Video Clips of Debate

At 9.00 a.m. on 3 August 2007, People Network for Election in Thailand (P-NET), Asian Network for Free Elections (ANFREL), and Committee for the Campaign for Human Rights organized a debate on the weaknesses and strengths of the 2007 draft constitution at the auditorium of Ban Manangkasila. The event was also broadcast live by the Nation Channel and Prachatai Website.

The debate featured representatives from the Constitution Drafting Council (CDC) and academics, who were matched into three pairs.

First pair: Mr. Charan Pakdeethanakul, Permanent Secretary of the Ministry of Justice and Vice-President of the Constitution Drafting Committee (CDC) and Prof. Dr. Nidhi Eawsriwong, former lecturer of Chiang Mai University and an academic from the Midnight University

Second pair: Dr. Jirmsak Pinthong, member of the CDC and the CDC's Public Relations Committee and Mr. Chaturon Chaisaeng, former acting leader of the Thai Rak Thai Party

Third pair: Dr. Somkid Lertpaitoon, CDC member and secretary and Asst. Prof. Dr. Vorachet Phakeerat, Chief of the Public Law Department, Faculty of Law, Thammasat University

The first three sessions were provided for each pair to explain their positions for 20 minutes, plus five minutes for questions. A doll was shown to speakers who overran. The final session was for wrap-ups.

Before the debate started, the pairs drew lots. The one choosing green would speak first. It turned out that in all three pairs, the CDC members were the first speakers.

According to our reporter, there were "pretty girls" at the event who went around distributing stickers saying "19 August green light to the 2007 constitution" and some students from Thammasat University distributed papers for the audience to write their questions on. But the questions would be screened before being handed to the speakers. At the same event, members of the anti-coup 19 September Network distributed posters calling for the rejection of the draft constitution.

Mr. Charan Pakdeethanakul began by saying that there can be no 100% perfect and flawless constitution. He touched on two main issues concerning the drafting process and the content of the constitution.

Even though the drafting process initially drew some criticism as a product of the coup, the coup was an undeniable truth. Nevertheless, both the Constitution Drafting Committee and other CDC members have been able to work independently and have attempted to solicit public opinion.

In the drafting process, the 1997 constitution was critically reviewed and its strengths and weaknesses explored for further development. The draft constitution is therefore not the pure invention of the CDC, but is derived from the 1997 constitution.

Some weak points of the 1997 constitution have been addressed and amendments made. For example, the charge that the administration had become too powerful and beyond any review of other parties is addressed by reducing the minimum number of MPs required for a no-confidence motion. The issue of political interference in the independent institutions is addressed by including in the selection committee representatives from an independent and neutral institution, namely, the judiciary. And finally, while the 1997 constitution seemed to take for granted issues of individual morality and virtue, the draft constitution attempts to make morality and virtue the guiding principles for the exercise of power.

Prof. Nidhi Eawsriwong said that even though the 1997 constitution has helped to address political issues including enhancing the quality of the parliament and empowering the administration to make better use of state and bureaucratic mechanisms, as well as creating checks and balances from within and from civil society to prevent the domination of politics by capital, these were not enough. Even before the 19 September coup, every party recognized the flaws of the 1997 constitution. PM. Thaksin Shinawatra agreed to make constitutional amendments after the election. It does not matter if that promise was made sincerely or because of pressure, but every party seemed to agree unanimously that the constitution had to be amended.

But with the coup and the establishment of the CDC, the focus was simply to tackle the issue of too powerful governments which could allegedly lead to corruption of power. And only the experience of the urban middle class was drawn on to explore solutions, not the views of grassroots people who also shared the same impact from the 1997 constitution. The hasty conclusion was that all problems stemmed from the selling of votes by grassroots people.

Thus, the solution posed by the draft 2007 constitution is how to make an elected administration run as a coalition of different political parties so that they become politically weakened. It was in fact the same situation as before the 1997 constitution. So we are about to restore the previous politics of collusion. And if the elected government is too weak, then the bureaucrats will take charge over the politicians and hence we will have proxy politics.

