c)

LAW LIBRARY

THE CONSTITUTIONS OF THAILAND

by Mya Saw Shin

1981

Library of Congress sf * 0 t

n American-British Law Division cr o

z European Law Division

c.) Far Eastern Law Division 4. -b

Hispanic Law Division 6, s

4 * * s Near Eastern and African Law Division

LAW LIBRARY PUBLICATIONS

A major responsibility of the Law Library of Congress is the preparation of reports on various topics in foreign, comparative, and international law in response to requests from the Members and Committees of Congress, the executive and judicial branches of the federal government, and others. Although the focus of many of these legal studies is so specific as to make them of use only to the requester, a number will appeal to a broader audience. With the approval of the original requester, these reports are reissued and made available for general distribution.

The Law Library also prepares a number of other publications, such as: a series of guides to the law and legal literature of nations, extensive bibliographies, indexes, and contributions to scholarly journals.

The principal resources of all Law Library publications are its collection and research staff. The Law Library's holdings of over 1.6 million volumes constitute the world's largest and most comprehensive legal collection. Its staff of over forty-five legal specialists, researchers, and librarians--competent in more than fifty languages--can provide research and reference information on all of the major legal systems of the world, contemporary and historical.

Notice of all Law Library publications appears in the Library of Congress Information Bulletin. Specific inquiries or requests for copies may be addressed to the Law Librarian, Law Library, Library of Congress, Washington, D.C. 20540 (Tel. 202-287-5065).

THE CONSTITUTIONS OF THAILAND

By Mya Saw Shin

Law Library Library of Congress

Washington, D.C. 1981

Libtaty oi Cong4e4.6 Catalog Caul No. 81-600114

CONTENTS

Introduction v

Constitutional History 1

The Government 16

The King 16

The Parliament 30

The Sovereignty 40

The People 40

The Army 51

Conclusion 59

Note 63

Bibliography 65

Appendix: List of Constitutions . • • • 69

Introduction

The country that is today known as the Kingdom of Thailand was

originally called Sayam. The name was changed in the nineteenth century

to Siam, and again in 1939 to Thailand, meaning "land of the free."

Throughout its history, it has always been independent; unlike the

surrounding states of Southeast Asia, Thailand has never been colonized.

The people are predominantly ethnic Thai, with other minority

groups being the Chinese, Khmers, Laotians, and Malays. In area,

Thailand is about 200,000 square miles, stretching for a thousand miles

from north to south, five hundred from east to west. Bordering the

northeast and southeast of the country are Laos and Cambodia, respectively.

To the south is Malaysia, while Burma lies to the northwest. The

Andaman Sea is on its southwest border.

Buddhism is the national religion, practiced by over ninety

percent of the population. The economy is primarily an agricultural

one. The population was recently estimated at some forty-two million. 1/

Until 1932, Thailand was governed by absolute monarchs whose

rule dated from the thirteenth century A.D. In that year, a group of

military officers allied themselves with some civilians and, calling

their group the "People's Party," successfully staged a coup d'etat,

changing the form of government into the present constitutional monarchy.

In the less than half a century since that momentous event,

Thailand has had a series of thirteen constitutions, the latest of

which was promulgated on December 22, 1978. The political history of

1/ International Yearbook and Statesmen's Who's Who, 1980 433 (1980).

Thailand is reflected in its constitutional history. The latter

indicates that a constitution is for the Thai a set of rules for

domestic political games. When the participants in the game become

unruly, or fail to follow the rules of the game, the result is an unfair

play. In those countries where the rules were strictly observed, such

unruly participants would be pressured out of the game. In Thailand,

however, it is the disobedient participants themselves who use their

power and influence to revise the rules.

In short, coups and constitutions are Siamese twins in Thailand. The relatively large number of elections there reflects the variety of constitutions, whose purpose was to lend legality to at least part of the political manipulations connected with coups. 2/

Thus each new constitution has reflected the interests of the

revisors. This statement will be borne out by the survey of Thai

constitutions which follows. In surveying the constitutions, the first

part of the study will focus on the form of the government, in particular

on the King and the Parliament. In the second part of the study, the

focus will be on the sovereignty, thus primarily on the people and

their rights, and secondarily on the role of the Army in Thailand,

because of the dominant position that military men have held, almost

continuously since 1932, in the administration of the country. Finally,

prospects for the future of constitutionalism in Thailand will be

briefly examined.

2/ M. Lissak, Military Roles in Modernization: Civil-Military Relations in Thailand and Burma 96 (London, Sage, 1976).

vi

THE CONSTITUTIONS OF THAILAND

Constitutional History

It is generally agreed that the 1932 coup took place as a

result of deep-rooted causes that had been germinating for a long time

and that had developed from the process of modernization launched by

King Mongkut, or Rama IV of the present Chakkri dynasty, who had come

to the throne in 1851. The process was continued by his son and 3/

successor, Chulalongkorn, Rama V.

This modernization process was, in turn, prompted by

exogenous threats and by the realization of the need for Thailand to

maintain national independence in the face of the increasing domination

of Southeast Asia by the Western powers, specifically Great Britain and

France. Indeed, the more recent and systematic studies of Thailand

support this view. Siffin, for example, writes that Thailand was

"bombarded by a profusion of Western forces and influences...Change

or perish as an independent nation--these were the alternatives 4/

confronting the country in the latter decades of the 1800s."

Tate describes the situation in the region during the latter

decades of the nineteenth century in these vivid terms:

The establishment of a British colony on the Kedah island of Penang, four years after the foundation of the

3/ The dynasty was founded by General Chakkri, who reigned as Rama I from 1782 to 1809. Then came Rama II (1809-1824), and Rama III (1825-1851). Mongkut, brother of Rama II was king as Rama IV from 1851 to 1868. His son, Chulalongkorn, was Rama V (1868-1910). Rama VI, or Vajiravudh, and Rama VII, or Prajadhipok, were both sons of Chulalongkorn and reigned, respectively, from 1910 to 1925 and from 1925 to 1935. Prajadhipok's nephew, Ananda Mahidol, was Rama VIII (1935-1946), and he was succeeded by Bhumibhol Adulyadej, Rama IX, the present King.

4/ W. J. Siffin, The Thai Bureaucracy: Institutional Change and Development 42 (Honolulu, East-West Center Press, 1966).

1

2

Chakkri dynasty in Bangkok, signified the re-emergence of the European threat. Within the next generation British power in the Malay Peninsula was enlarged by the occupation of Singapore and the acquisition of Malacca (1824).... they not only annexed Arakan and Assam but also occupied Tenasserim, giving them a long common frontier with the Thais. In the 1850's the British extended their control over the whole of Lower Burma, in the 1870's they brought the most important states of the Malay Peninsula under their rule and in 1885 overran and annexed the rump of the Burma kingdom of Ava. Meanwhile...the French advanced into Vietnam. Cochin-China was seized in the 1860's and Cambodia fell under French influence at the same time. Twenty years later, the remainder of Vietnam disappeared equally as swiftly under the French tricolor. 5/

The Thai, naturally, regarded these developments with

apprehension and rightly so, for their ancient traditional system of

6/ government "could neither deny nor cope with" the Western forces.

The Thai were well aware of their weakness and of the urgent need to

modernize their country if independence was to be preserved. The

modernization can thus be viewed as the process of adaptation of the

country's social, economic, and political conditions to a standard

acceptable to the colonizing powers of the Western world.

It had been the policy of the first three kings of the Chakkri

dynasty to keep the Europeans at a distance. The policy seems to have

stemmed primarily from the lack of effective communication with the

Westerners, for no Thai could speak English at that time, and communication

with the British and other Europeans was carried out through Malay

interpreters. Second, the Thai leaders still followed the Chinese

tradition of resisting Western influence. Finally, although the Western

5/ D. Tate, 1 The Making of Modern South-East Asia: The European Conquest 503-504 (London, Oxford University Press, 1971).

6/ Supra note 4, at 42.

3

threat was seen emerging, it was not perceived as an immediate or urgent

one. The British were at the time primarily concerned with their trade

interests in Burma and on the Malay Peninsula, and Anglo-Thai contacts

had only just begun.

Rama III (1824-1851) established limited diplomatic relations

with some European countries and entered into treaties with a number of

them. However, the Anglo-Burmese wars of 1824-1826 led to British

control of Burma and produced a radical change in Thai diplomacy.

Thailand felt that in order to minimize the British threat, it would be

necessary to placate that power. Thus, it concluded a treaty of

friendship and commerce with Great Britain, the first modern treaty of

its king with the West. The agreement was limited in nature, but it

was followed by a trade agreement with the U.S. in 1833; this too was

restricted in scope.

When Mongkut ascended the throne as Rama IV in 1851, however,

the conditions in the area surrounding the country had changed; the

Western threat had crystallized. Burma had been defeated by the British,

who had also established their authority over Penang and the Straits

Settlements. China had been forced to open her ports, and "the surge 7/

of Western activity posed a growing threat to the security of Siam."

Mongkut himself, even before becoming king, had been acutely

aware of the growing power of the British in the region. On attaining

kinghip, he reversed the policy of his predecessors and proceeded to

accommodate the West. He concluded a series of treaties with the British,

7/ Id. at 46.

4

the Americans, the French, and other powers desiring to trade with

Thailand. According to Prince Chula Chakrabongse, "King Mongkut realized

that the British defeat of China in 1840-42 was but the beginning of

the European influence in Asia, and collaboration by Siam with European 8/

States was necessary, if Siam was to preserve her independence."

However, it was Mongkut's son, Chulalongkorn, who launched

the great Chakkri Reformation, the focus of which was the Westernization

of the country's governmental system. When Mongkut died, Thailand "had

no fixed code of law; no system of general education, no proper control 9/

of revenue and finance ... no army or modern railways and almost no roads."

Thus the improvement of communications and the reorganization along

Western lines of the traditional bureaucracy, the most important of the

King's instruments for governing the country, were the salient features

of the modernization plan.

The King's attempts at reform were preceded by attempts at

curbing the power of the Regent, Suriyawong, first of all through the

establishment of a Council of State, which was given deliberative

functions. Its members were regarded as advisors to the King, and they

were to discuss matters related to governmental affairs. It consisted

of twelve members selected from the nobility by the King. Soon after,

he created a Privy Council to give direct advice to the King, but

operating at a lower level than the Council of State. Thirteen members

of the Royal Family became Privy Councillors, while more than thirty

8/ Chula Chakrabongse, Lords of Life 196 (2d rev. ed. London, Alvin Redman-, 1967).

9/ M. Smith, A Physician at the Court of Siam 85-86 (London, Country

Life Press, 1947) as cited by Siff in, supra note 4, at 51.

5

others were appointed from among noblemen and civil servants. In

practice, the Council of State acted as an Upper House and the Privy

Council as a Lower House.

In spite of these steps, a petition was presented to

Chulalongkorn in 1887 by a group of princes and civil servants, requesting

him to replace the present form of government by a parliamentary system 10/

under a written constitution. The petition is a good example of the

perception on the part of the Thai ruling class of the strength of the

Western powers and particularly of their policies towards Asia, stating

what they assumed would be the pretexts on which Europe would overrun

the Asian continent. Examples given were the pretext of humanitarianism,

i.e., the invaders would claim that their aim was to bring happiness

and advancement; the pretext that the backwardness of the Asian countries

could hinder the Europeans in their own advancement; the pretext that

because of the inefficiency of Asian governments, they were not capable

of protecting Europeans and other Asians within their borders; and the

pretext of commerce, i.e., that the Europeans understood trade and

commerce better than the Asians.

The moderate reforms of the King were also criticized by the

petitioners. The gradual approach to reform was not enough. Neither

offering foreign trade nor natural resources could guarantee friendly

relations with the colonizing powers. International law would not

deter European powers from taking aggressive actions. What the petitioners

proposed was thus a European style of government. A constitution would

10/ D. Engel, Law and Kingship in Thailand During the Reign of King Chulalongkorn 11 (Ann Arbor, University of Michigan, 1975).

6

be promulgated and a parliament would be established. The absolute

monarchy would be replaced by a constitutional monarchy, wherein the

King could delegate some of his responsibilities of government. A

cabinet would also be established and given major decision-making powers.

