POLITICAL REFORM

This article is structured in two parts, the first dealing with political institutions, and the second covering the Constitutional Court and independent agencies.

Part 1 : Political institutions

Political institutions may be categorized as follows:
• The House of Representatives
• The Senate and
• The Cabinet.

The House of Representatives

Regarding the members of the House of Representatives, there are important issues which should be addressed to guarantee the independence of members and improve standards of governance.

Candidates for election to the House of Representatives must be members of a political party. This requirement should be cancelled for two reasons. First, the foundation of the party system in Thailand is itself unstable, and secondly, there is often inappropriate interference from financial backers. This situation most certainly brings undesirable impacts on the political scenario. Instead of strengthening the party system, this requirement increases the power and influence of the party’s financial backers, and effectively forces members to toe the party line on all issues. The problems might be addressed as follows:

Candidature for election to the House of Representatives should not limited to those who are political party members.

In case of elected representatives with political party membership, the elected representative must maintain his/her membership with the same political party at the time of election until the expiry of the term of the House of Representatives. Switching political parties should only be permitted after the expiry of the term or dissolution of the House of Representatives.

The second issue concerns revocation of membership of the House of Representatives. Most Thai political parties still lack an institutional characteristic, as their very existence usually depends upon the patronage and charisma of one or two individuals. Also, the internal structures and mechanisms often do not follow democratic principles, with centralized decision-making and patronage as the overriding drivers. For these reasons political parties should not retain the power to revoke membership of the House of Representatives from a party member. This problem was highlighted during the government led by Thaksin Shinawatra – leader of the Thai Rak Thai party. Two approaches are suggested to establish a more equitable relationship between the political party and its individual parliamentary representatives.

The first approach would be to bring back Article 97 of the 1972 Constitution, which states that “Senators and Members of the House of the Representatives “are representatives of the Thai people and are not accountable to any other interest group, and must discharge their responsibilities honestly as they see fit, for the benefit of Thai people”.

Allegations of breaches of political ethics (e.g. bribery to secure votes) made against a member of the House of Representatives should be dealt with by an independent agency, rather than the member’s own party. Such an agency might be established as a Committee for Politicians’ Ethics, and could comprise members from the judiciary, political institution members and outside experts as required. If the committee finds the allegation to be true, the membership of the House of Representatives of the member could then be revoked.

A second approach might be taken if the present system is to be maintained. Political parties could be accorded the right to revoke any party member’s membership of the House of Representatives. However, in the interest of the party’s long-term development, the representation of members of the House of Representatives must be protected in order to prevent the party or its financial backers from abusing their powers. Political parties could rightfully revoke the membership of a member of the House of Representatives if the termination follows established legal process. Nevertheless, the party’s powers could be kept in check if a party resolution could take effect only after verification by the Constitutional Court.

The Senate

The primary purpose for the Senate’s existence in any parliamentary system is to balance and curb the power of political parties holding a majority in the House of the Representatives. Although the House of the Representatives is divided between the ruling and opposition parties, in practice it may often be impossible for the opposition in the Lower House to effectively balance the control of the ruling party. However, the balancing function of the Senate is intended mainly to ensure the constitutionality of draft legislation, and to ensure effective national administration by the State. The Senate does not consider issues such as revocation of the membership of Members of the House of Representatives. However, the Senate is authorized to pass resolutions and opinions on appointees to independent agencies according to the provisions of the 1997 Constitution. The role and need for a Senate with the above objectives is crucial to the smooth and transparent function of the Thai parliamentary system.

Establishing membership of the Senate through elections is inconsistent with the Senate’s overall mission since party political influence within the Senate cannot be avoided. Thus the following powers and responsibilities should be vested in Thailand’s Senate:

• to carefully consider the laws passed by the House of the Representatives.
• to pass resolutions.
• to oversee the State’s administration of the government.