Moreover, the 2007 constitution hands most power concerning the selection of members of the independent institutions to the justice system. It destroys the checks and balances of the three powers and in a long run will be harmful to the judiciary itself.

The most effective monitoring of the administration is by social power. And monitoring is functional when provisions are made to uphold rights and freedoms, and the current constitution seems to give great importance to this, even more than in the 1997 constitution. Also, the drafting process has to hinge on input from grassroots villagers. But since the drafting process of the current constitution has all along denied a role to the general public, it is very likely that its provisions will have no real implementation. Many good laws tabled for in Parliament will be put last in the queue, left in limbo until the term of parliament expires. Personally, I think the drafters of the current version have good intentions in this matter, but have not made use of the real experience of grassroots villagers to enable them to write laws that can effectively lead to the promotion of rights and freedom.

The 2007 constitution also does not give importance to the roles of local people in politics. For example, there are no provisions for the disclosure of EIA reports on state development projects, no right to propose motions to sack those in political positions. All these rights are in either the 1997 or 2007 constitutions

Nevertheless, according to Prof. Nidhi, apart from the draft constitution, we have to focus on four draft bills that have passed the cabinet and are tabled for reading by the National Legislative Assembly (NLA). The laws, if passed, will effectively undermine the spirit of the 2007 constitution on the issues of decentralization and rights and liberties. The draft laws include the draft Governmental Administration Act and Internal Security Act, and will make many provisions in the 2007 constitution ineffective.

"I do not believe that by endorsing this draft constitution, peace will be restored. Millions of people will come out to vote on referendum day and many of them will vote against the draft constitution since they deem it unjustifiable. Peaceful politics will not prevail as long as several million people still hold the government illegitimate, the NLA illegitimate, the constitutional tribunal illegitimate. All of these bodies lack legitimacy. Thus, in my opinion, there is no need to endorse the draft constitution and by voting against the draft constitution, CNS and the government will be forced to choose another existing constitution and the 1997 constitution is the most likely possibility."

Dr. Jirmsak Pinthon said that three factors determine the decision to accept or reject the draft constitution. First, we have to see how the content of the draft constitution will be of service to the country in future. Second is whether the drafting process has been informed by the people, and how far reaching this consultation was. And third is the pretext for the draft constitution; whether it came as a result of the coup or in some other way. The previous speakers have given disproportionate importance to each of these factors. Personally, he gives 50% importance to the content, 35% to the drafting process and 15% to the pretext.

"If I could turn the clock back, I would have given more importance to the pretext. But we cannot turn it back. The coup has already happened and the country needs to step forward. Therefore, I give less importance to the pretext as circumstances have changed" said Dr. Jirmsak.

As a member of the NLA committee on public participation and referendum and a pro-draft-constitution person, Dr. Jirmsak said that from his experience as part of the Constitutional Drafting Council for the 1997 constitution, the current draft has benefited from the strengths of the older version and many of its flaws have been addressed including a diminution of state power and an increase in people's power through greater power given to independent institutions to monitor the government's performance, a reduction in the minimum of the signatures required for the impeachment of the Prime Minister or Ministers, a prohibition of mass change of membership from one party to another, the promotion of rights and freedoms and the enhancement of the quality of the Senate so that there will be more knowledgeable members.

In addition, people's power has been increased. They have more rights to propose laws, to have access to free education and free medical treatment, and there are attempts to keep people informed about FTA negotiations.

"There are 309 articles in this draft constitution. Ask me if I like all the articles, and I would say there are more than 30 articles that I don't like. But ask me if I would vote for the draft constitution on 19 August, and I will definitely vote for it as there could be no constitution where every single article pleases everyone. We need to look at the overall picture and how the whole country will step forward" said Dr. Jirmsak.

Mr. Chaturon Chaisaeng said that many questions need to be answered before one can accept the draft constitution. Since it will be treated as the supreme law, we have to ask if it applies to everyone equally. Does everybody have to comply with the law? Does the sovereign power lie with the people and how do people exercise their power to monitor politicians? The system must be properly organized so that people can systematically monitor government power. Their rights and freedoms must be upheld, particularly, political rights and freedoms and their participation in making decisions that affect the country's administration.