In reply, Chulalongkorn said that the ideas submitted were

ideas which he had already contemplated. It had not been possible for

him, at the beginning of his reign, to proceed with the implementation

of such reforms because the power of the ministers had become so enlarged

that they could effectively block him. But he pointed out that things

had improved lately and that there was now a much better chance that

the reforms could proceed.

He did, in fact, carry out sweeping governmental reforms in 1892.

The twelve members of the Council of State were appointed to a Cabinet, 12/

and the central administration was divided into twelve ministries. The

governmental reorganization created a great need for skilled, well-trained

personnel for the government service. Chulalongkorn tried to solve

this problem by setting up schools for civil servants. He also sent

Thai students to study military and public administration in France and

Great Britain, in particular. The first students were, however, all

members of the Royal Family, which had traditionally been the source of

the labor force for government officials.

Although changes were being introduced, they were mainly

political ones. The social aspects of life in Thailand remained

11/ Id. at 12-13.

12/ D. Wilson, "Thailand," in G. M. Kahin, ed., Governments and Politics of Southeast Asia 12 (2d ed., Ithaca, N.Y., Cornell University Press, 1964).

11/

7

basically the same. Thai society continued to exist in a hierarchical

structure. The young had to obey their elders; subordinates had to

follow the orders of their superiors without question, and commoners

had to respect members of the Royal Family and of the nobility. Further,

while some commoners were given the opportunity to get a good education,

with very few exceptions they were not given high positions in the

Thai government. The heads of the various departments and divisions in

the government were invariably members of the Royal Family or nobles.

The Thai students of common origin who went abroad and who

saw systems different from their own, ones which engendered material

progress and prosperity, came to feel that the old social and political

systems were obstructing national progress. They were impressed by the

lack of distinct social classes in their host countries. Further, when

in the course of their studies they were exposed to democratic ideas,

ideas of equality, freedom, and liberty, they found them profoundly

attractive. The principle of equality held out to them the hope that

they could rise to positions of power, wealth, and prestige, regardless

of their origin.

The resentment of the students against the injustices of a

society ruled by an absolute monarch grew and accumulated so that it

became a political belief of sorts, a belief that absolute monarchy was

to be condemned. However, their strongest desire was to do away with

the absolute power exercised by the monarchy and the traditional values

and practices of the country, which then would be replaced with the new

values that they had absorbed during their long stays in Europe.

Further, their determination was reinforced by the confidence that they,

8

though commoners, were as capable of running the country as were the

members of the Royal Family or of the nobility. In short, the fundamental

factors that largely assisted in bringing about the change of 1932

were: first, the educated commoners' deep-rooted resentment against

traditional values and practices; second, their yearning desire to

replace these values and pracices with new ones acquired in the West;

and third, the hopes and dreams of those students--who were later to be

the coup originators--of rising to positions admired and respected by

others. It follows then that the coup which was to bring about the

desired changes was bound to occur sooner or later. The economic

deterioration of the late 1920s, the weakness of the monarchy, and the

dissatisfaction among the military and government officials of Thailand

were merely short-term factors that helped to precipitate it in 1932.

Prajadhipok, or Rama VII, was the last child of Chulalongkorn.

When he ascended the throne in 1925, the economy was deteriorating.

His brother and predecessor, Vajiravudh, had been an extravagant

spender and the national treasury was low. Worldwide inflation had

also adversely affected Thailand. Prajadhipok, weak and inexperienced,

feebly attemped to deal with the worsening economy by adopting the

policy of trimming the bureaucracy and the military, and by reducing

his own allowances. A large number of government servants and junior

military officers were laid off, and the salaries of those fortunate

enough to be retained were reduced. But what further worsened the

situation was that the King did not reduce the salaries of the high-

ranking officials. Moreover, he appointed only members of the Royal

Family to the higher positions, bypassing the commoners. Dissatisfaction

9

and anger began to spread rapidly among the military and civilian bureau-

crats who became convinced that it was time for them to step in to help

save" the country from economic disaster.

These were the complementary factors that contributed to the

coup of 1932. The coup took place on June 24, and three days later, a

Constitution--drafted by Pridi Phanomyong, one of the instigators of

the movement--was promulgated. Termed the "Provisional Constituion,"

It contained thirty-nine articles providing for the King as head of

state, a House of Representatives (to be composed of members appointed 13/

by the People's Party), a People's Committee, and the courts. Fifteen

members of the People's Committee were given executive powers.

The second Constitution, the Permanent Constitution, was

promulgated on December 10 of the same year, and consisted of sixty-two

articles. Sovereign power was granted to the legislative, executive,

and judicial branches, with the King serving as head of state. The

Constitution was amended three times, in 1939, 1940, and 1942. On May 9,

1946, Prajadhipok promulgated the third Constitution, one of ninety-six

articles, which had been drawn up by a Special Commission. The 1946

Constitution was abrogated by a military group which took over the

government and promulgated a new Constitution on November 9, 1947. The

1947 Constitution was amended three times during 1947 and 1948.

The fifth of Thailand's Constitutions was promulgated on

March 3, 1949. This document was the work of the Constitutional Drafting

Council, established in 1948 and made up of forty members: ten senators,

13/ The People's Party was the name under which the promoters of the coup and their supporters organized themselves.

10

ten representatives, and five appointees each from four different

fields. The Council had been entrusted with the task of preserving the

rights and liberties of the people, of planning state policy so as to

maintain the stability of the state, and of adding more power to the

parliament. The Constitution was completed at the end of 1948, revised

by the parliament, and promulgated on March 3, 1949. A Constitutional

Tribunal was set up for the first time with the task of determining

whether new legislation was or was not constitutional.

The far-reaching 1949 Constitution was abrogated on December

1st of the same year. Then in 1952 the Permanent Constitution of 1932

was revived and amended. The amendment returned the governmental system

to a partly appointed and partly elected unicameral legislature, and

gave more power to the central government. Thailand's sixth constitution

was therefore known as the Constitution of 1932 as amended by the

Constitutional Amendments of 1952; it consisted of 123 articles.

Field Marshal Phibun Songkhram, the power behind the 1949

takeover of the government, was ousted in 1957 by a group led by Field

Marshal Sarit Thanarat, whose administration continued to recognize

the above Constitution until 1958. After abrogating the Constitution

on October 20th of that year, Sarit issued fifty-seven individual

proclamations whose effect was to reduce individual freedoms. Sarit

was responsible for the interim Constitution, only twenty articles

long, which was published on January 28, 1959, while the Constitutional

Drafting Council, now called the Legislative Council, began drafting

the new one. It labored for nine years to produce the Constitution

which was promulgated on June 20, 1968, and composed of 183 articles.

11

Previous constitutional provisions were recognized: the King was head

of state; the separation of powers into the legislative, executive, and

judicial branches was reinstituted; various rights and liberties of the

people were guaranteed.

This Constitution did not remain in force long, for Field Marshal

Thanom Kittakachon seized power in the coup of November 17, 1971. Ostensibly

motivated by the Communist insurrections in the North, student unrest,

labor uprisings, and other instances of subversion, Thanom's Revolutionary

Party abrogated the Constitution and declared martial law. While in power,

the Party issued a series of announcements or organic documents which

together formed a kind of constitutional basis for their government.

Announcement No. 1, for instance, proclaimed that the coup had taken place;

the second one declared martial law; No. 3 abrogated the 1968 Constitution;

No. 4 prohibited political gatherings of five or more persons; and No. 8

vested all powers which had been given to the Prime Minister by the 1968

Constitution in the Chairman of the National Executive Council.

The National Executive Council proceeded to draw up the ninth

Constitution of Thailand, the country's third interim constitution, which

came into effect on December 15, 1972. This Constitution called upon the

Council of Ministers to present a draft Permanent Constitution to the

National Legislative Assembly. The military-dominated government stayed in

power only until October 1973. A National Convention of 2,346 ordinary

citizens was then appointed by the King and given the task of electing

a new 299-member National Assembly to replace the old Assembly, which had

been previously dissolved by Royal Decree on December 6. The electors met

on December 18 and Thailand's tenth Constitution, after much deliberation

12

in the National Assembly, was approved and promulgated on October 7 of

the next year (1974). The first popular elections under the tenth Con-

stitution were held in January 1975, at which time a new 269-member

National Assembly was elected to office and a coalition government was

formed. The 1974 Constitution was amended once, in 1975, at which time

certain sections concerning the powers of the Senate were changed.

The experiment with parliamentary government, which had came

about as a result of student demonstrations against the military regime

three years earlier, ended in October 1976 when the military once

again seized power from the civilians. The 1974 Constitution was

abrogated, and a twenty-four member National Administrative Reform

Council (NARC) was established to run the country. The NARC was made

up of senior army generals for the most part and headed by the Supreme

Commander of the Thai armed forces, Admiral Sangad Chaloryu. Thanin

Kraivichien was appointed Prime Minister, and he chose the rest of his

Cabinet. The Cabinet was to share power with the NARC until the National

Assembly had been appointed.

The 1976 Constitution was promulgated on October 22, the same

day that the Prime Minister was appointed by the King. Only twenty-nine

articles long, the new Constitution gave almost dictatorial powers to

the new administration. The Preamble justified the latest take-over

and the abrogation of the 1974 Constitution by saying that the National

Administrative Reform Council had had no other alternative and that

while a democratic administration with the King as head of state was

the best and most suitable form of government for the stability of the

Kingdom and the happiness of the people in general, more than forty

13

years had passed without any good results. Under the present 1976

Constitution, there would be a four-year period in which the economic

and political stability of Thailand would be restored; during this period

the Assembly would be composed of only appointed members. A second

four-year period would see increased participation on the part of the

people through a parliament with an elected House of Representatives

and an appointed Senate. During the third four-year period, if everything

proceeded on schedule, the Senate would be dissolved and only the House

of Representatives would remain.

For the time being, therefore, the 1976 Constitution reaffirmed

the position of the King as the head of state, exercising the sovereign

power of the Thai people by virtue of the Constitution, holding the

position of Head of the Armed Forces, and given the duty of appointing

the President and a Privy Council of not more than fourteen additional

members, which was charged with the responsibility of advising the

monarch. The selection, appointment, and retirement of Privy Councillors

was to be at the King's pleasure. Legislative power would be wielded

by the King through the National Administrative Reform Assembly; executive

power through the Cabinet.

The 1977 Constitution, another "interim constitution," was brief

like its predecessors, a document of thirty-two articles. Its promulgation

was the sequel to the military coup of that year which ousted the

coalition government that had been in office since 1976. The apparent

coup leader was Admiral Sangad Chaloryu, who had been chairman of the

National Administrative Council (now renamed the Revolutionary Party).

But it was Kriangsak Chomanand, General and Supreme Commander of the

14

Royal Thai Armed Forces, who was appointed Prime Minister. The 1977

interim Constitution symbolized the compromise between the three persons

who constituted independent sources of power: Kriangsak, the Prime

Minister; Sangad, who stayed on as Chairman of the Revolutionary Party,

once more re-named the National Policy Council; and General Serm Na

Nakorn, strongman commander-in-chief of the Army.

The Constitution limited the Prime Minister's powers to those

of a caretaker government for a one-year period during which the country

was to be prepared for national elections and a civilian government.

Article 7 provided for an appointed National Legislative Assembly to

consist of not less than three hundred but not more than four hundred

members, the appointments to be recommended to the King by the President

of the National Policy Council. An Assembly committee (the Constitution

Drafting Committee) was to be formed to draft the document, which would

be submitted to the rest of the Assembly. Much of this Constitution is

taken up with the procedures whereby the permanent constitution was to

be drafted, discussed, and approved. Other parts of it were mainly

concerned with the National Legislative Assembly and the role of the

National Policy Council, who now had the powers and duties to lay down

the directive policy of the state and to advise the Council of Ministers

on the administration of state affairs. Article 27 gives the Prime

Minister the authority, with the approval of the Council and Ministers

and that of the National Legislative Assembly, to issue orders or take

actions when he

deems it necessary for the prevention or suppression of an act subverting the security of the Kingdom, the Throne, the national economy or the State affairs, or disturbing or threatening public order or good moral[s],

15

or destroying the natural resources or detrimental to public health, whether such act has occurred before or after the day on which this Constitution is promulgated, either within or outside the Kingdom. 14/

It is stipulated further in the same article that such order

or action, as well as acts performed in compliance therewith, are to be

considered lawful. Article 30 provides that whenever there is no

provision of this Constitution applicable to any situation, the situation

is to be resolved in accordance with the "constitutional practices of 15/

Thailand under the democratic form of government."