The Cabinet

Significant issues arise from the relationship between government and the House of Representatives. The process of verification and control over the members of the House of Representatives could be significantly improved as follows:

There are two types of motions of no confidence: debate against the Prime Minister, and debates against a specific Minister. The number of House members required for the debate should be one quarter of the total members for a debate against the Prime Minister, and one-fifth for a debate against a Minister. Should the ruling party possess more than three quarters of the total number of House members, the remaining opposition members could join together to call a no-confidence debate against either the Prime Minister or Ministers.

For a motion of no-confidence on the Prime Minister’s conduct, or against unusual wealth of a minister, suggesting malfeasance in his or her duties, or intentional violation of the Constitution or relevant laws, the case must first be submitted for direct investigation by a responsible organization, before a motion of no-confidence can be tabled.

Problems and ambiguities in defining qualifications and mandates of Ministers to avoid conflicts of interest are commonplace in Thailand. According to Section 208 of the 1997 Constitution, a Minister cannot occupy a post or perform any actions specified in Section 110. This Article applies to any Minister exercising direct administrative power over government agencies and State enterprises. To be effective, the restrictions defined in Sections 208 and 110 should apply not only to the Minister himself, but also to spouses and children. Moreover, family members should be specifically prohibited from acting as nominees.

Also, in order that compliance with measures limiting shareholdings by Ministers can be effectively verified, expansion of the scope of these regulations to cover the spouse and children of the Minister is a must. Again, family members should be strictly prohibited from acting as nominees.

Prosecution of offences of corruption and malfeasance involving abuse of State power should not be subject to a statute of limitation. Investigation of corruption and abuse of power by politicians is typically difficult and time-consuming, and court cases can last for many years whilst those politicians remain in office. Currently, in such cases, there is a high probability that the case will be thrown out due to expiry of the statute of limitations. The Constitution should therefore be amended to allow prosecution of such offences during the lifetime of the alleged offender.

Part 2 : Constitutional Court and Independent Agencies under the Constitution

The recommendations that follow address issues related to the independent agencies, comprising the judicial Constitutional agency, i.e. the Constitutional Court, and the Constitutional agencies, usually referred to as the independent agencies.

Constitutional Court

Thailand’s new Constitution should specify the establishment of a Constitutional Court, and should also define the mandate and jurisdiction thereof, in order to ensure that the Court can discharge its political duties to the fullest and most proper extent. The Constitutional Court should have jurisdiction over six broad categories of cases, covering the constitutionality of Parliamentary acts, Royal decrees, draft legislation, authorities of constitutional mechanisms as well as the appointment and removal of public officials and issues regarding political parties.

Public lawyers should be included in the list of candidates for selection as Constitutional Court judges. Selection of Constitutional Court judges should focus on the relevance of the past experience of each candidate. Regarding the appropriate size and composition of the panel of judges, the following is suggested:

There should be no more than 12 Constitutional Court judges.

The composition of the Court should be as follows:
a) Two Supreme Court judges, stipulating that one of the two candidates must be a recognized expert in public law; b) Two Supreme Administration Court judges, with the stipulation that one of the two candidates must be a recognized expert in public law; c) Five law experts, with the stipulation that two of the five must be experts in public law; d) Three experts in political science.

Independent Agencies

There are a number of problems and controversies over the jurisdiction of the Independent Constitutional Agencies, mostly associated with the erosion of their independence from government, and the politicization of the process of appointments to independent agencies. Section 145 of the 1997 Constitution confers wide powers to the Election Commission (EC). Briefly, the EC is responsible for managing both local and national elections, enforcing electoral laws and regulations, and even has the power to punish violators. This ‘absolute power’ was not considered as subject to appeal by a higher court, and this perception impeded any attempt to mitigate or prevent misconduct or bias by the EC. However, accusations of corrupt practice within the EC last year finally led to judicial action, and finally, to the jailing and resignation of the Election Commissioners. This event broke a tense political deadlock and contributed to the spiraling political crisis, and the subsequent downfall of the Thaksin regime. It is therefore essential to review the mandate of the EC to ensure its full compliance with the principles of good governance, and to ensure clear separation of the powers vested in the EC, along with clear lines of control. The following suggestions may help in accomplishing these objectives:

1. Allow the EC to continue to manage national and local elections;

2. Allow the EC to pass a verdict on violators of electoral law, subject to appeal by other interested parties through the courts. For local elections, the appeal could be made through the Provincial court, while appeals relating to the national election could be made through the Electoral Court;

3. The Election Court should be convened as a special court for the duration of national elections. The Election Court should comprise judges from the Appeals and Administrative Courts in different administrative districts, and could use the local offices of either court as the venue for hearing cases.

Laws governing electoral procedures should be revised to provide for election cases to be heard at the Provincial and Election Courts.

The 1997 Constitution was a major step forward in Thailand’s fight against corruption, introducing for the first time new laws and institutions for challenging corruption. The new institutions included the Administrative Court, a State Audit Commission (SAC), and an independent National Counter-Corruption (NCCC) agency with teeth. The SAC plays a critical role in verification of the State budget, and its independence and neutrality are vital for its work to be effective. Unfortunately, the SAC has suffered greatly from political interference, again resulting in institutional stagnation.

With broad powers to audit and monitor State agencies, impeach officials and ministers who are found to be corrupt, as well as establish mechanisms for their criminal prosecution, the NCCC faces similar problems to both the EC and SAC.

Political interference and conflicts of interest have led to a massive backlog of unresolved cases within the NCCC, making it impossible to efficiently take care of important cases involving political office holders or highranking civil servants. For this reason, cases should be prioritized into two categories - misconduct by low-ranking civil servants, and misconduct by political office holders or high-ranking civil servants. In the former case, the officer’s own organization should investigate the case, but for cases involving political office holders or senior civil servants, the NCCC should be responsible. The NCCC should still retain the jurisdiction to intervene in other categories of cases as it deems necessary. •

CONSTITUTION ISSUE 1 JUN-SEP 2007 Banjerd Singkaneti Assets Examination Committee, Assistant Professor at Thammasat University Faculty of Law
		GUEST WRITERS: POLITICAL REFORM by Banjerd Singkaneti Case Studies of Political Institutions and Independent Agencies under the Constitution of Thailand

