SUGGESTIONS FOR DRAFTING THE NEW POST-COUP CONSTITUTION

The 1997 Constitution of the Kingdom of Thailand was the first to be drafted with the specific purpose of reforming the entire political system. The three fundamental problems it addressed were the recognition of human rights and public participation in politics, the need for stronger checks and balances against state power, and the inefficiency and instability of the political system.

However, after 9 years under the 1997 Constitution, these laudable aims for political reform remained elusive, undermined as they were by widespread policy corruption.

But how could things have gone so wrong? After all, the 1997 Constitution was perhaps the best of Thailand’s 15 Constitutions, and was widely hailed as a landmark in Thai democratic constitutional reform.

The answer may lie in weaknesses in the basic design of the Constitution, and the obstacles faced in making amendments to the original draft. Many have misconstrued that this Constitution was the best because of its reformist goals.

Part of the problem lay in the Constitution’s assignment to governments and parliaments of the power to amend the Constitution, when these were the very institutions which the new Constitution was designed to rein in.

The last Article of the 1997 Constitution states that after 5 years, those organizations with a political reform mandate, i.e. the Election Commission, National Counter Corruption Commission and the Constitutional Court, should submit proposals for Constitutional amendments to the Government and Parliament. But it should be noted that these organizations are already empowered under the Constitution, i.e. they are stakeholders in amending the Constitution. Amendments to correct the shortcomings in the Constitution’s original design therefore could not happen.

One question that arose was, “Why did the members of the Constitution Drafting Assembly (CDA) not assign responsibility for Constitutional amendment to nonstakeholder organizations such as the Election Constitution Drafting Assembly?” Since the law already allows registered voters, through a petition of 50,000 signatures, to propose amendments to the law, why was this not considered as a mechanism for public participation in Constitutional amendments?

It was thus inevitable that Thai politics would eventually arrive at an impasse, which then led to the coup, the subsequent abrogation of the 1997 Constitution, and finally the drafting of a new Constitution. In reality, the new Constitution will represent no more than an amended version of the previous one, simply because of the need for the Constitution to adhere to fundamental principles of a constitutional monarchy.

Therefore, in drafting a new Constitution, the primary proposal stipulates that the Constitution Drafting Assembly will be mandated to undertake the drafting of additional amendments to the Constitution in place of the National Legislative Assembly, and also to ensure sufficient flexibility to simplify the Constitutional amendment process. This will allow the Constitution to evolve according to the situation, and thereby prevent the emergence of political stalemates and subsequent staging of more coups to abrogate the Constitution. Without these changes, Thailand’s political system will never be freed from this evil cycle.

The main reason for the failure of the 1997 Constitution lay in its inappropriate design for the political system and institutions. The Constitution opened the door to abuse of power, and eventually resulted in a parliamentary dictatorship dominated by ‘business politicians’. Therefore, the new drafting process must resolve problems related to political institutions and parliamentary dictatorship as its very first priority.

Parliamentary dictatorship occurs when government completely dominates the Legislative Assembly or the Lower House without checks and balances from opposition parties, and without a balance of power between the Upper and Lower Houses. How could such a situation be allowed to arise?

The answer to this question lies in the rules, enshrined by the Constitution, that compels all candidates to be members of political parties, and that if elected, once they resign or are disqualified from their respective political party, the Constitution stipulated they would automatically also be disqualified from serving as MPs. This measure gave parties full control over the actions of their MPs. Moreover, internal party structures are hierarchical, with power residing almost totally with the party leader and general committee. These individuals wield full control over party funds used for political campaigning and other activities.

Thus, the ‘business politicians’ can mobilize huge funds to establish political parties and field candidates who need financial support to be a member of their political parties. In the reality of Thai society, most constituencies are rural low-income areas, and therefore vulnerable to influence from money politics. In this way, business-political cliques can exercise total management control over the parties and their leaders eventually can accumulate sufficient influence in Parliament to exercise absolute control over all political decisions. By the same token, the effectiveness of the system of checks and balances can be readily disabled, leading to further consolidation of power.

It is clear from Thaksin Shinawatra’s second term in office that government power resided with a political party established by a dictatorial business-political group. Therefore, the party naturally refused to amend the Constitution to end control of MPs by their parties and their financial backers, as this would undermine their own power base.

At the same time, they opposed amendment of the Constitution that would close off opportunities for their business-political group to improperly seek to profit from their investment in election campaigns (through their influence over political decisions relevant to their business interests), or to use such profits to unfair advantage to consolidate their position to contest the next election.