A thirty-five member Constitution Drafting Committee was

appointed on December 1, 1977, and six months later a draft was issued,

providing for a parliamentary system with a national assembly whose

members were to be elected by popular vote and a senate whose members

were to be appointed. Nominations for the Senate were to be made by

the Chairman of the National Policy Council (Sangad) and appointed by

the King; senators would have the power to debate budget bills and to

participate in votes of confidence. The Prime Minister was not required

to be an elected member of the Assembly, but could be selected by a 16/

majority vote of the members.

The Constitution Drafting Committee asserted that the

Constitution in this form would create more stable governments than

those resulting from the Constitution of 1974, but the draft was

14/ Interim Constitution [1977], art. 27.

15/ Id. art. 30.

16/ The Bangkok Post, June 23, 1978, published in 4 Daily Report: Asia & Pacific, no. 125, J-2 - J-26 (June 28, 1978).

16

17/ nevertheless attacked on many sides as being undemocratic. After

debate in the Assembly, the draft was revised by the Assembly Committee

established to review the constitutional draft. The revised version

provided instead for a unicameral legislature; half its members would

be elected and half appointed upon nomination by the Chairman of the

National Policy Council. After this version was again attacked, another

draft was published by the Assembly which was similar to the initial

version with a few but important provisions. There was to be an elected

House of Representatives and an appointed Senate, but the Prime Minister

would nominate the senators and countersign their appointments. The

National Policy Council was to be dissolved once a new government had

been sworn into office. The Senate was given increased powers. In the

final version, the Senate would sit with the House, for instance, on

bills relating to the succession to the monarchy, the interpretation of 18/

the Constitution, and amendment of the Constitution.

The Government

A. The King

The role of the King was of course drastically affected by

the advent of constitutionalism. The concept of kingship in Thailand

has been seen as a synthesis of several ideas which had developed in

that country since the thirteenth or fourteenth centuries. The earliest

concept of king was that of the patriarchal monarch who ruled his kingdom

17/ A. Ramsay, "Thailand 1978: Kriangsak--the Thai Who Binds" 19 Asian Survey 110-111 (February 1979).

18/ Constitution [1978], art. 143.

17

as a wisr and benevolent father would govern his family. Thus he

was accessible to his subjects and available to help in the settlement

of disputes among them, they being like members of his family. Such

was the legend of King Rama Khamheng, who was said to have had a bell

hung in the gateway of his palace. Anyone with a grievance or problem

could present it to the King himself by striking the bell. The king 19/

would hear him personally and render a decision on the case.

Later, Indic influences, transmitted through the Khmer and

Mon cultures adjoining Thailand, transformed the king into

a more distant and stern figure, identified in theory with the Hindu gods Shiva and Vishnu, surrounded therefore with Hindu ritual, advised in the mysteries of the sacred law by his own Brahmin legal experts, and bearing towards the people the relationship of master and servant rather than father to child. This was the concept of king as Devaraja, the awe-inspiring and god-like figure who so impressed European visitors to the Thai court in the seventeenth century. 20/

Later still, the Thai concept of the king as an idealized

ruler developed with the influence of Theravada Buddhism. According to

this, the king was to promote the teachings of the Buddha while at the

same time conforming, in his own behavior, with the ethical principles

of Buddhism. During the Ayutthaya period of Thai history, therefore,

the concept of the devaraja, the king as god,

was modified to make the king the embodiment of the Law, while the reign of Buddhist moral principles ensured that he should be measured against the Law. The effect of this transformation was to strengthen the checks which,

19/ Country Law Study for Thailand I-1 (Bangkok, U.S. Department of Defense, 1962).

20/ Supra note 10, at 2.

18

in the Khmer empire, Brahmans had attempted to exercise against despotic excesses of absolute rule. 21/

The Thai thammasat, the legal code which was derived from the

Hindu dharma—sastras, laid down the norms which governed the king in

his actions. Revised in the reign of Rama I, the code was restated in

the form of the Law of the Three Seals. The thammasat was a restraint

upon the power of the king; another such restraint was the concept of

dharma, the obligation which every person bears to submit himself to

the laws of the universe, to take only those actions which produce

spiritual benefits and thus to assure his well—being in future lives.

These were, however, long—run restraints. In the short run, the king's

powers were supreme. As Engel observes, there was no parliament free

to act as a legislative counterbalance.

There was no tradition of a strong and independent judiciary which might create a system of common law. There was no Magna Carta standing between king and subjects as a symbol of the rights and liberties of individuals which could be enforced against an unjust king. 22/

By Chulalongkorn's time, traditional concepts about kingship

were already being questioned. The petition that was presented to him

in 1887 by a group of princes and government officials, already mentioned

above, proposed that the monarchical form of government be abolished,

to be replaced by a parliamentary system under a written constitution.

The absolut monarchy would be replaced with a constitutional monarchy

in which the king would share some of his responsibilities. Chulalongkorn,

21/ D. K. Wyatt, The Politics of Reform in Thailand 8 (New Haven, Yale University Press, 1969).

22/ Supra note 10, at 8.

19

while rejecting the request, gave reasons why the absolute powers of

the Thai kings should be preserved.

In fact, although Chulalongkorn encouraged reform and change

in many areas of government throughout his reign, he still resisted any

threat of change when it affected the structure of the monarchy itself.

Thus, he never endorsed a representative system of government. In his

explanation of the governmental reforms which he had proposed, he

observed that the power of the king was not specified by any law; it

was free from all restraints of law or man. But he pointed out that

the actions of the king must always be fitting and just, and so he had

no objection to the powers of the king being delineated under law. He

also observed that limitations upon royal power in other countries had

come about because the people themselves had been dissatisfied with

their monarchs. He stated that this was not the case in Thailand,

where it was the king himself who wished to impose restraints, with the

object of advancing the progress of the country. Since in Thailand

the king was trusted by the people, the royal power should remain

unlimited.

Chulalongkorn thus accepted the concept of kingly powers

limited under law and yet reaffirmed the Thai tradition of absolute

monarchy beyond the restraints of man-made law. In fact, throughout

his reign, he sought to centralize and to consolidate the power of the

throne.

Chulalongkorn established two advisory councils to advise

him on important matters of state and in the enactment of laws: the

Council of State and the Privy Council. The proclamation of the King

20

announcing their creation said that his intention was to confer with

these bodies before establishing new laws or policies and to solicit

their suggestions and criticism. The council members could also raise

matters which they considered to be ripe for discussion. The Council

of State was to consist of ten to twenty men selected by the King on

the basis of ability, reputation, and family background. The ministers

of the traditional administration were also entitled to attend Council

meetings when advisable, but they were not members of the Council

itself. Six members of the Royal Family were also to be appointed to

the Council of State. This body had the power to legislate, provided

unanimous approval was obtained to a measure and provided that the King

also approved it.

The Privy Council of Chulalongkorn's reign, on the other

hand, was to be composed of an indefinite number of men drawn either

from the Royal Family or from the government service. Its function was

not legislative, but advisory. The Privy Council could meet only by

invitation of the King, unless emergency conditions existed. Royal

Commissions, whose membership was to consist of Privy Councillors,

could also be appointed by the King in order to investigate certain

matters and to report on them to the King in writing. The Privy

Councillors had the duty to keep the King informed of important matters

within their knowledge, thus helping him to decide issues of moment,

as for example, topics for legislation.

The Privy Council thus could not, due to the restrictions

placed upon it, really function as an independent body. Because of the

controls that were exercised by the King--such as his exclusive power

21

to select new members and to select as many as he wished, and also to

dismiss members for misuse of their position or for inappropriate

behavior--the work of the Council was entirely dominated by the monarch.

During the reign of Prajadhipok, Rama VII, the country changed

its form of government into that of a constitutional monarchy. At

first Prajadhipok resisted the demands of the coup leaders, but finally,

as the preamble to the 1932 provisional constitution briefly states, he

agreed to rule the country under a constitution for the sake of national 23/

progress and prosperity.

Although the Provisional Constitution designated the King as

the head of state, it also stated that the supreme power of the land

belonged to all the people and that this supreme power was henceforth

to be exercised by the King, the Assembly, the Council of State, and

the Courts of Law. Thus the King was to share his power with the three

other bodies. All legislative acts and judicial decisions were to be

made in the name of the King, yet no action taken by the King would be

valid under law unless it was countersigned by a member of the Council

of State and approved by the Council as a whole. The law-making

authority of the King was now vested in the Parliament, which could

enact laws that would come into effect with or without the King's

approval. Parliament also became, under the Provisional Constitution,

the body that would oversee the government of the country. Only

Parliament had the power to dismiss members of the Council of State and

government officials.

23/ Provisional Constitution [1932].

22

The Council of State, envisaged by the Provisional Constitution

of 1932, was a fifteen-member group selected by the Chairman, who was

himself to be elected by the members of Parliament. Under the

Constitution, the Council of State was given certain powers and functions.

It was to undertake to achieve the objectives set forth by the parliament,

the National Assembly. In emergency situations, when an Assembly

meeting could not be convened, the Council had the power to enact laws,

though they would then have to be submitted to the Assembly as soon as

it was able to convene. All ministers were made responsible to the

Council of State. The Chairman was to be elected from among its own

members by the Assembly, and he would then select the fourteen other

members, also from Assembly members. The appointment of ministers

required the approval of the Council of State, which also had the power

to conduct political negotiations with foreign governments.

The King was to appoint a Cabinet, composed of the Prime

Minister and at least fourteen other ministers, to administer the

country. The Prime Minister and other Cabinet ministers were to be

chosen from among the Assembly members, while additional ministers

could be outsiders so long as they were qualified to hold political

office. The "outsider" ministers could attend the meetings of the

Assembly and could express their views, but they had no right to vote

at such meetings.

The Provisional Constitution of 1932 thus envisaged a

governmental structure with the King at the apex and below him the

Council of State, the Cabinet, and the Assembly of the People's

Representatives. The Council of State was the highest policy-making

23

level of the government, and its members would be members also of the

Assembly. Even though the appointment of ministers was theoretically

to be made by the King, they were in practice chosen from names submitted

to the King by the Council of State.

The Council of State and the People's Party were thus the two

main elements of the new Constitution. In fact, the coup leaders had

initially discussed the possibility of transforming Thailand into a

republic headed by a president (instead of a constitutional monarchy),

but this had been rejected by the majority of the leaders because they

felt that such a change would be too radical and sudden. They also

thought that to abolish the monarchy would cause them to lose the

support of the people, who still revered and respected the monarchical

institution.

The Permanent Constitution of 1932 provided for a democratic

constitutional monarchy based on the British system. The King was

designated head of state, with the power to appoint a Cabinet to serve

on his behalf. The Cabinet members would be selected by the King from

among the members of the Assembly, who had in turn been elected by the

people and not appointed by the People's Party as under the Provisional

Constitution. The Permanent Constitution also saw the abolition of the

Council of State. Thus the various ministries were now headed by

politicians who were Cabinet members. What actually happened, however,

was that the members of the Council of State became Cabinet members.

Since the two constitutions of 1932, no real change has been

made in the position of the King. Thus, the first changes, which were

the fundamental ones, were brought about during the initial period of

24

constitutionalism. Prajadhipok, Rama VII, in his abdication statement,

expressed his approval of the changes envisaged in the Provisional

Constitution, saying that he had agreed to remain al a constitutional

monarch because the People's Party had promised to enact a constitution

giving the people the right to express their views on the administration

of the country and on the policies affecting the public welfare. He

complained that the first constitution had given power solely to the

People's Party, and their supporters, not to the elected representatives

of the people. He conceded that the Permanent Constitution had been an

improvement, but he said that one half of the Assembly membership was

still appointed. While he had agreed to this in the hope that the

appointed members would be chosen freely from those with ability and

experience in government administration, without regard to their party

affiliation, he had found that when the time came he had had no voice

at all in their selection; the government had chosen practically all of

the appointed Assembly members from among its own supporters, regardless

of their experience.

