Prasit Pivavatnapanich

Faculty of Law, Thammasat University

The draft 2007 constitution will have half the Senate ‘selected' with overwhelming powers. The contents of the draft are self-contradictory and inconsistent in principle, in particular regarding the separation of powers. The increased rights and freedoms are rhetorical, but impractical. The focus is only on addressing the immediate problems, but will lead to new ones, said Prasit Pivavatnapanich at the forum.

Prasit said that bureaucrats, the independent constitutional bodies and the junta's successors will benefit from this constitution, citing provisional Article 299 that allows the parliamentary ombudspersons, the Election Commission (EC), and the National Counter Corruption Commission (NCCC) to continue in office until the end of their terms. But, strangely, the National Human Rights Commission (NHRC) is allowed to stay in office until new commissioners are appointed under the provisions of the new constitution, he said.

He said that was probably because the NHRC holds no power, unlike the NCCC and the EC. The latter, in particular, oversees elections and has the additional power to invalidate contesting candidates before announcement of the outcome. It is given too much power, and this power, in fact, belongs to the courts.

Furthermore, a transitory provision extends the term of the nine Constitution Tribunal judges who were appointed after the coup for one more year. This is not appropriate because the tribunal is an ad hoc body without legitimacy in terms of its origin.

Courts get politicized in the draft constitution

Prasit said that the judiciary will also get benefit as they will sit on the selection panel for the Senate.

In his opinion, it is a misconception to involve the judiciary in solving political problems. Nowhere else on earth are the courts allowed to get involved in politics like this. The courts can help solve political problems only through giving verdicts and rationalizing the verdicts, not sitting on the panel to select members of the Senate, which is a political body.

Besides, 74 out of 150 senators would be selected by a panel consisting of 3 judges and 4 bureaucrats, and would assume as much power as the senators elected under the 1997 constitution.

"If the courts happen to make bad judgments, they would be criticized by the media and academics, which is not good. Don't forget that there was a crisis in the judiciary during the Anand Panyarachun administration. Judges who were involved in the crisis at that time now also play some role," said Prasit.

Some drafters claimed that senators in the UK are all appointed, but this does not tell the whole truth as Britain's House of Lords does not have much power, while the Thai counterparts under the draft charter would be able to impeach political office holders including even the prime minister.

Contradictions in the draft charter

Prasit said that the draft charter contain a lot of contradictions. For example, in the policy guideline on administration (Section 3 of Chapter 5) the ‘sufficiency economy' is adopted. But in the ‘military' section of the same chapter, Article 77 stipulates that the state must provide ‘state-of-the-art', ‘necessary', and ‘enough' weaponry, compared to a similar section in the 1997 constitution stating only the duty to maintain the armed forces. The clause was proposed by drafters handpicked by the Council for National Security, and came through without objection or alteration. Why is the sufficiency economy not imposed here, he wondered.

In the section on economic policy guidelines, the sufficiency economy is to be promoted and implemented, but the next article states that a liberal market economy is to be supported.

In Article 168, the courts and independent bodies can directly ask the parliamentary budget committee for more budget if they consider their budgets insufficient, while members of Parliament cannot.

Prasit claimed that one drafter frankly admitted that this was because the previous administration refused to increase the budget for the NCCC. So the drafters are trying to solve some problems without taking heed of principle. The solutions to some problems may lead to more problems. For example, solving the problem of vote-buying for senate seats will lead to the problem of lobbying the selection panel. The vote-buying system will probably be replaced by one of reciprocity. Strangely enough, senators are empowered to impeach the people who have appointed them in the first place.

"Although the election system is full of problems, we certainly should not return to the appointment system. We have only to improve the election system," said Prasit.

Where are the increased rights and freedoms?

The drafters have tried to advertise the fact that the people will enjoy greatly increased rights and freedoms. For example, the requirement of 50,000 signatures to propose a law is reduced to 10,000, and the number of people required for a petition to impeach a political office holder is also reduced from 50,000 to 20,000. In reality, the process would go through many more steps, and could easily be dismissed in parliament.

The draft constitution has no provision on the detention of suspects, while the 1997 constitution stipulates that individuals can be detained no more than 48 hours. Prasit was not sure if this was left for the pending Security bill. And the right to compensation for defendants in criminal cases was not mentioned either. Only prompt judicial process was stressed, noticeably 4 times.

"Pensions for politicians, MPs and senators are all scrapped, except for privy councillors. This is something the drafters must explain," Prasit said.

Draft charter legalizes ‘rightful' acts. Why bother?

"In the last section, provisional Article 309 legalizes any act undertaken under the interim 2006 constitution either before or after the promulgation of this constitution. Some say that this is not an amnesty to the CNS, but a legalization of lawful acts. If lawful, why the legalization?" asked Prasit.

Besides, an amnesty is normally granted for an act already done, but the draft charter also grants an amnesty in advance of the act. This distorts the principle of amnesty and may allow the Assets Scrutiny Committee (ASC) to ignore criminal code procedures.

Right after the coup, the junta issued its first appointments to the ASC of senior government officials such as the Bank of Thailand Governor and the Attorney-General, but shortly afterwards the CNS cancelled the order and instead appointed individuals who were opponents of the examinees.

Some drafters claimed that the adoption of the draft 2007 constitution would once and for all prevent any coup. It is not true. So far, coups d'état have been said to be the answer and cure for problems. But it has been proven that coups d'état are not the answer, and only lead to more problems.