Superintendent Bodies and the Constitutional Court in Thai Constitutionalism (1997–2017)

Written by Thanapat Skulpanich

Edited by Franzcesca Chiara De La Cruz

Thanapat is a freshmen in the Dual Degree Program between Sciences Po and the University of California, Berkeley. He is currently studying political science and data science with a special interest in labor and welfare reform.

On February 8, 2025, millions of Thais cast their votes for the general election. Alongside their usual ballots for party-list MPs and constituent MPs, a third ballot was added—a nationwide constitutional referendum. The current 2017 Constitution was drafted by the 21-member junta-appointed committee in 2015 and was adopted through a referendum held in 2016. Since its inception, there have been continuous calls for a new constitution. The issue of the constitution was highlighted again during the 2019 election cycle with prominent political parties, in particular the Future Forward Party along with Pheu Thai, continuing calls for a new constitution. At the same time, as a result of 2017 Const. art. 269, stipulating the first senate to be composed of 250 junta appointees, aside from the 500 elected-MPs, the 250 junta-appointed senators also had the right to vote for the prime minister. Consequently, all 250 senators supported General Prayut Chan-o-cha, the sitting prime minister and leader of the 2014 coup d’état, leading to his reinstatement as prime minister. This referendum was then a result of continuous efforts since 2015 by civil society and political parties in order to replace the existing constitution, a legacy of the latest coup d’état. Accordingly, tensions surrounding the drafting of a new constitution will also determine the trajectory of the government. 

In the end, the referendum passed overwhelmingly with 58.64% of the electorate in favor. As we move onto the next stage of the constitutional drafting process, the salient issue is of superintendent bodies referring to institutions defined under Section 11 (the Constitutional Court) and Section 12 (independent agencies) of the 2017 Constitution. In light of these events, this paper aims to provide a better understanding of superintendent bodies in Thailand. In doing so, I will describe the constitutional developments of superintendent bodies as materialized by the three most recent constitutions: the 1997, 2007, and 2017 Constitutions. 

1997 Constitution and the birth of superintendent bodies

The 1997 Constitution was a result of the 1992 protests (Black May) against the military government of General Suchinda Kraprayoon following the 1991 coup d’état. The protests led to the resignation of General Suchinda and the 1992 general elections. The drafting assembly selected in 1996 was composed of 76 provincial delegates selected through a two-tier process—firstly through self-selection within the province then final selection by parliament—and 23 experts selected by the Higher Education Congress (สภาสถาบันอุดมศึกษา). At the first meeting of the assembly, five working committees were established including a committee specifically for public relations and another for public hearing; this was part of an active effort by the drafting assembly to encourage participation by the public. These mechanisms were vital in ensuring a legitimate and transparent process to the public. The draft constitution was then adopted by parliament following a majority vote from both houses of parliament, resulting in the 1997 Constitution. 

Prior to the 1997 Constitution, the inspection of the government could only be done through motions of no-confidence of specific ministers of the entire cabinet (removal of the prime minister leading to the dissolution of the cabinet). This posed a problem; a separation between a political dismissal and impeachment did not exist. Without proper proceedings, the process of discovery in such impeachment cases is difficult. In 1991 Const. art 133, 134, and 135, an MP or senator could not be arrested, investigated, or tried throughout the duration while parliament was in session, so the only method of removal was through a vote initiated within parliament. With the 1997 Constitution came what Hicken (2007) described as superintendent institutions, semi-autonomous bodies designed to monitor the government and hold officials accountable. In his paper, he mentioned the following entities as superintendent institutions: the Electoral Commission (EC), the National Human Rights Commission (NHRC), the National Anti-Corruption Commission (NACC), and the Constitutional Court (CC); in addition to what Hicken mentioned, there are also the Ombudsman and State Audit Commission (SAC). For our discussion, we will focus primarily on the EC, NACC, and CC. Members of these commissions are (at least in part) selected by the Senate. 

