Thailand Needs to Talk

The Kingdom of Thailand is a constitutional graveyard: In just over 80 years, it’s gone through 18 failed constitutions in a carousel of military coups and corrupt civilian governments. And, in recent years, the civilians have likewise been fighting among themselves, pitting the so-called Red Shirt movement, strong in the North and rural areas, against the Yellow Shirts of Bangkok and the South, in an increasingly violent conflict that has destabilized the country. Now, as the smoke clears over mid-May’s dramatic coup, Thailand’s new military government has suspended the constitution once again. Though the military has been vague regarding specifics, they will put forth a temporary constitution, which will eventually to be followed by something more permanent: Lucky #19.

With the coup itself now behind us we can still hope that the military government may be able to break the vicious cycle once and for all. To make sure the next government sticks, however, the military will have to make a radical departure from tradition. It must resist the urge to implement a military mindset over the drafting of a new constitution. A top-down approach will be likely to poison the process — and process is everything in constitution writing.

During the decades of constitutional upheaval, Thailand’s civilian political parties remained relatively weak. This changed when billionaire populist Thaksin Shinawatra arrived on the scene about 15 years ago. Shinawatra and his allies played into the rural sense of exclusion from government, allowing them to win elections time and again — six since 2001. But lacking a deep tradition of democracy, Thaksin’s opponents, including the middle-class, urban Yellow Shirts, have been unwilling to accept the results. In fact, the Yellow Shirts’ refusal to accept the 2013 election victory of Thaksin’s sister, Yingluck Shinawatra, is precisely what sparked the conflict leading to last month’s coup.

Thaksin’s opponents, for their part, are highly influential among Thailand’s strongest institutions — the bureaucracy, the military, the Buddhist sangha, and, of course, the monarchy. These groups exist and function separately from any constitutional government, and tend to be distrustful of electoral democracy. The result has been a series of weak civilian governments, incapable of preserving themselves when the gulf between majoritarian sentiment and elite interest has become too wide.

Thai constitutions have historically been written rather hastily so as to recover a semblance of normalcy in the wake of a military coup or popular uprising. The 1997 constitution made an admirable attempt to break from that trend. The drafing process involved mass participation and created a new set of institutions aimed at ensuring that elected officials did not abuse their power, including a constitutional court and commissions to fight corruption and protect human rights. But by 2006, many within the Thai elite had come to see that system as ineffective, not least because Thaksin’s electoral strength allowed him to wield great influence over these institutions. Following a coup in September 2006, Thaksin fled the country, and the military oversaw the drafting of the 2007 constitution, which watered down some of the perceived excesses of the previous version. They hoped it would serve as happy medium.

One of their revisions, for example, changed the architecture of Thailand’s senate, the gatekeeper to high-level government promotions. Military-dominated constitutions tend to have appointed senates, while democratic ones use popular elections to fill those seats. In an attempt to compromise, the military-backed drafters of the 2007 constitution split the difference, establishing a system in which half the senators would be appointed and half elected. Such "compromises" were defined unilaterally, however, based upon the military’s own notion of a "fair deal," without having undergone bipartisan dialogue beforehand.

And bipartisan dialogue is exactly Thailand needs to break the vicious cycle. The failure of the 2007 "compromise constitution," clearly illustrates the futility of any attempt to form a viable system merely by tweaking constitutional text. The polarized factions within the country must come together to create a constitution that will be widely seen as representing the whole country. That way, down the line, no party can say that the constitution was drafted according to an enemy’s design.

Establishing a productive dialogue will not be an easy task. There are no institutions credible and neutral enough to mediate the deep class and regional divides that cause the country’s current political crisis. King Bhumibol has been the supreme arbiter of political conflict for decades, but as his physical power wanes, so too does his ability to step in. The looming monarchical succession also adds a sense of urgency to the current crisis.

The military junta should call together all the major players, including leaders of both the Red and Yellow factions, for a genuine discussion about the principles and institutions that should guide the country going forward. Cases in which the military has successfully played the role of neutral arbiter anywhere are exceedingly rare. That said, the three-month "reconciliation" period recently announced by coup leader General Prayuth Chan-ocha represents good start. (In the photo above, a poster depicts the general as Big Brother from George Orwell’s 1984.) But it is not yet clear exactly who will be invited to the table, or how the reconciliation will proceed. For a resolution to be viable in the long term it will require frank dialogue, leading to a bargain that is palatable to both factions. For the discussion to be successful, the negotiators will have to settle on two key issues: 1) how to ensure that both factions respect the democratic process in the future, and 2) how to come to terms as a nation with the political violence of the past few years.

The broad outlines of such a grand bargain are not inconceivable, even now, even if getting both sides to agree may be challenging. It should include a commitment on the part of the reactionary Yellow Shirt partisans to respect electoral results; a constitutional provision prohibiting political amnesties (although the military will almost certainly get a pass); a reconstituted set of accountability institutions; and a strong recommitment to the monarchy. Such a deal would leave Thaksin Shinawatra out of the country, but still allow room for democracy to be respected.

Given the geographic nature of the Red-Yellow divide, Thailand might also benefit from greater decentralization. This would reduce the stakes of controlling the national government, but could also encourage economic development within the poorer regions of the country, ameliorating some of the inequality that has to date fueled the conflict.

And yet, getting to a constitutional agreement will require patience and no small modicum of trust, and trust can be slow in coming. Outside pressures — including U.S. insistence that the country return to constitutional norms so that bi-national relations can resume — might incentivize the military to rush the process. Even under the best of circumstances, establishing
rapport between foes can take time, and these are hardly the best of circumstances.