The abdication statement continued as follows:

When I asked that the Constitution be revised to make it truly democratic so that it might satisfy the public, the government and its supporters, who now hold absolute power, would not agree. I asked that the people be given an opportunity to express their views before changes were adopted in important policies affecting the public welfare, but the government refused....

I am willing to surrender the powers I formerly exercised to the people as a whole, but I am not willing to turn them over to any individual or any group to use in an autocratic manner without heeding the voice of the people. 24/

24/ B. A. Batson, comp. Siam's Political Future: Documents From the End of the Absolute Monarchy 101-102 (Ithaca, N.Y., Cornell Univer-sity Press, 1974).

25

Stating that he felt that there was no longer any way for him

to assist and protect the people, he announced his desire to abdicate.

Thus rule by an absolute monarch came to an end, with the real era of

constitutional monarchy to begin with his successor, Rama VIII.

The advisory system as envisaged in the 1947 Constitition was

in the form of a Supreme State Council, to consist of five members,

established for the purpose of advising the King. The members were to

be appointed by the King. To be eligible for such appointment, however,

a person had to have served in a permanent government position for at

least twenty-five years, with the rank of Director-General or Minister

in charge of a Ministry, for not less than four years.

The 1959, 1968, and 1972 Constitutions provided for the appointment

of a Privy Council consisting of a President and Privy Councillors. The

Privy Council was assigned the duty of submitting opinions to the King

concerning the royal functions on which the King would consult with it, and

such other duties as the Constitution should provide. A Privy Councillor

could not be a permanent government official, a Minister of State, or any

other political official. Neither could he be a member of the Assembly of

the People's Representatives, nor was he to "express active sympathy for 25/

any political party."

The Constitution of 1972 also provided for a Council of Ministers,

to be composed of a President and between fourteen and twenty-eight other

Ministers of State. A Minister of State did not have to be a member of the

Assembly, but if an Assembly member should be appointed a Minister of State,

25/ Constitution [1968], art. 14.

26

he was obliged to resign the membership. Under article 87, the Assembly

could pass a resolution of non-confidence in the Council of Ministers,

forcing them to retire to make way for a newly appointed Council. Apart

from this, the status of Minister of State also terminated individually

due to the death or resignation of the person concerned, or for some

disqualification under the Law on the Election of Members of the Assembly

of People's Representatives.

Article 17 of the 1972 Consitution was new, and it enabled the

Prime Minister, with the approval of the Cabinet, to issue orders for the

purpose of "preventing, repressing, or suppressing actions which jeopardize

the national security, or the Throne, or the economy of the country, or the

national administration, or which subvert or threaten law and order or good

public morals or which destroy the natural resources of the country or 26/

damage the health of the people." These rights or powers were the same

as those that had been given to the Chairman of the National Executive

Council which had governed Thailand since the coup thirteen months prior to

the promulgation of the Constitution, and by means of which the ruling body

had been able to deal with what they considered to be dangerous elements of

the society without having to resort to the normal court system.

The 1974 Constitution provided for a Cabinet, with the Prime

Minister to be appointed by the King in addition to not more than thirty

other Ministers. Both the Prime Minister and at least half of the Ministers

had to be members of the Senate or the House of Representatives, while the

Prime Minister had to be a member of the House. The President of the

26/ Interim Constituion [1972], art. 17. ___

27

National Assembly was to countersign the King's appointment of the Prime

Minister. A Minister was not to be a government official, although he could

be a political official. The Cabinet was responsible to the House and had

to state its policy to and obtain a vote of confidence from the latter.

The King had certain limited powers under the 1974, 1976, and

1978 Constitutions. In the case of an emergency, he could issue an emergency

decree which had the force of an Act. The decree, however, would lapse

unless approved by both the House of Representatives and the Senate or by a

majority of the members of the House of Representatives. The King could

declare and lift martial law, declare war with the approval of the National

Assembly, and conclude peace and other treaties with other nations or

international organizations, except for those treaties calling for a change

in Thai territory or national territorial sovereignty, or a military

alliance, which had to be approved by the National Assembly. The King

could grant pardons, remove titles, and recall decorations; he could appoint

and retire the President of the Privy Council and the Privy Councillors.

The advent of constitutionalism has permanently, it seems, reversed

the traditional positions and powers of the King vis-a-vis that of the

legislators. Although all laws and governmental acts are carried out in

his name, the sovereignty resides in four organs of government of which the

monarchy is but one. Acts of the King do not achieve validity until they

have been countersigned by another authority. In the case of the Provisional

Constitution of 1932, the King's acts had to be countersigned by a member

of the Council of State and approved by the Council as a body. On the

other hand, the parliament has the power to enact legislation which becomes

effective with the King's signature, and even without his signature if

28

approved by the legislature for a second time. The Cabinet is responsible

to the parliament, rather than to the King. The appointed members of the

parliament, although in name appointed by the King, are actually chosen by

the political party in power or ruling body. The elected members of the

parliament are voted in by the people themselves. The King cannot dismiss

any member of the legislature, although the legislature itself could do so

with respect to any of its members. Such powers of the King, as for example

the power to make treaties, to declare war, etc., can actually be exercised

only with the advice of the legislature or of the Cabinet. Thus the king's

near-complete control over the law-making body that Chulalongkorn had

established was replaced by a reversal of positions--the legislature's

near-complete control over the King.

The constitutions of Thailand do provide a role for the King to

play, i.e., the role of a strong and unifying symbol of the country and

protector of the faith as the supreme patriarch of the Buddhist order. Yet

this role allows the King to exercise but limited powers. It has been said

that the

real significance of the monarchy in national politics, nevertheless, has been in the king's symbolic representation of national unity and the need of the ruling group in any given period for the king to legitimize its rule through royal appointment to the major ministerial offices of the state. 27/

Beyond the political power that is granted to the King by the

Constitution, however, there is also his own personal power. Early in the

present king's reign, it was remarked that

he enjoys widespread respect and veneration from the Thai people. On numerous occasions he has upheld the need

27/ Area Handbook for Thailand 172 (Washington, U.S. Govt. Print. Of-fice, 1971).

29

for both political freedom and economic progress in Thailand. In 19'.2 he persuaded the leaders of the rising triumvirate regime to retain certain democratic features of previous constitutions. As the king becomes older and gains increasing self-confidence, he may be encouraged to speak out more strongly for a more liberal government and the protection of political freedom. 28/

King Bhumibhol has indeed given increased prestige and respect

to the role of the monarch in Thai politics in the course of his reign.

The students in the demonstrations of 1973 were encouraged by him personally

in a talk which he gave to them at Chulalongkorn University, in the course

of which he reportedly denied that he had disapproved of the demonstrations

and declared that in fact the public was ready to support the students any

time they saw that student activities were beneficial to society. This was 29/

followed shortly after by the final wave of protests. When the civilian

regime had replaced the military dictatorship, King Bhumibhol, in what is

called "an unprecedented speech," urged students to continue to unite in

fighting dishonest practices. He is quoted as saying: "If you remain

united in your good intentions, all corrupt men will one day disappear from 30/

Thailand. --

A knowledgeable Thai politician had this to say on the role of

King Bhumibhol in the return to democratic government which occurred in 1973:

The King has turned out to be a tremendous force in the country at the present moment. Whether we like it or not he is going to take action. Since the King is revered anyway in our country, no matter whether he does right or

28/ F. C. Darling, "Marshal Sarit and Absolutist Rule in Thailand" 33 Pacific Affairs 360 (Dec. 1960).

29/ J. Race, "Thailand 1973: 'We Certainly Have Been Ravaged by Something..." 14 Asian Survey 197 (Feb. 1974).

30/ Id. at 201.

30

wrong he is going to become a stablizing influence on Thai politics if we give him a certain sort of venue in which he can exercise his activities. What the King says the people follow and believe and vice versa. The King doesn't seem to care very much for this government, he only cares very much about his people. 31/

After citing the above passage, Zimmerman observes that once the

new constitutional government was in power, the King might be able to play

a less dominant role, yet remain a key reference point for the people and

their leaders to draw upon during periods of crisis which are beyond the

capacity of the new leaders, and that Thailand is unique among the nations

of Southeast Asia in this respect. He adds:

Students in Korea, the Philippines and Indonesia who are studying and are undoubtedly inspired by the actions of their contemporaries in Thailand will need to consider this element in the Thai equation very carefully—since they have no comparable figure. 32/

B. The Parliament

The Provisional Constitution of 1932 established the Assembly of

the People's Representatives, the chief function of which was the enactment

of laws which would come into effect after being promulgated by the King.

If the King had objections to any bill passed by the Assembly, he was to

return it within seven days, and the Assembly had the power to override the

King's veto and to proclaim the law. In addition, the Constitution stated

that the Assembly was granted the power to oversee and to control the

affairs of state and to dismiss any member of the Council of State or anyone

employed by the government.

31/ M. R. Kukrit Pramoj, "Dialogue on Thai Politics," cited by R. F. Zimmerman in "Student 'Revolution' in Thailand: The End of the Thai Bureaucratic Polity?" 14 Asian Survey 513 (June 1974).

32/ Id. at 514.

31

In Chapter III, a provision was made for the Assembly to proceed

through three periods of development towards full and responsible democracy.

The first period was to last from the day the Constitution was enacted until

the beginning of the second period. During this time, the Military Group

in Charge of Bangkok, exercising its authority on behalf of the People's

Party, was to appoint temporary members of the Assembly.

The second period was to begin within six months from the

promulgation of the Constitution, or "when order has been restored to 33/

the country. -- During this period, there would be two categories of

Assembly members: the first category would be popularly elected, with one

member from each province; the second category would be the seventy

original members who had previously been appointed, their number to be

equal to that of the elected representatives. If any province had a

population in excess of 100,000, it would get an additional representative

for every 50,000 of the excess. If the number of elected representatives

was less than seventy, some of the seventy appointed members would be

voted out of office in order to keep the two groups equal in number.

The third period was to begin when more than half of the

country's population had passed the examination for primary school or, at

the latest, when ten years had elapsed from the coming into effect of the

Constitution. At that time, all Assembly members would be popularly elected

and there would no longer be any appointed members.

The forerunner to this first example of delegation of the King's

legislative functions to representatives of the people had been seen in

33/ Provisional Constitution [1932], art. 10.

32

Chulalongkorn's reign in the form of the Legislative Council (ratthamontri

sapha) which was established in 1895. While the earlier Privy Council and

Council of State which Chulalongkorn had created were mainly to advise the

monarch on legislative matters, the Legislative Council that superseded them

was empowered to debate and decide upon new laws. The King still reserved

the right to restrict the Council's law-making power, however, and his

approval normally was still needed before a bill became effective law (so that

it was not quite a parliament). Thus, the Legislative Council did have some

limited powers of legislation, albeit under the strict control of the King.

The Legislative Council functioned only until about 1907, after

which it stopped meeting. One commentator has speculated that Chulalongkorn

saw it as a potential threat to his own legislative prerogative. Other

authorities have more commonly seen the Legislative Council as a kind of

"pre—Parliament" whereby the Thai nation was training itself for the

34/ parliamentary procedures found in a true constitutional system.

However, it has been pointed out that the Legislative Council

and the earlier advisory councils of Chulalongkorn's reign should not be

depicted as "pre—Parliament" in the legal sense of the word, because

with all these bodies, the King retained control over their personnel,

procedures, functions, and even their very existence. The establishment

in 1932 of a constitutional government cannot therefore really be said to

have grown out of these changes that he effected; the Provisional

Constitution of 1932 still in fact was a distinct break between an era in

which the monarch had been legislator and another in which there was true

34/ Supra note 10,-at 53.

33

parliamentarism. Whereas in the earlier period the King was supreme,

under the Lonstitutions of Thailand it is the people who are, at least

theoretically, supreme.

