EXPLORING THE 2007 CONSTITUTION

KPI YEARBOOKS 4

King Prajadhipok’s Institute

EXPLORING THE 2007 CONSTITUTION

Assoc. Prof. Woothisarn Tanchai Introduction

KPI Yearbooks 4 EXPLORING THE 2007 CONSTITUTION

Copyright 2007 by King Prajadhipok’s Institute

National Library of Thailand Cataloging in Publication Data

KPI Yearbooks 4.-- bangkok : King Prajarthipok’s Institute, 2008. 268 p.

1. Thailand--Politics and government. 2. Constitutions--Thailand.3. Constitutions law--Thailand. I. Wuttisarn Tanchai, ed. II. Title.

320.9593ISBN 978-974-449-377-4

Editors: Assoc. Prof. Wutthisarn Tanchai

Publisher: King Prajadhipok’s Institute 5th Fl., Seminar Center Bldg. Civil Service Training Institute, 47/101 Moo 4 Tiwanon Rd., Nonthaburi 11000 Tel. (662) 527 - 7830 Fax. (662) 968 - 9139 http://www.kpi.ac.th

All rights reserved. No part of this publication may be reproduced, stored ina retrieval system, or transmitted in any from or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of the publisher. The opinions expressed are those of the authors and do not necessarily reflect the policy of King Prajadhipok’s Institute

EXPLORING The 2007 Constitution III


Foreword

The Constitution of the Kingdom of Thailand, B.E. 2550 (A.D. 2007) received a majority vote of approval in a referendum held on Sunday, August 19, 2007. In the course of drafting,

the new constitution was subject to extensive specialist and citizen participation at every stage.

To implement the Constitution as intended, it is extremely important for all segments of the population to first understand the background and forces that influenced the constitutional intentions and provisions. No one better able to tell the story of those aspirations and resolutions than those who had a direct hand in crafting the 2007 Constitution, serving in particular on the Constitution Drafting Committee or in the 2007 Constitution Drafting Assembly.

KPI YEARBOOKS 4 IV


The KPI YEARBOOK 4 is privileged to be among the first publications to present contributions from seven experts who served on the drafting committee and in the assembly. Their hands-on experience and viewpoints are presented here under the editorship of Assistant Professor Wutthisan Tanchai, himself a member of both the drafting committee and the assembly.

Since one of the main duties of King Prajadhipok’s Institute, the country’s advanced academy of politics and government, is to foster political intelligence, the KPI YEARBOOK 4 will prove a valuable tool with which to think about the background and intentions of the 2007 Constitution currently being enforced. Only with true appreciation of the country’s most basic document will political reform bring about the highest benefits to Thai society in the time to come.

(Professor Dr. Borwornsak Uwanno) Secretary-General, King Prajadhipok’s Institute

Introduction

As an academic institution dedicated to the promotion and development of democracy, King Prajadhipok’s Institute publishes, as one of its many tasks, the KPI YEAR BOOK, an

annual publication devoted to the compilation, synthesis, and analysis of defining political trends of the previous year. This academic service is partly to inform the Thai society and refine its overall understanding of politics. As it happens, the years 2007-2008, being the course of preparing this book, mark another important chapter in the history of Thai politics and government: the drafting and proclamation of the Constitution of the Kingdom of Thailand B.E. 2550 (2007). This publication therefore focuses on the analytical exposition and observations by a group of academics of diverse expertise all of whom have in various capacities been involved in the constitution drafting process itself. With hands-on involvement, they are more than qualified to tell the story of this phase of Thai political development.

KPI YEARBOOKS 4 VI


Professor Dr. Somkit Lertpaithoon in his capacity as secretary of the Constitution Drafting Committee and a member of the 2007 Constitution Drafting Assembly leads the reader, in a nutshell, to understand the origins, background, and process of the 2007 Constitution drafting. His article, The Origins and Spirit of the 2007 Constitution, is divided into 2 parts. The first exposes the background circumstances surrounding the drafting of the 2007 Constitution from the early conflicts up to the referendum vote of approval and proclamation of the Constitution in the Royal Gazette, Vol 124, Section 47ko. The second part discusses the soul and intentions of the 2007 Constitution which aims to resolve the political stalemate plaguing the country thus far and setting a new agenda for Thai politics in the immediate future. He points out the general intentions forming the backbones of the drafting process, and other important objectives and principles behind the new charter. The writer closes his piece with this optimistic opinion: “The new Constitution opens a fresh chapter of Thai politics and government, heralding an era of the tight safeguarding of citizen rights and liberties, an era of greater citizen participation in politics, an era of modification of conduct and readjustment of values and code of ethics for politicians, all for the advancement and progress of the country.” This is both a challenge and an invitation to all concerned to do their part in helping Thai politics move on to a new phase of progress.

To elaborate on the forces leading up to the second round of Thailand’s political reform, which follows closely on the heels of the 1997 Constitution, Assoc. Prof. Noranit Setabutr, president of the 2007 Constitution Drafting Assembly, gives the reader an insightful overview of critical political moves and knots resulting from the implementation of the 1997 Constitution, leading to the birth of the 2007 Constitution. He looks squarely at such matters as the unexpected, but undesirable, consequences of having a strong government under an autocratic prime minister, controlling a

EXPLORING The 2007 Constitution VII


quiescent cabinet and a majority-holding political party as never before encountered, and explains how the new scenario, at least in the Thai case, affects the political stability of the country as a whole. He further discusses other problematic conditions arising from implementing (or ‘abusing’) various provisions of the 1997 Constitution leading eventually to the coup of 19 September 2006 that practically shoots down the 1997 Constitution itself.

Apart from showing the connections between the first and second political reforms, the writing offers a fresh look at the prevailing political situations leading to the making of the 1997 Constitution and the 2007 Constitution, pointing out the differences and similarities between the two events. The author reminds the reader that the events leading up to the making of the 1997 Constitution and the 2007 Constitution are not the same, as hastily concluded. It was previously believed they were subject to the same “vicious cycle” and the vagaries of “military dictatorship.” But the reality is otherwise. The author finally offers his views on the new round of political reform, suggesting its success or otherwise depends on several concomitant f ac tor s , inc luding cons t i tut iona l prov i s ions , constitutional organizations, political institutions in society, the unavoidable temporal factor, and the necessity of men and society to readjust their attitudes and behaviours in consonance with changing reality and the new political code.

To guide and assist the Government in their executive duties, the 2007 Constitution, like its previous predecessors, lays down the directive principles of fundamental State policies, detailing the clarifications at both policy and implementation levels. In his article, Dr. Pakorn Priyakorn, a charter writer and member of the 2007 Constitution Drafting Assembly, goes into great detail on this topic in “State Policy Directives under the 2007 Constitution: From “Guidelines” to “Framework of Actions for the State.” The author

KPI YEARBOOKS 4 VIII


provides the reader with a grounding in the meaning of the rather fancy phrase “directive principles of fundamental State policies.” He justifies its inclusion by retracing a brief history of instituting the conceptual framework in a constitution among such nations as the Republic of Ireland, the Netherlands, Portugal, Pakistan, and India. The discussion is pared down to a specific existence of the idea in past Thai constitutions, citing the previous principles and fundamental State policies adopted in the charters and highlighting the connections between social and political contexts that dictated the policy determination at different times. The final sections single out the similarities and differences of the major issues in the directive pr inc ip les o f fundamenta l Sta te pol ic ie s between the 1997 Constitution and the 2007 Constitution.

Dr. Choochai Supawongse, vice president of the Constitution Drafting Assembly and member of the Constitution Drafting Committee, focuses his discussion on the entire gamut of rights and l iberty in “Expanded Rights and Liberties under the 2007 Constitution: A Challenge in Practical Enforcement.” The article begins with an overview of the issues of rights and liberty provided in the 1997 Constitution, and subsequent problems and obstacles encountered, which thwarted the practical guarantee for rights and liberty for the people under the charter. It makes clear how the faults are being corrected and incorporated into the 2007 Constitution. The author describes the mechanisms, measures of guarantee, and the extent of rights and liberty limitations imposed, including the planned promotion of human rights and liberty under the new constitution. The article proposes how constitutional organizations are tasked with the job of promoting and protecting human rights and liberty. Lastly, the author makes interesting and useful recommendations for launching in motion the practical realization of the issue of civil rights and liberty under the 2007 Constitution.

