The Bangkok Post is certainly quick off the mark! Vitit Muntarbhorn has not yet presented his lecture at the ANU today, but here is a full report “derived from a lecture on Human Rights Governance under Thailand’s Constitution , delivered at the Australian National University, Canberra, on August 6, 2007. ” The lecture will be held from 12.30-2.00 today in the Sparke Helmore Law Theatre 1. I will be there.

Deconstructing the (draft) constitution

The proposed constitution has fewer articles than the previous one, but it is longer in wording. It deserves to be deconstructed to reveal its constituents transparently.

By VITIT MUNTARBHORN

Passions are inflamed currently in Thailand for reasons that are self-evident. The drafting of the new constitution has been a polarised rather than consensus-based affair, brought about by the fact that Thailand’s 16th constitution (1997) – known as the People’s Constitution – was abolished by a coup in 2006. Intriguingly, the proposed constitution has fewer articles than the 16th constitution, but it is longer in wording. It deserves to be deconstructed to reveal its constituents transparently.

The current draft reaffirms the central role of the monarchy in the constitutional process. As it now stands, the proposed constitution – the 18th – which will be put to a national referendum on August 19 reads a little better than an earlier draft of this constitution. It shies away from the idea of a totally selected (appointed) Senate by opting instead for a mixture of selected (74 in number) and elected (76 in number) Senate, partly to appease those who feel that a totally selected body would simply not be credible. The earlier proposal to include the possibility of setting up a National Crisis Council, which would have provided even more elbow room to the military to administer the country in times of so-called national crisis, has also been omitted from the current draft.

However, when tested against both the form and substance of the 1997 constitution, there are key challenges at hand. As it stands, the draft is evidently a reaction against the previous government which was embroiled in perceived or real conflict of interests , personified by the media-magnate premiership ultimately ejected by military action.

On the one hand, there are some innovations of note. First, there are many limits imposed on the executive branch of government, especially the top-notch of the executive branch. For example, a person elected as prime minister cannot stay in power for more than eight years. The premier, the spouse and underaged children must declare their assets fully, and they are not allowed to have a hand in companies, especially those in the media and telecommunications industry. One-fifth of parliamentarians can propose a no-confidence vote against the prime minister, a lower number than the two-fifths rule under the 16th constitution.

Second, there are more detailed provisions concerning human rights in the current draft. For instance, the rights of communities particularly in safeguarding the environment are expanded, and these communities as collectivities will be entitled to take action in courts. The tendency of the 16th constitution to subject various rights to the condition that they were to be enjoyed ”as stipulated by law” has also been discarded to some extent. That phrasing meant that in order to exercise those rights, one had to look to other laws, e.g. Acts of Parliament, in addition to the constitution, to enjoy those rights in practice. Thus the current draft makes such rights directly applicable in the courts without the need to have other laws.

Third, under the current draft, various independent agencies have more powers to protect people. The National Human Rights Commission will be able to take cases directly to court, in its own name and on behalf of the victims _ a power lacking under the 16th constitution. The ombudsperson will be able to scrutinise the conduct of parliamentarians for ethical purposes.

Fourth, the courts will have more power under the draft constitution. High ranking judges will sit on various selection committees to vet candidates for key organs such as the Senate and independent agencies, such as the Counter Corruption Commission and the Election Commission. Given the recent role of the Constitution Tribunal in dissolving the Thai Rak Thai party for electoral malpractices and removing the electoral rights of over one hundred of its executives, including the previous premier, for five years in May 2007, judicial power would seem to be on the rise.

Fifth, the ordinary people will be able to question politicians more easily under the new draft as well to submit laws and seek transparency in government. A minimum of 10,000 people will be able to propose a new law, as compared with 50,000 under the 16th constitution. A minimum of 20,000 persons will be able to petition the Senate to dismiss the prime minister and other office-holders. Local government bodies will have to submit their plans and related budgets to the local people, as well report their implementation for scrutiny.

On the other hand, there are various gray areas affecting the current draft constitution, inviting deep reflection.