The Assembly that was established under the Provisional

Constitution of June 1932 met for the first time later that month. Of

the business of the day, the first item was the appointment of a committee 35/

to draft a permanent constitution. The next four months saw both the

King and the People's Party bargaining for power, with the King trying to

restore the power and the prerogatives of the monarchy, and the Party

trying to reduce them, not only for the King himself but also for the

other members of the Royal Family. The outcome of this bargaining is

partially reflected in the Permanent Constitution of 1932, the first

draft of which was submitted to the King for review.

King Prajadhipok agreed to the draft in its entirety. As was

made clear later, however, the tone of his agreement indicated that while

he was not happy with the draft, at the same time he felt himself powerless

to mandate any changes in it. In fact, he asserted later that his attempts

to suggest changes had been of no avail. In his abdication statement,

dated March 2, 1935, Prajadhipok complained that the new leaders had

failed to establish real political freedom.

From the two Constitutions it can be seen that the power to carry out various policies rested solely with the People's Party and their supporters, not with the elected representatives of the people. 36/

35/ D. Wilson, Politics in Thailand 15 (Ithaca, N.Y., Cornell University Press, 1962).

36/ Supra note 24, at 10.

34

The Permanent Constitution of 1932 in its final chapter provided

that any law in conflict with it was null and void and that the prerogative

of interpreting the Constitution was that of the Assembly alone. An

amendment to the Constitution could be introduced only by the Cabinet or

by at least one-fourth of the Assembly members. If approved by the

Assembly, an amendment would be put aside for a month and then resubmitted

for reconsideration. If three-fourths of the members voted in its favor,

the Prime Minister would present it to the King for his signature.

Although the Permanent Constitution established a single-chamber

Assembly of Representatives, its transitory provisions provided that

there would be two categories of members in equal numbers until at least

half of the voting population had finished primary school, but not later

than ten years from the enactment of the Constitution. One category of

members was to be elected by the people and the second would be appointed

by the King in accordance with the Election Law. In actual practice,

however, the latter group consisted of the seventy members that had been

appointed under the provisions of the Provisional Constitution, plus

those appointed later in order to make their number equal to that of the

elected members. The Constitution provided that if the Assembly was

dissolved during the period when the transitory provisions were still in

effect, such dissolution was to apply only to members of the first

category. The appointed members would thus remain in office until it was

time for the whole Assembly to be elected by the people.

In regard to the coup of 1932, there is some evidence in the

literature on its leaders which indicates that Pridi, author of the

Provisional Constitution, had had leanings toward socialism. Prior to

35

the 1932 events, the top members of the People's Party had apparently

discussed the possibility of transforming Siam into a republic headed by a

president, instead of a monarch. However, the Permanent Constitution of

1932 provided for a democratic constitutional monarchy based on the

British system.

A constitutional government calls for the establishment of a

parliament based on the principle of popular representation, with the

authority to control legislation and the administration of the country.

Since 1932, however, the Parliament or National Assembly of Thailand has

encountered many difficulties in attaining this theoretical goal.

As Wilson notes, the coup leaders

found in the current notion of constitution a device which in part served them admirably. A constitution limits a king. But a constitution also has a representative assembly whether representation is in demand or not. Thus they had an assembly. 37/

The leaders of the coup of 1932 naturally were not inclined to

establish a truly democratic government, such as was envisaged in the first

two constitutions. They merely wanted to shift control from one faction

to another within the ruling class as it was then constituted, i.e., from

the monarch to themselves.

Wilson points out the ambivalent role which the parliaments

of Thailand have been forced to struggle against. He notes that the

bureaucratic background of the coup leaders was such that they were in

favor of a strong executive government and suspicious of a body of

undisciplined men, each of whom would have his own personal source of

37/ Supra note 35, at 200.

36

power. They wished, therefore, to have a parliament which would be within

the traditional concept of an assembly as a group of wise and gentle

counselors, available to express the consensus of the nation for the

guidance and information of the government. However, there was a more

doctrinaire conception of the assembly, casting it in the role of a

watchdog of the public interest or perhaps even as an expression of the 38/

general will which could command government.

Thus, although under each constitution the assembly had been

assigned a powerful position, this potential has never been achieved. In

fact, such is the distrust of its general representative nature that many

of the latter constitutions have incorporated safeguards against the

independence of the elected representatives of the people.

The first National Assembly, established under the Provisional

Constitution of 1932, consisted of persons chosen by the coup leaders (or

'promoters' as they were generally called) from among their own supporters.

Although this situation was only to have been the first stage of the

Assembly of People's Representatives--the second to involve the election,

by a two-step process, of an equal number of representatives--many doubts

were expressed at the time about the election process and whether or not

it was capable of producing an assembly with the desired qualities. Such

doubts were genuine and were entertained by many prominent persons among

the ruling class, as shown in the following comments by Prince Wan

Waithayakon:

The matter of having two categories of members is temporary. It is needed because it is feared that first category

38/ Id.

37

[elected] members will not yet be proficient enough in the workirg of the house. It is believed that there ought to be a second category of members consisting of persons expert in government work to cooperate in the beginning. When the first category members have acquired proficiency in the workings of the assembly, within ten years at the longest, then the second category will be abolished. 39/

This first Assembly was prorogued less than a year later, and

was not able to meet in session again until three months later. While in

its second term, the power of the Assembly began to decline. The elected

category of members had been put into office by direct election in 1937.

In 1938, in a debate on the budget, the Assembly asked for further details

on the budget bill, at which the government dissolved the Assembly. New

elections were held, as a result of which Phibun Songkhram of the People's

Party became Prime Minister. Although the Permanent Constitution of 1932

was still in force, under Phibun's strong control, the Assembly lost what

power it had enjoyed up until then. However, parliamentary action was

for the first time used to bring about a change in the government. Phibun

resigned after two important government measures were defeated in the

Assembly. Pridi, Phibun's rival, was able to maneuver the situation to

have Khuang Aphaiwong appointed Prime Minister, and this event was the

beginning of a period during which the Assembly was once more allowed to

play a more important role in the political process of the country. In

fact, with the developing struggle between Pridi and Aphaiwong, many of

whose supporters were in the National Assembly, the Parliament became a

focus of political activity.

39/ Prince Wan Waithayakon, "Pathokatha rling kan liiaktang" [Lecture on Elections] in Khumii rabop mai [Handbook on the New Regime] 97-111, as cited by Wilson, supra note 35, at 202-203.

38

It was also during this period, between 1944 and late 1947,

that the Parliament was reorganized in a major way. The third Constitution

of Thailand (1946) provided for a National Assembly, to be made up of two

houses. The lower house was to be fully elected; the upper house was to

be elected indirectly by an electoral college chosen for the purpose.

After the promulgation of the 1946 Constitution, the Assembly which then

existed actually elected the upper house. Apparently most of the candidates

for election to the upper house were indeed second-category members of

the previous Assembly, and the end result was that all those agreeing to

40/ support Pridi were elected to sit in the new upper house:— Also, since

the term of office of the upper house members was six years, Pridi's

supporters were able to have a longer period of influence than the members

of the elected lower house.

The same period saw the appearance of political parties on the

parliamentary scene, a fact that attests to the importance of parliamentary

activity during this period of Thai politics. A number of parliamentary 41/

groups were opposed to the government in power.

The coup which took place in November 1949 marked the end of

the period in which the parliament was able to play a prominent part in

national politics. Ever since then, its power has declined to the point

where it has been described as "a kind of club for those members of the

ruling class whose source of power lies mainly in their ability to win

40/ Id. at 207. — —

41/ For example, the Progressive Party, led by Khukrit Pramoj; the Constitution Front and the Cooperation Party, supporters of Pridi; the Democrat Party under Khuang Aphaiwong.

39

42/

elections." The role of the army, dealt with in the last part of this

paper, grew and grew to such an extent that the parliament, though elected

as after the general election of February 1957, still remained a controlled

assembly.

Thus the parliament in Thailand has never been an important

element of the political system. Yet it appears in many ways indispenable

because under constitutional government it is the parliament which

legitimates the government in power. Furthermore, certain functions can

be served which go beyond the symbolic. This may be why, no matter who

writes the constitution, the National Assembly's position and place has

always been reaffirmed and its legitimacy has always been unquestioned

and accepted.

One reason for the continued existence of the parliament may be

that it provides a forum to a certain degree for representatives of the

provinces of Thailand where they may present regional questions and

problems on a national level and at the same time provides a prestigious

platform for the representatives themselves.

Secondly, many different views are presented on the floor of

the parliament by representatives expressing the views of particular

interest groups. Their purpose is not so much to modify legislation--as

in other countries--they are more the spokesmen for public opinions of

many kinds. At any rate, the Thai National Assembly seems to be a

permanent feature of the Thai political scene.

42/ Wilson, supra note 35, at 208.

40

The Sovereignty

A. The People

Under all the constitutions of Thailand, the sovereignty has

always been described as residing in the people. The people, besides

having this sovereignty, which they exercise through the bodies of

government, are also guaranteed a certain number of rights under each

constitution.

There are to be found in the various Thai constitutions a number

of liberties or rights which may be considered fundamental. These are

liberty of the person; freedom from slavery and forced labor; guarantees

against retrospective criminal laws and repeated trials; equality;

prohibition against banishment and freedom of movement; freedom of speech,

assembly, and association; freedom of religion; rights to education; and

property rights.

The framers of each succeeding constitution seem to have looked

upon some of these rights as being more fundamental than others. There

are those which are absolute by the terms of the constitutional provision

itself. Then there are others which are given, but which are limited by

the constitutional article which grants them, because the same article

usually gives some other body (usually parliament) the right to in some

way limit the extent of the granted right.

Thus under the rubric of absolute constitutionally granted

rights may be placed the guarantee of equal protection of the constitution

and equality before the law. The first Constitution of all, the provisional

document of 1932, states that all persons are equal before the law. The

fourth, that of 1947, states that all persons have equal status in law.

41

The fifth, that of 1949, says likewise that all persons are equal before

the law. All state that titles which are acquired by birth, by bestowal,

or in any other manner, do not confer any privileges whatsoever. The

right to equal protection of the constitution is also a fundamental right

expressed, for example, in the sixth Constitution, as is the protection

from banishment, given by the same Constitution to all persons of Thai

nationality.

The interim Constitution of 1959 gave the government very broad

discretionary powers. The elections which had preceded this Constitution

had been won by Thanom Kittikachon's party. The Coup of September 1957

resulted in the rise to power of the military-dominated political party,

the Unionist Party. Field Marshal Sarit himself returned from abroad

and, in another coup which took place in October 1958, established himself

as a one-man government. Thus the 1959 Constitution provided for an

appointed parliament and affirmed that the sovereign power emanates from

the whole Thai people, at the same time granting the people no constitutional

rights or liberties.

The 1968 Constitution, promulgated sixteen years after its last

real predecessor, the 1952 Constitution, had as many as twenty-one articles

on the rights and duties of the Thai people. Equal protection of the

Constitution was granted without reservation, as was equality before the

law. This Constitution, which was to remain in force only until the coup

by Thanom in November 1971, granted to the people many rights which were

not absolute, but that were nevertheless far-reaching and generous compared

with those which had previously been granted constitutionally. Article 26

grants everyone the right to enjoy full liberty, to profess any religious

42

sect or creed, and to exercise any form of worship in accordance with

one's own belief, provided that such is not contrary to one's civic duties

or contrary to public order or good morals. The stipulation was made in

the same article that in exercising the above liberty, every person was

to be protected from discrimination by the state on the grounds of his

exercising such liberty. Protection was granted by article 27 from

retrospective criminal penalties. In regard to all criminal cases,

article 28 granted the accused the fundamental right to be presumed

innocent, the right to have his application for bail duly considered, the

right of protection against excessive bail being set, and the right of a

detained person to receive visitors. Personal liberty was also granted

by article 29. No arrest, detention, or personal search could be effected

except by virtue of provisions of law. Forced labor was also forbidden

except by laws specially enacted to ward off imminent public calamity; by

laws passed in time of armed conflict, or war, or states of emergency; or

during martial law. Every person was guaranteed full liberty of dwelling,

of peaceful habitation, and possession of his dwelling. Entry into a

person's dwelling without his consent, or a search thereof, could be made

only by virtue of provisions of law. Similar guarantees were made by the

Constitution with respect to the right of private property; the right

of inheritance; liberty of speech, writing, printing, and publication;

liberty of education; liberty of peaceful and unarmed assembly; liberty

of association and liberty to form a political party. Similar rights to

choose one's residence within Thailand, to choose one's occupation, and

to present petitions were all granted within the provisions of law.