EXPLORING The 2007 Constitution IX


The 2007 Consti tut ion no less turns the spotl ight on the monitoring and inspection of the exercise of State power in all branches: the Executive, the Legislature, and the Judiciary. The new charter vests the inspection powers firmly in some key constitutional organizations. In the article, “Constitutional Organisations: Will the New Editions Work?,” Paiboon Varahapaitoon, secretary-general of the Office of the Constitutional Court, exposes the flaws with respect to constitutional organizations as uncovered in the implementation of the 1997 Constitution and how the 2007 Constitution redresses the imbalance in such a way that the checks and balances stand a better chance of working under the new Constitution.

In the second part of the article, Warahaphaithoon gives a background to the derivation, selection, duties and power of the constitutional organizations under the 2007 Constitution. A distinction is pointed out between “independent organizations under the Constitution” and “other organizations under the Constitution.” The article concludes with high expectations of selected candidates filling respective positions in the organizations, the performance of the duties and power of the organizations, and the fruits of the inspection system. Reflecting the anxieties of observers concerning these constitutional organizations, it cautions “It is vital for them to work toward stated goals with diligence within the framework given, appropriate to the Thai context and thereby invoking confidence and faith, ultimately for the wellbeing of the citizens they are supposed to serve.”

In the course of charting the 2007 Constitution, the phrase “judicialization of politics” became the word of the moment, which can be attributed to the provisions governing the Judiciary: its streamlined powers, the extent and independence of the exercise of those powers, supposedly without arbitrariness and yet free from interference by the Executive Power. Professor Wicha Mahakun gives

KPI YEARBOOKS 4 X


a balanced exposition of these issues in “The Powers of the Judiciary: The New Compositio Toward Social Justice.” The reader will learn of the manner in which the “Judiciary” and “judicial power” play out under the 1997 Constitution and the 2007 Constitution. The article discusses the expansion of the extent of inspection and “checks and balances” interplay, as a counter to the Executive Power and Legislative Power. Clarifying their overall role in the new power play, the author goes over the e s s ent i a l work ings o f the jud ic i a l organizations regarding their components, powers and execution under the 2007 Constitution, namely the Constitutional Court, the Court of Justice, and the Administrative Court.

The last article, written by Assoc. Prof. Wuthisarn Tanchai, deputy secretary-general of King Prajadhipok’s Institute and a member of the Constitution Drafting Committee, deals with local government as a bedrock of democracy. In his long article, “Local Administration as a Foundation of Citizen Politics: A Political Participation Classroom in Thai Society,” as the name implies, he proposes that open and act ive c i t izen-based local government as a form of pol i t ica l participation is an ideal classroom for developing true democracy for Tha i soc i e ty and c i t i zens . The a r t i c l e shows how the 1997 Constitution first recognizes the importance of this concept, seen in various measures and mechanisms prescribed in the provisions. The idea is fully adopted and expanded in the new chart as seen in the stressing of local government under the 2007 Constitution: that local government is a legitimate and perhaps one of the best forms of citizen politics, the key index to political participation by the people at large. It is only by engaging in their local politics will the people and society learn how to carry on together as a truly functioning democracy. The article shows what changes and measures in local government should be adopted before a decent measure of success may be anticipated.

EXPLORING The 2007 Constitution XI


The articles in this volume cover all the main issues, thinking and intentions as a basis from start to finish for the writing of the 2007 Constitution. It remains to see if and how the new constitution will be taken up by the central playmakers of Thai politics to make it work or prematurely aborted as the case may be. No constitution can help a political society move forward unless it is taken seriously as the supreme legal document by all parties directly responsible. Such basic issues as civil rights and liberty, directive principles of fundamental Sta te po l i c i e s , the ro le o f the Judic ia r y and cons t i tu t iona l organizations, and local government must be given due attention and implemented by all political units, not least the citizens themselves. King Prajadhipok’s Institute hopes through this publication to provide a tool with which to awaken Thai society to come to grips with the complex relations existing in a constitutional democracy, particularly as related to the 2007 Constitution. These papers should be a reliable source of study and reference, as well as the raising of understanding and intelligence to higher levels of maturation in politics and government.

KPI YEARBOOKS 4 XII


EXPLORING The 2007 Constitution XIII


Contents

Foreword III

Introduction V

The Origins and Spirit of the 2007 Constitution 1 Prof. Dr. Somkit Lertpaithoon

The 2007 Constitution and the Second Round 43 of Political Reform Assoc. Prof. Noranit Setabutr

State Policy Directives under the 2007 Constitution 77 From “Guidelines” to “Framework of Actions for the State” Asst. Prof. Dr. Pakorn Priyakorn

KPI YEARBOOKS 4 XIV


Expanded Rights and Liberties under the 2007 Constitution: 125 A Challenge in Practical Enforcement Choochai Supawongse

Constitutional Organizations: Will the New Editions Work? 169 Paiboon Varahapaitoon

The Powers of the Judiciary 193 The New Composition Toward Social Justice Professor Vicha Mahakun

Local Administration as a Foundation of Citizen Politics 219 A Political Participation Classroom in Thai Society Assoc. Prof. Woothisarn Tanchai

Author Profiles 247

The Origins and Spirit of the 2007 Constitution �


The Origins and Spirit of the 2007 Constitution

Professor Dr. Somkit Lertpaithoon*

The coup d’etat staged on 19 September 2006 set in motion several legal consequences. The most immediate and direct one is the toppling of the Pol Col Thaksin Shinawatra Government

and the subsequent annulment of the 1997 Constitution, widely touted as the “People’s Constitution” for its supposedly perfect content in the political and administrative history of Thailand. Since the powers of the new dictatorial Government, is considered concentrated entirely at the junta, no matter what name it calls itself by, the Council for Democratic Reform with the King under Constitutional Monarchy (CDRM), or the Council for National

* Dean, Faculty of Law, Thammasat University, former secretary to the Constitution Drafting Committee and member of the Constitution Drafting Assembly, 2007

2


KPI YEARBOOKS 4

Security (CNS), the credibility of the regime is viewed with suspicion by the international community, particularly the democratic free world of the present day.

Going over the long experience of the Thai Constitution and politics, it is found that all dictators, whether they be “benevolent dictators” or “evil dictators,” have the same tendency towards wielding their autocracy in a centralizing manner, and of course threaten citizen rights and liberties and, if prolonged, will plunge the country into deeper crisis and ultimate catastrophe. Experience also tells us that a wise junta will produce a new charter and hold an election that eventually restores some semblance of democratic normalcy as quickly as poss ible . St i l l , before a (permanent) constitution can be promulgated and an election held, the junta is compelled to restore law and order to the country by issuing an (interim) constitution as an instrument for national administration. The process for restoring normalcy to the country in Thai politics therefore consists mostly of these stages:

Interim Constitution

Drafters of Constitution

Permanent Constitution

General Election

The incidence of the above process is evidenced by several real happenings in Thai history, for example:

First Incidence: After the 1932 Revolution and regime change on 24 June 1932, the temporary Constitution of 1932 was promulgated and signed into effect on 27 June 1932, followed by the setting up of a sub-committee for drafting a permanent constitution under the National Assembly. The Constitution of the Kingdom of Siam, B.E. 2475 (1932 A.D.) was subsequently promulgated on 10 December 1932, and a general election was held for the first time on 15 November 1933.



Second Incidence: The coup d’etat of 8 November 1947 was followed by the interim Constitution of 1947, dated 9 November 1947. A constitution-drafting assembly was formed, leading eventually to the Constitution of the Kingdom of Thailand, 1949, dated 23 March 1949. Nevertheless, it was not followed by an election since an election had already been held on 29 January 1948 under the interim Constitution of 1947. The coup d’etat of 29 November 1951 further destroyed any possibility of an election under the Constitution of 1949.

Third Incidence: The coup d’etat led by Admiral Sa-ngad Chaloryu on 20 October 1977 gave the Constitution of 1977. Later, the National Assembly ratified the Constitution of the Kingdom of Thailand, 1978 on 22 December 1978. An election was held on 22 April 1979.

