By Greg Poling & Noelan Arbis
Thailand’s Constitutional Court on November 20 ruled that a proposed constitutional amendment to change the structure of the Senate was unconstitutional. The amendment bill, which passed its final reading in parliament on September 30, proposed changing the Senate from a body of 150-members, of whom 77 are elected and 73 are appointed by a committee, to a fully elected 200-member institution. The current constitution was drawn up in 2007, a year after the military coup that overthrew Prime Minister Thaksin Shinawatra, now the de facto leader of the ruling Pheu Thai Party.
The opposition Democrat Party petitioned the Constitutional Court to review the bill four times after it passed parliament, arguing that it gave excessive power to Pheu Thai, which has greater popular support and an overwhelming majority in the House of Representatives. The Democrats also asked that Pheu Thai be disbanded—a step the court has already taken against the party’s two predecessors since 2006.Those in favor of the bill argued that it was a positive step toward a return to true democracy, paring down the power and influence of Thailand’s Bangkok-based elites who have historically decided the country’s future.
The court ruling goes to the heart of Thailand’s political conundrum: how does the nation reconcile a growing majority demanding full democracy with a vocal minority, backed by the traditional centers of power, terrified of mob rule?
The current structure of the Senate is clearly undemocratic. Many upper houses, including in the United States, purposely skew representation to protect against the tyranny of the majority. But in a democracy this is usually done by allowing groups with unequal populations, usually defined by geography, to elect an equal number of representatives.
The problems with Thailand’s Senate are two-fold. First, it does not allow the members of the minority it is allegedly protecting to vote for their own representatives. Instead, it allows the elite of the elite—a committee composed of judges and appointed officials—to handpick senators. Second, the minority it seeks to protect is not primarily geographic, ethnic, or religious; it is socio-economic. The Senate, along with the judiciary, was intentionally established as a bulwark against popular rule.
When the Democrats and their backers, popularly known as “yellow shirts,” look at Pheu Thai, led by Thaksin’s sister Yingluck Shinawatra, it sees a return to populist chaos. Thaksin did not just rule with a popular mandate; he used that mandate to bludgeon his political opponents, by undemocratic means when necessary. The Yingluck administration began its tenure in 2011 with a tone of moderation and caution. But Pheu Thai has recently used its numbers in the House to ram through unpopular measures, especially a hotly-contested amnesty bill that would have opened the door for Thaksin to return to the country. The amnesty bill caused nationwide protests before being rejected by the Senate.
The court’s decision to reject the amendment bill but not dissolve Pheu Thai leaves Thailand’s political conundrum unchanged. It did not herald a return to the chaos of recent years, as some feared, but it did not solve anything. The Democrats’ partial success in court, and their newfound love of mass mobilization, could signal a turn away from legislative action. In the face of Pheu Thai and its predecessors’ repeated electoral wins, the traditional elites are growing increasingly dependent on nondemocratic means to contest power.
Pheu Thai, meanwhile, has overplayed its hand. The backlash against the amnesty bill fed into Democratic fear and helped rally elite opinion that a non-elected Senate is necessary. Yingluck seems to have gotten the message, though whether her brother and his supporters in parliament did is unclear. Pheu Thai members on November 21 rejected the court’s decision on the amendment bill, announcing they will seek the impeachment of the court judges. If they push too hard, the court might well disband the party after all, restarting the recent cycle of government crises and continuing the national malaise.
Thailand’s political deadlock requires serious thinking by both parties. The situation has no quick fixes, and there will be no absolute winners. Pheu Thai must take a more calculated approach, seeking compromise and recognizing that its own undemocratic past fed elite fears. The Democrats must seek a less divisive platform and admit that the current system is too unrepresentative to ever be accepted by the nation’s increasingly democratic majority.
In the end, the Democrats will need to give up more. Demographics and history are against them. But if Pheu Thai returns to an all-or-nothing strategy, the next few years are going to be much like the last.
Mr. Gregory Poling is a Research Associate with the Sumitro Chair for Southeast Asia Studies at CSIS. Follow him on twitter @GregPoling. Mr. Noelan Arbis is a Researcher with Sumitro Chair for Southeast Asia Studies.
Mr. Gregory B. Poling is director of the Asia Maritime Transparency Initiative and a fellow with the Southeast Asia Program at CSIS.