2007 Constitution

[Scuba22]

[Note - this is a continuation from the "Thaksin-businessman & capitalist?" thread, and I begin it with two posts from that thread]:

Post #1, from me (Scuba 22):

It's been interesting to see the calls for a new Constitution given the way that the 1997 Charter has been abused and de-fanged.

I am skeptical that the cause of the issues in the current government are really rooted in the content of the Constitution, or whether the failure of the Charter is a result of it not really reflecting the reality of the Thai power structure of value system.

There is an idea in political science that the laws of a nation are only effective insofar as the reflec the values of the people. There is also an opposite notion that the laws serve to guide the people, rather than being guided by them; but in the Thai context, I see the first situation. I don't think that a Consitution, not matter how well structured or inentioned, will in itself change the behavior of people, much less the powerful and wealthy.

If people don't believe in checks & balances and self-government, no charter is going to make that happen. Changing the constitution may be a fine idea and I'm not opposed to it, but I think it's naive to think that's going to have a major impact.

Rather, there needs to be a concerted effort to communicate ideas and stimulate discussion about the rule of law and the role of civil society; this discussion needs to happen in the countryside, in much the same manner that TRT spreads its policy message - village to village, with great fanfare.

The problem is of course that this takes money. It is pretty clear to see where the TRT message spreading money comes from, it's not at all evident to me who has an interest in creating a civil dialogue in the provinces.

Would Sondhi fund something like this? The Nation? The Democrats? I can tell you that if someone did it well and had the media savvy to publicize it well, they could be real heroes, both here and internationally.

What do you think?

Scuba22

Post # 2, from Tettyan:

I've been meaning to start a thread on this topic for a while, but havn't managed to get around to it. If you havn't done so by later tonight, I'll try starting one with my own suggestions for Constitutional reform. Of course, you're right, many gov't critics scapegoat the constitution for producing Thaksin. But I think that several aspects of the charter were flawed from the start, and should be changed. More on this later.

On the topics of getting out a message to the grassroots, you're absolutely right. But it not only is going to take money, it also will need a lot of time, years even. Furthermore, without the rule of law, trying to organize politically in the countryside can be a pretty dangerous undertaking. TRT, because it controls the levers of the state, can use local gov't officials and village heads to serve as its organization and get its message out. You'd have to build a parallel grassroots organization - an uphill task partly because the powers that be would use every dirty trick in the book (intimidation, harassment, bribery, organized crime) to stop you. One model that maybe you could turn to is the Japan Communist Party. Their representation in parliament is small, but their local-level organization is nothing less than impressive and their presence is felt in city councils throughout the country. And this is in spite of (or because of?) the occasionally harassment by right-wing groups and their friends in the yakuza.

[Tettyan]

Thanks to Scuba22 for starting this thread. While I do not blame the 1997Constitution for most of the country's ills, I do think that many provisions of the charter are fundamentally flawed. I'll start today with discussing the Senate. I'll write more on other constitutional topics later. Any comments are especially welcome. Now, where were we?

The authors of the consitution had some very strange assumptions about human nature. They wanted an elected, but DE-POLITICIZED Senate. How you can obtain a non-political institution that is elected is beyond me. The authors thought they could do it by barring CURRENT political party members from standing as candidates. They also banned campaigning. Candidates were only allowed to post statements, and it was thought that voters would elect Senators based on their resumes. Instead, the restrictions on campaigning end up benefiting those with established political networks and high name-recognition. In other words, family, friends and relatives of powerful politicians. So now we wonder why the Senate can't check and balance the House.

All senators are elected for 1 six year term and can't stand for re-election. Terms are not staggered, so every six years, you have an entirely new Senate, which is not good for stability. The single-term rule also makes it more difficult to hold Senators to account, as this gives them an incentive to milk the post for all its worth and then cut-and-run.

So here are my ideas for Senate reform -

-Extend the ban on party members from becoming Senators. Candidates should not have been affiliated with or donated to a political party for at least two years before standing as a Senate candidate.

-Allow Senators to be re-elected and serve a maximum of two terms (12 years).

-Stagger Senate terms, so that half of the Senate comes up for election every 3 years. This will make it less likely that the whole Senate represents the political mood and whims of only a single point in time.

[Scuba22]

Tettyan -

Do you have a good idea of how the 1997 Constitution was created? I had heard about a rather thorough process involving lots of road shows to the provinces to get real grass-roots input into the document. This is certainly the way one would hope it is done, creating an opportunity to raise political consciouness outside a partisan setting, rather than a theoretical academic ivory tower exercise (or worse yet, a partisan affair).

However, the way we keep talking about how little regard the masses have for rule of law or checks & balances makes me wonder how effectively the drafters of the constitution either took in the thoughts and perspectives of the people, or explained the rationale behind the decisions that were made.

One would think that if this really is a "Peoples' Constitution", then the "people" would be far more upset at how it has been trampled on (if anyone would like to argue that it has not been trampled on, I'd like to hear that argument). Yet the constitutional issue appears to be of interest mostly to us theoretical academic ivory tower geeks - so is this really a "peoples' constitution"?

On the issue of the Senate, I do find campaign regulations here rather bizarre though no less than in any other place I've seen. It does strike me as odd that the Parlimentary term (4 years, right?) is not so much different as the Senate term. The idea in the US system (this is what I'm familiar with, I'm not claiming it's an ideal) is that the lower house, 100% elected every 2 years, represents the immediate mood of the people, whereas the upper house (Senate), 33% elected every 2 years for a 6 year term (no limit) is a more "deliberative body", taking a longer more sober view than the lower-house rabble (though with VP Cheney telling Senators to "Go F--- themselves" on the senate floor, how "deliberative" the body is is open to question).

The changes you propose make sense to me, but I still think that real change will only come if the electorate demands it, not from structural fixes (though I agree that bad structure leads to additional problems, so it should be fixed).

One would think that as basic needs are taken care of (security, food, housing, medicine, education), attention would move to more philosophical concerns such as justice and harmony. In the US, philosophical issues are critical parts of the political dialogue - unfortunately they tend to be irrelevant and divisive issues like gay marriage or abortion. In Thailand, I see a more intense obsession with material gain beyond basic needs - once you have a motorcycle, you dream of a car, once you have a Toyota, you dream of a Mercedes. Where does the political consciousness begin - or is it actively suppressed through the focus on consumption and economic growth?

Scuba22



Scuba22

[Tettyan]

Scuba22,

I can't think of anything off the top of my head right now, but there are several good resources there about the drafting of the constitution.

Let me sum it up from the way I see it. Although the drafting was overseen by an "assembly" represented by academics and other prominent people throughout society (and chaired by Anand Panyarachun), the drafting was essentially a top-down process. The nuts-and-bolts of the document was written by a handful of French public law experts, some of whom later joined TRT and help the gov't develop clever legal means for getting away with what they do. In short, to call this a "People's Constitution" is a misnomer.

Essentially, the elite believed that the root causes of Thailand's political problems in the 90's was that democracy put power in the hands of country-bumpkins like Banharn and Chavalit. They wanted to change the rules of the game by making parties stronger, introducing some proportional representation, etc. This was partially designed to centralized politics and strengthen Bangkok's role in politics at the expense of the provinces. In this respect, at least, you can call the constitution a success.

Of course, I don't mean to bag on the constitution as a whole, as I think there are many good aspects about it. But it's probably anyting but a "People's Constitution."

[Scuba22]

I didn't realize that Anand led the drafting, that's fascinating. From everyone I speak to, the two most respected recent Thai leaders (apart from HM) seem to be Anand & Prem, neither of whom were elected, I believe. Isn't that curious?

I thought that the shift to more central power was a response to rural constituencies being under the control of local mafia-type bosses, so with greater province power, these mafia types tended to create little kingdoms everywhere.

The issue of central vs. local power is a tricky one. We in the US fought our bloodiest war over it - everyone knows the US Civil War was about slavery, but that's only one issue. The South didn't argue that slavery was good, they basically argued that the federal government had no business telling them what they could or couldn't do. This same tension survives to this day, with issues like abortion and gay marriage (which I must say are pretty stupid issues).

One good thing about local governance is that it gives opposition parties place to practice and show what it can do- kind of like Apirak in Bangkok. But of course this doesn't work if local power really is in mafia hands.

I notice now that many "reform" groups are calling for charter amendment or even a new drafting; do you know if any of these groups take the time to wander the country to explain the issues to the country bumpkins? I bet they're not as ignorant or apathetic as we urban intellectuals tend to believe.

Cheers,

Scuba22

[Tettyan]

After a little hiatus, I'm back, at least for a little while. Now, as for your comments...


I thought that the shift to more central power was a response to rural constituencies being under the control of local mafia-type bosses, so with greater province power, these mafia types tended to create little kingdoms everywhere.

I admit that this is a tricky issue, and it's one that I am trying to study closely. While I don't want to downplay the problem of local mafias, the issue is often blown out of proportion by vested interests in the central bureaucracy in order to block decentralization. The teachers' recent protests against decentralizing education is a case in point. I'd be happy to discuss this further.


I notice now that many "reform" groups are calling for charter amendment or even a new drafting; do you know if any of these groups take the time to wander the country to explain the issues to the country bumpkins? I bet they're not as ignorant or apathetic as we urban intellectuals tend to believe.

I wonder if the "reform" groups are just as out of touch as other urbanites. It seems like folks upcountry are much more likely to have faith in Thaksin than in NGOs or other "citizens' groups".

Best,

Tettyan

[BangkokPundit]

The nuts-and-bolts of the document was written by a handful of French public law experts, some of whom later joined TRT and help the gov't develop clever legal means for getting away with what they do.

Do you have a source for this?

In short, to call this a "People's Constitution" is a misnomer.

You are kidding me. Do you seriously have a problem with legal experts drafting the wording to reflect the intent of the Constitutional Drafting Assembly? This is how all laws are drafted. Do you expect some villager in Isarn to be able to draft a legal document?

For some factual information on the on the drafting process of the 1997 Constitution, you can read this article entitled "THE THAI CONSTITUTION OF 1997 SOURCES AND PROCESS (http://members.tripod.com/asialaw/articles/constburns1.html)", I have copied and pasted the relevant section below.


4. The Drafting Process and mass participation in the process

Behind these figures stood the restive public which was unwavering in its support of reform. Their pressure took the form of focusing on specific areas needing reform. An Assembly of the Poor had farmers march on Bangkok during the debate. Groups demanding justice for loss of land because of dam construction added their voices. Three projects were scrapped as a result of this grass roots pressure.

Responding to this pressure and the groundswell of support for reform, the parliament passed a Constitution Amendment Bill in May, 1996. It provided for the formation of a Constitutional Drafting Assembly (CDA) made up of ninety-nine members. Seventy-six members were drawn from the provinces, one from each. The others were experts in public law, political science and public administration shortlisted by universities, to be chosen by Parliament. This formula seemed to satisfy all sides. The CDA was to conduct a survey of public opinion through hearings and was to finalise a draft for presentation to Parliament in 240 days. If Parliament voted short of a majority, a public referendum would be held. A simple majority of eligible voters would be sufficient to approve it. The people had finally gained a real place in the process.