Fourth Incidence: Another coup d’etat by the National Peace-keeping Council (NPKC) ousted the Chatichai Choonhavan Government on 23 February 1991, giving therewith the interim Constitution of 1991. The committee for drafting the constitution under the National Assembly subsequently produced the Constitution of the Kingdom of Thailand, 1991 on 9 December 1991. An election was held on 22 March 1992.

The latest episode was the coup d’etat of 19 September 2006, along with the promulgation of the interim Constitution, 2006, dated 1 October 2006. The Constitution Drafting Assembly and the Constitution Drafting Committee were duly appointed, from which the Constitution of the Kingdom of Thailand, B.E. 2550 (2007 A.D.) was finally born. The forthcoming general election has been slated for 23 December 2007, making it the fifth “constitution drafting cycle” to have occurred in Thailand.

4


KPI YEARBOOKS 4

Although there have been several “cycles” of this nature, the constitution drafting process and the substance of a constitution promulgated in each period differ markedly, owing to varied circumstances and conditions of society, economy and political climate at the time. The drafting of the Constitution of 2007 and its substance differ from the circumstances of the past constitutions in several respects. Although the birth of the Constitution followed the pangs of a coup d’etat, it may be said that this constitution exhibits many progressive elements for its attempt to pass on the spirit and ideals of political reform as well as correcting the wrongs and defects uncovered through the enforcement experience of the 1997 Constitution. Criticisms and accusations hurled at this constitution by certain quarters—that it actually goes backward and is the offspring of a coup—are debatable, particularly considering that their not-so-subtle motives are quite questionable. Accordingly, counter-acceptance campaigns were feverishly launched in the run-up to the yea-or-nay referendum for the draft constitution. In all fairness, some of the criticisms represent viewpoints that are academically controversial concerning what best suits the conditions of Thai society and if so what substantial topics are to be included in the constitution. Other criticisms were voiced by those who did not read the entire charter, which is regrettable. I can vouchsafe the fact that the drafting of the 2007 Constitution has taken into account the citizen opinions and participation no less than the drafting of the 1997 Constitution. Its chief intention lies in resolving the political crisis rocking the nation at this moment. Let these issues be addressed in due order.



1. Origins of the drafting of the Constitution of the Kingdom of Thailand, 2007 As said above, the permanent Constitution was written after a coup d’etat. The process of drafting a constitution as stipulated in the interim Constitution no doubt determined the quality, or the lack thereof, of the resulting constitution. Compared with the provisions on the constitution drafting process in past interim constitutions, the interim Constitution of 2006, providing for the origins of the Constitution of the Kingdom of Thailand, 2007, attached great importance to citizen participation in the process in a progressive sense, even though the Constitution Drafting Assembly was not a popularly-elected body, but at least, as provided in the interim constitution, a nation-wide council was set up to consist of the people’s representatives from several sectors, who then elected among themselves worthy candidates for appointment to the Constitution Drafting Assembly. Finally, the people themselves were the final arbiter by voting for or against the draft constitution as completed by the Constitution Drafting Assembly in what was Thailand’s first ever referendum.

1.1 The(Interim)Constitutionofthe KingdomofThailand,2006, asthePrecursoroftheConstitutionof 2007

One of the major goals of the 2006 Constitution is the drafting of a new constitution setting as the prime condition extensive citizen participation in every stage of the drafting process. The following are the players, process and stages involved in the birthing procedure.

�


KPI YEARBOOKS 4

1.1.1 Genesis of the National Council

The 2006 Constitution specified the membership of the National Council at no more than 2,000, to be appointed by the King from citizens of Thai nationality by birth, not less than 18 years of age, coming from diverse groups in public, private, social, and academic sectors, hailing from all the regions as appropriate. No legal restrictions concerning the prohibition of holders of political office can be applied to appointments to the National Council. The president of the Council for National Security shall countersign the Royal Command appointing members of the National Council (Article 20).

The National Council shall meet in a sitting, to be presided by the President of the National Legislative Assembly, with the Vice-President of the National Legislative Assembly acting as its Vice-President for the purpose of holding an election among the members themselves to produce a name-list of candidates for subsequent appointment by Royal Command to the Constitution Drafting Assembly, numbering 200 members in all. In the election, members of the National Council have the right to select no more than three names, and those with the highest score down successively until the 200-person quota is reached shall receive the appointment. In case the same score in whatever order on the list occurs with the effect of making the selected list exceeding the 200-person quota, the drawing of lots shall be used to decide the final place(s). The National Council shall complete the Constitution Drafting Assembly selection process within seven days from the day on which the National Council convenes for the first time. When the Constitution Drafting Assembly selection process is completed, or when the time is up and yet the selection has not been finished, the National Council shall be dissolved (Article 22).

The Origins and Spirit of the 2007 Constitution 7


1.1.2 Genesis of the Constitution Drafting Assembly and the Constitution Drafting Committee

After receiving the name-list of candidates from the National Council, the Council for National Security shall whittle down the list to one hundred names and submit the final list to the King for appointment as members of the Constitution Drafting Assembly. Should the National Council be unable to complete its duty within seven days from the first day of the council sitting, the Council for National Security shall select one hundred persons to be members of the Constitution Drafting Assembly. No legal restrictions concerning the prohibition of holders of political office can likewise be applied to the selected persons. The list is subsequently submitted to the King for official appointment. The King shall appoint, in accordance with the decision of the Constitution Drafting Assembly, one of the members of the Constitution Drafting Assembly as its president and no more than two members as vice presidents. The President of the Council for National Security shall countersign the Royal Command appointing members of the Constitution Drafting Assembly (Article 23).

In the course of the Constitution Drafting Assembly doing its duty, should any member of the Constitution Drafting Assembly be excluded from his office from whatever cause, the President of the Council for National Security shall select his replacement from the name-list of the remaining members of the National Council or from those who were once members of the National Council, whatever the case may be, for submitting to the King for Royal Command appointing to the Constitution Drafting Assembly to fill in the vacancy within thirty days from the date on which the vacating occurs. While the vacancy in the Constitution Drafting Assembly has yet to be filled, the membership of the Constitution Drafting Assembly shall be composed of the remaining members (Article 24).

�


KPI YEARBOOKS 4

Members of the Constitution Drafting Assembly have the duty to produce a draft constitution. To do this, the Constitution Drafting Assembly shall appoint a constitution drafting committee consisting of twenty-five specialists who may or may not be members of the Constitution Drafting Assembly and shall be selected in voting by the Constitution Drafting Assembly, and ten specialists who may or may not be members of the Constitution Drafting Assembly on the recommendation of the President of the Council of National Security (Article 25).

1.1.3 Process of Drafting the Constitution

In preparing a first draft of the Constitution, the Constitution Drafting Committee shall have to prepare explanations accompanying the draft as well. The document must make clear the extent of dif ferences the new consti tution has, compared to the 1997 Constitution and explain subject matters and rationale for the alterations and revisions made. It is thereafter sent for consideration and suggestions to members of the Constitution Drafting Assembly and the following organizations and persons (Article 26):

(1) Council for National Security

(2) National Legislative Assembly

(3) The Council of Ministers

(4) Supreme Court

(5) Supreme Administrative Court

(6) Election Commission

(7) National Counter Corruption Commission



(8) Auditor General

(9) Ombudsmen

(10) National Human Rights Commission

(11) National Economic and Social Advisory Council

(12) Tertiary Educational Institutions

The Constitution Drafting Committee must further publicize the draft constitution and produce explicatory pamphlets aimed at the general public, as well as promoting and organizing complementary public hearings.

After receiving the draft constitution and pamphlets from the Constitution Drafting Committee, any members of the Constitution Drafting Assembly who wish to propose an amendment motion at the draft constitution must be endorsed by no less than one-tenth of the existing number of the Constitution Drafting Assembly and must table his motion with reasons prior to the date of sitting of the Constitution Drafting Assembly. Any member who has already tabled an amendment motion or has backed up an amendment motion of any other member’s can no longer put forward an amendment motion himself or endorse an amendment motion of any other member’s (Article 27).

