Is Thailand’s Article 44 a Catch 22?

Thailand’s military-led government has invoked Article 44 of the interim constitution to replace martial law. The controversial article vests complete power and authority with Prime Minister General Prayut Chan-ocha in his capacity as head of the National Council for Peace and Order — Thailand’s junta that has governed through martial law for over 10 months so far. The replacement of martial law with Prayut’s absolute authority yields several immediate implications.

Thailand’s military-led government has invoked Article 44 of the interim constitution to replace martial law. The controversial article vests complete power and authority with Prime Minister General Prayut Chan-ocha in his capacity as head of the National Council for Peace and Order — Thailand’s junta that has governed through martial law for over 10 months so far. The replacement of martial law with Prayut’s absolute authority yields several immediate implications.

Article 44 depoliticises draconian rule in the eyes of the international community but further consolidates and personalises it at home under Prayut. It is designed to indicate that Thailand’s conflict is more about Thais than foreigners. Not since the Cold War has Thailand experienced this sort of absolute rule under one individual. Back then — in 1959, 1972, 1976 and 1977 — it had a semblance of justification as a way to maintain peace and order to thwart the threat of communist expansionism. The contemporary post-Cold War period does not offer such justification.

As it stands, Prayut has now consolidated runaway power for himself. He merely has to inform the junta-appointed National Legislative Assembly and the prime minister, who happens to be himself, in Thailand’s ultimately one-man rule.

The implementation of Article 44 roughly separates the home front from the international front. As martial law has blanket authority, it has adversely affected international sentiments. It conjures up images of human rights violations and restrictions on civil liberties. Martial law also makes Thailand a pariah because it is anachronistic.

The private sector and foreign stakeholders are likely to welcome the lifting of martial law. Tourist arrivals have been sustained since the coup, but tourist patterns have shifted away from Western tourists in favour of those from other East Asian nations. Doing away with martial law will enable Western tourists to once again obtain travel insurance and favourable advisory notices from their governments. No martial law is generally better for business.

In addition, democratic governments in the West and elsewhere will find it easier to deal with their Thai counterpart. Martial law is antithetical to democratic rule. It is also easily benchmarked by foreign governments for its simplicity. Martial law means human rights violations and hence the consequent criticism and rebuke can be almost automatic. However, Article 44 is complicated and sophisticated, involving fine print and interpretation, which some foreign capitals may not be willing to fathom.

As martial law is out and Article 44 is in, the domestic consequences are clear. Attendant conditions under martial law are retained, including the prohibition on peaceful assembly and detention without due process for up to seven days. It also sanctions all actions deemed necessary for national security. In other words, Article 44 appears to function as ‘martial law-plus, with identical restrictions on basic freedoms topped by the centralisation of power and authority under the prime minister. In some areas of dissent and political expression, the application of Article 44 may even be harsher than that of martial law.

Under this new power structure, the risk of missteps and mistakes will likely increase as the onus will now be on the prime minister as the omnipotent and omnipresent source of authority. Martial law effectively functioned as a power-sharing arrangement within the military. Field commanders at the regional, divisional and regimental levels had authority and latitude to apply martial law as they saw fit under the orders they were given. This is no longer the case.

Martial law resembled a military regime governing the country that was spearheaded by the junta chief. However, under Article 44, the prime minister alone will govern the country backed by a military regime.

The distinction is crucial. With a regime in charge, there were limited checks on power, chains of decision-making, and some delegation and decentralisation of authority. When one individual is in charge, it is all up to them. The risk that they might make wrong decisions, or have incomplete information, is likely to increase.

All of these risks may have been more manageable in Thailand’s Cold War past. But it is difficult to imagine that the Thailand of the 21st century, which has spent the past four decades opposing military dictatorship, will accept absolute power. More rumblings of dissent are being expressed, not least from the vibrant civil society segments and the Thai media that originally favoured the coup. As the coup becomes entrenched and embedded, Thai civil society appears to be agitating and regaining its pluralistic consciousness.

The coming months are going to be a litmus test on Thai civil society. It has passed this test time and again from 1973 through to the 1980s and, especially, in 1992, when a Bangkok-based uprising extirpated a military-backed, though elected, government. There is no reason to doubt Thai civil society will pass a similar test now that military despotism, compounded by a blatantly strongman governing style, is in full view.

Consolidating political control with Article 44 may end up being a spiralling catch 22. As martial law did not quite get the job done in imposing the kind of political order and stability the National Council for Peace and Order wanted, more power is needed. However, as Article 44 engenders more opposition and resistance, still more power and greater enforcement will be needed. This is a recipe for growing confrontation and turmoil.

The only way Article 44 could end up going well is if the prime minister proves to be judicious and just, enlightened and efficient, incorruptible and inexhaustible. If he is not up to all of these virtues, Thailand needs to start winding its way back from absolute power.

Thai junta goes from martial law to absolute power is republished with permission from East Asia Forum