By Prach Panchakunathorn
Yesterday I attended the opening ceremony of a new website called “Enlightened Jurists” (www.enlightened-jurists.com), set up by a group of law professors at Thammasart University, led by Dr Worajet Pakirat. (Actually the name of the website in Thai is slightly subtler. It’s “นิติราษฎร์”, or “law for the people”.) The opening ceremony was followed by a panel discussion about post-2006 coup Thai politics. Dr Worajet offerred an idea about how we could prevent another coup from happening. I think his idea was interesting and worth sharing.
Dr Worajet begins by saying that all the military coups after 1932 were successful thanks not only to the physical power of the junta themselves, but also to other political institutions that supported and legitimised them. Thus, one way of preventing a coup from being successful is by preventing these institutions, whose existence and power are granted by the constitution, from recognising any force that nullifies the constitution as a legitimate force. Specifically, Dr Worajet suggests including a provision in the constitution stating that all members of these institutions have a “duty” to protect and defend the constitution. In other words, the constitution must require all institutions borne out of consitutional provisions to protect and defend their “mother” – i.e. the constitution. This is a way of equipping the constitution with a mechanism to guard itself from enemies within.
Dr Worajet then goes into details as to which institutions should be required by the constitution to have this “duty”. There are at least two institutions, he says, that should have this “duty”: the first of these is the monarchy. By specifying the monarch be a “protector of the Constitution” (in the same way as the monarch is constitutionally required to be a “declared Buddhist” and the “head of the churches”), the constitution will require the monarch not only to refrain from endorsing a military coup, but to actively reject any attempt to overthrow the constitution. In other words, the provision will ensure that, as soon as the monarch endorses a coup or an overthrow of the constitution, it will violate the constitution and thus cease to be a constitutional monarch.
The second institution that Dr Worajet says should be constitutionally required to protect the constitution is the armed forces. By requiring that all members of the armed forces must protect and defend the constitution, the constitution does not only allow, but also require, all military personnel to disobey their commander’s orders in case the commander stages a coup. Any military personnel complying to the orders of a coup maker will be thereby violating the constitution, and thus liable to punishment. A similar provision, Dr Worajet says, may also be specified so as to cover other divisions of the civil service – e.g. the judiciary and the police.
Dr Worajet concludes by saying that such constitutional provisions, while not guaranteeing a successful prevention of another military coup, will make it harder for political institutions to support or legitimise a coup. The surest way to prevent a coup, Dr Worajet says, will have to involve making the population realise that they together are the only true source of legitimacy – a legitimacy that can only be borrowed by political institutions through a constitution that comes from the people’s will. This, I think, might be a longer-term goal, but one that might not be too far ahead, given the current growth rate in the number of those realising that over-reliance on particular political institutions can be a threat to constitutionalism and democracy.