After a thirty day period has passed from the date on which the Constitution Drafting Committee submits the draft constitution together with explanations thereof to the public, the Constitution Drafting Committee must consider the people’s feedback and amendment proposals of members of the Constitution Drafting Assembly, preparing a report of any amendments or non-amendments made together with reasons and spreading word about it in public.

�0


KPI YEARBOOKS 4

After that, it shall submit the draft constitution to the Constitution Drafting Assembly for consideration and giving approval or non-approval of the entire constitution and specific articles amended by members or as recommended by the Const i tut ion Draf t ing Committee. At this session members of the Constitution Drafting Assembly cannot put forward any further amendment proposals, apart from those already done, excepting those approved by that the Constitution Drafting Committee or by no less than three-fifths of members of the Constitution Drafting Assembly (Article 28). The Constitution Drafting Assembly shall prepare the draft constitution and complete its consideration within one hundred and eighty days from the first sitting of the Constitution Drafting Assembly (Article 29, Paragraph 1).

After the Constitution Drafting Assembly completes the draft constitution, the Constitution Drafting Committee shall draw up certain bills organic to the constitution, and necessary for holding an election to be ready within forty-five days from the date of completion of the draft constitution for tabling to the National Legislative Assembly in due course. The National Legislative Assembly shall complete its consideration of the bill(s) within forty-five days from the date on which it receives the bill(s) from the Constitution Drafting Committee. Furthermore, to forestall any conflicts of interest that may arise, members of the Constitution Drafting Committee are forbidden to be an e lec t ion candidate in any e lec t ion to the House of Representatives or the Senate within a period of two years from the date of vacating the office of member of the Constitution Drafting Committee (Article 30).

1.1.4 Referendum

After completing the draft constitution, the Constitution Drafting Assembly shall publicize the draft constitution to the public and organize a referendum for the vote of approval or non-approval of

The Origins and Spirit of the 2007 Constitution ��


the entire draft constitution no sooner than fifteen days and no later than thirty days from the f irst date of publicity for the draft constitution according to the rules and procedure laid down by the Constitution Drafting Assembly. The referendum shall be fixed on the same date throughout the kingdom (Article 29, Paragraphs 2 and 3).

If the draft constitution receives majority approval by referendum, the President of the National Legislative Assembly shall submit the draft constitution to the King for his signature, after which it shall be promulgated in the Royal Gazette (Article 31).

After the Constitution has been promulgated and the Constitution Drafting Assembly has completed relevant organic laws under the Constitution, or after forty-five days from the date of completion of the draft constitution, whichever is earlier, the Constitution Drafting Assembly shall be dissolved forthwith. Should the Constitution Drafting Assembly be unable to complete the draft constitution within the time frame, or the Constitution Drafting Assembly rejects the draft constitution, or the draft constitution is rejected by referendum, the Council for National Security shall convene a meeting with the Council of Ministers to consider and pick for revision one of the constitutions of the Kingdom of Thailand that had been promulgated in the past, and complete the revision within thirty days from the date of referendum that rejects the draft constitution. The revised version shall be submitted to the King for his signature and subsequent promulgation as the Constitution (Article 32).

�2


KPI YEARBOOKS 4

1.2 RealitiesofProducingthe2007Draft Constitution

In the run-up to the promulgation of the 2007 Constitution as the 18th constitution of Thailand, there are three stages in the progression of significant events:

1. The 2,000-member National Council whittled down its membership via self-selection to 200, to be further cut down by the Council for National Security to 100;

2. The Constitution Drafting Assembly and the Constitution Drafting Committee did their duties to produce the draft constitution;

3. The referendum was held to decide the adoption or non-adopt ion of the dra f t const i tut ion produced by the Constitution Drafting Assembly.

Each stage is marked by the following memorable details:

1.2.1 The self-selection of the National Council to produce the 100-member Constitution Drafting Assembly

The 2006 Interim Constitution stated that a national council shall be formed, consisting of no more than 2,000 members, from which 200 would be selected via self-selection. The 200-person name-list would then be forwarded to the Council for National Security to be whittled down to 100, and the final list was submitted to the King for appointment as the Constitution Drafting Assembly (Articles 21-23).

The Royal Command appointment of the National Council was announced into effect on 9 December 2006, and the self-selection was done on 18 December 2006 at the Royal Navy Convention Hall.



Of the 574 members from the government sector, 74 were selected; of the 538 members from the social sector, 38 were selected; of the 545 members from the private sector, 54 were selected. The Council for National Security then screened the l ist and selected 100 for appointment as the Constitution Drafting Assembly on 1 January 2007. The proportion of the final list was: 30 from the government sector, 27 from the academic sector, 25 from the private sector, and 18 from the social sector.

1.2.2 The drafting phase by the Constitution Drafting Assembly and the Constitution Drafting Committee

The Constitution Drafting Assembly had its sitting on 8 January 2006. Assistant Professor Noranit Sethabutr, former rector of Thammasat University, was elected chairman, with two vice chairmen, Seri Suwannapanont as first deputy chairman and Decho Savananon as second deputy chairman. At another meeting on 16 January 2006, the Constitution Drafting Assembly selected 25 members of the Constitution Drafting Committee for the Constitution Drafting Assembly proportion according to the criteria set by the Royal Decree on the Criteria and Appointment of the Constitution Drafting Committee, B.E. 2550, and acknowledged the list of 10 specialists appointed by the Council for National Security, thereby making up a total of 35 members.

On 22 January 2006, the Constitution Drafting Assembly voted to appoint the Constitution Drafting Committee and 12 standing committees and select committees. Squadron Leader Prasong Soonsir i was e lected chairman of the Constitution Draft ing Committee, together with 4 deputy chairmen—Akkrawit Sumawong (first deputy chairman), Jaran Phakdithanakul (second duty chairman), Wicha Mahakhun (third deputy chairman), and Dr. Choochai Suphawong (fourth deputy chairman). Professor

�4


KPI YEARBOOKS 4

Dr. Somkhid Ler tphaithoon was appointed secretary of the Committee; he was assisted by four deputy secretaries, Atchaphon Charuchinda, Kanchanarat Leewirot, Khomsan Phokhong, and Assistant Professor Thitiphan Chuabunchai.

The Constitution Drafting Committee convened its first meeting on 25 January 2006 to outline its work procedure. The meeting agreed to use the 1997 Constitution and some other versions as the framework for making a first draft, with all due consideration given to prevailing economic, social and political circumstances at the t ime in the country, p lus other matters as appropriate . The Constitution Drafting Committee laid down three main frameworks for drafting the constitution: Framework 1 on rights and liberties, citizen participation and decentralization; Framework 2 on political institutions; and Framework 3 on independent organizations and the Courts.

The Constitution Drafting Committee convened altogether a total of 62 meetings, taking into consideration opinions of the diverse sectors of society nationwide on drafting the constitution and providing extensive opportunities for citizen participation as follows:

(1) The Committee heard opinions of the committees of the Constitution Drafting Assembly: Select Committee on Participation and Referendum Coordination, Select C o m m i t t e e o n He a r i n g C i t i z e n O p i n i o n s a n d Participation in the Provinces, Committee on Hearing Opin ions o f Cons t i tu t iona l Organ i za t ions , and C o m m i t t e e o n He a r i n g C i t i z e n O p i n i o n s a n d Participation in the North, Central Plains, Northeast and South;

(2) The Commit t ee took t r ip s f a r the r a f i e ld to g i ve explanations and hear opinions, doing this jointly with the



Select Committee on Participation and Referendum Coordination, the Committee on Hearing Citizen Opinions and Participation in the North, Central Plains, Northeast and South, and the Select Committee on Hearing Citizen Opinions and Participation in the Provinces;

(3) The Committee held a joint meeting with 13 private organizations to hear opinions and recommendations: Women and Political Reform Movement, Handicapped Network, Family Network, Consumers’ Network, Association of Kamnan and Village Heads, Association of Tambon Administrative Organizations of Thailand, Association of Secondary School Executives of Thailand, National Community Radio Federation, Thai Labour Reconciliation Committee, Cooperative League of Thailand and Network of Thai Cooperative Movements, FTA Watch, Artist Network of Thailand, and Citizen Network for Media Reform;

(4) Collecting opinions via the Constitution Drafting Committee website;

(5) Collecting opinions of agencies, organizations and the public to be sent to the Committee

The Constitution Drafting Committee next studied the first draft of the constitution along with the mass of opinions and produced an explanation of the differences between the draft and the 1997 Constitution, detailing the topics and reasons for amendments and main themes, completing the review process on 19 April 2007. The publication was disseminated, with organization representatives and persons specified under Article 26 of the 2006 Constitution being

��


KPI YEARBOOKS 4

invited as of 6 April 2007 to receive the copies for studies and providing feedback. The Committee incorporated the returned feedback and criticisms into further amendments and submitted the draft to the Constitution Drafting Assembly for consideration and amendment between 11 and 30 June 2007 and resubmitted the revised draft to the Constitution Drafting Assembly for its review of wording and content once more on 5 July 2007. The following day, at the 40th/2550 meeting of the Constitution Drafting Assembly on 6 July 2007, the draft constitution was passed with a vote of approval by roll-call, with 98 yes votes and two absentees.