We can observe that the NACC acted as the fact-finding organization. Contrasting with the past, 1991 Const. art. 92, initiated by one-third vote by either MPs or senators, did permit the removal of parliament members in cases of wrongdoing with a three-fourth majority vote of both houses; meanwhile, with 1997 Const. art. 303, 304, 305, 306, and 307, initiated by one-fourth vote by either MPs, senators, or at least 50,000 citizens with voting rights, the President of the Senate can be petitioned to call a three-fifth vote in the senate to remove persons in political, judicial, and superintendent positions after an investigation by the NACC. In this way, the NACC resolves the original difficulty of investigating wrongdoings of persons in political positions.

Figure 1: Mechanism of 1997 Const. art. 303, 304, 305, 306, and 307

Additionally, the NACC can also receive complaints of criminal wrongdoing of persons holding political positions from an affected person. Having received such a complaint, the mechanism under 1997 Const. art. 303, 304, 305, 306, and 307 will be similarly mobilized. It should be noted that the rulings of the  newly-established criminal division of persons holding political positions of the Supreme Court are not affected by the 1997 Const. art. 166 and 167: “MP and senator immunity articles”.

The NACC, operating as the mechanism through which persons in political, judicial or superintendent positions can be removed for wrongdoings, can also itself be inspected and removed through a three-fourth vote by the senate. Theoretically, this creates a system of checks and balances where the NACC could also be held accountable for abuse of power.

The 15-person CC was also initially created with the role of arbiter for constitutional questions. MPs, senators, or the PM can petition the CC in the case that a draft or already enacted organic or ordinary law if they believe that the aforementioned law is contrary to the Constitution; if a court or parties involved in a legal case believes that a law is contrary to 1997 Const. art. 6 (a law cannot be contrary to the Constitution), either the court or parties involved can petition the CC to rule on the matter. Additionally, if there is a question regarding the abilities of any entities under the Constitution, the aforementioned entity or the President of the House of Representatives can petition the CC to rule on the matter. In all these cases, the ruling of the CC is final and is enforceable to all government entities. 

Similarly, the EC was tasked with any affairs relating to national elections, local elections, and referendums. It was proposed to maintain free and fair elections and resolve any disputes on the matter. It maintained the authority to launch investigations into election- and referendum-related complaints. Previously, elections were held under the supervision of the Ministry of Interior, benefiting “government parties” with control over the bureaucracy.

Another salient detail which will be a point of comparison with later constitutions is the method of selection for these superintendent positions. The NACC is composed of nine members voted by the Senate after selection by a committee of four public university law faculty deans, four political party representatives, and the President of the Supreme Court. The CC is composed of five judges selected through vote during the general meeting of the Supreme Court, two judges selected through vote during the general meeting of the Administrative Court, and eight judges voted by the Senate after selection by a committee of four public university law faculty deans, four political party representatives, and the President of the Supreme Court. The EC is composed of five members selected through vote by the Senate after prior selection by a committee of four public university law faculty deans, four political party representatives, the President of the Supreme Court, and the President of the Administrative Court, which selects five candidates, and by the general meeting of the Supreme Court, which selects another five candidates. A point to keep in mind as we move on to the subsequent constitutions is that in these selections, there is the involvement of a senate which is directly elected—as opposed to the 2017 Constitution as this analysis will cover.

