-elected, but
non-partisan Senate (which was anything but),conceivably
could prompt a return to a directly appointed upper house of
years past. (Note: Only the 1946 and 1997 constitutions
provided for a directly elected bicameral legislature. End
Note.) On its face, this would not be anti-democratic per se,
but giving such an appointed body significant say in the
selection of the next PM, or legislation, would be seen by
some as a step backwards for Thai democracy.

BEWARE THE TRANSITION CLAUSES
--------------


16. (C) Besides the main body of the new charter, a
potential flashpoint will be the transition clauses attached
at the end of it. These are clauses providing for
governmental and legislative continuity during the gap
between the promulgation of a charter, the holding of an
election, and the entrance of a new government. In the past,
these provisions have been used as "temporary" measures to
allow for significant deviations from the actual constitution
and to permit continued political dominance by the government
(usually military) in power at the time of transition.
Current Privy Council President Prem used them to extend his
rule as PM in the 1980s, and they were a key political
football in the drafting of the 1991 constitution. Indeed,
the leaders of the 1991 junta were broadly seen as using the
transitory clauses to extend their control past the March
1992 elections.

COMMENT
--------------


17. (C) When all is said and done, GEN Sonthi and the coup
committee have devised a relatively compact schedule for
drafting a new constitution. Indeed, one of the pitfalls in
this plan (that already is providing fodder for some
conspiracy-theorists) is the penalty for missing the drafting
deadline: carte blanche for the generals to write it
themselves. Significantly, we detect widespread agreement
here that, although there will be little public tolerance for
unnecessary delay of the constitution drafting and
promulgation timetable, the timetable itself is much less
important than the imperative to end up with a charter that
is substantially sound. Having had to endure yet another
coup, Thais seem to be saying: this time, let's really try to
get it right.
BOYCE