1.2.3 The approval or non-approval of the draft constitution by referendum

In addition to the approval of the draft constitution at the meeting of 6 July 2007, the Constitution Drafting Assembly reached other decisions on two important matters:

1. A date was fixed for publicizing the draft constitution that received the approval of the Constitution Drafting Assembly, being 31 July 2007. The constitution was to be issued with a print run of 20 million copies for public dissemination.

2. A referendum date was fixed on Sunday 19 August 2007, making it the first referendum ever held in Thailand, as p rov i d e d u n d e r A r t i c l e 2 9 o f t h e 2 0 0 6 In t e r i m Constitution empowering the Constitution Drafting Assembly to issue an announcement on the criteria and procedure of dissemination of the draft constitution and referendum voting of 2007.

The Origins and Spirit of the 2007 Constitution �7


According to Section 8 of the Constitution Drafting Assembly announcement, the Election Commission was empowered to organize and supervise an honest and fair referendum, together with issuing announcements and rules as necessary for executing the operation as outlined in the Constitution Drafting Assembly announcement. The referendum produced the following results:

1. Number of eligible voters on the voter list: 45,092,955;

2. Number of voters casting their votes: 25,978,954;

3. Number of spoiled ballot papers: 504,120;

4. Number of voters for the draft constitution: 14,727,306;

5. Number of voters against the draft constitution: 10,747,441

As shown by the ballots cast, the draft constitution received majority approval ballots of all the votes cast. The Constitution Drafting Assembly acknowledged the referendum result at its 43th/2550 meeting on 20 August 2007, the day after the referendum. The result was announced in the Royal Gazette, Vol 124, Section 45 Ko, dated 21 August 2007. On 24 August 2007, Meechai Ruchuphan, President of the National Legislative Assembly, submitted the constitution to the King for royal signature and had it announced into effect in the Royal Gazette, Vol 124, Section 45 Ko on the same day.

��


KPI YEARBOOKS 4

2. Spirit and Intentions of the Constitution of the Kingdom of Thailand, B.E. 2550 (2007 A.D.) Although the general outline still followed that of the 1997 Constitution whose flaws had handicapped the political workings in several ways, the 2007 Constitution was drafted on the expectation to see amendment made to the 1997 Constitution. Two problems were found to originate from the implementation of the older constitution: first, the problem arising out of the constitution per se, and second, the problem of a parliamentary dictatorship in which the governing political party held absolute control in the Parliament to result in the legislative - executive checks and balances mechanism skewed and thrown off the balance. Further, the operation of independent organizations including the Constitutional Court and the Election Commission was meddled with, severely crippling their effectiveness as originally intended. The situation was compounded by the ‘political leader’s conduct’ and his blatant abuse of authority, twisting the spirit and intentions of the ‘people’s charter’ on several matters and misusing it as a handy tool by the Government to gerrymander and seek for itself all kinds of unfair advantages.

In order to understand the spirit of the new constitution correctly, it is therefore imperative to review the past problems arising out of implementing the 1997 Constitution as the backdrop to the origins and developments leading to the amendments made to the 2007 Constitution.



2.1 Problemscausedbythe1997 Constitutionasthegroundworkfor rewritingthe2007Constitution

Admit t ed ly, the 1997 Cons t i tu t ion i s one o f the be s t constitutions Thailand has ever had, but even having a supposedly best constitution does not mean that it is devoid of any flaws. This is apparent from a slew of criticisms leveled at it during the 1997-2006 implementation period, including the 2005 amendment, indicating clearly that it indeed has imperfections with damaging consequences that need to be corrected. There are four issues under exploration.

2.1.1 Protection of human rights and liberties

Although the 1997 Const i tut ion provided the most protec t ion of r ight s and l iber t i e s compared wi th the other constitutions in use prior to 1997, it yet produced many problems:

• The protection of rights and liberties that is conditioned by the phrasing ‘as provided by law’ was rendered null and vo id in pract ice because there was no l eg i s l a t ion whatsoever to back them up as stipulated under the Constitution. The non-legislation issue could be traced to several constitutional clauses and articles, for example, a public hearing law under Article 59; consumer protection and regulatory organization law under Article 57, Paragraph Two; law on the return of immovable property in case of its non-use under Article 49, Paragraph Four, among others. Furthermore, most legal experts insisted that so long as there is no specific legislation, any rights and liberties recognized by the Constitution cannot be implemented or enforced. In this somewhat evasive atmosphere, the rights and liberties of the Thai people had

20


KPI YEARBOOKS 4

n e v e r b e e n b o r n d e s p i t e b e i n g p r ov i d e d i n t h e Constitution as the highest law of the land since 1997 onwards.

• Although rights and liberties were provided in the Constitution, the exercise of such rights and liberties was difficult or too complicated to implement. For example, petitioning by the people at national and local levels to remove politicians or to make legislative proposals was made almost unrealizable in practice because of the inordinately high number of voters (no less than 50,000 signatures) required and the mandatory signing procedure involved (Articles 304 and 170).

• There was no specific and suitable recognition of new rights and liberties, for example rights and liberties of laborers, the homeless, providers of information valuable to the State, etc.

2.1.2 Monopolizing of State power and unjust exercise of authority

True democracy is both form and substance, not one dominant to the exclusion of the other. Election is therefore one aspect of democracy only while the system itself need to pack (democratic) content too. That is to say, a democratic governance must be in the hands of the governing elite who respects the rule of law, not random governance based on individual, autocratic whims. There must also be a clear separation of power among the legislative, executive and judiciary branches. It is found that throughout the 4-5 years leading up to the 19 September 2006 coup, the entire or almost entire state power was locked up in one person or group only, allegedly composed of the same bunch of the legislative and executive cliques and thereby compromising any checks and balances that should be. Moreover,

The Origins and Spirit of the 2007 Constitution 2�


there was that underhand meddling with virtually all constitutional organizations, and with it a complete collapse of checks and balances; even the Courts had not been spared (the Constitutional Court was so meddled with that many of the cases tried were soiled by partial judgement). Only the Administrative Courts and the Courts of Justice retained some semblance of independence, free from political influence.

Once the legislative and executive branches, independent constitutional organizations and some sections of the Courts were subjected to unconstitutional control, extensive abuse of power deemed unjust and illegitimate was inevitable, as can be seen in the suppression of influential elements and drug suspects, and the inhuman treatment of citizens in the three southern border provinces (Gruse Mosque massacre and Takbai incident). The result was a regrettable, heavy loss of innocent lives, making a mock of the legal principle that states people are presumed innocent until proven guilty. Then there were public actions posing conflicts of interest both in economic and political spheres, and the nepotistic appointment of relatives and cohorts to positions in the National Assembly and other segments of the national administrative structure without any link to merit and performance. It may be argued that these problems were due to “people,” and not entirely to the “system” or the “Constitution.” Yet it cannot be denied that the 1997 Constitution was also the cause of the State authoritarianism and unjust, widespread abuse of power, even though no one intended or foresaw that a strong majority government would arise after only one election.

