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Thai event

Event report - Building Sustainable Democracy in Thailand

23 June 2016

Opening the event, Fraser Cameron, Director of the EU-Asia Centre, said that for the past two years Thailand has been ruled by the military who deposed Prime Minister Yingluck Shinawatra in May 2014 following a constitutional court ruling that she had abused her powers. The military promised that they would only be in office for a short time before handing power back to an elected parliament. But there has been no date set for new elections. And in the absence of a date the EU’s relations with Thailand were likely to remain strained.

He recalled that at the Shangri-la dialogue in Singapore in early June the Thai prime minister stated that his country was ‘in a period of transition to a robust and sustainable democracy.’ He said that the population was divided as never before; and the roots of the problem ‘are political parties that claim to be democratic and demand unlimited rights to freedom, but ultimately act in a way that leads to poor governance and misuse of the government budget … and often it is not possible to find a solution to these problems by democratic means.’ The PM had defended the military intervention as being necessary ‘to restabilise the country and to avoid conflict and possible civil war,’ adding that ‘the current resolution of Thailand’s issues is for the purpose of maintaining peace and order, and to resolve political issues, which will in turn lead to democracy, bringing harmony to the population and resolving economic issues.’ The PM had confirmed that ‘Thailand would return to democracy according to the established road maps in every respect.’

Kitti Wasinondh, Member of the National Legislative Assembly of Thailand, held that Thailand’s current political situation could only be understood by shedding a light at the country’s recent history. Before the coup in May 2014, the political landscape was characterised by a ‘winner takes all’ mentality. Society was polarised and there was much abuse of power. Nepotism and lack of transparency were rife. Following street battles, and to prevent civil war, the army decided to intervene. Bringing all stakeholders to one table, the army installed the National Council for Peace and Order (NCPO). This body then set out a three-stage road map. First, order would be restored, then a transition phase would see the drafting of a new constitution and in a third stage elections would be held. Currently, Thailand was in stage two and the people of Thailand were content with the current stability. More than 170 laws, which had been on the backburner for some time, had been passed since the military took power, addressing corruption, money laundering and gender equality amongst other things.

As Spokesperson of the Constitution Drafting Committee, Norachit Sinhaseni explained the process of drafting the new constitution. The National Legislative Assembly had been appointed by the NCPO in October and had been given 6 months to draft a new constitution. Indeed, the process was concluded on 29 March after a first draft was presented in January 2016. Within this process, more than 500 suggestions by the public had been received, which within the field of rights and freedoms could mostly be met. The new constitution was more progressive than the old one as the new chapter on “Duties of the State” provided for public access to healthcare and education. Members of Parliament would continue to be publicly elected, however, there would be no first-past the post system anymore. In the new system, similar to the German election system, minorities would be better represented. In an attempt to remove money politics from the political system, senators would not be connected to parties anymore. Their number had been increased to 250, 50 of which would be appointed through a new process. (and 200 would during the first five years be appointed by the military). The referendum, in which the Thai people could reject or adopt their new constitution, was to be held on 7 August 2016. However, a petition had been launched which holds that section 61 of the interim constitution was unconstitutional. This section addresses the process of holding a referendum. While the ruling could be expected soon, the referendum was likely to be held on 7 August anyway. The referendum would give people only the choice between “yes” and “no” and would be legally binding no matter the voter turnout. There were no provisions whatsoever for the case of a no-vote. The government might in that case just built a constitution itself based on former constitutions. The subsequent elections were foreseen for July/ August 2017.