30 NGOs including Campaign for Popular Democracy (CPD) were supportive (http://66.102.7.104/search?q=cache:2CXzcoRgPx4J:www.ids.ac.uk/ids/civsoc/final/thailand/tha6b.doc) of the 1997 Constitution at the time as well. One wonders whether there desire of change is because they dislike everyone. They all hate Thaksin, but prior to Thaksin coming into power many of these NGOs weren't big fans (http://66.102.7.104/search?q=cache:Men5DdWtA_8J:econ.tu.ac.th/class/archan/somboon/on%2520Thailand/baker.pdf) of Chuan in 2000.

[Wisarut]

Khun Tettyan, you are refering to Ai Bhokhin who isan expert on French law ... and draft 1997 consittution :p

[Tettyan]

Do you have a source for this?

This is something I remember off the top of my head - if you want an MLA footnote with source, quotation and date, its gonna take me a while. Since I have been traveling, I don't have access to LexisNexis. Let me assure you though that I would never post anything if I didn't believe it to be true.


You are kidding me. Do you seriously have a problem with legal experts drafting the wording to reflect the intent of the Constitutional Drafting Assembly? This is how all laws are drafted. Do you expect some villager in Isarn to be able to draft a legal document?

No, I don't have an inherant problem with this. And this is in spite of my particularly low regard for French law, which is another subject altogether.

Having Thai NGO's in support of the constitution by itself hardly makes it a people's constitution. I may differ from you and Tom on many subjects, but I do share you're somewhat low regard for Thai NGOs. Thanks for the link, by the way.

For some factual information on the on the drafting process of the 1997 Constitution, you can read this article entitled "THE THAI CONSTITUTION OF 1997 SOURCES AND PROCESS (http://members.tripod.com/asialaw/articles/constburns1.html)", I have copied and pasted the relevant section below.


4. The Drafting Process and mass participation in the process

Behind these figures stood the restive public which was unwavering in its support of reform. Their pressure took the form of focusing on specific areas needing reform. An Assembly of the Poor had farmers march on Bangkok during the debate. Groups demanding justice for loss of land because of dam construction added their voices. Three projects were scrapped as a result of this grass roots pressure.

Responding to this pressure and the groundswell of support for reform, the parliament passed a Constitution Amendment Bill in May, 1996. It provided for the formation of a Constitutional Drafting Assembly (CDA) made up of ninety-nine members. Seventy-six members were drawn from the provinces, one from each. The others were experts in public law, political science and public administration shortlisted by universities, to be chosen by Parliament. This formula seemed to satisfy all sides. The CDA was to conduct a survey of public opinion through hearings and was to finalise a draft for presentation to Parliament in 240 days. If Parliament voted short of a majority, a public referendum would be held. A simple majority of eligible voters would be sufficient to approve it. The people had finally gained a real place in the process.

30 NGOs including Campaign for Popular Democracy (CPD) were supportive (http://66.102.7.104/search?q=cache:2CXzcoRgPx4J:www.ids.ac.uk/ids/civsoc/final/thailand/tha6b.doc) of the 1997 Constitution at the time as well. One wonders whether there desire of change is because they dislike everyone. They all hate Thaksin, but prior to Thaksin coming into power many of these NGOs weren't big fans (http://66.102.7.104/search?q=cache:Men5DdWtA_8J:econ.tu.ac.th/class/archan/somboon/on%2520Thailand/baker.pdf) of Chuan in 2000.

[Tettyan]

BKK Pundit,

Thanks for answering my call and welcome to this forum!

Do you have a source for this?

This is something I remember off the top of my head - if you want an MLA footnote with source, quotation and date, its gonna take me a while. Since I have been traveling, I don't have access to LexisNexis. Let me assure you though that I would never post anything if I didn't believe it to be true.


You are kidding me. Do you seriously have a problem with legal experts drafting the wording to reflect the intent of the Constitutional Drafting Assembly? This is how all laws are drafted. Do you expect some villager in Isarn to be able to draft a legal document?

No, I don't have an inherant problem with experts taking a prominent role. And this is in spite of my particularly low regard for French law, which is another subject altogether.

Having Thai NGO's in support of the constitution by itself hardly makes it a people's constitution. I may differ from you and Tom on many subjects, but I do share you're somewhat low regard for Thai NGOs. Thanks for the link, by the way. If anything, it shows the degree to which the process of drafting the constitution was rushed. Encouraging "public" participation seemed more like window dressing rather than true "grassroots" input. I have always felt that the public debate and vetting of the constitution was insufficient. This came partly from a desire for a clean break from the era of military rule and Thais' disappointment with how democracy developed after Black May, compounded by the 1997 crisis. Opposing the constitution meant you were tagged with the "anti-reform" lablel - even when many didn't understand the meaning of reform or the contents of the constitution. Very similar, I think, to how the "Koizumi Reforms" in Japan have been pushed through.

In short, my contention was that the process of drafting the constitution was a "top-down" process. This doesn't make it a bad constitution inherantly. But from the beginning, I always felt there were a number of flawed provisions - and they don't all have to do with Thaksin, just look at my post on the Senate for instance. I was hoping to post more of my ideas here on what needs to be changed, but I simply havn't gotten around to it yet.

Regards,

Tettyan

Khun Tettyan, you are refering to Ai Bhokhin who isan expert on French law ... and draft 1997 consittution

Khun Wisarut,

You might be right on this one, but don't quote me on it yet, as I need to check it out again first.

-Tettyan

[BangkokPundit]

This is something I remember off the top of my head - if you want an MLA footnote with source, quotation and date, its gonna take me a while. Since I have been traveling, I don't have access to LexisNexis. Let me assure you though that I would never post anything if I didn't believe it to be true.


I'll wait. I can probably help you a little bit. Some of the people who drafted the constitution were educated in France. I have never heard of French public law experts being involved in drafting the constitution so would be interested on any source you have to back this up.


and help the gov't develop clever legal means for getting away with what they do.


You mean by advising them what is within the law so they don't do anything unconstitutional. Isn't that what lawyers do? I guess the Democrats didn't do the same.

Having Thai NGO's in support of the constitution by itself hardly makes it a people's constitution. I may differ from you and Tom on many subjects, but I do share you're somewhat low regard for Thai NGOs.

In 1998, the NGOs are for the Constitution and lobbying that it be approved. Eight years later things have changed. Before some of the NGOs take a stand for or against something, they might consider thinking things through properly.


Encouraging "public" participation seemed more like window dressing rather than true "grassroots" input. I have always felt that the public debate and vetting of the constitution was insufficient.


Welcome to the world of public hearing and "consultations". The average uneducated person in Thailand is hardly going to appreciate what the provisions mean or what the provisions should be, but I do think an effort was made to seek input. Whether this constitutes a 'people's constitution' is still up for debate, but in the world of constitution drafting it

For the rest of your post, I generally agree except I don't think the drafting process was rushed, but we can agree to disagree on that. I would prefer to give the Constitution 20 years or so and then take a look again. Some of these groups were praising the Constitution 8 years ago, but now want changes. For me, I am not satisifed that changes are necessary right now. Having said that, if there changes to be made I agree with points 2 and 3 of your idea for senate reform. I don't think point 1 is necessary. I would go further and also remove s125(2) which requires a person being at least 40 years of age and s125(3) requring the person have at least a Bachelor's Degree or its equivalent. In addition, I would take a serious look at s107(5), which per viture of s15(4), also applies to Senators.

[Scuba22]

Hi Bangkok Pundit -

Thanks for your posts and welcome to the discussion! I'd love to hear your perspective on the question I posed in a previous post regarding how "the people" are regarding the constitutional questions now under debate. This question assumed two premises: first, that various elements of the spirit of the constitution (if not the letter) have been violated by the current government and second, that the constitution is actually understood by "the people"

What do you think of the premise that TRT and Thaksin have not adhered to the spirit of the constitution, specifically regarding the checks and balances that were to be provided by the Senate, NCCC, Constitutional Court, AMLO, NBC, and other "independent" watchdog agencies? Do you believe that the current government has acted in good faith regarding these agencies and oversight provisions? That nominations and selection of these committees and agencies has been done in a fair, open, and impartial manner to ensure that they act in the best interest of the country and not specific private interests? That the agencies and their members have not been able to execute their duties without undue pressure from parties subject to their oversight? I believe these questions are in line with the spirit of the constitution and that they have been violated on numerous occasions - what do you think?

On the second premise, you mentioned that "The average uneducated person in Thailand is hardly going to appreciate what the provisions mean or what the provisions should be" - I find this deeply troubling. I don't think that everyone needs to be a law scholar, and it demeans the discussion to make such an absurd straw man; but surely in a democracy where the "average uneducated person" is called upon to make critical decisions through their vote, a basic understanding of the fundamentals of their system of government is a necessary thing, no? If provisions are not widely appreciated or understood, then perhaps that is enough to warrant a rethinking of the provisions, the extent of consultations with the "people" or both?

The US Constitution, for example, is a very simple document on the face of it - only about 4,600 words not including amendments - and I think its simplicity lends to its resilience. Most articles concern the structure and basic functions of the federal government - how old people should be for offices, voting mechanisms, etc. Most people have a basic understanding of these things, even if they can't get into a detailed discussion on the interstate commerce clause.

Most Americans have a rough idea of the Bill of Rights as well. Even if they can't recall the first 10 amendments as such, they know they have freedom of religion, assembly, to bear arms, against self-incrimination, cruel & unusual punishment, unreasonable search & seizure, a speedy trial, due process, etc. These terms are in fact part of a common lexicon - just about everyone recognizes them even if they have different opinions of what they mean or can't even explain their understanding in depth.

Can the same be said of the Thai Constitution? Do people understand what the NCCC is and what it's supposed to do? Why there are party list MPs as well as constiuency MPs? Or is it just a blur and the real issues are rice and water?

If you ever visit the US National Archives in Washington DC, where the original copy of the Constitution and Bill or Rights are displayed, you see a long line waiting to get in to take a look. Inside, the atmosphere is reverential, as if people are instictively aware of a "sacredness" of the documents. I do believe that Americans do feel that the Constitution, the document, is inherent to their constitutions, their being.

I feel that this connection between peoples' internal viewpoints (the little c consitution) must align with the written document (the Big C Constitution) for the document to have real meaning, resilience and relevance. If not, it's just a bunch of words on paper.

I'm anxious to hear your thoughts.

Best regards,

Scuba22

[Tettyan]

Bangkok Pundit -

Some of the people who drafted the constitution were educated in France. I have never heard of French public law experts being involved in drafting the constitution so would be interested on any source you have to back this up.

Before there's any more misunderstanding, let me clarify myself. I meant Thai experts in French Public Law. Sorry for the confusion.

Best,

Tettyan

[Tettyan]

I was just looking through my earlier post on the Senate and realized that I forget to mention something. I talked about how the drafters of the constitution tried to obtain an elected but depoliticized Senate by banning campaigning.