His study found that the draft constitution contains inherent fatal flaws to the point where it does not deserve to be called a "constitution" since it contravenes all the principles mentioned earlier. The draft constitution does not promote democracy, but simply helps to strengthen the dictatorial grip and bureaucratic polity. Even though more importance has been given to rights and freedoms, but the practicality of the provisions is subject to question.

According to the draft constitution, MPs can hardly act in the service of people. The voting system has regressed to the ‘3 MPs per constituency' system. Monitoring of state power is difficult since according to the draft constitution, MPs are prohibited from interfering with the activities of government officers, and any such interference could be cause for their removal. Political parties will become substantially weaker and cannot propose other policies since all major policies are fixed by the government itself.

There are three groups that will stand to gain power from the draft constitution including the CNS and the groups and individuals close to them, the appointed senators, and the courts and independent institutions founded by the NLA. These have almost nothing to do with the people and the bureaucracy.

According to the draft constitution, the heads of the Court and independent organizations are empowered to recruit 74 senators. By simply co-opting a few more elected senators, they can gain majority power. The Senate is empowered to impeach the Prime Minister and the cabinet. But since the senators are recruited by the Court and the independent organizations, how could they propose the removal of the heads of the Courts or members of the independent organizations? There will be no checks and balances since all powers are cross-linked. And this will simply lead to increasing interference of power and in a long run undermine the justice system as it becomes too engaged in politics.

Another problematic article concerns the pardon granted to the CNS for staging the coup. This will create massive damage. Illegal acts will be made legal under this constitution. And this self-pardon is tantamount to acceptance of the coup.

In sum, the content of the draft constitution is undemocratic. Those who come to power from election are made powerless, and power lies with those appointed. Under such an administration, people have no right to express themselves and no one will care to listen to their needs and find ways to address them. Crises will become even worse as state mechanisms fail to respond to people's needs. In general, the draft constitution will simply help to stabilize a dictatorial regime and bureaucratic polity. In other words, state officers and those who do not come from election will be given power to rule the country. Therefore, we should not accept the draft constitution.

Dr. Somkid Lertpaitoon said that much attention has been given to Article 309 concerning the amnesty granted to the CNS. But in fact, in the drafting process, the CNS was not given any chance to intervene. According to the draft constitution, the Prime Minister has to come from election and the CNS, of course, has no power to install the PM, or recruit senators. Also, the CNS will lose power once the constitution is implemented. The election will take place within this year and none of this contradicts democratic principles.

"Many people accused us of writing Article 309 to pardon the CNS. Not at all. Article 309 says that anything which was right in 2006 shall be taken as right in the future. It doesn't say that anything that was wrong will be made right. So what's wrong with writing it this way? Is there anything in there that provides an amnesty to the CNS? The amnesty for CNS has already been given in the 2006 interim constitution. There is no need to further pardon them."

Dr. Somkid said further that though the 1997 constitution is hailed as good, it also contains many flaws. The current draft attempts to address these flaws, in particular by enhancing the checks and balances of power among the administration, legislature and the judiciary. The government will not be weakened and there is no empowerment of the courts as claimed. In addition, those in the legislative branch will have even more power, i.e., party members can vote without having to worry about their party's resolutions. The courts also have the power to monitor the ombudsmen.

Another controversial issue concerns the election and appointment of senators. Dr. Somkid maintained that such mixed selection systems are used in many democratic countries including the United Kingdom and Belgium. If we leave the senators to come entirely from election, the same old problems will recur, since senators have the power to recruit members of all the independent institutions.

In addition, Dr. Somkid highlighted the strengths of the draft 2007 constitution. The provisions on the rights and freedoms of the people have been much improved, i.e., the reduction, from 50,000 to 20,000, of the minimum number of signatures required to propose laws and impeach in political office-holders, including the impeachment of judicial officers as well. It will also be the first time that people can propose amendments to the constitution.

