With the release of a new draft constitution, Thailand’s military-instated government has begun the process of returning the country to civilian rule. Whether the regime will be successful in restoring democracy depends on its ability, and that of the new government to be elected in December, to overcome a key challenge, says IFES consultant Catherine Barnes.

“As it moves through the constitutional referendum and the general elections, the biggest challenge Thailand will face is restoring public confidence in the institutions of government, many of which were corrupted and compromised. Officials need to demonstrate to the public that they will now operate transparently, ethically, and, ultimately, be accountable to the people.”

In response to this (and other) challenges, IFES has developed a series of recommendations that can help Thai election officials conduct free and fair elections likely to be accepted as legitimate by the Thai people. The recommendations were developed during a pre-election technical assessment, or PETA, that Barnes and other IFES staff conducted of Thailand’s election law, system, and personnel.

Five IFES researchers met with more than 57 people representing 25 institutions and organizations including the Election Commission of Thailand, the Constitutional Drafting Committee, the Supreme Court and the Human Rights Commission. The team conducted their research between March 14 and April 5.

Thai citizens will vote on the final draft of the constitution in a September constitutional referendum, which is to be followed in December by general elections that will return the government to elected officials. Below are five key recommendations from the PETA report that can help the Thais successfully navigate this transition.

1. Collect input from broad spectrum of Thai society

As the interim government faces the challenge of re-establishing public confidence, it is extremely important that the constitutional drafters collect input from all political actors, according to the report’s authors.

Thailand achieved democratic fame for the inclusive process it used to draft its 1997 constitution, known as “The People’s Charter”, and Barnes believes the Constitutional Drafting Committee, or CDC, understands the importance of involving the public.

“CDC members told us it was imperative that public opinion be sought and applied, because otherwise the process would not be credible,” she said. However, the CDC is operating within strict time constraints given the tight schedule of upcoming polls.

The release of the draft on April 26 initiated a 30-day period for public comment. Thai newspapers published the draft, public hearings are underway across the country to allow Thais to have their say, and a hotline and website are available to collect citizens’ comments.

Critics of the draft say that it gives too much power to civil servants and the judiciary rather than elected representatives. Controversial provisions include appointing (rather than electing) members of the Senate, decreasing the number of House members from 500 to 400, offering amnesty to the coup leaders, creating a National Crisis Council that would be empowered during national crises, and instituting an electoral mechanism (multimember districts) that might decrease the unity of political parties.

In addition to regular citizens, IFES’ report suggests that political parties also have an important role to play in mobilizing public participation in the constitutional referendum process. Since the coup, party activities have been banned. However, given that the ability of political parties to compete in elections is fundamentally shaped by the constitution, particularly through its electoral provisions, the report highlights the value of incorporating their perspective into the draft constitution and on new legislation governing campaigns and elections.

2. Adopt code of conduct for political actors

One of Thailand’s primary political problems is often labeled as “money politics,” which includes vote-buying, the purchase of bureaucratic offices, and other corrupt practices. Thailand’s courts voided its April 2006 parliamentary elections because the arrangement of the polling booths compromised voter secrecy. The booths were open to public view, an explicit violation of election law explained as a measure to fight vote-buying. In the months following, blame fell on both the electoral commission (whose members resigned after being convicted of helping the ruling party win) and the largest political parties (who are awaiting judgment on charges of vote fraud).

Given this recent history, IFES’ report emphasizes the importance of establishing codes of conduct for election officials, poll workers, and political parties. Members of these groups are encouraged to sign or swear to uphold their respective codes, as well as the constitution and all election laws. In addition, both citizens (through voter education) and domestic election monitors should be made aware of the code’s requirements so that citizens and monitors can hold election workers and politicians accountable for their pledges.

3. Conduct intensive voter education

The draft of the new constitution is expected to be finalized in July and, in September, Thais will approve or reject it in the country’s first national referendum. This timeline leaves only a brief window for voter education about what could be major changes to the country’s political system. According to a poll conducted by the Suan Dusit Rajabaht Institute, as of April 29 nearly half (44 percent) of Thais did not know about the upcoming constitutional referendum and only 9 percent felt they fully understood the draft constitution.

Of course, the CDC and Election Commission (ECT) are ramping up voter education efforts through public forums and the mass media. They are also using mass mailings, websites, and a network of voter educators (including civil society and community leaders) to reach out to voters.