They [the constitution drafters] wanted an elected, but DE-POLITICIZED Senate. How you can obtain a non-political institution that is elected is beyond me. The authors thought they could do it by barring CURRENT political party members from standing as candidates. They also banned campaigning. Candidates were only allowed to post statements, and it was thought that voters would elect Senators based on their resumes. Instead, the restrictions on campaigning end up benefiting those with established political networks and high name-recognition. In other words, family, friends and relatives of powerful politicians.

You can add TV personalities (Chirmsak, Samak, etc.) and others with high name recognition to the list of those who benefit from the current restrictions on Senate campaigning. So I think the most important reform the Senate needs is a removal of the ban on campaigning. That would at least allow candidates to compete on a more level playing field.

A politically neutral Senate is impossible to obtain so long as there are elections. If the constitution framers really wanted a de-politicized Senate, they shouldn't have allowed for elections in the first place. That said, I think replacing the appointed Senate with an elected one was not a bad idea.

BKK Pundit - I agree with your suggestions for removing other restrictions for Senate candidates. I kind of am with Scuba22 on the matter of constitutions in general - brevity is beautiful. There are many provisions in the 1997 charter that probably should have been settled by by-laws rather than incorporated into the main document.

[BangkokPundit]

What do you think of the premise that TRT and Thaksin have not adhered to the spirit of the constitution, specifically regarding the checks and balances that were to be provided by the Senate, NCCC, Constitutional Court, AMLO, NBC, and other "independent" watchdog agencies?


Who decides what the "spirit" of the constitution is? If people don't like what Thaksin has done they can challenge what Thaksin has done in the Constitutional Court (a quick glance of the Constitution shows ss 262 & s264 provide for challenges). The Emergency Decree to amend the Criminal Code was enacted on 9 August 2003 to provide for specific terrorism provisions. The Emergency Decree was enacted in accordance with s218 of the Constitution. The constitutionality of these provisions was then challenged, but the Constitutional Court upheld the provisions as being in accordance with s218.

I should point out here that I don't agree with everything that Thaksin does. I just see him as the lesser of two evils, but am still quite partial to Abhisit and the Democrats of 99-00.


Do you believe that the current government has acted in good faith regarding these agencies and oversight provisions? That nominations and selection of these committees and agencies has been done in a fair, open, and impartial manner to ensure that they act in the best interest of the country and not specific private interests?


I have not followed every single nomination and selection, but there is a legal process to follow. Thaksin can say he is following the law, critics can say he is not. It is the Constitutional Court which has the power to decide. My opinion is irrelevant as to whether what he has done is illegal. The question of whether he has acted in good faith to me is also irrelevant. It is legality of Thaksin's actions which concerns me.


That the agencies and their members have not been able to execute their duties without undue pressure from parties subject to their oversight? I believe these questions are in line with the spirit of the constitution and that they have been violated on numerous occasions - what do you think?


See above.


On the second premise, you mentioned that "The average uneducated person in Thailand is hardly going to appreciate what the provisions mean or what the provisions should be" - I find this deeply troubling. I don't think that everyone needs to be a law scholar, and it demeans the discussion to make such an absurd straw man;


I was referring to the drafting of the Constitution and the public consultation process and Tettyan's reference to the top-down process. Thus, before the provisions were finalised and talk was on the drafting the average uneducated person is hardly going to going to appreciate what the provisions mean or should be. IE Should there be an extra word here or there? I think the public consultation process was adequate otherwise it extend would just become farcical (as then becomes more for show than anything else). There are going to be disagreements on whether a particular provision should be in the Constitution or not, and that was what MPs were there for to vote on the draft of the Constitution (personally I would rather have subsequent approval of the Constitution by a plebiscite, but alas this option was only provided for if the MPs rejected the draft).


[Q1] Can the same be said of the Thai Constitution? [Q2] Do people understand what the NCCC is and what it's supposed to do? [Q3] Why there are party list MPs as well as constiuency MPs? [Q4] Or is it just a blur and the real issues are rice and water?


[Q1] No. [Q2] No. [Q3] No (as in people don't understand why this provision is there). [Q4] Yes, but I wouldn't use those words and would say they are more worried about their physiological needs safety needs (http://en.wikipedia.org/wiki/Maslow's_hierarchy_of_needs).



If you ever visit the US National Archives in Washington DC, where the original copy of the Constitution and Bill or Rights are displayed, you see a long line waiting to get in to take a look. Inside, the atmosphere is reverential, as if people are instictively aware of a "sacredness" of the documents. I do believe that Americans do feel that the Constitution, the document, is inherent to their constitutions, their being.

I feel that this connection between peoples' internal viewpoints (the little c consitution) must align with the written document (the Big C Constitution) for the document to have real meaning, resilience and relevance. If not, it's just a bunch of words on paper.


I don't want to get into a long theoretical debate about constitutions (I don't want to relive Con Law all over again!), but do you realise there are functioning democracies without a single document called a constitution (Israel, UK, and New Zealand) and other countries that have a constitution, but no Bill of Rights (Australia). They seem to survive ok. Well, the UK's political system has been around for almost 1000 years now so I would say that it is doing ok.

Slightly off-topic and not related to Thailand (but it might help you to understand where I am coming from), I also disagree with the concept of a constitutionally enshrined Bill of Rights (see this summary of Waldron's arguments on why a Bill of Rights isn't necessary (http://66.102.7.104/search?q=cache:Eyfa6O5BC5cJ:www.psa.ac.uk/cps/1996/fabre.pdf+waldron+bill+of+rights&hl=en). I generally agree with Waldron).

Back, on topic.


but surely in a democracy where the "average uneducated person" is called upon to make critical decisions through their vote, a basic understanding of the fundamentals of their system of government is a necessary thing, no? If provisions are not widely appreciated or understood, then perhaps that is enough to warrant a rethinking of the provisions, the extent of consultations with the "people" or both?


For me, I don't see the necessity of exporting of what I believe to be the American fascination (or what could be crudely described as obsession) with their constitution. Yes, people need to understand the general provisions of a constitution and their system of government, but this doesn't mean they need to know the entirety of the Thai Constitution. The Thai Constitution is only 8 years old and it is going to take time for people to understand the necessity of certain provisions or in some cases the reasons why the system of government they have is as it is no. This is more why I don't think the Constitution should be changed now. Give it 20 years or so. When people see the Constitution in action (like the challenge on the EGAT privatisation) they can they decide on the necessity of such provisions. This is how I see people will eventually understand the constitution. This won't happen quickly.

I think what is more important is people know what policies they want from government and they should spend more of their time focusing on this as opposed to theoretical debates on the form of the constitution – which ironically I am becoming involved in here. Once people know what they want from government they will then also learn more about their system of government

[Scuba22]

Dear B Pundit:

Thanks so much for your post, and apologies for the delay in responding. I hope you had an excellent holiday season and are enjoying the New Year!

Who decides what the "spirit" of the constitution is?

The spirit resides in the intent or objectives of the document, akin to a description or photo of a dish to be prepared using a particular recipe; whereas the procedural portions of the document are more similar to the recipe directions to achieve the goal.

The spirit can be explicit in the document itself, in preambles or introductory passages such as Chapters I-V of the Thai constitution. If goals are not explicit, the question becomes more difficult, but no less relevant. I can’t find an explicit phrase that says that the NCCC or Constitutional Court is intended to provide a check on the government, or that government should not interfere in the independent operations of these agencies, yet I think a good case can be made that these ideals are the basis of creating these agencies, and thus if they are not met, the constitution has been violated.
According to the constitution itself, the judiciary up to the Constitutional Court is empowered to determine constitutionality, which I presume must include violations of the goals set out in Chapters I-V. As for unstated or implicit spirit, ultimately the people decide by either amending or scrapping the document.

Your arguments indicate that your concern is solely with procedure, ie whether or not Thaksin has acted to the letter of constitutional processes. Are you saying that the principles outlined in the first chapters are meaningless, or that the courts (or people) have no business in interpreting whether actions violate those principles?

Following a recipe is hardly useful if the result tastes bad.

I should point out here that I don't agree with everything that Thaksin does. I just see him as the lesser of two evils

What’s the other evil - the Democrats? My wife made a similar comment back in 2000, that sure, 50% of TRT are crooks, but 80% of Democrats are crooks. The question of “who else is there” is a vexing one, indeed – but doesn’t that get to the very heart of the governmental system? Why is it so difficult to find a decent leader out of 65 million people? (of course, as an American, I ask this quite often of my own country as well)

I think the public consultation process was adequate otherwise it extend would just become farcical (as then becomes more for show than anything else)…. (personally I would rather have subsequent approval of the Constitution by a plebiscite, but alas this option was only provided for if the MPs rejected the draft).

What are the criteria for an “adequate” public consultation? You state that people don’t really understand the constitution as they are primarily concerned with basic needs ala Maslow, so why have any consultation at all? And why have a plebiscite if people don’t understand what they’re voting for anyway? Wouldn’t that be exactly the farcical show that you mention?

but do you realise there are functioning democracies without a single document called a constitution

I’m indifferent as to whether a governance system should outlined in a single document or an amalgam of various sources as in the countries you mention. My point was that the governance system itself, regardless of documentary form, ought to be understood and taken seriously in a democracy. Otherwise, the whole system is a farce and for show, and the system is NOT a democracy but a oligarchy with democratic pretenses. Would you say that about the Thai government?

For me, I don't see the necessity of exporting of what I believe to be the American fascination (or what could be crudely described as obsession) with their constitution.

Americans have no common ethnicity, language, religion, or any of the other things that normally hold a people together; the law is pretty much our common bond, and the constitution is the highest embodiment of that law. Whether or not people understand this consciously, it is evident in everyday behavior. Traffic rules are a good example – Americans visiting Thailand routinely ask me questions about legality (“are you allowed to do that”?). Watching normal Thai driving patterns it’s clear that the “law” is approached as loose guidelines to be ignored when inconvenient. I’d say the “fascination” or “obsession” with the Constitution is similar to the emotional connection of Thais with HM – we may not have copies hanging in every home, but the ideas are definitely in every person.

I agree that this relationship need not be exported, there are plenty of other things that unite people in a common bond. But again, why even have a constitution if it’s not going to mean very much?

When people see the Constitution in action… they can they decide on the necessity of such provisions. This is how I see people will eventually understand the constitution. This won't happen quickly.

But isn’t that what’s happening now? Aren’t some people (not the great unwashed I grant you) seeing the document in action (or inaction), and that’s what’s leading to the calls for reform? That the document was drafted without widespread understanding is fine, but to change it requires time and popular understanding? Maybe I'm missing something, but that seems a bit contradictory to me.

I think what is more important is people know what policies they want from government and they should spend more of their time focusing on this

But isn’t this the essence of the “sprit” of the constitution?