43

The 1968 Constitution, in addition, had a chapter on directive

principles of state policy. The concept, also found in the Constitutions

of Ireland and Burma, is to give some guarantees which are not (as has

been pointed out) enforceable in the courts and which cannot override the

fundamental rights, but which are related mainly to matters of social and

economic welfare, such as free education, social security, adequate means 43/

of livelihood, and so on.

Article 53 of the Constitution itself states that the provisions

in this chapter "are intended for the general guidance of legislation

and administration in accordance with defined policies and do not give 44/

rise to any cause of action against the State."

Among these directive principles of state policy in the 1968

Constitution are that the state is to preserve the national independence

(art. 54); to promote and maintain education (art. 59); to support research

both in the arts and the sciences, to preserve the national culture, to

maintain places and objects of historic, cultural, and artistic value

(arts. 61-63); to encourage private economic initiative (art. 64); to

promote and maintain agricultural pursuits with a view to increasing

agricultural production; to encourage private trade and production both in

agriculture and in industry; to promote and support social welfare for the

security and well-being of the people; to promote the employment of people

of working age according to their individual circumstances and guarantee

fair labor practices; to promote public health activities; and to promote

43/ R. N. Spann, ed., Constitutionalism in Asia 18-19 (New York, Asia Publishing, 1963).

44/ Constitution [1968].

44

local administration and give reasonable support to local governments so

that they would be able to carry out their functions properly.

The next succeeding Constitution was the 23-article interim

Constitution of December 1972. The preamble to this Constitution justified

the seizure of power by Thanom Kittakachon the previous year, saying

that the National Executive Council under the chairmanship of Field

Marshal Thanom Kittikachon desired to resolve the situation which had

been endangering the nation, the institution of the monarchy, and the

people, and to establish administrative machinery appropriate for the

condition of the country, which would all take time. Thus it was expedient

to have an Interim Constitution appropriate to the situation and defense

of the country. The Constitution provided for an appointed national

legislative assembly and made no guarantee of any fundamental rights.

It, in fact, provided in its article 15 for emergency powers, stating

that when the necessity arose to maintain the security of the Kingdom, to

prevent public calamity, or to have a law dealing with taxation or

currency, the King would have the prerogative to isse emergency decrees

with the force of Acts.

Student activists pressed for a new constitution to replace the

one which had been abrogated. The 1974 Constitution thus marked the end

of the military regime, as reflected in the number of its articles dealing

with the rights and freedoms of the Thai people. Articles 27 through 53

detail these rights and guarantees, while only eight articles, 54 through

61, enumerate the duties of the Thai people, and another thirty-three

articles, 62-94, enumerate a long list of directive principles of state

policies.

45

Under the rights of the Thai people are, first of all, an

unequivocal guarantee of equality before the law and equal protection of

the law. Constitutional rights are also granted by article 28, and men

and women are stated to have equal rights, in the same article. The art-

icle goes on to affirm that no restrictions are to be imposed on these

rights and liberties in violation of the objectives of the Constitution.

Article 29 also grants every person political rights, specifically the

right to vote at an election, to be a candidate at an election, and the

right to vote in a referendum in accordance with the Constitution. The

liberty to profess any religion, sect or creed, and the previous guarantee

against retrospective criminal punishment are also granted. Article 33

elaborates the concept of personal liberty and states that no illegal

arrest, detention, or search of a person may be made under any circumstances

except by virtue of law. Other rights are granted such as the right to

be notified of any charge against oneself, and the right of a detainee to

see, and consult with, counsel in private. Evidence sufficient to make

it likely that the person has committed the offense charged is also

required. Other rights of detainees and accused, such as the right to

speedy trial, the right of indigents to state-provided legal services,

the right against self-incrimination and against coerced statements are

also explicitly given.

The property rights of citizens are protected by article 39,

with the proviso that restrictions on and the extent of such rights are

to be in accordance with the law. Rights of inheritance are similarly

protected by the same article. The expropriation of immovable property

is not to be done except by virtue of laws specifically enacted for the

46

purpose of public utility, national defense, and other state interests.

Fair compensation is also guaranteed for losses from such expropriation.

Article 40 grants liberty of speech, writing, printing, and publication.

Again restrictions on such rights are only to be imposed by laws speci-

fically enacted for maintaining national security, protecting the rights

of others, public order, or the morality of the people. Censorship of

the press is prohibited except when the country is at war or when a state

of emergency or martial law exists. Article 41 guarantees the equal

right of all persons to receive a fundamental education, and to enjoy

freedom of education, provided it is not contrary to their civic duties

under the constitution nor contrary to the relevant laws. Academic

freedom is protected by article 42, again provided it is not contrary to

civic duties. The liberty to assemble without arms is provided by

article 43, freedom to form associations, unions, federations, co-

operatives, or any other society by article 44, the freedom to form a

political party by article 45, freedom of communication by article 46,

freedom of travel and the choice of residence within Thailand and the

right not to be banished, by article 47. Freedom of occupation is granted

by article 48, family rights are guaranteed by article 49, the right to

present a petition by article 50, and the right to sue a governmental

agency by article 51.

The directive principles of state policies are broad and cover

principles of international relations, the suppression of corruption, the

purposes for which the armed forces should be employed, the enforcement

of law and order, education, research for national development, conservation

of the national culture, maintenance of places and objects of historic,

47

cultural and artistic value, conservation of natural resources, exploration

of natural resources, the narrowing of economic and social gaps between

individuals, land reform, co-operatives, and the encouragement of private

economic initiative. The state should, according to the Constitution,

also promote state enterprises for social welfare, encourage fair and

full employment, and promote low-income housing, public health, sports,

and other laudable objectives.

The 1974 Constitution is important because it was accompanied

45/ by what has been called a "new climate of openness. -- The ouster of the

military in 1973, in which the students played a major part, was attributed

to the increasing influence of Western ideals of freedom, including academic 46/

freedom. Thus many of these Western ideals are expressed in the provisions

of the new Constitution of 1974.

The civilian government which was formed initiated a new program

of land reform, control over inflation, restoration of law and order,

suppression of corruption, and decentralization of administrative authority.

The return of former military leaders from political exile abroad, Praphat

Charusathien and Thanom Kittikachon, led to the outbreak of new student

demonstrations against the government, and nationwide protests and student

riots led to another military takeover by the National Administrative

Reform Council (NARC) in 1976.

The NARC appointed Thanin Kraivichien, a former judge of the

Supreme (Dika) Court as Prime Minister, and the Thanin government

45/ J. Race, "Thailand in 1974: A New Constitution," 15 Asian Survey 162 (Feb. 1975).

46/ Race, supra note 29, at 195.

48

promulgated a new Constitution in October 1976 which consisted of twenty-

nine articles.

In many ways it resembled the Interim Constitution issued by Field Marshal Sarit in 1958 which was used to bolster a strict form of military rule ... Unlike previous consti-tutions, there were no specific guarantees of civil rights, even those formerly granted and qualified by law. 47/

Comparing the regime in power at this period with former

administrations, one commentator said that while the Thanom-Praphat regime

was comparatively tolerant of dissent, the situation after October 1976

was very different, and that the intolerance of the government in power

48/ in 1977 was a byword.

The preamble to the 1976 Constitution stated that during the

first four years of the regime, the people would participate in the

national administration through the National Administrative Assembly with

appointed members controlling the national administration, while at the

same time the people should be encouraged to be interested in and to be

aware of their duties. In the second four-year period, the people would

be allowed greater participation through the establishment of the National

Assembly, consisting of the House of Representatives with elected members

and the Senate with appointed members. The appointed Senate would gradually

be abolished, leaving, finally, only the elected House of Representatives.

The only article on rights is article 8, which states that a

person enjoys the rights and liberties under the law. On the other hand,

47/ F. C. Darling, "Thailand in 1976: Another Defeat for Constitutional Democracy" 17 Asian Survey 129 (February 1977).

48/ J. L. S. Girling, "Thailand: The Coup and Its Implications" 50 Pacific Affairs 399 (Fall 1977).

49

article 21 states that in the case in which the Prime Minister deems it

necessary for the prevention or suppression of an act

subverting the security of the Kingdom, the throne, national economy, or state affairs, of [sic] an act disturbing or threatening public order of good moral[s], or any act destroying national resources or deterorating public health...notwithstanding such act occurring before or after the day on which this Constitution is promulated, or occurring within or outside the Kingdom, the Prime Minister shall, with the approval of the Cabinet and the Advisory Council to the Prime Minister, have the power to issue any order to take any action, and such order or action as well as acts performed in compliance therewith shall be considered lawful. 49/

An article published early in 1977 commented that the suppressive measures

taken by the new government under the above provision of the 1976

Constitution were harsh and severe towards those persons whose actions

were considered to be seriously detrimental to the security and welfare

of the country, whereas against those only marginally involved in the

recent political disturbances, the official actions had been fairly

lenient and restrained. Several hundred persons were arrested throughout

the country as suspected subversives. Many prominent politicians went 50/

into exile.

The seizure of power by a group of the top commanders of the

Thai armed forces again meant the ouster of the civilian government of

Thanin Kraivichien. On October 20, 1977, the Revolutionary Party abrogated

the 1976 Constitution. The main reason given by the Revolutionary Party

for having carried out the coup was "the excessive conservatism of the

49/ Constitution [1976].

50/ Darling, supra note 47, at 130-131.

50

Thanin government which...was harming the unity of the country and 51/

hampering economic growth." Admiral Sangad Chaloryu, leader of the

Party, charged that Thanin had suppressed labor unions, the press, and 52/

student life on the university campuses. General Kriangsak, as spokesman

of the new military regime, announced that a provisional constitution

would soon be promulgated and a new assembly appointed to draft a permanent

constitution and a new electoral law.

The preamble to the new Constitution, which was issued on

November 9, 1977 and was thirty-two articles in length, stated that the

seizure of power had been carried out with the desire to accelerate the

improvement of the economic and social conditions and the unity of the

people, and of public orderliness and peace. This was to be an interim

constitution until elections could be held in 1978. Accordingly, the

National Assembly under article 7 was to consist of between three hundred

and four hundred members, all to be appointed by the King upon the

recommendation of the National Policy Council, the new designation for

the former Revolutionary Party. Even though the previous administration

of Thanin had been accused of suppressing the workers, the students, and

the press, the new Constitution contained no rights and guarantees for the

Thai people.

The thirteenth and most recent Constitution, which replaced the

Interim Constitution of 1977, was promulgated on December 22, 1978.

51/ F. C. Darling, "Thailand in 1977: The Search for Stability and Progress" 18 Asian Survey 157 (February 1978).

52/ Id.

51

Articles 22 through 45 of Chapter 3 are on the rights and freedoms of the

Thai people. A wide range of rights is guaranteed, much similar to those

granted by the 1974 Constitution which had marked a return to democratic

rule. In fact, the preamble to the current Constitution points out that

it reflects the trust, faith, and confidence of the Thai people in the

democratic system of a constitutional monarchy, consistent with the

aspiration of King Prajkadhiok, Rama VII, who had graciously bestowed

upon the Thai people the governing power under such a system, to be 53/

cherished in perpetuity.

Since then, elections have been held in 1979 for the lower

house of parliament, the House of Representatives. The Constitution has

provided for the pre-election appointment of 225 senators, plus a non-

elected Prime Minister and a non-elected cabinet. Thus it is still far

from fulfilling the promise of full democratic government. Nevertheless,

while it would appear that the kind of imaginative vision characteristic

of enlightened government would be unlikely to be found in any military

regime (in which the leaders are generally men of a practical bent), it

can at least be said that under the present Constitution of Thailand, the

essential elements for democracy are present--such as freedom of the

press--and it can therefore be hoped that Thailand's struggle towards

democracy is being helped by its provisions.

B. The Army

Unlike the previous topics dealt with, the Army is not specifically

affected by each constitution in the same way as the parliament, the

53/ Constitution [1978].

