Academics and activists voiced their dissent over the Surayud administration's finalization of the Japan-Thai Economic Partnership Agreement (JTEPA), making the trade agreement effective as of Nov 1.

They said the government should have followed Article 190 of the constitution that requires that international trade agreements be considered by parliament. The people's organizations were reportedly going to ask the Constitutional Court to rule if the government's proceedure is unconstitutional.

Former charter writer Komsan Bodhikong who had a hand in writing Article 190 said that JTEPA is considered not yet in effect, and has to be brought to the National Legislative Assembly for consideration according to Article 190 Paragraph 2. The only possible exemption concerns public hearings under Paragraph 3.

On the stalled US-Thai Free Trade Agreement negotiations, Komsan said that in his opinion with the new constitution in place, the negotiation process should start all over again to follow the required steps, although an organic law on international agreements has yet to be formulated.

National Legislative Assembly member Somchai Sawangkarn said that the government's procedure is likely to be unconstitutional no matter what the prime minister has to say for the hurry. The NLA is obliged to consider it within 60 days. However, on Oct 10 during the debate on the government's ethics he will query the prime minister on the cabinet's decision to bypass the NLA, and ask for clarification of the Foreign Ministry's letters to the cabinet secretary-general that first proposed that the cabinet forward JTEPA to the NLA, and then abruptly cancelled its original letter and proposed to bypass the NLA.

Somchai said that 40 NLA members have proposed a bill on the procedures for international agreements in accordance with Article 190, and it passed the NLA's first reading last week. The government is supposed to consider it and return it to the NLA within 30 days. He expected the Foreign Ministry would also submit its version of the bill at the same time, and a special committee would be set up.

Assoc Prof Dr Lawan Tanadsilpakul, international law expert from Sukhothai Thammathirat University, said that some treaties might be immediately effective, and some would come into effect on conditions agreed by the parties. In the case of JTEPA, it is clearly stated in Article 172 of the agreement that JTEPA will come into effect 30 days after the exchange of diplomatic documents. The 30-day grace period is to allow for domestic legal arrangements or reviews. Some details of the agreement have been kept confidential from the public, and will be revealed only when the agreement is signed. So far, there have been many points of concern raised by the people's sector including the transportation of toxic waste, patents on micro-organisms and investment issues. Although the Foreign Ministry has attached a memorandum on toxic waste and patents on micro-organisms, the problematic points still remain in the agreement.

Dr Lawan said that the public can cite Article 172 of JTEPA to claim that the domestic legal process has not yet been completed as the government has not forwarded the agreement to the NLA; therefore, JTEPA is still a draft agreement.

She said if the Constitutional Court rules that the government's procedure is not unconstitutional, that would mean the domestic procedure has been complete. The Vienna Convention that prohibits any agreement that is in violation of domestic laws could not then be cited. But if the Constitutional Court interprets it as unconstitutional, then the Article 172 of JTEPA would then apply. So the referral to the Constitutional Court is a like double-edged sword.

Jaroen Compeerapap, Deputy Rector of Silapakorn University, said that Article 190 of the constitution clearly states that an agreement like JTEPA is required to pass the parliament. If Prime Minister Gen Surayud Chulanont decides not to follow the Article, the Thai legal system would be severely affected. Thailand's legal system is undergoing a change following the Monism Theory in which international and national laws are coherent. The Surayud administration is establishing a state practice in international laws, which may lead Thailand to international disputes.

Banthoon Setsirote of FTA Watch said that he was not worried if the Constitutional Court rules that JTEPA is not unconstitutional, because then it will be known that the true intent of the constitution, at least of the particular article, is betrayed, and amendments [of the constitution] should follow.