Best regards,

Scuba22

[Scuba22]

Yeah, it seems a lot of the more honest reformist elements have left out of disgust and the party is now an uneasy coalition of various old-school provincial bosses and protectionist Bangkok businesses. My feeling is that the TRT supplemented the traditional money-politics of the old-school bosses with fresh capital from the the Bangkok businesses and used the rhetoric of the reformers to gain popularity both at the grass-roots (the rural giveawap programs) and the urban & international community (through portraying themselves as modern capitalists).

Now that the reformists have scattered, we're seeing the level of real committment to rural development in the lackadasical implementation of the grass-roots program; and I suspect there area also clashes between the protectionist and internatioanal business communities, but that these tend to be in arcane areas like FTA talks that we don't hear much about.

I think that to hold this together, you need far better political skills and far more charisma than Thaksin can muster; you need to be at a level of a Lee Kwan Yew, or at least a Mahathir. The least you can say about both of them is that they clearly cared deeply for their countries. I honestly don't get that feeling from Thaksin - I really think his interest is in himself, his family, and his own personal supporters; I suspect that he doesn't see any difference between the country and his own personal interests. That's probably the scariest thing about him to me.

I think this belongs in the "TRT factions" thread instead....

Cheers,

Scuba 22

[The Enforcer!]

Guys,

May I give you a political thought ....

No government will ever change the procedure that got it elected!

The Enforcer!

[Clayton]

Perhaps, though wouldn't you consider the moving of constituency boundaries in an advantageous manner (as in the UK) a change? Or maybe they could scrap the procedure entirely and declare themselves the ruling power for life!

[Scuba22]

No government will ever change the procedure that got it elected!

There are a few exceptions to this, and when it happens it's really remarkable. For example, in 1948, Don Pepe Figueres led a military coup in Costa Rica that toppled the existing government and established himself as president. After he took power, he promptly disbanded the military, established a term limit for president, and when his term was over, stepped down. He also gave the vote to women and full citizenship to blacks. To this day, Costa Rica has no military, and Don Pepe is a national hero.

Unfortunately, you don't see too many characters like him. Certainly not around here. That's why you need some kind of independent authority to make these decisions. It's a similar situation in the US, where the political parties control a lot of the district boundaries and set the system up with "safe seats" that never change hands. the US Congress has a lower turnover rate than the Kremlin had in the Soviet era. It's appalling - yet instead of this being a major political issue, people waste their time arguing about evolution, gay marriage and abortion.

Scuba22

[BangkokPundit]

...yet I think a good case can be made that these ideals are the basis of creating these agencies, and thus if they are not met, the constitution has been violated.
According to the constitution itself, the judiciary up to the Constitutional Court is empowered to determine constitutionality, which I presume must include violations of the goals set out in Chapters I-V. As for unstated or implicit spirit, ultimately the people decide by either amending or scrapping the document.
Your arguments indicate that your concern is solely with procedure, ie whether or not Thaksin has acted to the letter of constitutional processes. Are you saying that the principles outlined in the first chapters are meaningless, or that the courts (or people) have no business in interpreting whether actions violate those principles?


Well, s264, in conjunction with s6, gives power to the Constitutional Court to decide on the constitutionality of any law. I have no problem with the Constitutional Court deciding the constitutionality of any law or government action. I thought I was already clear on that and that was if an organisation wants to challenge the actions of Thaksin/the government, they can always bring an action in the Constitutional Court. The Constitutional Court can then decide. Just like some members of the Senate want to challenge Thaksin's actions of negotiating/implementing FTAs without parliamentary approval, this is a matter for the Constitutional Court to decide.


Following a recipe is hardly useful if the result tastes bad.


Well, who determines that the taste is bad? The judiciary? Or the people through democratic elections? If people don't like the Constitution, they should seek amendment of the Constitution in accordance with Chapter XII - and petition MPs to vote for the amendment of the Constitution. Yes, I know that is what some people are trying to do, but polls (http://bangkokpundit.blogspot.com/2006/01/amending-constitution.html) suggest that people, even in Bangkok!, are divided over the proposed amendments to the Constitution. If people want to amend the Constitution that is their prerogative, but just don't expect me to be jumping on the bandwagon.


What’s the other evil - the Democrats? My wife made a similar comment back in 2000, that sure, 50% of TRT are crooks, but 80% of Democrats are crooks. The question of “who else is there” is a vexing one, indeed – but doesn’t that get to the very heart of the governmental system? Why is it so difficult to find a decent leader out of 65 million people? (of course, as an American, I ask this quite often of my own country as well)


The Democrats over the last 5 years have disappointed me. I was hoping Abhisit would turn things around, but it hasn't happened.


What are the criteria for an “adequate” public consultation? You state that people don’t really understand the constitution as they are primarily concerned with basic needs ala Maslow, so why have any consultation at all? And why have a plebiscite if people don’t understand what they’re voting for anyway? Wouldn’t that be exactly the farcical show that you mention?


Well, what are the criteria for democracy? My personal opinion is that there was adequate public consultation, if you want disagree, well you can. I never said that people don't really understand the constitution. If people believe they are informed enough to vote then I am not going to say they can't vote, it is their choice.


I’m indifferent as to whether a governance system should outlined in a single document or an amalgam of various sources as in the countries you mention. My point was that the governance system itself, regardless of documentary form, ought to be understood and taken seriously in a democracy. Otherwise, the whole system is a farce and for show, and the system is NOT a democracy but a oligarchy with democratic pretenses. Would you say that about the Thai government?


What makes you think it is not take seriously in Thailand. No, I wouldn't say that about the Thai government.

I don't think this is really going anywhere as we seem to be going around in circles. 5 years ago Anand Panyarachun said (http://www.irrawaddy.org/aviewer.asp?a=2047&z=104):
"This Constitution is like a car, which has yet to accelerate to its full speed. It would be premature to judge its merits now."

I still think this statement holds true today. I would prefer waiting another 10 years before looking at amending the Constitution.

[Scuba22]

Hey BK Pundit!

Welcome back, great to see you!

I don't think this is really going anywhere as we seem to be going around in circles.

I'm sorry you feel that way, I was quite enjoying this discussion. I'm no con law expert (as you can probably tell!), I have trouble understanding the nuances of these issues and I see very little substantive debate in the english press. so I like to ask questions of others who appear to have strong convictions on these matters Of course you are entitled to your opinion, I was just hoping there was more to it than "that's just the way I feel, so leave me alone." I see plenty of that in the english press.

You keep referring to constitutional provisions for consitutional change, where others are claiming that those provisions themselves are problematic - that the independence of the Constitutional Court is in doubt, and that the democratic process outlined in the constitution may have holes, including the processes for amending the document. Some of these arguments appear sensible to me - the way Thaksin was aquitted for his wealth concealment charge smelled funny, and the provisions designed to steer away from multiparty chaos appear to have created an unintended juggernaut with substantial influence over bodies which were also intended to be independent.

But I admit I know little of these matters, so it's helpful to learn what I'm missing. You have faith in the Constitutional Court - do you believe that it is independent? Do you believe that the results of the current democratic process are achieving the intention of a representative responsive government serving the will of the people? If so, on what grounds? And why are those who are suspicious about these influences wrong?

Well, what are the criteria for democracy?

Excellent question. And who decides? And who decides who decides? And so on. The mental gymnastics go on forever. But practicality dictates that we pick the best model we can come up with (including the definition of "we") and keep track of whether it's working or not, fixing things where we can, and starting over when we need to. I think it's more of a process than a result.

I never said that people don't really understand the constitution.

You're right, that's true. You never said "people don't really understand the constitution". Apologies. What you DID say was "no" to a question about whether the Thai people understood their constitution to a similar extent as Americans understand their own - which I described a a vague idea of the principles, rights and government structure without much detailed knowledge of processes or nuance. I assumed that if people didn't even have such a vague idea, they can be said to "not really understand" the document, especially, as you claimed, while they are preoccupied with lower-order Maslow needs.

So now you're saying that people DO understand the constitution, even though they don't have a vague idea about it? Got it, thanks.

What makes you think it is not take seriously in Thailand.

Well, for a start, people claiming that it had adequate public consultation and is generally understood even though most don't have a vague idea about it.

That's a nice quote from K. Anand by they way, but if your car explodes, maybe it's worth considering a new car, no?

Best regards!

Scuba22

[Tettyan]

The Democrats over the last 5 years have disappointed me. I was hoping Abhisit would turn things around, but it hasn't happened.

Please elaborate. How have they disappointed you? What makes them worse than Thaksin? And you seriously think that 11 months was enough time to give to Abhisit to turn things around? Are we applying double standards to the criteria we use to judge political figures?

[Wisarut]

One thing that Democrat LETS Peope down is that they have NEVERE come up with any tangible alternative policies AGAINST TRT populists policies. Just saying that they would NOIT follow populist policies is NOT enopugh at all.

Even worse,many Isan voters have NEVER forgiven when Khun Chuan asking Security to send DOGs to EAT those demostrators in frotn of government houses ....

[The Enforcer!]

Perhaps, though wouldn't you consider the moving of constituency boundaries in an advantageous manner (as in the UK) a change? Or maybe they could scrap the procedure entirely and declare themselves the ruling power for life!
Arh ... Gerrymongering as it is called.

Labour did it a lot in London ahead of the 2001 election - for North Southwark & Bermondsey, for example, it added two wards of its own party and deleted two held by the incumbant's party. Although they failed to win the seat, the majority dropped!

The Enforcer!

[Scuba22]

Hi Enforcer -

Sorry to be annoying, but it's actually "gerrymandering", from Gov Elbridge Gerry, a governor of Massachusettes who was notorious for the practice, and "salamander", which some of the districts apparently looked like after Gerry was done with them. Gerry + salamander = gerrymander.

Great political term - so vivid!

Cheers!

Scuba22

[BangkokPundit]

Thanks for the link, by the way. If anything, it shows the degree to which the process of drafting the constitution was rushed. Encouraging "public" participation seemed more like window dressing rather than true "grassroots" input. I have always felt that the public debate and vetting of the constitution was insufficient.
...
In short, my contention was that the process of drafting the constitution was a "top-down" process.

I just spotted the below article and since it adds to the debate - ok I am only using it as adds to the point I was trying to make. The Nation says (http://www.nationmultimedia.com/specials/sondhi/a12.php):
When 99 charter writers spent 233 days working on the draft of the People’s Constitution in 1996, some 843,556 people participated in the drafting process to ensure a successful political reform.
Again, I repeat what I said above, I think the constitution drafting process was adequate.

[Scuba22]

843,556 people, eh? Wow, a whole 2-3% of the voting population! Yep, sounds pretty "adequate" to me.

BTW, I love the "precision" of "843,556" - of course it wasn't 843,555 or 843,557! You've got to wonder where they get numbers like that.

Cheers,

Scuba22

[GWR]

Not much room for humor in the latest 'Chang Noi' column. Just a concise description of how a new constitution might arise, or fall by the wayside:-

The narrow road to a new constitution

What exactly is the route to a new constitution? Several people have voiced concern about the procedure, so it's worth describing in as simple terms as possible to show why this concern is real.

