Resource Autthapon Muangming. (2018). Local Government in Thailand and Decentralization after the 2014 Military Coup. Social Science Asia, 4(2), 35-50.
Reform of local government and decentralization under the policy of the central government and the 2014 Constitution after the coup d'etat in 2014
Since the coup d'etat of the NCPO on 22nd May 2014, it cannot be denied that power has returned to the central government again; if we look into the past, this may be the normal case in Thailand when a coup d'etat has occurred with the excuses that it has been done to lead to peace and order, bring stability to the central government, and provide unity and security for governance and management. In this way, justification is made for the authority of command or order to be with the central government which issues the regulations, commands, laws and other public policies. This most recent coup d'etat resulted in the cancellation of the 2007 Constitution and its replacement with the 2014 Constitution. The new constitution which contained only 48 sections mostly concentrated on the country’s reform and decentralization. However, 27 sections dealt with the reform council that had to be established to provide information and suggestions leading to reform. There were 10 main sections dealing with other issues of which only one was related to local government and that had no additional explanation. So, under the military government, the importance of decentralization was ignored and the drive for the development of decentralization was halted. When considering the direction of local government after the coup d'etat in 2014, it should be noted that the central government had complete control of local government through the leader of the NCPO using his absolute authority under section 44 of the 2014 Constitution. Furthermore, the government also relied on section 27 to appoint the National Reform Council to research and provide suggestions on each issue of government in proceeding with reform and section 39/2 of the Constitution Amendment (No. 1) to appoint the National Reform Steering Assembly (NRSA) to study and reform all 11 parts, instead of the old National Reform Council which was terminated by section 39/1. In addition, the Constitution Drafting Commission was set up to draft a new constitution, which would become the 2017 Constitution that the majority of people voted for and would be the major blueprint to lead to national reform. The author will explain the reform under the policies of the government and the new constitution. The article will be divided into 3 parts: the first part is an explanation of the authority according to the 2014 Constitution to reform the country, the second part is the essence of the 2017 Constitution and the last part is the reform of the country in compliance with the 2017 Constitution; all 3 parts focus on an explanation of local government reform and decentralization.
1. The use of the 2014 Constitution concerning the appointment, suspension and inhibition or other actions related to local activities or operations.
According to section 44 of the 2014 Constitution, the chief of the NCPO has the authority to issue the necessary commands, in compliance with the laws and the 2014 Constitution, to suspend, inhibit or act on any activities with his commands being legally binding on management or the judiciary. It shows that the chief of the NCPO is authorized to exercise his power widely. This can be seen from the issue of many commands or announcements related to local activities after the coup d'etat in 2014 from the central government. Local activities were terminated with the reason that it would make the reform of the country go smoothly; the NCPO’s order no.85/2557 temporarily suspended every election of local government until the commands were changed or the 2014 Constitution was replaced by a new constitution. However, this order did not apply to Bangkok and Pattaya under order no. 1/2557. For other local governments, order no.22/2559 stated that if the local administrations’ or local councils’ terms had ended, they were able to continue in their positions until new local elections had taken place. In the case of the executives’ or local councils’ positions having become vacant or expired, the deputy chief of an administrative organization must be in charge of local administration and be able to appoint suitable people to be the local administrators in certain situations, e.g. order no.6/2560 to establish the president of Pattaya city. In addition to using the authority to issue orders or announcements for local administrators and councilors, the government also had the power under section 44 to issue a command to temporarily suspend local administrators, local councilors and local government officials from performing bureaucratic actions, to move to another bureaucracy in an assigned position or to be discharged from duty. In the case of local councilors or administrators, if they are found to be corrupt in their duties or cause damage in government service or, not being in government service, in continuing their normal work, the chief of the NCPO has the power to order them to vacate their positions even though the result of an investigation has not obviously concluded that there is misconduct, e.g. order no. 64/2559 to command the governor of Bangkok to vacate his position. According to statistics, of the total number of orders by the NCPO, it was found that over 200 local administrators, local councilors and local government officials had been subjects of those orders. Referring to the examples above, it can be seen that the central government has more authority and could directly access some duties in regional offices and that these orders are legitimate and give more authority to the central government
2. The essence of the 2017 Constitution relating to local government and decentralization