Figure 2: Selection of superintendent positions under the 1997 Constitution

Thaksin Shinawatra and the 2006 Coup d’état

Prior to the 1997 Constitution, large, short-lived, multi-party governments were the norm. This was the context with which the drafters of the 1997 Constitution were working with. The 2001 election was the crucial test of the resilience of the Constitution. After the landslide victory of Thaksin Shinawatra’s Thai Rak Thai party (TRT), leading to the formation of a one-party government, the autonomy of the superintendent bodies would be challenged. With the original intent of the 1997 Constitution, senators were supposed to be non-political actors, but in practice many of the senators elected in 2000 were affiliated with politicians through kinship, marriage, business contracts, etc. As the Thaksin government gradually tightened its control of the Senate from 2001 onwards, this had significant impacts on the re-election of superintendent positions. After the first batch of EC members reached the end of their terms in May 2001, two Thaksin-aligned candidates were selected by the Senate; in March 2003, three Thaksin-aligned judges were also voted into the CC, granting Thaksin a majority in the 15-member court. Previously five judges were already consistently voting in favor of the government, and in November 2003, re-elections in the NACC brought in six Thaksin-aligned members. As a consequence of the political maneuvering of Thaksin, who himself was charged with concealing his assets by the NACC, these superintendent bodies ceased to deliver its intended counter-majoritarian purpose as they became compromised by Thaksin allies within their own ranks. 

Despite the continued success of TRT in the 2005 election, winning 377 out of 500 parliamentary seats, unrest in the south emerged as a result of the insurgency—partly fueled by Thaksin’s brutal crackdowns—and protests by opposition politicians, academics, journalists, and middle-class Bangkokians over the erosion of the democracy principles of the 1997 Constitution led to widespread political unrest. With the tax-free sale of Shin Corp, a Shinawatra-owned company, to Temasek, the Singaporean sovereign fund, protests intensified. After a long-episode in Thai politics, including Thaksin calling for another election 2006 which was subsequently annulled by the CC after a statement by King Bhumibol, the situation would come to its end with the military executing a coup d’état on 19 September 2006, the declaration of martial law, and the abolishment of the 1997 Constitution. 

The 2007 Constitution was what Hicken described as a return to politics past. With the enactment of the 2006 Interim Constitution, stipulations for a new constitutional drafting assembly were made. Unlike the 1997 drafting assembly whose members were mostly elected, the drafting assembly for the 2007 Constitution was made up of members entirely appointed by the junta’s Council for National Security (CNS). A 2000-member National Assembly, appointed by the CNS, was tasked with selecting among itself 200 candidates for the Constitutional Drafting Assembly (CDA) within 7 days of its first meeting. Afterwards, the CNS will select 100 of the 200 candidates proposed by the National Assembly to be part of the CDA. Finally, the CDA will elect 25 of its own members and the CNS will also elect 10 experts (who may or may not be part of the CDA) to be part of the Constitutional Drafting Committee (CDC). Though junta leaders denied interference in the CDC, Hicken (2005) posited that the CDC delivered most of the junta’s demands for a new constitution in any case. On 6 July 2007, after amendments of the CDC’s draft, the CDA approved the amended draft, ready for the upcoming referendum on 19 August 2007. Though the proposed 2007 Constitution faced opposition from those who viewed it as lesser than the 1997 counterpart and those who supported Thaksin, it managed to pass with 57.81% support.

With the 1997 Constitution, the power of the PM was strengthened relative to other actors in parliament and through reforms to parliament (i.e. requirement for MPs to give up their seat before accepting a cabinet position, the increase of required percentage of MPs to launch a motion of no-confidence, and the direct election of senators). The junta-appointed drafters of the 2007 Constitution, having overthrown the majoritarian rule by Thaksin, worked to bring back limits on the PM, returning the constitution to a state similar to pre-1997 reforms. The biggest impact on superintendent bodies came through the changes made to the Senate selection process and the selection of members for the superintendent bodies themselves. It should also be noted that with the 2007 Constitution, superintendent bodies (except the CC who is grouped under the judiciary section) are now grouped under Section 12 of the 2017 Constitution, as opposed to being scattered within the text in the 1997 Constitution.