The procedure is laid down in the interim charter which came into force at the beginning of this month. The charter's preamble says it wants "to hasten the process of drafting a new constitution with wide participation from people at every stage". This wording calls to mind the process of drafting the old constitution between 1995 and 1997 when there were meetings held all over the country, surveys to collect opinions, and a lively debate in the media and on public platforms. The process starts with the appointment of a National Convention of 2,000 people, which recalls a similar body assembled for a similar purpose in 1973-4. That again was a time when opinions were gathered from various sections of society.

But these similarities to past drafts are misleading. On this occasion there is a much tighter time constraint. But also there seems to be a stronger desire to keep the process under close control. It's not clear that "wide participation from people at every stage" is really going to be part of the process.

The procedure starts with the King appointing 2,000 members of a National Convention. The head of the Council for National Security (CNS, the coup group) countersigns this appointment, which suggests that the members will be chosen by the CNS. The president of the new Legislative Assembly, who is also chosen by the CNS and formally appointed by the King, becomes President of the Convention with the sole power to decide its rules and procedures.

This National Convention has only one job: to select 200 of its own members for a Constitution Drafting Assembly (CDA). It has a week to complete this task, and if it fails then the CNS does it instead. The CNS then picks 100 from the 200 to sit in the CDA.

The CDA then chooses 25 people to form a Constitution Drafting Committee (CDC) and the CNS adds another 10 people. All these 35 can be members of the CDA or outsiders. In sum, all the constitution drafters are directly or indirectly chosen by the CNS.

The CDC then drafts a constitution, and makes the draft public along with an explanation of how and why it differs from the 1997 charter.

There is then a chance to propose some modifications, but the window is narrow. Only members of the CDA can propose amendments. Any slate of amendments needs the signatures of one-tenth of the CDA members, meaning 10 people. Each CDA member can support only one slate of amendments. These amendments are then submitted to the CDC, which compiles a report advising which ought to be accepted.

This whole phase, from the time the constitution draft is made public until the amendments are all collected and reviewed, has to take place within 30 days. This is the window for other opinions, and it's not opened very wide.

The CDA then has the opportunity to vote on the draft, but again the rules are rather restrictive. It can only vote yes/no on the draft as a whole. It can also vote on each amendment that appeared during the 30-day review process. It cannot introduce other amendments unless the CDC agrees, or unless three-fifths of the CDA sign in support.

Finally, the draft is submitted to a referendum. The referendum has to be held on a single day within a window from 15 to 30 days after the CDA accepts the draft. The voters have only the choice of a simple yes/no, with no opportunity for amendment. Approval requires a simple majority of those exercising their right to vote.

The final kicker comes in Clause 32 of the interim charter. If the CDA rejects the draft from the CDC, or if the process is not completed in 180 days, or if the draft is rejected at the referendum, the CNS and the Cabinet may select any of Thailand's past constitutions, take 30 days to make any amendments they like, and bring it into force.

The threat contained in this clause will hang over the whole process, especially voting on the referendum.

The interim charter contains a few give-aways about the kind of constitution we might expect. For example, there is a hint about the Senate. Members of the CDC are banned from "standing for election as a member of Parliament or holding the position of a senator" for two years. The latter part of this phrase clearly allows for senators to be appointed rather than elected. Of course, that could be considered just prudent drafting. But it also suggests that the likelihood of returning to appointed senators was rather top-of-mind among those designing this process for making the new constitution. That's not really a surprise. Appointed Senates have been a favourite device in constitutions written by Thailand's coup regimes.

Given this tight procedure and the possibility of some strong preferences among the people controlling the process, how is the "wide participation from people at each stage" going to be achieved?

The People's Alliance for Democracy has already decided to conduct its own parallel drafting process, using the 1997 constitution as its template. This strategy will send a powerful message to the CDC, but may not have much practical effect if the official draft is drastically different. Pressure has to be put on the CDA to do more than simply select the CDC and then consider its draft, as envisaged in the interim charter. The CDA must canvass opinions, and submit proposals to public scrutiny throughout the relatively short span of the drafting process.

Civil society must invest time in monitoring the process. The media have a huge responsibility to act as a public forum.

Chang Noi

http://www.nationmultimedia.com/2006/10/16/opinion/opinion_30016230.php

[Tettyan]

This takes us back to EXACTLY the same system we had before 1997. The whole reason they switched to centralised vote-counting was so that you couldn't see down to the polling-station level which way a village actually voted (and punish them accordingly, esp if the result was not as the poo yai promised). The whole idea behind party-list MPs was to encourage voters to think about national issues when they voted by giving them a national slate of candidates to select - in addition to a local slate. The whole reason we did away with multi-member districts and replaced them with single-member MPs was to make it harder for small, parochial parties to enter parliament and to discourage intra-party factionalism.

But I guess the pre-1997 system suits the powers to be just fine - with countless, weak, decentralised parties w/ no national platform, no agenda, built solely around small local cliques. Unweildy, coalition governments with more than 6-7 parties - where a group of 10 MPs can hold the survival of an entire government hostage to their narrow agenda. A system so dysfunctional that it can only be held together with the aid of shadowy, influential figures accountable to no one. My how little things have changed!

I hope they let this go to a referandum. I'll be happy to encourage everyone to reject it - especially if it looks anything like the 1991 charter.



CHARTER IN THE MAKING
Party list, single-MP electorates to be axed

February 9, 2007

The party-list MPs and single-MP constituency elections will be scrapped, the constitution drafting subcommittee chaired by Charan Pakdithanakul ruled yesterday.

The main reason for scrapping the party-list MPs is because the system allows capitalists to rise to power through money politics.

Charan had earlier voiced opposition against the party list MPs system on the grounds that it could lead to a presidential system, as some political parties cited they have overwhelming MPs support.

The subcommittee decided to maintain the number of constituency MPs at 400. It fears that politicians may oppose the new constitution if it reduces the number.

The subcommittee also ruled to scrap the single-MP constituency system to pave way for a multiple MP constituency system, in which each constituency will be larger and MP candidates who win the most votes respectively are elected in each province.

Vote counting will be changed from counting at the polling centre - where all ballots of that constituency are put together to be counted - and changed to combining three polling stations and counting the ballots in one place.

The new method of vote counting aims to curb electoral fraud by ballots or ballot boxes being changed on the way to the centre. The new method will also prevent canvassers from being able to check if voters vote for the candidate they want because the votes are not counted at the polling station.

The subcommittee also ruled against political parties merging during the administration and banned exit polls on the Election Day. They cannot decide yet whether to maintain the 90-day rule - in which MPs are required to be party members before the general election - or reduce the number of days they are required to be members.

Sathien Piriyaphanpongsa

The Nation

[Baton Rouge]

Well, I certainly sympathize with everything you have said. I suppose the point is really that powerful people here have the ability to subvert almost anything written into the constitution. They certainly did it Pre-Thaksin, and Thaksin himself was particularly adept at it. Indeed, that is the entire reason I despise the man so much. (So I'm unlike Bangkok Pundit, who seems to have a sneaking respect for the machiavellian skills of the man. Not me! I harbor strong long-term grudges against those who are unrepentently selfish.)

The point surely is that Thai politicians will continue to subvert the constitutional process however much thought goes into writing new constitutions. I think we can expect nothing positive in the long-term from yet another 'new' constitution. Thaksin used the '97 Constitution as a doormat. I think we can conclude that the '97 constitution has been an abject failure. This one seems no more likely to succeed, and Tettyan is certainly right to point out the inconsistencies that are already being written into it.

What is probably needed is for the electorate to react in a way that has not been entirely anticipated by the smug political classes. Ironically, it may actually be the current widespread disgruntlement in some areas of the country that starts that process. Both the CNS/monarchists and Thaksin seem to assume that they are more than capable of manipulating that discontent for their own ends. I'm rather hoping that both have bitten off more than they can chew. I'm hoping we may eventually get to witness one of those 'Ceaucescu' moments, when the political poker-players suddenly get to realize that they are not always capable of controlling the effects of their own long-term manipulations. So, bloodshed is probably inevitable, but would hardly be a new departure. Plenty of people have already lost their lives to ensure that this conservative, cosy, complacent, corpulent and completely corrupt status quo is maintained. In Thaksin we see only a man who thinks he can tap that disgruntlement for his own ends; a man who thinks that he too can control this "highly disciplined" population for himself. With that one statement on CNN he showed how much he despises the current system, but still wishes to co-opt such power for himself. Such disgruntlement is, of course, capable of turning pretty ugly, but this may well be the only way that Thailand's political classes will ever be disabused of the notion that the electorate can always be expected to react in a pre-programmed way.

Perhaps, only in the aftermath of a serious breakdown of that 'self-discipline' can a constitution be written that will be largely respected. Politicians will only respect a constitution when they have glimpsed the anarchy that their own pig-headedness is capable of unleashing. The events of 1973, 1976 and 1992 were obviously not nearly extreme enough to scare the living daylights out of the political classes. The fact that Thailand returned so quickly to business as usual after these events should be enough to tell us that the forces of conservatism largely misrepresented the menace of those times for their own benefit. It is a sobering thought that, perhaps, something rather more violent - or hopefully just confrontational - will be necessary to create the right environment for a truly workable constitution.

The alternative is years more of Thaksin-style tyrranny from either the man himself or his monarchist detractors. And to be honest, this is still the most likely scenario. So expect to see many more 'paper tiger' constitutions and self-centered despots.

[Baton Rouge]

OK! OK! I know it has become fashionable in some quarters to pour scorn on another religion (that I won't mention right now) by reminding readers that it often defends itself rather lamely as the "religion of peace and compassion". I find those sort of posts pretty obnoxious too; even while occasionally admitting that they sometimes have a point. But then hell hath no wrath to compare with the likes of a mob of hard-core soccer fans. Not to mention the fact that their equally bone-headed Anglo-Saxon crusader forebears had a great deal to do with f'ing up the ME in the first place.

But if you ever needed evidence that the religion of the 'middle way' also has its boneheads, this is it: -

Monks, supporters urge charter drafters to name Buddhism national religion


A group of Buddhist monks and supporters rallied in front of Parliament Tuesday to demand charter drafters to state that Buddhism is the national religion.

The group of 100 demonstrators is led by Phra Mahacho Thassaniyo of Maha Chulalongkorn Monks University.

The monk said so far over 300,000 Buddhists had signed their name to demand that the next charter would specify Buddhism as the national religion.

He said if the number of signatories would grow over 1 million and he would later submit the names to the Constitution Drafting Committee.

He said if the call was ignored, Buddhists would definitely reject the draft constitution in a public referendum.

The Nation

http://www.nationmultimedia.com/breakingnews/read.php?newsid=30026736

And after blackmailing the government, will the ever-compassionate Phra Mahacho Thassaniyo be organizing a crusade against the infidel within?

[Scuba22]

Hey Tettyan! Great to hear from you - hope things are going well in your new environs!