The 2017 Constitution is the major blueprint for national reform. However, it has been criticized and the contents of many sections have caused controversy. This constitution abolished the power of the people, especially in the category of local governance, and it is unclear when it is compared with the contents on local governance in the 1997 Constitution which was the first one that obviously prescribed decentralization. The content of the 2017 Constitution has changes, especially the principles of self-government for which the 1997 Constitution in section 282 and the 2007 Constitution in paragraph 1 of section 281 specified that “…The government must provide local autonomy based on the principle of self-governance, in accordance with the intent of the local people…”, whereas the 2017 Constitution in section 249 merely specifies that “…the local administration is governed by the principle of self-government, according to the intent of the local people…”; the words “must provide local autonomy to localities” have been removed, so many parties are concerned that the 2017 Constitution may cause a drawback from decentralization. Moreover, some other contents have been changed, and they can be compared in 4 key areas as follows: - Authority of local government Providing for the independence of management is one key issue of decentralization’s principles in terms of authority, decision, resource, personnel, budget and others factors which are essential for building capabilities and making localities work independently and quickly. The 1997 Constitution in paragraph 1 of section 284 clearly determined the independence by specifying the policy, government, management, personnel management, financial management and fiscal management of local administrations. In the 2007 Constitution in paragraph 1 of section 283, additional content was prescribed concerning the power of public service to localities from the 1997 Constitution, which reflects that it fully and clearly placed great emphasis on local independence for self-governance, but the 2017 Constitution in paragraph 1 of section 250 shows only that local governments have the duty and authority to take care of and manage public services and events. As for the issue of independence, it is legislated in other laws. - Recruitment of local administrators and councilors For the recruitment of local administrators and councilors, in general both in regular and special formats, the 1997 Constitution and the 2007 Constitution specified that the administration must directly come from election by the people or nomination by local councils. In part of the 2017 Constitution, it is specified that the local administrators and councilors must come from election or by consent by local councils. In this case, the phrase “directly nominated by people” has been removed. As for the special local organizations, these positions can come from other methods. - Terms for position of the executive and the local council In the 1997 Constitution and the 2007 Constitution, it was clearly stated that the terms for the position of the executive and the local council were 4 years. But the 2017 Constitution does not state the term of the positions. - The participation of people The 1997 Constitution gave the opportunity for people to participate by ballot in order to remove local administrators and councilors. The 2007 Constitution had additional content about the participation of people by referendum like the two previous constitutions in terms of withdrawal and nomination. But the content related to referendum has been removed by the 2017 Constitution.
It can be seen that the 2017 Constitution has not concentrated on the contents of decentralization, especially the independence of local governments that is a key to the principle of developing local government in Thailand; it only broadly determines the direction. The details are prescribed in organic laws instead, and this issue will be subject to consideration of the local government reform plan by the NRSA as to how to determine the direction of local government and decentralization in the future.
3. How to reform local government and decentralization by the National Reform Steering Assembly (NRSA)
The 2014 Constitution, in section 39/2, prescribed the NRSA instead of the National Reform Council, so a subcommittee was set up in part of the NRSA and is the steering committee for local government reform. The committee has to work on the previous reports and conduct hearings with multiple sections of society. The information is analyzed and summarized for construction of the reform plan. However, this approach must be in line with the 2017 Constitution. When considering the local government reform plan constructed by the NRSA, it is found that the local government reform is divided into 2 types: (1) the regular local government reform and, (2) special local administrative reform. The details are as follows: The regular local government reform is divided into 5 parts: 1) Structure and authority of general local government organizations’ reform: the key issues are about the determination of the structure of general local government organizations and the structure has 2 levels: the top level comprises the PAO and the lower level comprises the municipality. These regular local governments have functions in merging the municipality and TAO together, determining the entry and withdrawal to/from the positions of local administrators and local councilors, adjustment of the authority of local government organizations for both the top and lower levels, and determining and increasing the efficiency of the finance and budget of local government organizations by using the process and suggestions taken from a study for preparing the Code of Local Government Organizations and Code of Local Government for Acts of Legislation
2) Decentralization reform: the key issues are the transfer between the central administrators, regional administrators and local administrators, specification of public service standards, and the acceleration of transfers. The guidelines for the process and suggestions from this study are used for preparing the enactment of laws to promote the decentralization to the local government organizations.