Unlike the 1997 Constitution, where all senators were directly elected, the 2007 Constitution reduced the number of senators from 200 to 150. Of the 150 senators, only 76 were directly elected from each province; the rest of the senators came from a selection committee composed of the President of the CC, the President of the EC, the President of the Ombudsman, the President of the NACC, the President of the SAC, a Supreme Court judge selected from the general meeting of the Supreme Court, and an Administrative Court judge selected from the general meeting of the Administrative Court. As Hicken notes, the 2007 Senate’s appointment process is different from the 1978 or 1991 Constitutions where senators were also unelected. In the past, senators were appointed by the king and countersigned by the PM, but in practice the PM often influenced the selection of senators for the king’s endorsement. With the 2007 Constitution, the PM is completely removed from this process, leaving the task up to superintendent heads and the judiciary.

The selection process for members of the superintendent bodies remained similar to the 1997 Constitution, but with the half of the Senate now being appointed by the superintendent bodies themselves, these superintendent bodies became, in practice, more autonomous and removed from the electorate. With the CC, the 15-member court is now reduced to nine members. Previously, seven of fifteen judges were selected from the general meetings of the Supreme Court and Administrative court (which constitutes a minority), but with the new rules, five of nine judges were selected from the aforementioned general meetings, constituting a majority. And again, with the changed nature of the Senate, the other four judges voted by the senators are also more removed from the electorate. In the case of the NACC, the Senate votes nine members from a selection provided by a committee composed of judges and parliamentary representatives. A similar process is applied to the EC, but the five members are selected from two bodies: the committee similarly composed of judges and parliamentary representatives (three candidates) and the general meeting of the Supreme Court (two candidates). It can be observed that the same issue of the source of the senators embeds itself in the selection of the NACC and EC. It should be noted that if the senate were to reject any of these superintendent candidates, the selection committees will have to convene again to vote upon a new candidate, or send back the same candidate only through unanimous vote.  

Figure 3: Selection of superintendent positions under the 2007 Constitution

As a result of this development, the 2007 Constitution responded to the perceived need for stronger counter-majoritarian mechanisms in part by the weakening of the PM and through the selection of members of superintendent bodies which relies more heavily on the influence of the bureaucratic polity and those linked to it rather than elected representatives as was the case in the 1997 Constitution. What can also be observed from this change is the movement of superintendent bodies away from the electorate, a trend that will continue with the 2017 Constitution.

2017 Constitution and further separation of the electorate

The 2013-2014 political turmoil was the pretext that led to the 2014 Coup d’état by General Prayuth Chan-o-cha and the abolishment of the 2007 Constitution with the exception of Section 2 (the king). The political turmoil can be traced to an amnesty bill of those arrested due to political public assembly or political expression. Initially, the bill would pardon only demonstrators not including ringleaders or commanders (government leaders and the military), but amendments to the bill led to their inclusion. Due to the violent nature of the unrest, this angered both pro and anti-government factions who saw the amnesty bill as unjust. Coupled with a proposed constitutional amendment to revert the Senate selection process back to how it was in the 1997 Constitution, these events paved the way to widespread protests and counter-protests in Bangkok against PM Yingluck Shinawatra.

The 2014 Interim Constitution stipulated the selection of the drafting committee for a new permanent constitution. This drafting committee would also be composed of members purely from the junta’s National Council of Peace and Order (NCPO)’s selection. Of the 36 members of the drafting committee, the NCPO will directly select the chairman of the committee and five additional members. The junta-appointed National Reform Council, which acted as an advisory body, would appoint another 20 members. The National Legislative Assembly (the temporary legislative body prior to the next election) and the military government (headed by General Prayuth) would each appoint an additional five members onto the committee. Similar to the 2007 Constitution, this drafting committee was completely void of participation from the electorate.