52

King, or the rights of the people are. Instead, the Army has been in

many cases the moving force behind each new constitution and the reason

why an existing constitution was abrogated and a fresh one promulgated.

The very first Constitution, the Provisional Constitution of

1932, was forced upon the King by leaders of the Thai armed forces.

Other coups were brought about by Thai military leaders in 1933, 1947, 1951,

1957, 1958, 1971, 1976, and 1977. Thus the Constitutions of 1932, 1946,

1949, 1952, 1959, 1972, 1977 and 1978 can be directly attributed to the

usurpation of power by the armed forces of Thailand. The military have,

in fact, ruled the country for a major part of the forty-eight years that

have elapsed since it became a constitutional monarchy. In his 1962

analysis of the Thai political scene, Wilson writes that

politics had became a matter of competition between bureaucratic cliques for the benefits of government. In this competition the army--the best organized, most con-centrated, and most powerful of the branches of the bureau-cracy--has come out on top. 54/

The statement still holds true today. In its article on

Thailand, the 1980 Yearbook, published by the Far Eastern Economic

Review, remarks that the military had uncharacteristically stayed in

the wings during 1979, and that this may have been in part due to the

influence of a faction among the military who claim to have renounced

tank-backed takeovers because of the damaging effect they have had on 55/

the country.-- In any event, it appears that the Thai political scene is

undergoing a transition and that the point is being slowly reached at

54/ Wilson, supra note 35, at 277.

55/ Asia Yearbook; 1980 at 290 (1979).

53

which the fate of governments depends, not upon arms and might, but on

the development of the democratic process. An analysis of the constitutions

of Thailand, however, must also examine the role of the military, and in

particular of the Army, in the formulation of the policies of government

envisaged in each of these documents.

Although four of the leaders of the 1932 Coup which brought an

end to the absolute monarchy were Army colonels, under the first Consti-

tution, the military was not given a large role to play. Only sixteen

military men were appointed to the House of Representatives out of a total

of seventy, the first Premier was a civilian, and the first Constitution

itself had been written by a civilian. The committee that was appointed

to draft the Permanent Constitution was also largely civilian in its make-

up. In fact, it was not until the Coup of 1951 that military rule was

truly established over Thailand, lasting for seventeen years until 1968, to

be brought back again for two years from 1979 to 1973, and again in 1976.

After the Permanent Constitution of 1932 had been published,

there was dissension between the various civilian groups within the

government which induced the military officers to seize power in 1933.

However, the military did not at this time take power for themselves.

They were acting for the cause of one of the civilian groups, that of

Pridi. This Coup led to no new constitution, but, as Johnson remarks,

the role of the army became thereby more important.

The indispensability of the army having been demonstrated, the important question for the future was who was to turn the army into his personal constituency? 56/

56/ D. A. Wilson, "The Military in Thai Politics," in J. J. Johnson, ed. ) The Role of the Military in Underveloped Countries 259 (Princeton,

N.J., Princeton University Press, 1962).

54

The Constitution of 1947 was brought about by the coup d'etat

which overthrew the Pridi Phanomyong regime, and it was drafted by the

leader of the coup. Since it could not countenance the continuation of

the old Senate, which was largely made up of supporters of Pridi, the

Constitution had to be replaced by a Provisional Constitution, the one

promulgated in 1947, which was itself in turn replaced by the Constitution

of March 1949. The latter was drafted by a constitutional commission of

forty persons chosen by the National Assembly which had been elected in

1948. This was a rather conservative body. Articles 58 through 61

expressed their views on the role of the armed forces. Article 58 stated

that the armed forces were to be maintained insofar as necessary for the

safeguarding of the national independence; the next article stated that

the armed forces belonged to the nation, that they were under the supreme

command of the King, and that they were not subject to the direction of

any individual, group of persons, or political party. Article 60 provided

that the armed forces could be ordered--for the purpose of suppressing a

rebellion--but that it could be ordered only by Royal Command, except

where martial law had been proclaimed. It added that the use of the

armed forces for the purpose of assisting government administration was

to be defined by law. Lastly, article 61 warned that no individual,

group of persons, or political party could, directly or indirectly, make

use of the armed services as a political instrument. It stipulated also

that a person who was either in the armed forces or subject to military

jurisdiction could not, during his term of service, become a member or

officer of a political party or express any active sympathy for any

political party. It should be noted that even in the preceding 1946

55

Constitution, Article 66 had provided that the ministers of state could

not be permanent government officials, an attempt to keep the military

leaders out of the cabinet.

It was he 1952 Constitution, following the military coup of

1951, that entrenched the power of the armed forces and was to mark the

beginning of the long period of military rule of Thailand until 1968.

This constitution was the Permanent Constitution of 1932, which the coup

d'6tat group sought to reinstate. Because of opposition on the part of

the King, various revisions were carried out. The revisions were drafted

by a cabinet committee in consultation with the King and were discussed

and finally approved by the National Assembly of appointed members.

Article 39 of the Constitution said that the state must have armed forces

at its disposal for the maintenance of independence and of national

interests. Under the transitory provisons in this Constitution, there

was to be a ten-year period from the date of promulgation, during which

the National Assembly was to be made up of equal groups of elected and

appointed rembers. This Constitution was re-established by the leaders

of the military coup which took place in 1957. The next constitution,

the Interim Constitution of 1959, resulted from the Coup of October 1958,

whose leaders proclaimed a Provisional Constitution, of which one feature

was an appointed constitutional commission. This was to be, under

article 6, a Constituent Assembly, which was to have the duty of drafting

the Constitution, acting as National Assembly, and exercising legislative

power. The resulting document was the Constitution of 1968.

Article 43 of the 1968 Constitution stated that members of the

armed forces, the police force, and other permanent government and local

56

government officials were to enjoy the same rights and liberties accorded

to nationals by the Constitution, unless they were subject to restrictions

imposed by law, or rules or regulations issued by virtue of law insofar

as it concerned political activities, efficiency, or discipline.

The imposition of marital law after the Coup of 1971 strengthened

the position of the armed forces by making it more difficult for the

opposition to marshal their efforts. The abrogation of the 1968 Constitution

led indirectly to the showdown between the armed forces and the students,

focused in the Movement for the Early Promulgation of the Constitution,

which accused the man in power, Thanom, of deliberately stalling in promul-

gating a new constitution. The Interim Constitution of 1972, granting

emergency powers to the authorities, served to bring on the democratic

interregnum resulting from the overthrow of the military government in 1973.

The 1973-1976 experiment in constitutional democracy which came

into being as a result of the student demonstrations of 1973 marked the

victory of the "cause." As Zimmerman remarks:

The coup against Parliament in November 1971 which threw out the 1968 Constitution and the Parliament elected thereunder only served to inspire further commitment and effort on the part of these people to bring about an end, eventually, to military dominance of the Thai political system. This "cause" became the core of their message to university students throughout 1972. 57/

The "revolution" of 1973 against the domination of the military

resulted in the promulgation of the 1974 Constitution. One feature of

this document was that the cabinet had to resign if it failed on a vote

of confidence in the elected House of Representatives. The Constitution

57/ Zimmerman, supra note 31 at 515.

57

also provided for the appointment of an independent Auditor General,

responsible to the Assembly, which had the authority to inspect the files

of all government agencies, state enterprises, and local government bodies.

The effect of this Constitution has been described by Race thus:

It clearly terminates most of the institutional devices by which the military and the bureaucracy have maintained their stranglehold over Thai politics for past decades: financial secrecy, inclusion of appointed members in a no-confidence vote, concurrent tenure as an assemblyman and a permanent official or military officer. If accepted, the new consti-tution will work a major change in the distribution of power 58/ and in all the specific issues where that power has been used.

Unfortunately, the 1974 Constitution was only to remain in

effect until 1976, at which time the familiar scenario of a military coup

d'gtat was once more unfolded in the capital city of Bangkok. The National

Administrative Reform Council (NARC) which took over from the civilian

government of Seni Pramoj abolished the Constitution. A few weeks later,

the 1976 Constitution was published. The military group appointed a

judge of the Supreme Court to head the governing body of twenty-four

military leaders who comprised the membership of the NARC. As Darling

has pointed out, the new Constitution was very similar in many ways to

the Interim Constitution that had been promulgated in 1958 to bolster the

strict military regime. Article 21 of the Constitution gave the

administration sweeping emergency powers.

The latest coup, that of October 1977, was the means by which

the military leaders of Thailand made a political change and removed the

government of Thanin Kraivichien. The new leader who emerged after the

1977 Coup was General Kriangsak Chomanand, the Supreme Commander of the

58/ Race, supra note 45, at 158.

58

Thai Armed Forces who had been Secretary General of the Prime Minister's

Advisory Council. The coup was preceded by jockeying among various

military groups for larger political roles.

Kriangsak promised a new Provisional Constitution, a new

parliament, and a new electoral law. The Provisional Constitution was

issued in November 1977, the permanent one in December 1978.

In analyzing the two most recent coups in Thailand a Thai

commentator notes the analogy made by Prime Minister Thanin himself in a

speech in which he likened the relationship between the military junta

and the civilian cabinet to that of a shell which protects the oyster

within.

It was believed that this was the political arrangement agreed upon by the ruling elites whereby the day-to-day affairs of the country were run by the civilians led by Tanin while its stability and safety were the responsi-bility of the officers. 59/

It seems that after becoming head of the government, Thanin

did try to keep in close touch with the military leaders. The coup group,

collectively termed the Prime Minister's Advisory Council, attended

regular joint meetings with the cabinet. However, Thanin's hardline anti-

Communism, the deteriorating economy, and his campaign against corruption

within the bureaucracy all contributed to his overthrow.

In lieu of the oyster-shell analogy, Somvichian proposes one of

the cocoon and the butterfly, likening the civilian government to the

cocoon and the military to the butterfly.

59/ K. Somvichian, "The Oyster and the Shell: Thai Bureaucrats in Politics" 18 Asian Survey 832 (August 1978).

59

To shield itself from public criticism and possible foreign (i.e., American) intervention, and also being uncertain of

the situation, the military appointed the civilian bureau-crats to serve temporarily as its cocoon, following the takeover of the government. As the caterpillar matures and is ready to take flight, the cocoon is promptly discarded. 60/ In this respect, the Tanin government proved a useful cocoon.

The dominant position of the military in the politics of

Thailand, the roots of which are to be found in the Coup of 1932, seems

to be here to stay. Whatever changes in nature and style have appeared,

they seem so far to have been the result only of international political

events or internal changes within the military itself.

Conclusion

The preceding analysis of the new constitutions that have been

promulgated in Thailand between 1932 and 1978 leads to the unescapable

conclusion that a new one has been written and issued each time a shift

in political dominance has taken place and with the primary purpose of

protecting the new regime coming into power. Each ruling group has striven

to consolidate its position and in so doing has changed the rules of the

game and published a new constitution. This has been described as "faction

constitutionalism," or the manipulation of the public law to protect the

faction in power from the faction that has just been deprived of that power.

The first Constitution of 1932 was the result of the action of

the government officials, mainly not from the Royal Family, against

another group composed mainly of royalty. The second Constitution of

1932 contained measures which would bar members of the Royal Family from

60/ Id. at 837. — —

61/ Wilson, supra note 35, at 262; also Lissak, supra note 2, at 96.

61/

60

trying to get popular support, and to make sure that the People's Party,

the ruling group, would be able to keep firm control over the parliament

and the cabinet.

The establishment of an elected Senate, which would have given

more power to the National Assembly and its elected members, became a

threat to Pridi's rivals, and when Pridi was overthrown by the 1947 coup,

the next constitution was drafted in such a way that the form of parliament

envisaged therein protected the interests of the group in power.

When it became more beneficial to return to the system of half

a single chamber being appointed, this change was carried out in the next

Constitution, that of 1952. Again, when the government of Phibun was

ousted in September 1957, the Constitution was temporarily suspended and

then reinstated.

This or course meant that the members of the parliament who had

been appointed by the previous government were all removed, and a new

group could then be appointed; the elected portion of the parliament was

also dissolved. The 1958 Coup, which led to a Provisional Constitution

being promulgated, provided for institutions which best suited the

interests of the Sarit administration. Under the provisions of this

Constitution, the parliament was charged not only with legislation, but

also with drafting a new constitution.