2.1.3 Languishing morals and ethics of holders of political office

Morals and ethics make up a quality deemed essential in holders of political office. But sad to say, it is one commodity that

22


KPI YEARBOOKS 4

seems sorely lacking in Thai politicians. Although the provisions under Article 77 of the 1997 Constitution specifically state that moral standards and code and ethics for politicians and State officials are to be written down as conduct guidelines for public figures, in reality the moral standards and code of ethics have had no bearing, and certainly were hardly binding on anyone1. Meanwhile, incidents exhibiting a breach of morality and ethics were rampant, for example abuse of power, filibuster, character assassination, slander, undue quarrels in the Chamber, sexual misconduct, dishonest and inefficient discharge of duty, etc. Most serious of all is the conflicts of interest, a grey sort of corruption that the Thai law has yet to catch up with, while the monitoring muscles of politics failed to do their duty because of the sea-of-hands power in the House of Representatives providing the protection racket as always. The real conflicts of interest in the previous government caused untold amounts of damage and losses to the country both in monetary terms and for inflicting a deep-seated crisis of faith in Thai society to the point that the public seems to sincerely believe that there is no such thing as an honest government, and that so long as the economy is well managed and the people get their share of the ‘money’, things will be all right. This misguided, dangerous value, like cancerous cells eating into the heart of society, must of course be rooted out.

2.1.4 Interference in monitoring organizations that renders the policing system inefficient

Formerly, the flagship monitoring organization was the Courts of Justice. Later, a good number of monitoring organizations were created under the Constitution, including the Administrative

1 Article 77 of the 1997 Constitution: “The State shall prepare a political development plan, moral and ethical standards of holders of political office, government officials, officials and other employees of the State in order to fight corruption and promote high levels of efficiency in performance.”



Courts, the Constitutional Court, the National Counter Corruption Commission, the Election Commission, the State Audit Commission, the Ombudsmen, and the National Human Rights Commission. These organizations may be divided into 3 groups:

First, the Courts of Justice and Administrative Courts It is found that these organizations were relatively free of meddling and gave efficient performance.

Second, the Constitutional Court, National Counter Corruption Commission, Election Commission, and State Audit Commission This group was interfered with during the selection procedure for their members.

Third, the Ombudsmen and National Human Rights Commission This group faced little interference, but then, under the 1997 Constitution, they were given little power to do their jobs with; as a result, their performance records were unclear, if not quite up to the mark.

Overall, there were three important problems related to the operation of independent organizations under the 1997 Constitution:

1) Selection procedure for independent constitutional organizations that called for the composition of the selection committee to comprise in part representatives from political parties, which opens a channel for the politicians to meddle with the selection procedure, as well as the judgment of the Senate and time constraint on the selection;

2) Uncertainty of the provisions related to independent cons t i tu t iona l o rgan i z a t ions , f o r example wha t organization qualifies as a constitutional organization, and

24


KPI YEARBOOKS 4

ambiguous provisions on the extent of the power and roles of independent organizations;

3) Powe r and ro l e s o f i ndependen t con s t i t u t i ona l organizations, for example the absolute authority of the Election Commission free from checks and balances by other organizations, the slow-paced doing of duty of the National Counter Corruption Commission due to work overload, and budget and personnel constraint suffered by independent organizations.

2.2.1 General spirit as the framework for drafting the 2007 Constitution by the Constitution Drafting Assembly

With the Constitution Drafting Assembly responsible for drafting the 2007 Constitution as appointed under the 2006 Interim Constitution, the Constitution Drafting Committee laid down the fo l lowing themes as the main guide l ines for draf t ing a new constitution, thereby serving as the overall spirit of the 2007 Constitution:

(1) Thailand is one and indivisible Kingdom.

(2) Thailand is a democratic monarchy with the King as the Head of State and Commander-in-Chief of the Armed Forces.

(3) The King shall be enthroned in a position of reverence and shall not be violated. No person shall expose the King to any sort of accusation or action.

(4) Thailand follows the rule of law.

(5) Thailand rules by a parliamentary system.



(6) Sovereignty belongs to the Thai people. The King as the Head of State shall exercise that sovereignty through the National Legislative Assembly, the Council of Ministers, and the Courts.

(7) The Constitution is the supreme law of the State. The provisions of any law, rule or regulation, which are contrary to or inconsistent with the Constitution, shall be unenforceable.

(8) Whenever no provision under this Constitution is applicable to any case, that case shall be decided in accordance with the traditional practices of a democratic monarchy with the King as the Head of State.

(9) Human dignity, r ights , l ibert ies , equal i ty, c i t izen participation and community empowerment shall be recognized and protected.

(10) Judges are independent in the trial and adjudication of cases in the name of the King and to so dispense the law justly in strict accordance with the Constitution and the letter of law.

The Committee further laid down three broad frameworks for producing the draft constitution as follows:

Framework 1: Rights , l iber t ies , c i t izen par t ic ipat ion, and decentralization

(1) Rights and liberties must be clearly spelled out, and additional rights and liberties are added, with restraints on rights being specified clearly;

2�


KPI YEARBOOKS 4

(2) Support and promotion shall be stepped up to aid people in exercising rights and liberties recognized by the Constitution to the fullest possible extent without infringing on personal rights an liberties and with means introduced to help the public exercise those rights and liberties to concrete ends;

(3) Human dignity, rights, l iberties and equality in accordance with international treatise commitments shall be honoured;

(4) Provisions on various aspects of citizen participation shall be made in the Constitution;

(5) Promote decentralization to local administrative organizations.

Framework 2: Political institutions

(1) There sha l l be a b icamera l par l i ament and the credentials and qualities of senators shall be raised high;

(2) Alterations shall be made on seeking office of members of the House of Representatives and senators;

(3) Election supervision shall be organized to ensure honesty, fairness and efficiency;

(4) Members of the House of Representatives shall be freed from political party domination, political influence and conflicts of interest in performing their legislative duty;

(5) The Prime Minister shall be a member of the House of Representatives, with provisions prohibiting the presence of conflicts of interest during the term in

The Origins and Spirit of the 2007 Constitution 27


office and after vacating his office;

(6) The executive branch shall be made accountable to the National Legislative Assembly, and minority parties shall be given a key role in monitoring the executive branch in all seriousness;

(7) Political party shall be truly institutionalized as a political entity, and provisions on making financial contributions and funds available to political parties shall be laid down, focusing on clarity and propriety;

(8) There shall be provisions on the ethics and morals of polit icians and government officials , including punishment clauses;

(9) Proper relations between politicians and government officials shall be determined.

Framework 3: Independent monitoring organizations and the Courts

(1) All the independent organizations and the Courts shall be retained and their power and duty redefined to ensure suitability and efficiency;

(2) The selection procedure for independent monitoring o rgan i z a t ions sha l l be improved to g i ve t ru l y independent and neutral organizations, and the Senate shall not be made the sole organization responsible for appointing independent organizations;

(3) There shall be a system for monitoring the operation of independent constitutional organizations;

2�


KPI YEARBOOKS 4

(4) The people shall be given direct and easier access to jus t ice process in the Cour ts and independent organizations;

(5) A system for monitoring illegitimate exercise of State power shall be made speedy.

Other Guidelines

(1) The Constitution shall be made easier and accessible to the people to propose amendment;

(2) Provisional clauses are added that enable currently existing constitutional organizations to complete their terms in office.

Based on the above frameworks adopted by the Constitution Drafting Committee, one chapter after chapter and article after article was considered and written. It is to be noted that Chapter 2 on the King was taken entirely verbatim from the 1997 Constitution with no further amendment or alteration.

Having made comparative studies of the origins and spirit of the 2007 Constitution drafted by the Constitution Drafting Assembly, the Secretariat of the Constitution Drafting Assembly gathered and published three documents based on the studies and researches. To all intents and purposes, the official records, because of its academic value, are worthy of attention to all interested students of the process. They are:

1) Summary of the Process of Preparing the Constitution of the Kingdom of Thailand, B.E. 2550 (2007 A.D.),

2) Spirit of the Constitution of the Kingdom of Thailand,



B.E. 2550 (2007 A.D.) : Records , Chronic les and Proceedings of the Constitution Drafting Assembly,

3) Comparison between the Draft Constitution (Referendum Version) and the Const i tut ion of the Kingdom of Thailand, B.E. 2550 (2007 A.D.) and Essential Themes.