With the CC, their trend towards bureaucratic polity would continue. Formerly for the senate-elected members of the CC, there were not strict requirements on their professional backgrounds. With this constitution, two of the four senate-elected members must have been civil servants who at minimum must have held either the position of director-general, or the position of vice-attorney general, for five years. The other two senate-elected members continue to be those with expertise in law, political science, government, or the other social sciences, but with the caveat that they must have had the position of professor at a Thai university for at least five years. With the EC, this trend also persists with the previously five-member committee expanded to include seven-members. In both the 1997 and 2007 Constitutions, all members of the EC must be approved by the Senate; in this constitution, the two additional members are appointed directly by the general meeting of the Supreme Court. The trend applies to a lesser extent to the NACC. The committee remains to be nine members with all members needing to be voted by the Senate, but the professional requirements for the candidates are also more rigorous (requiring continuous 20-year employment, professor, state-enterprise or civil servant background).

Despite the direct changes to the superintendent bodies, perhaps the most prominent change is to the Senate and their selection. After the enactment of the 2017 Constitution through referendum, the first batch of senators were appointed directly by the NCPO. In this first batch, the number of senators was also increased to 250 from the usual 200 of subsequent batches. As a direct consequence of this, the first batch of members on the superintendent bodies were all indirectly (or directly) linked to the NCPO (including those appointed by the National Legislative Assembly). To make matters more extreme, the selection of subsequent batches of the Senate also does not include any direct elections; the Senate is selected through a process of self-selection. With 20 occupation groups, a candidate can apply to become a senator within their own group. That candidate must be voted by fellow candidates in the district level to advance to the provincial level, the provincial level to advance to the national level, and the list of the candidates with the most votes is tallied from the national level to select the winners. In practice, with the dissolution of the first senate, the 2024 Senate election has been criticized for its vulnerability to manipulation. Since any eligible candidate can apply, the district-level election can be packed in order to ensure the advancement of certain candidates into the national election. A large majority of the senators have also been linked to the Bhumjaithai party. In 2025, the issue of the election resurfaced as a DSI investigation was launched into vote-rigging and money laundering during the 2024 Senate election.

Piecing together the discussion so far, with the 2017 Constitution, the separation of the electorate and superintendent bodies has reached its ultimate point. Unlike the 1997 Constitution when all senators were directly elected or the 2007 Constitution when senators were partly directly elected, the 2017 Constitution completely disconnects the electorate from the senators and in turn the superintendent bodies. Consequently, there have been numerous political outcries such as the dissolution of the Move Forward Party and the removal of PM Srettha Thavisin and Paethongtan Shinawatra by the CC. The investigation of 44 former Move Forward Party MPs for breach of the ethical standard as a result of their efforts to amend Article 112 of the Criminal Code conducted by the NACC has also come under such scrutiny. In these cases, it has been argued that the superintendent bodies have been utilized as a tool of selective punishment to remove political opponents, empowered by 2017 Const. art. 219 which requires the creation of ethical standards established by the CC and superintendent bodies which are to be applied to the legislative and superintendent bodies themselves.

Conclusion

In this paper, we have analyzed the evolution of superintendent bodies as it was conceptualized in the 1997 Constitution and its gradual separation from the popular electorate, reaching its pinnacle with the 2017 Constitution. In part, the catalyst for this development was the effort to anchor these superintendent bodies against possible majoritarian threats, as was seen during Thaksin’s administration. In the end, these efforts have also transformed these superintendent bodies into political tools of selective punishment.

As we focus mainly on the development of superintendent bodies, many other aspects of constitutionalism are left unexplored. For instance, the gradually prevalent ethical standard which is currently the hallmark feature of the 2017 Constitution and its interaction with superintendent bodies is yet to be expanded on in this paper. Other changes since the 1997 Constitution include the reduced level of citizen’s political participation or the creation of the “Duties of the State” section in the 2017 Constitution which replaced many rights guaranteed by previous constitutions. At the same time, it remains to be seen how the people will demonstrate their political will through the upcoming series of referendums for the creation of a new constitution. In the case that a new drafting assembly is organized, it is equally interesting to observe how they will tackle the issue of depoliticizing the Senate (noting the failures of past constitutions) and the operation of these all-important superintendent bodies.

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