The Coup of 1971 led to the abrogation of the 1968 Constitution,

and the promulgation of the Constitution of 1972. With the overthrow of

the military authorities in 1973, the Constitution which was issued in

1974 sought to safeguard the democratic form of government from the

excesses of military regimes. When this was abrogated in turn in 1976,

61

the next constitution, that of October 1976, was again mainly written to

protect the interests of the new military government.

When yet another military regime took power and issued the

1977 Constitution, it attempted to bring about a compromise between the

various sources of power in the new government and to make its own position

stronger in the face of potential opposition.

Even the present one, the Constitution of 1978, was eminently

suitable for General Kriangsak to enable him to avoid active opposition.

As described in one account:

his tailor-made Constitution presented him with a stacked political deck. Crucial to his game plan was the clause which allowed the pre-poll appointment of 225 handpicked senators, 194 of them from the military and police, to give him an already unbeatable majority in the combined bi-cameral house.

So too was the provision for a non-elected prime minister and a non-elected cabinet. 62/

As has been pointed out, however, while written constitutions

may not be venerated in Thailand in themselves, this constitutional

instability is in certain respects more apparent than real. Thailand, in

addition to the written constitution which is in force at any given time,

may be said also to have a substantial structure of law and custom as the

basis upon which the government rests.

The monarchy, the bureaucracy, the courts of law, and the law codes have traditional roots and genuine substance and continuity which make them institutions of considerable stability. Besides the institutions there is a broad consensus that there is in fact a nation of Thailand, united by language and aspiration, that the state is a

62/ "Thailand," in Asia Yearbook 1980, supra note 55, at 291.

62

proper organic part of the nation, and that the state shall seek the people's well-being and happiness. 63/

That each government has legitimate authority to rule was

affirmed by the Supreme (Dika) Court of Thailand, which has said in part

as follows:

The overthrow of a previous government and establishment of a new government by the use of force is perhaps illegal in the beginning until the people are willing to accept and respect it. When it is a government in fact, which means that the people have been willing to accept and respect it, any person who attempts by rebellion to overthrow that government violates the criminal law. 64/

This does not mean, necessarily, that successful coups are

legalized. A better inference is that the Thai recognize that the govern-

ment as an institution is sovereign, and that the one who controls the

government is legitimate.

Thailand has come a long way from the period when its own

leaders maintained that democracy was not for the Thai.

It should be...admitted that Western democracy is not such a system of government as could be adopted and put into operation immediately by all countries regardless of the state of economic or political progress. As far as Thailand is concerned, it is high time we utilized the lessons we have learnt from the past practice of democracy in adapting our democratic system to suit local needs and conditions.. ..The garb of democracy was weighing down Thailand, whose ills were too serious to be cured by a palliative. 65/

Risky as it may be to make any prognosis for the future of

consitutionalism in Thailand, with the holding of elections in April 1979

63/ Wilson, supra note 35, at 269.

64/ Decisions of the Dika Court, cited by Wilson, supra note 35, at 269.

65/ The Bangkok Post, November 18, 1958, cited by F. C. Darling, "Marshal Sarit and Absolutist Rule in Thailand" in 33 Pacific Affairs 352 (December 1960).

63

and the installation of Kriangsak Chomanand as Prime Minister--all under

the provisions of the 1978 Constitution--it would seem that democratic

government is on relatively secure ground. Since then, General Prem

Tinsulanond has become Prime Minister and, as of the date of this writing,

heads an administration which is one-third military and two-thirds civilian.

Because the Thai have had a taste of democracy, sooner or later

any government that is in power must live up to the public expectation

that it will one day prevail again in Thailand.

Democracy also carries the meaning of freedom. The Thai of all classes resists regimentation, systematization, and routine. Although the social system requires respect for authority, it also permits room to move. Religion ordains that a man's fate is his responsibility, and his position is a matter of his personal relationships with other individuals. Broad legal restraints on individual autonomy are resented and evaded. For the love of this kind of freedom, democracy is a useful symbol. 66/

NOTE

Thailand's latest constitution was recently temporarily suspended

in the wake of an attempted coup on the part of some generals whose

leader, General Sant Chitpatima, on April 1, 1980, established a Revolutionary

Council and announced the abrogation of the Constitution and the dissolution

of the National Assembly.

The Prime Minister, General Prem Tinsulanond, later the same day

announced from Korat, some 140 miles northeast of Bangkok, that the Royal

Family was under his protection there, and called for the surrender of

the leaders of the rebellion.

66/ Wilson, supra note 12, at 40-41.

64

Meanwhile, General Sant in Bangkok issued a number of communiques,

announcing the reappointment to their posts of all elected members of the

House of Representatives and all Senators, the reinstatement of the

Constitution, and the promise that the Assembly would select a Prime

Minister, who would then form a government in fifteen days.

On April 3, 1981, troops loyal to General Prem entered the

capital and the coup collapsed. General Sant reportedly has fled the

country, and the Prem government, firmly reinstated in power, has pledged

to treat the rebels fairly.

* * *

Prepared by Mya Saw Shin Senior Legal Specialist Far Eastern Law Division May 1981

BIBLIOGRAPHY

Books

Area handbook for Thailand. John W. Henderson et al. Washington, U. S. Government Printing Office, 1971. 413 p. DS571.H45 1971

Asia yearbook 1980. Hong Kong, Far Eastern Economic Review, 1979. HC411.F19 1980

Batson, Benjamin A., comp. and ed. Siam's political future: documents from the end of the absolute monarchy. Ithaca, N. Y., Cornell University Press, 1974. 102 p. JQ1743.1925.B38

Beer, Lawrence Ward, ed. American influence. 210 p.

65

Constitutionalism in Asia: Asian views of the Berkeley, University of California Press, 1979.

LAW F.E.G. 7 Cons 1979

Cady, John F. Thailand, Burma, Laos, Prentice-Hall, 1966. 152 p.

Chakrabongse, Prince chula. Lords of Redman, 1967. 352 p.

and Cambodia. Englewood Cliffs, DS509.3.C3

life. 2d rev. ed. London, Alvin DS578.C48 1967

Chomchai, Prachoom. Chulalongkorn the great. Cultural Studies, 1965. 167 p.

Coast, John. Some aspects of Siamese Pacific Relations, 1953. 58 p.

Tokyo, Center for Asian DS582.C593

politics. New York, Institute of DS585.C6

Country law study for Thailand. Bangkok, U. S. Department of Defense, 1962. var. pagings. LAW Thailand 7 Full

Engel, David M. Law and kingship in Thailand during the reign of King Chulalongkorn. Ann Arbor, Center for South and Southeast Asian Studies, University of Michigan, 1975. 131 p. LAW Thailand 7 Enge

International yearbook and statesmen's who's who, 1980. West Sussex, Kelly's Directories, 1980. 742 p. JA51.157

Johnson, John J., ed. The role of the military in underdeveloped countries. Princeton, N. J., Princeton University Press, 1962. 427 p.

U21.5.J6

Kahin, George M., ed. Government and politics of Southeast Asia. 2d ed. Ithaca, N. Y., Cornell University Press, 1964. 796 p.

JQ 96.K3 1964

Lissak, Moshe. Military roles in modernization: civil-military relations in Thailand and Burma. London, Sage Publications, 1976. 255 p.

UA853.T5.L57

66

Riggs, F. W. Thailand: the modernization of a bureaucratic policy. Honolulu, East-West Center Press, 1966. 470 p. JQ1745.R5

Sarasas, Phra. My country Thailand. Tokyo, Maruzen, 1942. 421, 22 p.

DS571.S3 1942

Siffin, William J. The Thai bureaucracy: institutional change and development. Honolulu, East-West Center Pres, 1966. 291 p.

JQ1745.A1S5

Smith, Malcolm. A physician at the court of Siam. London, Country Life Press, 1947. Not in LC

Spann, R. N., ed. Constitutionalism in Asia. New York, Asia Publishing House, 1963. 249 p. LAW F.E.G. 7 Span

Tate, D.J.M. The making of modern South-East Asia: the European conquest. London, Oxford University Press, 1971. 2 v. DS511.T39

Wilson, David A. Politics in Thailand. Ithaca, N. Y., Cornell University Press, 1962. 307 p. JQ1745.W5

Wyatt, David K. The politics of reform in Thailand. New Haven, Yale University Press, 1969. 425 p. LA1221.W9

Articles

Darling, Frank C. Marshal Sarit and absolutist rule in Thailand. 33 Pacific Affairs, 347-360 (December 1960). DUl.P13

Modern politics in Thailand. 24 Review of Politics, 163-182 (April 1962). JA1.R4

Thailand in 1976: another defeat for constitutional democracy. 17 Asian Survey, 116-132 (February 1977). DS1.A492

Thailand in 1977: the search for stability and progress. 18 Asian Survey, 153-163 (February 1978). DS1.A492

Thailand: return to military rule. 17 223, 229-230 (December 1976).

Freyn, Hubert. Thailand's political parties. Review, 799-801 (December 20, 1956).

Current History, 197-200, D410.C82

21 Far Eastern Economic HC411.F18

Fulhan, Parke. Elites or elections? 51 Far Eastern Economic Review, 273-275 (February 17, 1977). HC411.F18

67

Girling, J.I.S. Thailand: the coup and its implications. 50 Pacific Affairs, 387-405 (Fall 1977). DUl.P13

Hickling, R. H. Recent constitutional and legal developments in Thailand. 3 Hong Kong Law Journal, 215-227 (1973). K8.047

Kintner, William R., and Robert F. Zimmerman. Thailand's search for constitutional government. Freedom at Issue, 16-22 (November-December 1976). D839.F732

Latham, Sir John. Constitutions and freedom. In Spann, R. N., ed. Constitutionalism in Asia. Bombay, N. Y., Asia Publishing House, 1963, p. 3-5. LAW F.E.G. 7 Span

Marks, Thomas A. The military and politics in Thailand: an analysis of the two October coups (1976-1977). 14 Issues & Studies, 58-90 (January 1978). D839.W375

The Thai monarchy under seige. Asia Quarterly, 109-141 (1978).

DS1.A4728

Morell, David, and Susan Morell. Thailand: the costs of political conflict. 8 Pacific Community, 327-339 (January 1977).

DS35.P22

Neuchterlein, Donald E. Thailand after Sarit. 4 Asian Survey, 842-850 (May 1965). DS1.A492

Thailand: year of danger and of hope. 6 Asian Survey, 119-124 (February 1966). DS1.A492

Prizzia, Ross. Thailand: elections and coalition government. Asia Quarter y, 192-208, 281-296 (1976). DS1.A4728

Race, Jeffrey. Thailand, 1973: 'We certainly have been ravaged by something...' 14 Asian Survey, 192-203 (February 1974).

DS1.A492

Ramsay, Ansil. Thailand, 1978: Kriangsak--the Thai who binds. 19 Asian Survey, 104-114 (February 1979). DS1.A492

Siverstein, Josef. Students in Southeast Asian politics. 49 Pacific Affairs, 189-212 (Summer 1976). DUl.P13

Somvichian, Kamol. The oyster and the shell: Thai bureaucrats in politics. 18 Asian Survey, 829-837 (August 1978). DS1.A492

Zimmerman, Robert F. Student 'revolution' in Thailand: the end of the Thai bureaucratic policy? 14 Asian Survey, 509-529 (June 1974).

DS1.A492

LIST OF CONSTITUTIONS 69

1. Provisional Constitution, June 27, 1932

2. Permanent Constitution, December 10, 1932

3. Constitution, May 9, 1946

4. Constitution, November 9, 1947

5. Constitution, March 3, 1949

6. Constitution, March 8, 1952

7. Interim Constitution, January 28, 1959

8. Constitution, June 20, 1968

9. Interim Constitution, December 15, 1972

10. Constitution, October 7, 1974

11. Constitution, October 22, 1976

12. Interim Constitution, November 9, 1977

13. Constitution, December 22, 1978

39 articles

68 articles

96 articles

98 articles

188 articles

123 articles

20 articles

183 articles

23 articles

238 articles

29 articles

32 articles

206 articles