2.2.2 Other essences of the 2007 Constitution

The supreme objective of the 2007 Constitution is to be the blueprint for charting a course to full democracy for the nation, reinstating an election and eliminating the problems and flaws of the 1997 Constitution, triggering a host of crises of the State: State authoritarianism and autocratic abuse of power, lack of political transparency, disappearance of political honesty and ethics, breakdown of the government monitoring and inspection system, and negligence and gross violation of human rights and liberties.

The important spirit and principles of the 2007 Constitution include:

(1) Protection, promotion and expansion of rights and liberties for the people to the fullest extent;

(2) Restraining State authoritarianism and elimination of illegitimate acts of power abuse;

(3) Making sure that political engagements are conducted with transparency, moral and ethical responsibility;

(4) Keeping the monitoring and inspection system strong and functioning efficiently.

�0


KPI YEARBOOKS 4

(1) Protection, promotion and expansion of rights and liberties for the people to the fullest extent

The Constitution belongs to the people, in that the people engage in active participation [in public affairs] and chart their own course of life, and that the Constitution belongs not to any particular g roup or power c l ique . The fo l lowing measure s have been institutionalized in the people’s charter.

• Reinforcing the rights and liberties Reinforcements to the rights and liberties include: honoring international commitments on human rights and liberties to which Thailand is party to the same as those rights and liberties recognized by the Constitution; protection of persons from exploitation of personal information; reinforcing the right of access to the justice process that is easy, convenient, speedy, and across the board; protection of the procedural due process, including the people’s right to petition the Constitutional Court themselves, a first-time right; guarantee for safety and benefits of working and living conditions both during and after term of employment; reinforcing the protection of media rights and liberties by prohibiting political interference in media activities either direct or indirect, including prohibiting holders of political office from owning or having shares in media enterprise; the people’s free access to education for no less than 12 years; the right of the homeless and those with insufficient income to access State assistance, a first-time right; reinforcing the community rights to include recently informed communities that may otherwise not qualify for a traditional community; and the right of the people and those bearing the brunt to have a public hearing with re spec t to pro jec t s o r ac t i v i t i e s tha t may impact



environmental quality, natural resources, or public health, including the right of community to sue a government agency.

• Making the rights and liberties more comprehensible and easier The rights and liberties are classified with clear divisions, and although an organic law concerned has yet to be enacted, the people receive immediate protection for the rights and liberties recognized by the Constitution through petitioning the Courts. The State shall promote, support and aid the people to use the rights and liberties under the Constitution. The number of signatures required to propose legislation and removal of holders of political office and high-level government officials is considerably cut down.

• Facilitating the protection of rights and liberties with efficient measures The previous phrasing “as provided by law” was struck out from several provisions dealing with human rights and liberties to make it clear that these rights and liberties are enforceable immediately and without delay under the Constitution. Further, the time frame for enacting organic laws concerned with citizen rights and liberties is fixed with a definite date. In the case of violation of rights and liberties under the Constitution, the people have the right to f i le a lawsuit with the Const i tut ional Court d irect ly, and l ikewise for a community to petition the Courts on community right infringement. The National Human Rights Commission may pe t i t i on the Cons t i tu t i ona l Cour t and the Administrative Courts, and act in lieu of the people as an in jured par ty in pe t i t ion ing the Cour t s on r ight infringement incidents. The Ombudsmen may make a

�2


KPI YEARBOOKS 4

fact-finding investigation into any illegitimate acts of State officials that may affect the general public without having to wait for a complaint to be filed first.

• Clarifying the directive principles of fundamental State policies for comprehensiveness and specifying active State commitments The directives are made clear and comprehensive, with addition of important themes, for example streamlining the State administrative system to achieve quality, virtuous conduct, and good governance; reform of legislation and justice process; promotion of and support for operations in accordance with the Sufficiency Economy philosophy; and provision of basic and necessary public utilities and their protection from privatization or private monopoly. Furthermore, several organizations are decreed for dealing with related affairs as determined in the directives, for example a political development council, a citizen fund for political development, an organization for judicial process reform, a farmer council, and a legal re fo rm counc i l w i th the duty to s tudy and make recommendations on legislation in compliance with the Constitution.

• Paving the way for involved citizen participation in local administration and greater decentralization to local administrative organizations The objective is to lay a foundation for democratic governance at national level. Local administrative organizations are given full autonomy in every area. Personnel administration is reformed so that local employees enjoy the same status as civil servants as government employees and to have its own personnel administrative structure that is free from central control. A local good governance monitoring committee is established. On local citizen participation, the Constitution gives local



citizens the right to hold a referendum on local affairs, reduces the number of signatures required to remove local politicians and to make local ordinance proposals, and provides channels for the c i t izens to monitor the administration. Local administrative organizations shall make an annual report on budgeting, expenditure and performance results.

(2) Restraining State authoritarianism and elimination of illegitimate acts of power abuse

The 2007 Constitution wants to see a strong, efficient government at the helm but not an authoritarian one that is trigger-happy with power abuse, and to have a situation of political checks and balances in place. These measures are launched to that effect.

• Strengthening people’s political power People are set to play an active role in politics through several measures in store. For instance, the people shall participate in several State operations: treatise commitment, taking part in referendums to decide matters of great consequence as a result of government decision, people and communities may sue the State for power abuse, and facilitating the people’s dynamics in politics, for example cutting down the signature requirements to remove corrupt politicos and to make legislative proposals both at national and local levels.

• Eliminating power monopolization and illegitimacy by the Government The term of office of the Prime Minister is now restricted to an 8-year maximum incumbency. The Government’s issuance of an emergency decree is to be strictly monitored by the Constitutional Court. Provisions are incorporated to deal with monetary, f iscal and

�4


KPI YEARBOOKS 4

budgetary affairs, a constitutional first, to forestall government tendency toward monetary and budgetary indiscipline. The National Assembly, the Courts and constitutional organizations may propose amendments to parliamentary committees directly, and constitutional organiza t ions may propose amendments to the i r legislation to the National Assembly directly. The Public Prosecutors’ organization is made autonomous from government control so as to be capable of doing its duty of monitoring State authority without encumbrance. And no merger of political parties is allowed during an ongoing term of the National Legislative Assembly to make it impossible to amass an anomalous majority in the Chamber.

• Making it easier for good and competent citizens to become House representatives and freeing them from party dominance The idea is to empower representatives to represent constituencies to their full capacity rather than being shackled and ordered around under party politics. The election system is reorganized to result in bigger constituencies to enable good citizens to compete with moneyed men on an equal footing. The party-list system is transfigured to a proportional election system, c o n s i s t i n g o f 8 p r ov i n c i a l z o n e s , t o d e m a s s i f y representatives focused at the central region only. The 5% proportion is abolished to allow smaller parties to gain a foothold in the National Assembly. Furthermore, representatives are freed from party control in posing questions, launching a debate, and casting a no-confidence vote in the House, as well as proposing legislation without having to seek their own party approval first.



• Making senators free from political party influence The method is to structure a ‘two-category’ Senate consisting of 76 elected senators (one for each province) in one category and 74 selected senators in the other, totaling 150 senators, the objective being to exert damage control by constraining political interference to the severest possible degree, through raising the credentials of senators and appointing a neutral selection committee. The se lected senators are set to come from exper t and experienced persons in every field of endeavor and occupations, as well as opening opportunities for the socially underprivileged.

• Imposing sanctions against House representatives and senators interfering with government officials Any meddling or interference for personal or political party gain either direct or indirect is prohibited, which may be done through work-related conduct, appointment, transfer, promotion (or demotion), or salary changes.

(3) Making politics transparent, virtuous and ethical

The good governance problem, or rather a lack thereof, of politicians, was quite rampant throughout the enforcement period of the 1997 Constitution. A range of corrective measures are put in place to restart the democratization process as follows:

• Provisions on virtue and ethics of holders of political office and State officials Clear, unambiguous yardsticks are set down; operation mechanisms and systems marked by efficiency are installed; punishment steps are in keeping with the severity degrees of offence; serious violation of code of ethics by holders of political office shall lead to

��


KPI YEARBOOKS 4

removal from office. The National Counter Corruption Commission has the duty to supervise the virtue and ethical conduct of holders of political office.