First, the typology of democracy. Clearly, given the circumstances giving birth to the new constitution, the march towards democracy is managed directly or indirectly by the ruling elite. The process is more along the line of ”directed democracy” rather than full-fledged democracy of a participatory kind. This is manifested by the drafting process of the new constitution which has avoided the use of broad-based consensus building techniques which the process leading to the 16th constitution used, such as public hearings throughout the whole country. Rather, a select group has been in charge of the current draft and they owe their appointments to the Council for National Security (composed of the armed forces) which came to power as a consequence of the coup. It should also not be forgotten that the interim constitution _ the 17th constitution, introduced in late 2006, enables the Council for National Security to adopt another constitution if the draft text is rejected by the forthcoming referendum.

Second, the presence of the military. An analysis of the draft text cannot be self-contained. While the drafting process has been taking place, the military has been consolidating its power over the country. This has been bolstered by a rise in the national budget allocated to the armed forces as well as replenishment of the secret funds under their control. Uniformed personnel are thus the unwritten power behind the constitutional process and are able to use various intermediaries as their interlocutors. The draft constitution also has a provision giving them blanket amnesty for the events leading to the demise of the previous civilian government.

Third, the judicialisation process. Interestingly, the role of judges has expanded significantly because of their role in the drafting process as well as in the contents of the text; the draft constitution has thus been ”judicialised.” There is a large number of judges and lawyers on the 35-member drafting committee. It is likely that they helped to introduce the notion of the ”rule of law” which now appears prominently for the first time in a Thai constitution. In addition to the increased powers of the judges in the various selection committees noted above, the judiciary will also be able to propose laws under the new constitution. This poses an intriguing question as to how to balance the functions of the legislature, the judiciary and the executive. From the angle of scrutiny of the assets of parliamentarians, the mandate has been shifted from the Constitution Tribunal to the Supreme Court (Criminal Division for Politicians).

This is a consequence of the unsettling fact that the Constitution Tribunal under the previous administration found in favour of the premier in a case where he had been charged with failure to declare his assets.

Fourth, the mind-set towards politicians. The draft text clearly shows a degree of mistrust towards politicians, especially those in the executive. In future, all parliamentarians will have to declare their assets and many controls are to be introduced on them. The draft constitution has a key section on conflict of interests, and measures to address them, such as scrutiny by the Counter Corruption Commission and the Supreme Court. A code of ethics will be evolved to test the conduct of politicians. The power of the prime minister in controlling the cabinet ministers is to be reduced, since in the future those appointed as ministers will not lose their parliamentary seats _ unlike under the 16th constitution whereby those who became ministers automatically lost their seats, and as a result, became more beholden unto the prime minister for further benefits.

However, the rule under the previous constitution which stipulated that a candidate needed to be a member of his/her political party for at least 90 days to be eligible to run as a candidate is now modified under the current draft constitution; there is an exception in regard to dissolution of parliament, in which case the candidate need only have been a party member for 30 days or more.

Fifth, adjustments of the political party system. Under the new text, large-scale parties are likely to be diluted. There is to be a lower house of representatives with 480 members of parliament (MPs) _ 400 will be elected on a constituency basis and 80 will be elected through proportional representation. This is different from the 16th constitution which provided for 500 MPs, out of whom 100 would come through proportional representation. Unlike under the 16th constitution, there will no longer be a single candidate, first-past-the post system. Rather there will be bloc voting in the sense that voters will be voting for up to three MPs per constituency.

As for those to be chosen by means of proportional representation, smaller parties will benefit from the abolition of the old rule under the 16th constitution whereby each party needed to obtain at least 5% of the total votes in the country (as a single constituency for the purpose of proportional representation) to be eligible to a share of the seats allocated. The country will also be divided up into smaller areas (possibly eight) under the new constitution for the purpose of computing the seats for proportional representation, thus enabling smaller parties to benefit from the arrangement. The possibility of coalition governments will arise more frequently in future.

Vitit Muntarbhorn is a Professor of Law at Chulalongkorn University. He has helped the United Nations in a variety of capacities, including as an expert, consultant and Special Rapporteur. This article is derived from a lecture on Human Rights Governance under Thailand’s Constitution , delivered at the Australian National University, Canberra, on August 6, 2007.