IN a constitutional democracy, the royal prerogative is generally considered, following Walter Bagehot’s 1867 The English Constitution, to consist of the rights of a sovereign to be consulted, to encourage and to warn.
These rights were recently emphasised in the new Constitution of Thailand, wherein His Majesty King Maha Vajiralongkorn Bodindradebayavarangkun is the ultimate authority in breaking any political deadlock. This ultimate authority is, nonetheless, nebulous, and both the royal prerogative and the body politic may in fact benefit from further institutionalisation.
His Majesty’s active participation in resolving confrontations reflects a commitment to unifying the Thai people.
Recently, His Majesty assumed a vital role in breaking the deadlock in the Buddhist Sangha. This was firstly evident in His Majesty’s appointment of the new Supreme Patriarch early in February. It was secondly evident in His Majesty’s stripping Phra Dhammachayo, formerly Phra Thepyan Mahamuni Sri Dhamma Kosol, of his title.
The essential point here, however, is that the will of His Majesty risks becoming intertwined with that of an unaccountable military dictatorship, defined by the use of Section 44, rule by the personal diktat of General Prayuth Chan-o-cha. Section 44 is a form of ‘decisionism’ common to personalised dictatorships and involves rule by deciding exceptions.
The regular involvement of the Thai monarchy in the body politic benefits from institutionalistion. This is because of the great power of the Thai monarchy.
The NCPO’s formulation is that the nation, religions, and the monarchy are the pillars of the state, serving a ‘people’s state of Thailand’. All three pillars appear to be equal.
However, in the body of the Buddhist chakravartin, or universal world conqueror, they are the same thing, which imbues the royal person with the semblance of divine right.
It is this semblance of divine right which supported His Majesty’s recent bringing under direct control five agencies previously under the Defence Ministry, the Office of the Prime Minister, and the Royal Thai Police, namely the Royal Household Bureau, the Office of His Majesty’s Principal Private Secretary, the Royal Thai Aide-De-Camp Department, the Office of Royal Court Security Police and Royal Security Command.
This semblance of divine right is an extremely powerful formulation for breaking deadlocks, as the NCPO understands.
Still, mainly due to Section 44, Thailand is dropping down Transparency International’s Corruption Perceptions Index relative to other Asean countries.
As such, institutionalising royal power through royal commissions actually contributes to greater transparency, thereby improving foreign direct investment. The use of royal commissions to investigate deadlocked areas of concern to Thai society has been argued for previously in terms of reforming the Royal Thai Police and penal reform.
A royal commission is a mechanism empowering judicial power with the highest moral authority to launch a public inquiry to investigate weighty, frequently controversial matters, including the structure of government, systemic corruption, the treatment of ethnic or other minorities, and other socio-economic or socio-political issues. The government petitions the monarch to appoint a commission via letters patent, a written order published in the Royal Gazette.
The typical characteristics of royal commissions are that they have quasi-judicial and investigative powers and can summon witnesses; are frequently headed by a senior judicial figure; cannot be stopped by the government unless the terms of reference are overstepped; can hold secret hearings; and have the power to compel the bureaucracy to assist, for example in the seizing of evidence.
They are thus one of the most powerful state tools under a constitutional monarchy and support the judiciary.
Royal commissions are common in Commonwealth countries, particularly the United Kingdom, Australia, New Zealand, and Canada.
In Southeast Asia, they are employed by Malaysia, under the 1950 Commissions of Inquiry Act. Notably, a 1965 royal commission provided the basis for the restructuring of local government via subsequent local government acts, and a 2004 royal commission investigated police reform. Crucially, Malaysia is much more transparent, corruption free, and accountable than Thailand, being ranked 55th in the world in Transparency International’s Corruption Perceptions Index 2016, compared to Thailand’s 101st. The use of royal commissions contributes to this higher accountability.
That there is a need for systematic reform in Thailand, such as police reform, is undisputed and is one of the principle justifications for the 2014 coup.
In practice, little systemic structural reform has been accomplished, especially police reform, the risk being that any police reform may simply become another exercise in arbitrary military power.
Moreover, when regular Thai commissions do take place, such as the 2005-2006 Anand Truth and Reconciliation Commission, they tend not to achieve their objectives, due to trying to achieve a consensus via a collective approach, over-ambitious and ill-framed terms of reference, a lack of resources, and potentially opposition from ultra-nationalists. Essentially, they lack the raw power.
Thus, the institution of royal commissions is a valid way to investigate and implement reform in the face of entrenched impunity and bureaucratic inertia. A royal commission into penal reform is a possible first step.
Penal reform is supported by most Thais, the Royal Thai Police and prison governors, and the royal commission must investigate reducing prison numbers by tens of thousands of offenders in prison for mainly drug-related offences, abolishing the death penalty, and improving the facilities in migrant detention centers. Also, penal reform already has a charismatic champion who could serve as the commissioner, namely HRH Princess Bajrakitiyabha.
Depending on its progress, further royal commissions could take place on police reform; sangha reform, ultimately leading to a new Sangha Act, which would lay down rules for greater transparency in monastic bookkeeping and may make some accommodation for female monks; gender equality, including transgender rights and gay marriage; energy reform, particularly the threat from climate change to Bangkok and the promise of solar and fusion energy; human rights, including the development of a new National Human Rights Commission and the draft National Language Policy; and the education system.
To avoid endangering the reputation of the monarchy, the first Thai royal commission should occur under a democratically elected government.
Ultimately, to resolve the problem of arbitrary military power, a royal commission on security sector reform will be required, focusing on a managed demilitarisation of the country.
The alternative to successfully negotiating the royal prerogative in a way that heals underlying fault lines in Thailand and eventually reduces the role of the military is that the country embraces an increasingly authoritarian, dictatorial ideology, one serving an oligarchy of special interests more interested in sacrificing the country’s environment for coal power and in ostentatious displays of wealth, such as Chinese submarines.
However, such a mindset has contributed to China, which practices a republican and communist mode of government and is currently extending its sphere of influence over Thailand, being one of the world’s most toxic countries – making the Chinese ‘model’ patently unsuitable for Thai society.
**Text by John Draper, Director of the Social Survey Center at Khon Kaen University and member of the Project for a Social Democracy (PSD), and Nattanan Warintawaret, Thai youth activist and member of the PSD.