Have you seen this article in Asia Sentinel:
http://www.asiasentinel.com/index.php?option=com_content&task=view&id=361&Itemid=31

Called "Leashing Thailand's Cops", it makes some interesting observations about the relative merits of decentralizing vs. centralizing control of the Police; reflected of course in the ongoing debate about central power vs. a federalist structure.

The big problem with the 1997 constitution, that the network belatedly recognized, is that it allowed for the development of an alternative national power base - and that this alternative would inevitably threaten the established nationalist power-base of the network, even threatening to dislodge it when the established head was gone.

But I think from a political development point of view, the issue is not central vs. federal. Either can work, but it needs to be reflective of the peoples' desire. Whether it's the coup or TRT, I wonder if Thailand keeps reverting to auhtoritarianism because that really what most people want. The fight against dictatorial authority seems pretty muted.

Cheers,

Scuba

[Tettyan]

Hey Tettyan! Great to hear from you - hope things are going well in your new environs!

Thanks. It's great to be back from the dead, although I'll likely be back in hibernation within a month's time.


Have you seen this article in Asia Sentinel:
http://www.asiasentinel.com/index.php?option=com_content&task=view&id=361&Itemid=31

Called "Leashing Thailand's Cops", it makes some interesting observations about the relative merits of decentralizing vs. centralizing control of the Police; reflected of course in the ongoing debate about central power vs. a federalist structure.

Thanks, great find! The idea of decentralizing the police has been tossed around for quite a while already - the Chuan gov't's reform of transferring supervision of the police from the interior ministry to the PM's office was supposed to be the first step in a line of reforms. Interestingly enough, it was under Thaksin that abolition of the "regional" commands was proposed - leaving only provincial commands and the central departments. Whether this would have been a step forward depended on how you spun it. In any case, it didn't happen, probably b/c I couldn't have seen the police generals agreeing to this, even if "their man" Thaksin supported it.

In any case, the article's right to point out that over-centralization isn't the most important problem facing the police - it's simply that they lack the institutional capacity, organization, and sense of mission required to provide for public safety in an industrialized society. But our friend who's more expert on these matters than we could probably tell us that in more detail than the article.


The big problem with the 1997 constitution, that the network belatedly recognized, is that it allowed for the development of an alternative national power base - and that this alternative would inevitably threaten the established nationalist power-base of the network, even threatening to dislodge it when the established head was gone.

But I think from a political development point of view, the issue is not central vs. federal. Either can work, but it needs to be reflective of the peoples' desire. Whether it's the coup or TRT, I wonder if Thailand keeps reverting to auhtoritarianism because that really what most people want. The fight against dictatorial authority seems pretty muted.

I think the Thai people are in a collective state of confusion as to what kind of country, society, and political institutions they want. Nobody knows what anything means anymore (or perhaps, they never were so sure in the first place). For instance, and I'm NOT speaking for myself - one may like Thaksin's policies and also believe that he's corrupt. But what is it that he does that makes him courrpt? Many think that the populist policies in and of themselves - the 30 baht scheme, expansionary fiscal policies, etc. that are corruption. Some associate populism with corruption. At the same time, the same person may honestly believe that there's nothing wrong with a senior bureaucrat assigning his subordinate to write his doctoral thesis during business hours.

Maybe it's democracy itself that's corruption? Who knows. No democracy is perfect, it doesn't come handed to you on a silver platter, and even if you give it time, it'll never evolve into one either. But at least time gives the system a chance to work out the kinks in a peaceful, rules-oriented way. Just think back to the 2000 US election - while 1/2 of the people vehemently disagreed with the Supreme Court's ruling, the amazing thing is that everyone respected it, whereas in many other countries such controversies would degenerate into riots. The deep respect for the constitution and rule of law plays a role in this, but on the other hand, it can go too far sometimes - the reverance for the constitution and its drafters is almost like an official religion.

But it's important to remember that the drafters were not the noble wisemen that your 4th grade civics teacher taugh you. Like any mortals they were imperfect people, and they were actually very fearful of the power of the masses, not too different from the Thai elites of today - after all, all of them came from the landed and merchant classes. They were disillusioned by the post-revolution democracy. They were especially troubled by - GASP! - the aggressive populist policies of state legislatures, many of which tried naughty things like forgiving farmers' debts en masse (sound familiar?). The creation of a stronger federal gov't was meant to check the excesses of the states; but because of the fear that the populists could subvert the federal level, they created checks-and-balances w/in the system.

Of course, things wern't happily ever after just because the Americans got a piece of paper. The fact that the US didn't keep a standing army (only a militia of part-timers) may have played a role in preventing the nascent political institutions from being subverted by raw power and force. But the logical lesson from this for Thailand would be to abolish the Thai army, and if my long-winded peroration has gotten me this far, it's a sign that I should stop here.:)

[GWR]

http://www.thaisayno.com

'Thai say NO' campaign begins against constitution

By Apinya Wipatayotin

People should reject the military-engineered constitution in a coming referendum, pro-democracy activists, because it is a legacy of the coup d'etat and could lead to an extension of military power in the country.

Around 10 campaigners marched from the Siam Centre shopping mall to the Onnuj skytrain station yesterday, calling on the public not to accept what they said was an undemocratic constitution.

The new charter is scheduled to be put to a national referendum in September. It has not yet been written but its broad outlines are already known.

The activity was the first in a series of events against the new charter planned by the "Thai Say NO" campaign.

It came as drafters prepared to gather in Cha-am district of Phetchaburi tomorrow to begin writing the new constitution.

Campaign leader Sombat Boonngamanong of the new Pro-democracy Citizen Group said the charter drafting process was undemocratic due to the lack of public participation.

"The coup makers tore down the most democratic 1997 constitution and selected a group of people to draft a new version. So how can we accept this military-sponsored charter?" asked Mr Sombat.

Yesterday's march was a lead-up to a planned mass protest against the military-backed constitution at Sanam Luang on Mar 17.

The group has also launched an online protest against what they called the "coup constitution" at www.ThaiSayNo.com. Almost 700 people, including leading academics have signed up for the campaign so far.

A female office worker agreed with the campaign, saying it was impossible for the new constitution to shape a brighter future for the country because it was drafted under military instruction.

"The previous constitution, which earned much input and support from people, still contains many shortcomings that eventually led to the Sept 19 coup d'etat.

"So what will this military-engineered charter bring?" she asked.

Arachon Paladtuam, a 43 year-old housewife, also criticised the charter drafting process for its lack of public participation.

But another passer-by who came across the protest disapproved of the anti-constitution activity.

"They should see the complete draft first before saying 'yes' or 'no'. Instead of condemning the whole text, the group should point out the parts of the drafted charter they disagree with and how the clauses should be fixed," he said.

Democrat Party deputy leader Alongkorn Ponlabutr said the new constitution should not empower parliament to impeach members of independent organisations as politicians could use the avenue to take revenge against officials who investigate them of wrongdoing.

Mr Alongkorn joined a discussion on Friday on the new charter's powers to investigate government authority at a forum organised by a subcommittee of the National Legislative Assembly.

He said if independent organisations intensified their investigations into politicians, especially those in the government, those politicians could abuse the government's majority vote in the House to retaliate.

Auditor-General Khunying Jaruvan Maintaka said independent organisations were not really independent and had insufficient power to carry out their work effectively.

She said such organisations were not really empowered to acquire information, which hampered their performance.

Members of independent organisations were limited both in power and number while those who exercised government authority were very powerful, she said.

She suggested an audit court be established, as such courts had proved highly effective in Europe

http://www.bangkokpost.com/topstories/topstories.php?id=117197

[Bernie]

Anyone know if an English version of the draft new constitution can be found online? Thanks in advance.

[Tettyan]

Well, looks like they're taking the worst route imaginable, we're yet another step closer to the 1991 charter. I'm going to be telling everyone I know to vote against the constitution.

----

Academics oppose multi-seat idea (The Nation, March 11, 2007)


Academics disagree with the idea of multi-seat constituencies, saying such an arrangement would erode equality rights.

Politicians, however, say multi-seat constituencies are not a problem, but they are concerned the bonds between MPs and voters would be weakened in large constituencies.

Thammasat University law lecturer Prinya Thewanaruemitkul said he disagreed with multi-seat constituencies, because the system was based on population and not on the equality of people.

"Some provinces, such as Ranong, which has a lower population than other provinces, would get only one MP, but constituencies in larger provinces like Nakhon Ratchasima would get three MPs," he said.

The single-seat constituency system was used in the 2001 election.

Charter drafters on Wednesday agreed to adopt the multi-seat constituency system, which means each province will have at least three members of Parliament. The system was used in the general election in 1995 until it was later changed.

The drafters said the system could prevent vote-buying, but the lecturer disagreed. He said whether it was a multi- or single-seat constituency, vote-buying would still be a problem.

Prinya said he understood the drafters wanted to increase the chances of small parties gaining seats in Parliament. "The single-seat system did make major parties strong, while smaller parties had few chances to win," he conceded.

Prinya suggested that if the drafters wished to adopt multi-seat constituencies, they would have to keep the party-list system, in order to ensure equality.

He said if the multi-seat constituency system were used in the next general election, Thailand would see a coalition government. This would cause problems in

running the country, although

it might also lead to less corruption, because the government could

be checked on more easily.

Panas Thassaneeyanont, a drafter of the 1997 charter, agreed with Prinya. He said the multi-seat system would not be desirable, because voters in smaller provinces would be represented by only one or two MPs, while larger provinces would have three. People might question why they did not have three MPs like in the larger provinces. "This will become a problem, because it reveals a lack of balance," said Panas.

He said the current drafters wanted to see a coalition government after witnessing how the single-seat system helped the Thaksin government become so dominant. But there was no system that could prevent vote-buying.

"There is no way to solve the problem of vote-buying, no matter which system is used," he said. But he added that payments for votes might be less with the single-seat system.

Chiang Mai University law lecturer Somchai Preecha-silpakul said the move was a step backwards. The 1997 drafters had used the single-seat system to prevent local capitalists from running in the election.

Mahachon Party deputy leader Akapol Sorasuchart said his party had no problem with the multi-seat system but that MPs might not be able to take care of their constituents properly, because the constituencies would be larger.

"The bond between MPs and voters will not be as close as in single-seat constituencies," he said.

He said multi-seat constituencies benefited small parties and that it was the duty of the Election Commission (EC) to issue a rule controlling candidates' finances for the election. Further, he suggested the EC tell political parties how many candidates they can field in each constituency.

Sucheera Pinijparakarn

The Nation

http://www.nationmultimedia.com/2007/03/11/national/national_30029001.php

[Naphat]

The next constitution is still in the process of being drafted by the Constitutional Drafting Assembly, who have not made any document public yet. This wikipedia article (http://en.wikipedia.org/wiki/Next_constitution_of_Thailand) has some useful information.

[Bernie]

Thanks. I'm looking to seeing what all the fuss is about.

[Naphat]

The appointed senate seems to be the most news-worthy thing here - I wonder why the Post didn't include it in the headline. I guess it's back to the old Premocracy of the 80s.