		This article is structured in two parts, the first dealing with political institutions, and the second covering the Constitutional Court and independent agencies. Part 1 : Political institutions Political institutions may be categorized as follows: • The House of Representatives • The Senate and • The Cabinet. The House of Representatives Regarding the members of the House of Representatives, there are important issues which should be addressed to guarantee the independence of members and improve standards of governance. Candidates for election to the House of Representatives must be members of a political party. This requirement should be cancelled for two reasons. First, the foundation of the party system in Thailand is itself unstable, and secondly, there is often inappropriate interference from financial backers. This situation most certainly brings undesirable impacts on the political scenario. Instead of strengthening the party system, this requirement increases the power and influence of the party’s financial backers, and effectively forces members to toe the party line on all issues. The problems might be addressed as follows: Candidature for election to the House of Representatives should not limited to those who are political party members. In case of elected representatives with political party membership, the elected representative must maintain his/her membership with the same political party at the time of election until the expiry of the term of the House of Representatives. Switching political parties should only be permitted after the expiry of the term or dissolution of the House of Representatives. The second issue concerns revocation of membership of the House of Representatives. Most Thai political parties still lack an institutional characteristic, as their very existence usually depends upon the patronage and charisma of one or two individuals. Also, the internal structures and mechanisms often do not follow democratic principles, with centralized decision-making and patronage as the overriding drivers. For these reasons political parties should not retain the power to revoke membership of the House of Representatives from a party member. This problem was highlighted during the government led by Thaksin Shinawatra – leader of the Thai Rak Thai party. Two approaches are suggested to establish a more equitable relationship between the political party and its individual parliamentary representatives. The first approach would be to bring back Article 97 of the 1972 Constitution, which states that “Senators and Members of the House of the Representatives “are representatives of the Thai people and are not accountable to any other interest group, and must discharge their responsibilities honestly as they see fit, for the benefit of Thai people”. Allegations of breaches of political ethics (e.g. bribery to secure votes) made against a member of the House of Representatives should be dealt with by an independent agency, rather than the member’s own party. Such an agency might be established as a Committee for Politicians’ Ethics, and could comprise members from the judiciary, political institution members and outside experts as required. If the committee finds the allegation to be true, the membership of the House of Representatives of the member could then be revoked. A second approach might be taken if the present system is to be maintained. Political parties could be accorded the right to revoke any party member’s membership of the House of Representatives. However, in the interest of the party’s long-term development, the representation of members of the House of Representatives must be protected in order to prevent the party or its financial backers from abusing their powers. Political parties could rightfully revoke the membership of a member of the House of Representatives if the termination follows established legal process. Nevertheless, the party’s powers could be kept in check if a party resolution could take effect only after verification by the Constitutional Court. The Senate The primary purpose for the Senate’s existence in any parliamentary system is to balance and curb the power of political parties holding a majority in the House of the Representatives. Although the House of the Representatives is divided between the ruling and opposition parties, in practice it may often be impossible for the opposition in the Lower House to effectively balance the control of the ruling party. However, the balancing function of the Senate is intended mainly to ensure the constitutionality of draft legislation, and to ensure effective national administration by the State. The Senate does not consider issues such as revocation of the membership of Members of the House of Representatives. However, the Senate is authorized to pass resolutions and opinions on appointees to independent agencies according to the provisions of the 1997 Constitution. The role and need for a Senate with the above objectives is crucial to the smooth and transparent function of the Thai parliamentary system. Establishing membership of the Senate through elections is inconsistent with the Senate’s overall mission since party political influence within the Senate cannot be avoided. Thus the following powers and responsibilities should be vested in Thailand’s Senate: • to carefully consider the laws passed by the House of the Representatives. • to pass resolutions. • to oversee the State’s administration of the government. The Cabinet Significant issues arise from the relationship between government and the House of Representatives. The process of verification and control over the members of the House of Representatives could be significantly improved as follows: There are two types of motions of no confidence: debate against the Prime Minister, and debates against a specific Minister. The number of House members required for the debate should be one quarter of the total members for a debate against the Prime Minister, and one-fifth for a debate against a Minister. Should the ruling party possess more than three quarters of the total number of House members, the remaining opposition members could join together to call a no-confidence debate against either the Prime Minister or Ministers. For a motion of no-confidence on the Prime Minister’s conduct, or against unusual wealth of a minister, suggesting malfeasance in his or her duties, or intentional violation of the Constitution or relevant laws, the case must first be submitted for direct investigation by a responsible organization, before a motion of no-confidence can be tabled. Problems and ambiguities in defining qualifications and mandates of Ministers to avoid conflicts of interest are commonplace in Thailand. According to Section 208 of the 