Xavier Nuttin, Senior Asia Analyst at the European Parliament, reported from a recent mission to Thailand by MEPs. They had met the former Prime Minister, representatives of civil society, the national Human Rights Commission and other stakeholders. The NCPO enjoyed very broad powers and its decisions were final. Another important point was that the referendum would feature a second question, asking whether the Senate members should join in the selection of the Prime Minister. The latter would then be selected jointly by the House and the Senate. Importantly, the Senate itself would be appointed, not elected. Given the reasons for the coup it was useful to ask if the NCPO had made progress to prevent abuse of power happening again. But reconciliation between parties was not happening. The upcoming referendum could not be discussed freely among politicians and people alike. Given the international treaties signed, Thailand was obliged to uphold basic freedoms, like freedom of speech and assembly.  In particular, the European Parliament had three concerns about Thailand. First, the process or the way towards democracy was not obvious at all. Thais could not see or feel political progress within the last two years. Those who had supported the coup did not reap the benefit they had hoped for: less inequality and corruption and an improved economic situation. Thailand was facing a crisis of political legitimacy and public confidence. Second, the constitution could not be freely discussed given the restrictions of the interim constitution. People were asked to make an important political decision without having adequate access to information. Third, the human rights situation was deteriorating not only in the area of freedom of speech and assembly. Thailand had still not signed the 1995 refugee convention thereby rendering every migrant illegal. The death penalty, despite the moratorium in place since 2003, was a continued concern to the European Parliament, too.

Gaelle Dusepulchre, the EU Director of the International Federation for Human Rights, calso riticized the drafting process of the constitution. It did not allow for civil society participation and granted the NCPO too much freedom in adjusting the final draft. The appointed Senate was a major concern and did not represent an improvement of the 2007 Senate, in which 50% were elected and 50% were appointed. The interference of the military would be institutionalised by the means of the new constitution. The referendum about the constitution also faced a long list of criticism, best summarised in the technical note that the Office of the United Nations High Commissioner for Human Rights published in March. The constitution represented a step back when compared with the 2007 constitution and Thailand was not living up to its international obligation of granting basic rights and liberties. Particularly problematic was the legalisation of NCPO orders under article 44 of the interim constitution. The referendum and the fact that no scenario was prepared for a no vote had hurt the credibility of the transition process. Citizens needed to be able to obtain information about the decision they were to take. An order for political parties not to have meetings prevented political deliberations. Even a 59-year old woman criticising the new constitution on Facebook had been put to trial. More than 1000 people had been arrested since the coup took place. The sedition act alone put 46 people in prison. It was clear that these and other orders of the NCPO had to be withdrawn. To ensure a credible, legitimate and peaceful transition, full public participation with respect for political rights had to be ensured.

Building upon this remark, Fraser Cameron asked the Thai representatives how the buy-in of the Thai people could be ensured if no opportunity was given to discuss the draft constitution. Norachit Sinhaseni defended the drafting process as an inclusive one, highlighting that other countries, e.g. in Thailand’s neighbourhood, drafted their constitutions behind closed doors. Public debate was taking place not on the street, but via social media. Each party leader had issued statements on the constitutional draft. An appointed Senate was also not very unusual, as the House of Lords in the United Kingdom proves. In the end ‘Thais have to live with their situation’ and others should be restrained in their criticism.

Kitti Wasinondh added that provisions like in article 44 and 47 existed in many constitutions, but in the Thai case had be viewed in light of the violence two years ago. It was true that Thai people wanted democracy, but it had to be questioned whether they wanted to pay a price that high. The law on lese majeste reflected the reverence the Thais had for their King. While computer crimes against the monarchy had led to imprisonments, it was made sure that all cases were open to a royal pardon. In the area of refugee politics, Thailand had despite its absence from the relevant convention worked with the UN, who encouraged Thailand to proceed with their current efforts in dealing with displaced peoples and refugees from neighbouring countries.

In the subsequent discussion it was highlighted that the EU, in light of the Brexit debate and non-transparent TTIP negotiations, should be careful in preaching to others. Turning to Thailand’s immediate neighbours, it was understood that the ASEAN governments had stuck to the principle of non-interference during Thailand’s transitional phase, while parliamentarians in ASEAN member states had been more outspoken. The Thai representatives said that the Prime Minister was not clinging to power, but was very aware that he might be responsible for potential chaos that could ensue should he step down now. There were positive stories to report; improvements in the fishing industry and tourism sectors. Thailand was also the ASEAN coordinator for relations with the EU and as such would prepare the EU-ASEAN ministerial in Bangkok in October.