3) Personnel management reform: the key issues are the governance reform, investigation, and public participation reform about restructuring local government organizations to become only one organization from the Local Government Committee. The establishment of the Local Personal Moral Conservation Committee, for which the authority and relationship between the administrator and the deputy chief of the local administrative organization, the determination of the local administrative process under the law, and the determination of the length of term for the positions are the stated responsibilities.
4) Reform relating to monitoring and investigation is contained in an annex of concerned law under the Provincial Administrative Organization Act, Municipalities Act, Tambon Councils and Tambon Administrative Organizations Act, or may be determined in the Code of Local Government Organization. All the Acts may be issued and have added in them issues relating to participation, laws relating to voting for the removal of local councilors or local administrators and the submission of a petition for introducing a local ordinance.
5) Reform of public participation in local government is by enacting or editing laws and considering whether they are appropriate for the benefit of the people; also, by developing the budget system with participation by the people and having a monitoring system to evaluate the public’s participation. The reform for special local organizations can be divided into 3 parts: 1) Reform of Bangkok, for which there are 2 major issues: the first issue is increasing efficiency of service by preparing a strategic plan for solving the problems of the capital and surrounding areas, the adjustment of authority, subsidy allocation for city development, and adjusting the method of public service. The second issue is the adjustment of administrative efficiency by specifying the rules for the administrative authority and the council. The specification aims to guarantee the decentralization to district offices and improvement of the personnel management system.
2) Reform of Pattaya city, for which the process is in line with the reform of the Bangkok metropolitan area with 2 key issues: the first issue is adjustment to increase the efficiency of service by preparing a strategic plan for solving the problems in Pattaya city and surrounding areas, the adjustment of authority, subsidy allocation for city development, and determining a flexible budget system. The second issue is the adjustment of administrative efficiency by reviewing the management structure of Pattaya city in order to be a special local organization. The laws relating to income and authority for all management within the area are to be amended as well as the enactment of laws relating to personnel management.
3) Reform of special local administration: this issue focuses on a study to set up the appropriate areas in order to establish special local government organizations in the future. The purpose of the study is to specify the format, structure, authority, type, income, personnel management system, governance approach and promotion of the public’s participation in the special local government organizations as appropriate in each area. The study also proposes the enactment of related laws and adjusting the establishment of special local government organization laws appropriate to the current situation. Considering the reform of both the regular and special local administrative organizations, it can be concluded that many issues have progressed, especially the issue relating to the reform of the structure and authority of regular local government organizations that has been approved in a meeting of the NRSA. In terms of finance, fiscal policy and local budget, the laws will be amended to increase the new tax base and transfer the responsibility for tax collection and fees from the central government to local government organizations, e.g. updating the LED billboard tax, a land and building tax instead of the local development tax, and a house and building tax. The transfer will include tobacco and liquor licensing and an environmental tax on aspects that are harmful to health. These enactments will increase the income of local organizations. In the past, it was reported that not enough income was collected for local organization management even though they got subsidies every year from the central government because the budget was not fully allocated as required by law. So, transferring the responsibility of tax collection to the local government organizations is one important mechanism in the development of decentralization. In the case of taking, holding, or being discharged from the position as an administrator or local councilor who has been elected, there are additional qualifications and prohibitions, e.g. a person must have been born in the district or studied in a school located in the district or been working or performing duties in government agencies with a house registration in the district. These rules are applied on a case-by-case basis. This regulation makes the entry into local politics narrower and allows local people to take a role in managing and solving local problems. The thinking is that local people know best. However, some of the processes have been highly criticized or debated, especially the issues of the two forms of structural changes: the PAO and the municipality by lifting the status of the TAO to be a municipality, whether on its own or by merging the TAO with other TAOs, or with a municipality. While the draft of the legislation for local government organizations in section 15 specifies that “municipalities which have income excluding subsidies of less than twenty million baht or population that is less than 7,000 people can be merged with other municipalities which have a connecting area and are in the same district…”, it shows that, if this becomes law, over 5,000 TAOs must be raised to the level of a municipality under the conditions for merging with other local government organizations So, if the legislation is followed, most of the stated policies will delay the decentralization of local organization. It is hoped that both the 2017 Constitution and the organic laws related to local government will ensure the direction of local government and decentralization in the future.