1997 Constitution, a Minister cannot occupy a post or perform any actions specified in Section 110. This Article applies to any Minister exercising direct administrative power over government agencies and State enterprises. To be effective, the restrictions defined in Sections 208 and 110 should apply not only to the Minister himself, but also to spouses and children. Moreover, family members should be specifically prohibited from acting as nominees. Also, in order that compliance with measures limiting shareholdings by Ministers can be effectively verified, expansion of the scope of these regulations to cover the spouse and children of the Minister is a must. Again, family members should be strictly prohibited from acting as nominees. Prosecution of offences of corruption and malfeasance involving abuse of State power should not be subject to a statute of limitation. Investigation of corruption and abuse of power by politicians is typically difficult and time-consuming, and court cases can last for many years whilst those politicians remain in office. Currently, in such cases, there is a high probability that the case will be thrown out due to expiry of the statute of limitations. The Constitution should therefore be amended to allow prosecution of such offences during the lifetime of the alleged offender. Part 2 : Constitutional Court and Independent Agencies under the Constitution The recommendations that follow address issues related to the independent agencies, comprising the judicial Constitutional agency, i.e. the Constitutional Court, and the Constitutional agencies, usually referred to as the independent agencies. Constitutional Court Thailand’s new Constitution should specify the establishment of a Constitutional Court, and should also define the mandate and jurisdiction thereof, in order to ensure that the Court can discharge its political duties to the fullest and most proper extent. The Constitutional Court should have jurisdiction over six broad categories of cases, covering the constitutionality of Parliamentary acts, Royal decrees, draft legislation, authorities of constitutional mechanisms as well as the appointment and removal of public officials and issues regarding political parties. Public lawyers should be included in the list of candidates for selection as Constitutional Court judges. Selection of Constitutional Court judges should focus on the relevance of the past experience of each candidate. Regarding the appropriate size and composition of the panel of judges, the following is suggested: There should be no more than 12 Constitutional Court judges. The composition of the Court should be as follows: a) Two Supreme Court judges, stipulating that one of the two candidates must be a recognized expert in public law; b) Two Supreme Administration Court judges, with the stipulation that one of the two candidates must be a recognized expert in public law; c) Five law experts, with the stipulation that two of the five must be experts in public law; d) Three experts in political science. Independent Agencies There are a number of problems and controversies over the jurisdiction of the Independent Constitutional Agencies, mostly associated with the erosion of their independence from government, and the politicization of the process of appointments to independent agencies. Section 145 of the 1997 Constitution confers wide powers to the Election Commission (EC). Briefly, the EC is responsible for managing both local and national elections, enforcing electoral laws and regulations, and even has the power to punish violators. This ‘absolute power’ was not considered as subject to appeal by a higher court, and this perception impeded any attempt to mitigate or prevent misconduct or bias by the EC. However, accusations of corrupt practice within the EC last year finally led to judicial action, and finally, to the jailing and resignation of the Election Commissioners. This event broke a tense political deadlock and contributed to the spiraling political crisis, and the subsequent downfall of the Thaksin regime. It is therefore essential to review the mandate of the EC to ensure its full compliance with the principles of good governance, and to ensure clear separation of the powers vested in the EC, along with clear lines of control. The following suggestions may help in accomplishing these objectives: 1. Allow the EC to continue to manage national and local elections; 2. Allow the EC to pass a verdict on violators of electoral law, subject to appeal by other interested parties through the courts. For local elections, the appeal could be made through the Provincial court, while appeals relating to the national election could be made through the Electoral Court; 3. The Election Court should be convened as a special court for the duration of national elections. The Election Court should comprise judges from the Appeals and Administrative Courts in different administrative districts, and could use the local offices of either court as the venue for hearing cases. Laws governing electoral procedures should be revised to provide for election cases to be heard at the Provincial and Election Courts. The 1997 Constitution was a major step forward in Thailand’s fight against corruption, introducing for the first time new laws and institutions for challenging corruption. The new institutions included the Administrative Court, a State Audit Commission (SAC), and an independent National Counter-Corruption (NCCC) agency with teeth. The SAC plays a critical role in verification of the State budget, and its independence and neutrality are vital for its work to be effective. Unfortunately, the SAC has suffered greatly from political interference, again resulting in institutional stagnation. With broad powers to audit and monitor State agencies, impeach officials and ministers who are found to be corrupt, as well as establish mechanisms for their criminal prosecution, the NCCC faces similar problems to both the EC and SAC. Political interference and conflicts of interest have led to a massive backlog of unresolved cases within the NCCC, making it impossible to efficiently take care of important cases involving political office holders or highranking civil servants. For this reason, cases should be prioritized into two categories - misconduct by low-ranking civil servants, and misconduct by political office holders or high-ranking civil servants. In the former case, the officer’s own organization should investigate the case, but for cases involving political office holders or senior civil servants, the NCCC should be responsible. The NCCC should still retain the jurisdiction to intervene in other categories of cases as it deems necessary. •



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