PM to be elected, drafters agree

Fewer MPs, party lists, senators all appointed

MONGKOL BANGPRAPA & NATTAYA CHETCHOTIROS

Chon Buri _ The Constitution Drafting Committee (CDC) yesterday decided five key issues, including the prime ministership, the size of the House of Representatives and the make-up of the Senate. The decisions received mixed reactions from politicians and political observers.

The main thrust was the requirement that a prime minister come from the election process.

That killed off a push by conservative drafters for a provision to allow an outsider to become the government leader without a need to contest an election. Only seven drafters were in favour of the prime minister not having to be a member of parliament.

The drafters also agreed at their meeting to reduce the number of MPs from 500 to 400. The House will consist of 320 constituency MPs and 80 party-list MPs.

They also agreed that senators should be appointed, not elected.

...

CDC spokesman Pisit Lee-atham said the issues passed by vote yesterday were designed for the benefit of the public, not to please politicians.

''We based our decisions on public demands and did not take the politicians' concerns into our consideration,'' he said.

...

''The government is going to think on behalf of the people and act as Big Brother,'' said former Bangkok senator Rosana Tositrakul.

She was worried the appointment of senators could be influenced by some senior military officers and state officials who could find ways to put their supporters in the Senate.

...


http://www.bangkokpost.com/News/11Apr2007_news01.php

[Wisarut]

At least, it is a measure to prevent nepotist connections change of
Cabinate - MPs - Senators whcih is a hallmark of the old regime.

[GWR]

As always, it appears that the so-called intelligentsia are blaming others for their own complete failure to curb the excesses of their own rogue elements:

http://www.ipsnews.net/news.asp?idnews=37606

Charter Of, By and For the Elites
Marwaan Macan-Markar

BANGKOK, May 4 (IPS) - As they makes half-hearted attempts to restore democracy in Thailand, the country's elites that profited most from last September's coup are in two minds about the role of elections and public participation in the future.

Thai democracy can do without either goes the thinking among a section of the country's political leadership, sections of academia and even the judiciary -- members of which were hand-picked by the junta that staged the country's 18th coup with plans to redraw its political map.

This oligarchy is leaving no room for doubt as to who it has in mind in attempting to erect this wall of exclusion -- the rural poor. Anti-poor and anti-election rhetoric is visible in the newly released draft of the country's 18th constitution and the arguments that support it.

‘'Constitution drafting committee member Komsan Podhikong said many rural and uneducated people still do not have a good understanding of how democracy works. As a result, their political thinking is often over-simplified, especially when it comes to exercising their voting and other constitutional rights,'' wrote Nophakhun Limsamarnphun, a columnist, in the Sunday edition of ‘The Nation' newspaper.

Another member of this drafting committee, a former judge, is reported to have said that ‘'elections are evil.''

Little wonder why this ‘'constitution for the rich,'' as some are describing it, has provoked a debate about how serious the junta and its supporters among the urban elite are in moving the country forward as a developing democracy. The clear limits placed on the popular will in the new charter -- including replacing an elected upper house with an appointed one -- has become hard to ignore given the democratic spirit of the 1997 constitution. This ‘'people's constitution'' was shredded by the junta after grabbed power on Sep. 19, 2006.

‘'Fear and loathing of elective democracy is the dominant theme of the new draft constitution,'' argues a respected political analyst, who writes under the pseudonym Chang Noi, in Monday's edition of The Nation. ‘'Never again, the drafters hope, should real power be based upon the people's vote.''

‘'This is a way to keep the poor out of the political system because the elite favour a patronage system, where they can retain their status,'' Bantorn Ondam, advisor to Assembly of the Poor, one of the country's largest grassroots networks, told IPS. ‘'They would rather deal with the poor through welfare schemes than strengthening their political and democratic rights.''

The anti-poor sentiments being aired by a numerically small, yet vocal and powerful elite, stems from the realisation that the rural poor proved a powerful constituency during the five-and-a-half year administration of Thaksin Shinawatra, the twice-elected prime minister who was deposed in last year's putsch. (Thaksin was thrown out following months of street protests in Bangkok last year that accused him of corruption, nepotism and abuse of power.)

The rural poor, who make up close to 70 percent of this country's 64 million people, came out strongly in favour of Thaksin's Thai Rak Thai (Thais Love Thai - TRT) party through its plank of pro-poor policies, which ranged from a universal health care scheme to economic initiatives to boost village incomes.

At the February 2005 parliamentary elections, some 10.3 million people voted from the north-east, Thailand's poorest belt, out of 32.3 million votes cast. This area accounted for close to 150 of the 400 elected seats in the parliament. It was a constituency that helped the TRT steamroll into power for the second time.

In fact, Thaksin's successor at the helm of the TRT appears determined to retain such an unprecedented development of the poor transforming into a potential political force after decades of being ignored and marginalised. In dismissing the charter released to the public last week, Chaturon Chaisaeng, the TRT's acting leader, told a recent panel discussion that the new constitution is ‘'only restoring and fostering aristocracy.''

Thailand, which retains many feudal traits in its culture, saw the stirrings of anti-democratic sentiments soon after the coup. The military leaders who received open support from the political, bureaucratic and economic old guard, shut over 300 community and other radio stations in the poorer north and north-east regions. And attempts by the rural poor to protest or air their grievances in Bangkok have been frequently met by bans imposed by the military and its appointed government.

‘'What is so obvious is that the poor have had little to do with undermining Thai democracy,'' says Giles Ungpakorn, a political scientist at Bangkok's Chulalongkorn University. ‘'It is not the poor that staged the coup; it is not the poor that wants to place limits on elections.''

‘'We have been presented with an elite, conservative and authoritarian constitution to discuss,'' he explained during an interview. ‘'The 1997 constitution attempted to increase democratic space and extend democratic participation. The one before is trying to limit democratic space.''

And if the new constitution's aim, while silencing the poor, is to stop the TRT's return to power then some commentators say that the 35-member committee that drafted the document is out of touch with the country's ground realities. For the party that Thaksin headed till last year was the largest in the country, claiming to have at one point an estimated 24 million members.

[GWR]

Here's that Chang Noi article that the previous article mentioned:

http://www.nationmultimedia.com/2007/04/30/opinion/opinion_30033003.php

From People's Charter to Judges' Charter

Fear and loathing of elective democracy is the dominant theme of the new draft constitution

Never again, the drafters hope, should real power be based upon the people's vote

The reshaping of parliament is designed to produce fractious, corrupt politics that will condemn itself. The draft brings back the system of multi-member constituencies under which election candidates are in effect competing just as much against their own party colleagues as against their party opponents. Parties will be weakened. Elections will become more violent, with more deaths of canvassers caught in the increased complexity of local factionalism.

The 90-day rule is in effect abandoned. Wholesale merger of parties is banned, but the prelude to elections will revert to the old pattern of musical chairs and pre-election auctions of candidates with potential to win. To add to the fragmentation, the draft even explicitly absolves MPs from voting along party lines. The two-term limit for a prime minister will encourage corruption. Parliament will revert to the pattern of many small factions loosely aggregated into weak parties and constantly rearranged by money and opportunism into fragile coalition governments.

In the eye of the drafters, this does not matter because parliament does not really matter. One of the most striking features of the charter is the expansion in size and scope of the section on Directive Principles of Fundamental State Policies. If you think that title has a whiff of documents emerging from the supreme council of some totalitarian state, you might have the right idea. In the old constitution, these principles were brief and vague. Nobody honestly took much notice of them. In this draft, this section has expanded from one page to eight. The coverage extends across security, administration, religion, society, education, culture, law, judicial matters, foreign affairs, economy, land, natural resources, environment, science, intellectual property and labour. The government is obliged to ensure that its policy statement presented to parliament accords with these principles, and is obliged to make an annual report to parliament on its progress.

These principles are much more detailed than in the old charter. Take the economy as an example. In the 1997 charter, there was just one paragraph with little more than a list of topics. The new draft has twelve paragraphs. Some of these are again very broad and vague, such as promoting the sufficiency economy, upholding the free market, and ensuring fiscal and monetary discipline. But other paragraphs have specific measures that will require legislation and changes in administrative practice. The government must amend laws and regulations that put unnecessary controls on business; revise the tax system to be more equitable; create a system to provide for the aged; and amend laws on monopoly in order to provide for free and fair competition. Then there are further clauses that are not so specific yet still envisage major changes - distributing income more fairly; increasing opportunity; promoting the exploitation of local wisdom and Thai wisdom in the creation of products and services; delivering the highest returns to agriculture; ensuring the basic needs of consumers are not obstructed by monopoly business; controlling female and child labour; and devising an equitable social security system.

That is just on the economy. The same kind of detail is applied to every aspect of government. If this were taken seriously, the resulting workload would occupy the full legislative agenda for the next government and several following after. Political leaders and political parties no longer need to come up with policy programmes, because these have already been set.

In short, this is an attempt by a handful of charter drafters to dictate policy. A fundamental principle of parliamentary democracy is that policy-making is the duty of elected representatives who are in some way responsible to their constituency. The 1997 Constitution began this practice of trying to dictate policy to future governments. This draft charter has taken the practice to another, absurd level. This chapter betrays the drafters' total contempt for the principle of parliamentary democracy.

While the last charter was dubbed the People's Constitution, this one deserves the title of the Judges' Constitution.

Under this draft, the three very important persons are not the prime minister, president of parliament, or even commander-in-chief of the Army, but the heads of the Supreme, Administrative, and Constitutional courts.

The importance of these courts will increase. People gain the right to present cases directly to the Constitutional Court over infringement of rights, and to the Administrative Court over disputes with official agencies. The Supreme Court takes over some of the most important powers in the control of elections. These courts will consequently have a bigger role in major decisions that affect politics and administration. On top, the heads of these three courts are among the handful of gods who have the power to appoint the members of the Senate, and the members of some independent bodies intended to act as checks and balances on the executive and parliament.

The procedures for appointing two members of this judicial triumvirate are already in place and are internal to the judiciary. The procedure for the Constitutional Court has had to be newly devised. The details offer a glimpse into the clubby kind of politics we have in store.

The nine members of the Court will include three high court judges and two Administrative Court judges, again chosen by the internal processes of the judiciary. The others are two legal experts, and two experts in political science, social science, or religious studies. These four are nominated by a committee consisting of the presidents of the Supreme and Administrative courts, the president of the Assembly, and opposition leader, and the head of the independent organisations. The Senate has to approve this committee's nominations, but has no leeway to make any choice. If it refuses, it can eventually be overridden, again by a cabal of judges.

"Elections are evil," said one drafter last week. He used to be a judge.

Chang Noi

[Baton Rouge]

Out of the Thaksin fire and into the monarchist frying pan!?
http://www.asiasentinel.com/index.php?option=com_content&task=view&id=490&Itemid=31
The Rise of Thailand’s Third Branch
Daniel Ten Kate
11 May 2007
Some fear Thai judges are overstepping their bounds — but that may be exactly what the junta wants.