The above problems are issues that the Constitution Drafting Committee must consider in their deliberations. If the new Constitution fails to take this opportunity to rectify these fundamental questions, the members of the Constitution Drafting Committee will have failed in their duty and – like so many of their predecessors- will have caused the nation irreparable harm by stalling essential political reform. •

CONSTITUTION ISSUE 1 JUN-SEP 2007 Somyos Chuathai Associate Professor at Thammasat University Faculty of Law
		GUEST WRITERS: SUGGESTIONS FOR DRAFTING THE NEW POST-COUP CONSTITUTION by Somyos Chuathai

		The 1997 Constitution of the Kingdom of Thailand was the first to be drafted with the specific purpose of reforming the entire political system. The three fundamental problems it addressed were the recognition of human rights and public participation in politics, the need for stronger checks and balances against state power, and the inefficiency and instability of the political system. However, after 9 years under the 1997 Constitution, these laudable aims for political reform remained elusive, undermined as they were by widespread policy corruption. But how could things have gone so wrong? After all, the 1997 Constitution was perhaps the best of Thailand’s 15 Constitutions, and was widely hailed as a landmark in Thai democratic constitutional reform. The answer may lie in weaknesses in the basic design of the Constitution, and the obstacles faced in making amendments to the original draft. Many have misconstrued that this Constitution was the best because of its reformist goals. Part of the problem lay in the Constitution’s assignment to governments and parliaments of the power to amend the Constitution, when these were the very institutions which the new Constitution was designed to rein in. The last Article of the 1997 Constitution states that after 5 years, those organizations with a political reform mandate, i.e. the Election Commission, National Counter Corruption Commission and the Constitutional Court, should submit proposals for Constitutional amendments to the Government and Parliament. But it should be noted that these organizations are already empowered under the Constitution, i.e. they are stakeholders in amending the Constitution. Amendments to correct the shortcomings in the Constitution’s original design therefore could not happen. One question that arose was, “Why did the members of the Constitution Drafting Assembly (CDA) not assign responsibility for Constitutional amendment to nonstakeholder organizations such as the Election Constitution Drafting Assembly?” Since the law already allows registered voters, through a petition of 50,000 signatures, to propose amendments to the law, why was this not considered as a mechanism for public participation in Constitutional amendments? It was thus inevitable that Thai politics would eventually arrive at an impasse, which then led to the coup, the subsequent abrogation of the 1997 Constitution, and finally the drafting of a new Constitution. In reality, the new Constitution will represent no more than an amended version of the previous one, simply because of the need for the Constitution to adhere to fundamental principles of a constitutional monarchy. Therefore, in drafting a new Constitution, the primary proposal stipulates that the Constitution Drafting Assembly will be mandated to undertake the drafting of additional amendments to the Constitution in place of the National Legislative Assembly, and also to ensure sufficient flexibility to simplify the Constitutional amendment process. This will allow the Constitution to evolve according to the situation, and thereby prevent the emergence of political stalemates and subsequent staging of more coups to abrogate the Constitution. Without these changes, Thailand’s political system will never be freed from this evil cycle. The main reason for the failure of the 1997 Constitution lay in its inappropriate design for the political system and institutions. The Constitution opened the door to abuse of power, and eventually resulted in a parliamentary dictatorship dominated by ‘business politicians’. Therefore, the new drafting process must resolve problems related to political institutions and parliamentary dictatorship as its very first priority. Parliamentary dictatorship occurs when government completely dominates the Legislative Assembly or the Lower House without checks and balances from opposition parties, and without a balance of power between the Upper and Lower Houses. How could such a situation be allowed to arise? The answer to this question lies in the rules, enshrined by the Constitution, that compels all candidates to be members of political parties, and that if elected, once they resign or are disqualified from their respective political party, the Constitution stipulated they would automatically also be disqualified from serving as MPs. This measure gave parties full control over the actions of their MPs. Moreover, internal party structures are hierarchical, with power residing almost totally with the party leader and general committee. These individuals wield full control over party funds used for political campaigning and other activities. Thus, the ‘business politicians’ can mobilize huge funds to establish political parties and field candidates who need financial support to be a member of their political parties. In the reality of Thai society, most constituencies are rural low-income areas, and therefore vulnerable to influence from money politics. In this way, business-political cliques can exercise total management control over the parties and their leaders eventually can accumulate sufficient influence in Parliament to exercise absolute control over all political decisions. By the same token, the effectiveness of the system of checks and balances can be readily disabled, leading to further consolidation of power. It is clear from Thaksin Shinawatra’s second term in office that government power resided with a political party established by a dictatorial business-political group. Therefore, the party naturally refused to amend the Constitution to end control of MPs by their parties and their financial backers, as this would undermine their own power base. At the same time, they opposed amendment of the Constitution that would close off opportunities for their business-political group to improperly seek to profit from their investment in election campaigns (through their influence over political decisions relevant to their business interests), or to use such profits to unfair advantage to consolidate their position to contest the next election. The above problems are issues that the Constitution Drafting Committee must consider in their deliberations. If the new Constitution fails to take this opportunity to rectify these fundamental questions, the members of the Constitution Drafting Committee will have failed in their duty and – like so many of their predecessors- will have caused the nation irreparable harm by stalling essential political reform. •



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