Asst. Prof. Dr. Vorachet Phakeerat said that the draft 2007 constitution is flawed for its pretext, conflicts of interests in the drafting process and a lack of coherence in its content. Also, it contravenes its status as the supreme law.

Since the "pretext" for this draft constitution is based on the coup, therefore, it cannot be accepted as a legitimate law. Historically, constitutions derived from illegitimate acts have always caused more problems.

In addition, the draft constitution mentions a great deal about ethics. Though it says much about politicians' ethics, it fails to focus on the ethics of the drafters themselves, many of whom come from organizations that stand to gain directly from the draft constitution. Some drafters are acting as the organizers of the referendum as well.

The law lecturer noted that the deliberate design for members of the senate to come from both election (76 members) and appointment (74 members) does not reflect a balanced democratic structure.

The claim by the pro-draft constitution side that even in England, the "House of Lords" still exists with some members selected by appointment is made with no consideration of its power. The British House of Lords has no power to impeach an elected Prime Minister. But in our draft constitution, the appointed senators are given equal power as the selected senators even though the former cannot be taken as the true representatives of people since they are not connected with the people.

Similarly, the pro draft constitution people claim that under the new constituency election system, people in certain constituencies are entitled to elect up to three MPs and this will give them more choice. But Asst. Prof. Dr. Vorachet argued that in small constituencies, people can elect only one MP anyway. They are not entitled to elect three MPs like those in larger constituencies. Under this system, people can feel that they are not treated equally. Although it is claimed that the new system can help to purge vote buying, Asst. Prof. Dr. Vorachet argued that bigger constituencies can aggravate vote buying as well.

Nevertheless, Asst. Prof. Dr. Vorachet admits that the draft 2007 constitution should be hailed for its provisions on rights and freedoms and on the checks and balances of political power by preventing political parties from becoming too powerful. Provisions are made, for example, to require politicians to declare their assets. But this strength is severely compromised by the fact that individuals in certain organizations that have indirect political power, like those responsible for the recruitment of members of the independent institutions or senators, are not subject to this scrutiny at all.

Another important issue concerns Article 309. The pro draft constitution people claim that this is not intended to pardon the CNS. But if we read it thoroughly we will find the article legitimizes all the actions of the CNS, including the coup, the declaration of martial law, etc. Basically, Article 309 says that any actions held as legitimate in the interim 2006 constitution will continue to be held as legitimate in the 2007 constitution.

Asst. Prof. Dr. Vorachet summarized that anything that is intrinsically right and appropriate needs no justification from outside. But judging from both the pretext and the content of the draft 2007 constitution, and weighing the pros and cons, this constitution will not end existing problems.

At the end of the session, one speaker from each side was given five minutes to wrap up. For the pro draft constitution side, Mr. Charan Pakdeethanakul was chosen as the speaker, and Asst. Prof. Dr. Vorachet Phakeerat for the opposition.

Asst. Prof. Dr. Vorachet called for the rejection of the draft constitution and insisted that under any circumstances, the election will certainly happen. However soon the election will be depends on the sincerity of the CNS and those concerned parties. He is sure that if the draft 2007 constitution is killed, the CNS will choose the 1997 constitution in its place.

"By rejecting the draft constitution, we help to uplift the ideological struggle for democracy and enhance democratic values which are the foundation for the next steps for Thailand to be recognized among civilized countries".

The public law lecturer ended by saying that "rejection of the draft constitution is a solution for Thai society and helps to pre-empt any deadlock in the future. The 1997 constitution will then have a chance to be restored righteously and the flaws can be addressed. Even without the current draft version, amendments to the 1997 constitution are coming anyway. So why don't we choose to restore the 1997 constitution?".

Mr. Charan Pakdeethanakul stressed that what Asst. Prof. Dr. Vorachet's speculation is not as certain and smooth as the vote to accept the draft constitution. And by voting for the draft constitution, we "can instantly end the coup". He also mentioned that Article 309 is not at all intended to protect wrongdoers.

After the debate, the organizers arranged for six students to give red roses to the speakers and each speaker had to exchange the flower with his opponent.

Translated by Pipob Udomittipong