What a difference a year makes. On May 8, 2006, Thailand’s Constitutional Court made a landmark decision to void a boycotted election held the previous month in which Thaksin Shinawatra’s Thai Rak Thai party won a decisive victory.

At the time, many here lauded the judges for stepping up and checking the power of Thaksin’s so-called “parliamentary dictatorship.” But now many fear the men in robes may be amassing too much power.

The controversial ruling on the election came just two weeks after King Bhumibol Adulyadej gave an unprecedented speech to the country’s top judges. With the prospect of a one-party Parliament looming due to a boycott from the three major opposition parties, the king instructed the judiciary to sort out the mess.

“Judges have the right to speak out and make a ruling,” Bhumibol told the Supreme Court judges. “Therefore I would like to ask you to consider, consult with other judges of other courts such as the Administrative Court, about how to work it out and do it quickly. Otherwise the country will collapse.”

At the time, Thaksin’s opponents (those who opposed a coup, anyway) saw the judicial branch as the only counterbalance to the premier’s stranglehold over the executive and legislative branches. With a new mandate from the king, the country’s supreme moral authority, the judges wasted no time.

The heads of the Supreme, Administrative and Constitutional Courts convened for an unusual extrajudicial summit to solve the nation’s political problems. Soon they voided the April 2 election in a decision both widely expected and legally dubious. Not long after that, the court called on the Election Commissioners to resign. When they refused, the Democrat Party sued the commissioners for malfeasance, and the Criminal Court promptly sentenced the commissioners to four years in jail and denied them bail — a stunning move that effectively forced them out.

A new Election Commission comprising four judges and an attorney general was then installed to organize a new election, but before that could happen, royalist factions in the military stormed Bangkok and deposed Thaksin.

Although the military’s power increased with the putsch, the legacy of the king’s April 2006 speech lives on. The draft constitution seeks to cement a new political role for judges by giving them a host of new responsibilities, including helping to appoint members to the Senate, the Ombudsman's Office, the National Human Rights Commission and the State Audit Commission — all in addition to previous duties to help select the Election Commission, National Counter Corruption Commission and Constitutional Court. Moreover, the draft calls for the Supreme Court president to meet with other judges, leading political figures and heads of independent bodies in times of national crisis.

Prasong Soonsiri, who heads the Constitution Drafting Council, told reporters the drafters wanted to enlarge the judiciary’s role so the king would not be troubled. The CDC was simply following the king’s advice in his April 2006 speech, he said.

But now, for the first time since the judges moved out of the courtroom last year, the concept of an all-powerful judiciary is receiving sustained criticism. Chang Noi, a column in the English-language daily The Nation, led the charge with a biting and comprehensive critique. “While the last charter was dubbed the People's Constitution, this one deserves the title of the Judges’ Constitution,” Chang Noi wrote. “Under this draft, the three very important persons are not the prime minister, president of parliament, or even commander-in-chief of the Army, but the heads of the Supreme, Administrative, and Constitutional courts.”

Even some judges have expressed doubts about playing a political role. “It is inappropriate to make judges become involved [in politics] because it will lead to loss of independence and fairness of the courts,” Srawuth Benjakul, deputy secretary of the Office of the Courts of Justice and a court spokesperson, told reporters.

The discussion over how much power the courts should have can be quite sensitive since the king has spoken directly about the topic. “You have made an oath to work in my name, and that is very important to me personally,” the king told new judges in a speech on April 9. “If you do your duties right, I will gain face. If you make mistakes, I will be damaged. I hope you will give your very best.”

These words can be interpreted in any number of ways, of course. Pro-democracy legal experts tend to believe judges should keep to the courtroom, but other members of the power elite believe the appointed arbiters of the law are more fit to run the country than so-called “evil” politicians.

Wicha Mahakhun, a former judge and current constitution drafter, provided a remarkable glimpse into this line of thinking in a report by The Nation.

“People, especially academics who want to see the constitution lead to genuine democracy, are naïve. We all know elections are evil,” he was quoted as saying. “I would like to recall HM the King’s speech here. On April 9, His Majesty told the judges to perform their duties firmly and without caring what others might say. His Majesty said if the courts did not support good people, society could not survive. His Majesty said it was most imperative [for judges] to ensure justice… Even HM the King places trust in the judges; would you condemn them?”

The implication is clear: Those who oppose an expanded judiciary are disloyal to the monarch — the ultimate sin.

Despite the rhetoric, it’s unlikely those charges will intimidate many experts. For one, says Giles Ungpakorn, a political scientist at Chulalongkorn University, the king’s speech in 2006 was primarily a reaction to widespread calls for him to replace Thaksin by unilaterally appointing a new cabinet under Article 7, a vague clause in the 1997 Constitution. The king forcefully debunked this in his address.

“I have suffered a lot,” Bhumibol said in April 2006. “Whatever happens, people call for a royally appointed prime minister, which would not be democracy. If you cite Article 7 of the constitution, it is an incorrect citation. You cannot cite it. Article 7 has two lines: Whatever is not stated by the constitution should follow traditional practices. But asking for a royally appointed prime minister is undemocratic. It is, pardon me, a mess. It is irrational.”

In the speech, the king essentially called for a constitutional solution to the political stalemate. What resulted, however, was a military coup that turned the tables on the country’s fragile democracy.

“The drafters will claim they are following the policies of the palace, but it’s much more complicated than that,” Giles said. “Moreover, the monarchy is just one institution. There are 65 million other people in Thailand who deserve an equal say in how the country is run.”

Vorajet Pakirat, a law lecturer at Thammasat University, added: “I think the king wanted judges to perform a duty unique to the situation in April last year. But no one can say the king would like to expand the power of judges in this constitution.”

Giles said the whole justice system should be overhauled, from the police to judges to bureaucrats. He advocates trials by jury and elections for judges to increase public accountability.

“The constitution has a problem right from the start,” he said. “Giving power to unelected civil servants who tend to be very conservative is a step backwards.”

Of course, there is still time to make changes to the constitution, and it appears that some judicial powers will be scaled back. Jaran Pakdithanakul, deputy chairman of the CDC and a former Supreme Court official who played a key role in the extrajudicial calls for the election commissioners to resign last year, conceded last week that the balance of power could be thrown off if judges have too many powers and responsibilities.

Even so, that doesn’t mean certain judges are finished in the quest to sort out the country’s political situation. On May 30, the military-created Constitution Tribunal will decide whether to dissolve Thailand’s top political parties: Thaksin’s Thai Rak Thai and the Democrat party.

CONTINUED ..........

[Baton Rouge]

Perhaps more than anything else, the Constitution Tribunal represents the ultimate amalgamation of military and judicial power. The body, formed by the military in the immediate aftermath of the coup, comprises five Supreme Court judges, the Supreme Court president as chairman and the Supreme Administrative Court president as deputy chairman.

Many legal experts see the dissolution case as a sham. Indeed, many wonder how a body created by those who overthrew Thaksin has any right to terminate political parties for allegedly attempting to overthrow democracy. And especially to do so for violating a constitution the junta leaders discarded?

“The Constitution Tribunal is illegitimate and the case is completely political,” said legal expert Kanin Boonsuwan, who helped draft the 1997 Constitution. “Judicial powers have gone too far already; the judges are abusing their power and independence. This is not only about dissolution, but the future of democracy in Thailand.”

It’s hard to say how the country will react if both main parties are dissolved. Some analysts say many people already expect Thai Rak Thai to be dissolved, since that has been the mission of the coup makers since they fired up the tanks on September 19.

Indeed, one of the junta’s first orders after seizing power was to ban executive members of dissolved parties from politics for five years. Previously, the law said executives of dissolved parties could still run in an election but they couldn’t form a new party or sit on a party board. It remains to be seen if this will stick.

Others who oppose the interim government hope the dissolution case serves as a catalyst for protests against the junta. Chaturon Chaiseng, Thai Rak Thai’s leader after Thaksin stepped aside, said his party would accept the tribunal’s verdict. The Democrats also don’t plan to protest. Some analysts expect former Democrat leader Chuan Leekpai to form another party if the Democrats are done away with. Thai Rak Thai members will also likely find new homes.

This may suit the ruling elite just fine, but it remains to be seen if the general public will protest the consolidation of power. So far, they have shown a high tolerance for the coup group, even though criticism against Prime Minister Surayud Chulanont has grown.

Thais must decide if they want so-called “good” appointed elites or “evil” elected politicians running the country when they vote in a referendum on the constitution in September. As the lengthy charter now stands, the elites would prove victorious.

“The draft constitution doesn’t trust the people,” said Vorajet from Thammasat. “If we use it, then people with a high status, like judges and top bureaucrats, can get seats in the Senate and independent bodies. These people think that Thai politicians are bad, and they are good. It contradicts the whole principle of democracy.”

http://www.asiasentinel.com/index.php?option=com_content&task=view&id=490&Itemid=31

[Bernie]

Does anyone have, or know where an inquiring mind might obtain an English version of the proposed new Constitution? Thanks in advance.

Bernie

[GWR]

I believe a translation exists. I'll try and remember where I saw it.

In the meantime:

http://en.wikipedia.org/wiki/Next_constitution_of_Thailand

[Bernie]

Thanks, as always, GWR.

One of the things I want to look into (to the extent a farang can understand such thing in Thailand) is the use of litigation as a political weapon in Thailand. I thought things were bad in the USA, but I think the Thais have bested us in this area!

Bernie

[FarangBha]

...quite true. I thought it was a recent thing, but I'm starting that they've been doing it for decades.

Suits the tit for tat mindset.

[doseiai]

Since Prem controls the parliament, he wants to rewrite the constitution NOW to give more power to the military, the Privy Council (of which he is head). As the most powerful man in Thailand, he wants to make sure he stays as most powerful man of Thailand.

Parliament is "full of Prem's Boys" from

http://en.wikipedia.org/wiki/Prem_Tinsulanonda#Role_in_political_crisis_and_200 6_coup

[nganadeeleg]

As the most powerful man in Thailand, he wants to make sure he stays as most powerful man of Thailand.

Nice to see he still has ambition as he approaches his 87th birthday:D

[Baton Rouge]

It's never really the actual constitution that is to blame. It's the continuing basement-quality of the politicians and military men who put it into action. I haven't really read enough about the arising constitution, but my instinct is to reject it - but without siding with those opponents who have a vested interest in reimposing the original for their own sinister reasons.

Might I be so cynical as to suggest that the main reason that TRT wishes to salvage the 1997 constitution is because it already knows its weaknesses only too well, and has been able to exploit its numerous loopholes for personal and financial benefit in the past? And perhaps even that they wish to continue kicking it to death when they eventually slime their way back into power behind some new mask or spin.

There is nothing particularly wrong with the 1997 Constitution as such. There most certainly is something wrong with the likes of Thai Ruk Thai and its opponents. Perhaps a boycott is a better option than a Thai Ruk Thai sponsored rejection. When all is said and done, there has never been a constitution here that the politicians ever intended to honor. Ordinary citizens might thus be forgiven for thinking that they have little more to lose from a junta-nobbled constitution than from further abuse of the 1997 Consti