Now the junta, the charter writers, and all state mechanisms, as well as all their allies, are campaigning to raise an understanding about the draft Constitution 2007--well known as an elitist charter--in a bid to propagandize the people to vote for it in the upcoming referendum.
Here are my good conclusions about this draft charter, as I understand it on my own without anyone's assistance.
I well understand that:
1) This draft constitution is created under an undemocratic process, written by a junta-appointed group of individuals with the participation of a limited number of people, which goes against the principle of Democracy;
2) The preamble of the draft shies away from referring to the fact that the Sept 19 coup is the prime reason for writing it. Rather it copies the text of the previous constitution just for pomposity: "this draft constitution aims to promote and protect the rights and freedoms of the people even more tangibly, to encourage the people to have a more concrete role and participation in the administration and the scrutiny of the state." This passage veils the true intention of this draft; that is, to give power to the aristocrats, tightening their grip over people and politics.
3) This draft is produced by a group of individuals without any idea of the changing socio-politics. Rather it plagiarizes the discarded 1997 Constitution, adorned with the charter writers' own unrealistic imaginings and visions. Parts of Sections 1, 2, and 3 (until Article 30) are copied and pasted from the previous charter, with the only addition of the incomprehensible Paragraph 2 of Article 3. Even the controversial Article 7 remains intact.
4) The draft boasts of the rights and freedoms of the people in Section 3. This section indeed is rhetorical, consisting of provisions on rights but also exceptions. That is, the draft guarantees the rights, but allows legislation to violate those rights; for example, the freedom of communication in Article 36 can be suppressed for the sake of security, which can be interpreted in any way, and public morals.
5) The draft contains inapplicable conditions for exercising those rights. Paragraph 3 of Article 28, for example, states that the people can ask the courts directly to force the state to conform to the provisions in Section 3, unless there are detailed provisions in other laws saying otherwise. The problem is the draft does not contain a provision on the procedure of the legal action; therefore, any prosecution is subject to a specific law. For example, if any authorities are found to abuse people, the prosecutor or the victims can ask the court to stop the abuse, according to Article 32. But which court, administrative or criminal or else, holds such jurisdiction under this provision?
6) The draft allows security issues to encroach on civil liberties. The charter writers have highlighted provisions on the rights and freedoms in Section 3 to tempt voters in the referendum. The Committee on Consumers Protection needs
to see if this propaganda is a deception. The pretext of ‘security, order,
emergency, and war' is already covered in other laws. For example, the internal security bill currently under deliberation can infringe on the rights stipulated in Articles 36, 38, 42, 43, 45, 47, 56, 63, and 64. And security also has a presence in several other sections of the draft.
7) This draft is amusing enough to read for entertainment. Some of the amusement comes from the previous constitution, some is original. One particular joke copied from the previous charter is the section on the duties of Thai people, Article 72 from Article 68 of the 1997 Constitution, which says individuals are obliged to exercise their right to vote in elections. This has been a good laugh for ten years. So, is voting a right or a duty? If a right, people have the freedom to use it or not to use it. If a duty, people must go to vote, or get punished.
A new joke in this draft is the right to protect the constitution. Article 68 prohibits any person from doing things that are not stipulated in the constitution to acquire administrative power. Coups d'état are not included in any provision; therefore, they are unconstitutional. However, Article 309 legitimizes everything under the interim 2006 Constitution and all related acts including the 2006 coup. Through an analogy, to acquire the administrative power via a coup can be constitutional.
All right! One should strictly interpret that a coup is unconstitutional because it is not clearly written. Paragraph 2 of Article 68 says if a person or a political party is found to have seized power by illegal means, the public prosecutor can ask the Constitutional Court to forbid the attempt and bring the culprit to the Criminal Court. Paragraph 3 says that the political party will be dissolved, but stops short of saying whether any institution of coup makers will also be dissolved.
Furthermore, Article 69 says that individuals have the right to resist peacefully the acts set out in Article 68. Any successful coup will surely tear up this constitution. What is the use of such clause here? I gather these two articles result from a hangover from the Thai Rak Thai dissolution case. Strange that this country writes its charter as a footnote to a single case that is already finished.
8) This draft turns the election into a mere political symbol, not reflecting the people's will to choose policies they like because the draft already lays down all state policies for them. The contesting parties do not need to formulate their own policies, because the policies could go against the constitution. For example, Article 83 says that the state must promote and support implementation in line with the Sufficiency Economy, while Article 84 supports a liberal economy, and Article 84 (12) promotes a merchant navy and rail transportation. This is a constitution suitable for a country ruled by one party, rather than a multi-party system like Thailand's, as there is no chance of competition in terms of policies. A party cannot say that it cannot follow the Sufficiency Economy for whatever reasons, or say that the rail transportation is not viable economically, and people cannot choose this party for this particular reason, because it is unconstitutional.
9) This draft is claimed to be based on the 1997 Constitution, but completely alters the spirit of the election of representatives by giving the bureaucrats power to appoint half of the Senate which would still hold the same power as of the former elected Senate. That means the bureaucrats would be in control of politics, a severe distortion of Democracy.
10) This draft boasts of empowering the people to scrutinize and impeach the administration and propose legislation through 20,000 signatures of eligible voters submitted to the Senate Speaker under Article 271. This is an imitation of the previous charter which never materialized in practice. We all know how difficult it is to ask the powers that be to penalize one another. Why not via other means such as a referendum for impeachment? An elected office holder impeached by a referendum, isn't it fair?
Understood as such, I hereby exercise my rights not to approve this draft constitution, and my vote does not affect my basic rights to criticize or oppose any acts of the junta whatsoever.
Note: Supalak is a journalist of The Nation newspaper.
Related News:
Thailand on Spin Cycle, Asia Sentinel
NGO Coordinating Committee on Development (NGO-COD) announced its rejection of the draft charter
The People's Assembly for Political Reform (PAPR) announced its endorsement of the draft charter.
Reference:
2007 Draft Constitution of Thailand