However, Barnes said that they will face challenges beyond just explaining the potentially complicated content of the proposed constitution. They will also face a tense political environment, where citizens will receive information from many sources including various political and special interest groups.

“Given that portion of the population that supports the ousted prime minister and a growing number of people who believe that coup leaders have not solved the problems they pledged to solve, the referendum could become an opportunity for voters to vent their frustration with public policies, take a stand on special-interest issues, or register their dissatisfaction with the regime,” she said.

Barnes believes the challenge will be to make sure the referendum vote is conducted on the substance and merits of the draft charter itself. Because the education efforts of the CDC and the ECT will compete with other messages, both groups need to make sure voters understand that they should vote on the merits of the draft constitution alone.

Voters also need to understand that reforming their political process is a long-term process.

“The government needs to show tangible progress towards reform, but the public also has to understand that it takes time for reforms to take root and to produce results,” said Barnes. “Some feel a great impatience for reforms to work effectively and comprehensively right away.”

Should voters reject the draft constitution the interim government is entitled to enact into law any one of the previous 17 Thai constitutions.

Bumper sticker advertising the constitutional drafting process and a website and hotline where citizens can comment.

4. Encourage election observers to focus on ongoing problems

Given the mistrust many Thais currently feel for all branches of government, IFES’ report suggests that both domestic and international observers can play an important role in convincing Thais of the transparency and legitimacy of the electoral process.

In order to catch common violations of electoral law—such as campaign finance abuses, irregularities in the hiring and work of provincial election commissioners, vote-buying and other forms of bribery or pressure—the report recommends that election observation begin long before the polls take place, since several of the issues mentioned occur during preparations for elections.

5. Ensure government institutions can operate effectively

Aware of their need to check corrupt politicians, Thais used their 1997 constitution to create a number of independent bodies meant to monitor and prosecute abuses, including the National Counter-Corruption Commission, the National Human Rights Commission, the State Audit Commission, and the Election Commission. However, many citizens believe these institutions were themselves compromised, in large part because there were no measures in place to ensure they functioned with integrity, such as ensuring their members did not owe their jobs to political cronies or depend on the party in power for institutional funding. Under the new constitution, existing and newly created independent bodies will need to be protected from political pressures and given the authority to carry out their functions fully and effectively.

Possible setbacks to Thailand’s democratic recovery

Last year was a difficult one for Thai politics. Facing street protestors angry with his perceived tolerance of corruption and some recent business deals, Prime Minister Thaksin Shinawatra dissolved parliament in February, calling for snap elections in April. After the results of the April elections were annulled by the courts and ongoing conflict in southern Thailand continued to escalate, the military staged a bloodless coup in September, deposing Thaksin and appointing an interim prime minister.

Several of the issues that provoked controversy in 2006 continue to reverberate today, and as a result Thailand’s political situation could continue to be somewhat unpredictable for next several months, said Barnes.

“The report outlines several events that could occur between now and the referendum. Should these events take place, the reaction of the government and the public will determine whether preparations for the constitutional referendum and/or the general elections will proceed smoothly.”

First, the country’s two major political parties may be disbanded by a court ruling expected May 30: deposed Prime Minister Thaksin’s party, Thai Rak Thai, and the primary opposition party, the Democratic Party. If either party is found guilty of vote fraud, it could be dissolved and its leaders could even be barred from politics for five years. Such a ruling would alter the political playing field in Thailand, resulting in the formation of new political parties, shifting political alliances, and adjustments to political strategies and operations. In order for this to happen, however, the ban currently blocking political party activity (including the formation of new parties) needs to be lifted.

Second, a number of lawsuits are pending against members of the Thaksin family on a variety of charges, including tax evasion. A ruling is expected in May.

Third, top military leaders (and other personnel) are scheduled to rotate in September. Some fear that this creates an opportunity for some within the military—mindful of growing public dissatisfaction—to stage an incumbency coup and further postpone return to civilian rule.

While such concerns were expressed by some political elites in Bangkok and must be understood in the context of Thailand’s turbulent political history, the PETA team found that the conventional wisdom appeared to be that the draft constitution will pass and that Thailand will proceed with preparations to hold general elections by the end of the year.

IFES hopes the key recommendations described above (as well as the more detailed ones contained in the PETA report) will help inform discourse on the draft constitution and draft laws on referenda and elections from the perspective of comparative practices and international standards.