• Measures for eradicating possible conflicts of interest in politics House representatives and senators are prohibited from holding office in the government sector or local administration, from accepting or interfering or tampering with the granting of State concessions, from entering into a contractual engagement with the State for a monopoly, from holding partnership or shares in partnerships or companies that are granted such concessions or are partner concessionaire thereto either direct or indirect, and from accepting any extra remuneration or benefits from government agencies over and above regular conduct by government agencies in relation to other people in a normal course of business relations. They are also prohibited from being partner to or holding shares in partnerships or companies whose business is in the field of mass media, or entering into partnership with such a partnership or company.

The Prime Minister, ministers, their spouses and children of non sui juris age are prohibited from being partner to or holding shares; alternatively, they may retain partnership or shareholding status with such partnerships or companies up to the limit as provided by law. Should they wish to continue to receive benefits in such cases, they shall inform the President of the National Counter Corruption Commission within a specified date and transfer their shares in the partnership or company to a juristic person that handles assets for the benefit of other persons, as provided by law. They are also to refrain from

The Origins and Spirit of the 2007 Constitution �7


carrying out any act that amounts to administering or managing the shares or operations of such partnership or company.

• Declaration of assets and debts of holders of political office is made more stringent The declaration covers not only the assets belonging to oneself, spouse, and children of non sui juris age, but also those assets of the politician’s held for him by other people either direct or indirect. Likewise, the declaration of assets and debts by House representatives and senators must be made public the same as the ministers.

• Removal from office of House representatives, senators, the Prime Minister, and ministers convicted by the Courts is made easier The removal is effective for the case in which House representatives and senators are sentenced to imprisonment even if it is a suspended sentence. Likewise for the Prime Minister and ministers who are sentenced to imprisonment even if the litigation has yet to run i t s course to the highest court , or rece iv ing a suspended sentence: they are due to leave office in all such cases. Both the cases, however, are exempt when the offence is committed in negligence, or is minor, or a defamation case.

• The President and Vice President of the National Assembly, the Prime Minister, and ministers are prohibited from engaging in operation that smacks of conflicts of interest The President and Vice President of the House of Representatives cannot be a member of the Board of Directors, or assume any position of a political party during his tenure in the office. In addition, the

��


KPI YEARBOOKS 4

Prime Minister and ministers are prohibited from voting in a matter related to their office, or the conduct of their duty, or being stakeholders in the case involved, all of which could prove embarrassing while in office.

(4) Keeping monitoring organizations independent, strong, and functioning with efficiency

The monitoring constitutional organizations under the 1997 Constitution failed miserably because of interference. They are therefore subjected to the following modifications:

• The selection procedure for constitutional organizations is revised to make sure that free, neutral persons are chosen The President of the Constitutional Court, President of the Supreme Court, President of the Supreme Adminis t rat ive Cour t , Pres ident of the House of Representatives, and Leader of the Opposition shall make up th e s e l e c t i on commi t t e e s f o r con s t i t u t i ona l organizations.

• Improving the power, duty and operation system of monitoring organizations The Constitutional Court is empowered to receive a lawsuit lodged by those whose rights and liberties are violated. The Supreme Court Criminal Department for Holders of Political Office shall adjudicate cases involving politicians who refrain from dec la r ing the i r a s se t s and debt s , o r making fa l s e declarations. The Ombudsmen may pick and make inquiries on matters causing damage to the general public, or for the protection of public interest without having to wait for a complaint being lodged first, as well as making inquiries on cases of ethics involving holders of political



office. For making evaluations and recommendations on implementing the Constitution and considerations on amending the Constitution as necessary, the National Counter Corruption Commission may proceed with respect to holders of political office and high-level officials only, to ensure greater efficiency.

Furthermore, the National Counter Corruption Commission may petition the Constitutional Court and the Administrative Courts and act in lieu of the people as an injured party in petitioning the Courts on violation of human rights. The National Economic and Social Advisory Council is given more power to make comments on bil ls affecting the economy and society. House representatives can table a no-confidence debate against the Prime Minister and ministers individually with more ease and can table a no-confidence debate against ministers who may dodge a no-confidence debate by moving on to some other ministerial portfolio. The Prime Minister and ministers are also required to respond to and give statements in the National Legislative Assembly themselves. The Public Prosecutors’ organization is given full autonomy from Government control so as to be able to conduct its monitoring duty against the Government’s exercizing its authority.

• Constitutional organizations must also be subject to monitoring The ‘yellow-card’ and ‘red-card’ rulings meted out by the Election Commission may be appealed with the Supreme Court, and with the Court of Appeals for local election. All rules, ordinances, and actions originated by constitutional organizations under vested authority or the conduct of administrative operation may be monitored by

40


KPI YEARBOOKS 4

the Adminis t rat ive Courts . The Ombudsmen are empowered to monitor any alleged neglect of duty or i l l e g i t ima t e a c t s o f au tho r i t y o f con s t i t u t i ona l organizations or judicial organizations, but excluding the adjudication of cases in court.

Conclusion The Constitution of the Kingdom of Thailand, B.E. 2550 (2007 A.D.) was drafted under “unstable” circumstances occurring in Thailand when the Thai people are clearly separated into 2 factions: the “pro-Thaksin” vs. “anti-Thaksin” factions that eventually set the stage for the 19 September 2006 coup.

Despite efforts to restore Thailand to a full democratic system, comprising the legislative, executive and judicial branches, and constitutional organizations like other civilized countries, the political division grew increasingly contentious so that the new Constitution has been unavoidably taken hostage as a “defendant” by several quarters. Provisions in several articles that in no way are contrary to or in conflict with the ideals of a democratic political system have been branded as “undemocratic” without the critics bothering to listen to academically rational explanations. Admittedly, certain provisions may invite a hot academic debate, but this is a normal occurrence in the academic world where the clashing of views is a matter of course, and is even more so in the legal circle. The clichéd accusation leveled is that the charter is set to maintain the military or CNS dominance. Certain articles, written with all the best intention of furthering the common publ ic interes t , are at tacked for naüve incomprehens ion of international law, etc.



As a student of public law specializing in constitutional law, I dare say that no constitution anywhere around the world is perfect. The fact that the constitution of every country has undergone amendments in some form or other attests to my insistence in this regard. The 2007 Constitution is not written so to defy future amendments, but at the same time it is never an intention to resist any attempt at amendment whatsoever.

The spirit of the new Constitution, to reiterate my previous statement, is to establish a new, sustainable democratic political system in Thailand and to get rid of all the pitfalls and weaknesses uncovered in the 1997 Constitution, of which there are many. Most notably, the executive branch became too strong and arrogant to the point of crippling the checks and balances mechanism. The new Constitution opens a fresh chapter of Thai politics and government, heralding an era of the tight safeguarding of citizen rights and liberties, an era of greater citizen participation in politics, an era of modification of conduct and readjustment of values and code of ethics for politicians, all for the advancement and progress of the country.

The 2007 Constitution and the Second Round of Political Reform

43


The 2007 Constitution and the Second Round

of Political Reform

Assoc. Prof. Noranit Setabutr *

The Political Situation Prior to the 2006 Administrative Reform

For 8 yea r s fo l lowing the implementa t ion o f the 1997 Constitution in its entirety representing sweeping political reform of an unprecedented scale, the new constitution

successfully inducted into the Thai political scene a strong leadership at the helm of an elected Government, meeting the objective of the drafters. On the announcement of the 2001 election returns, the Thai Rak Thai Party, despite its maiden participation in a general election,

* President of the Political Development Council.

44


KPI YEARBOOKS 4

won a sizable portion of the House seats. Having garnered 248 seats in the House of Representatives, only two seats short of half the total House membership of 500, Police Lt Col Thaksin Shinawatra, the party chief, succeeded in maneuvering himself to become the next Prime minister, heading a strong government and thereby setting himself a semi strongman of sorts, albeit leading a multi-party coalition government. Through Machiavellian-style tactics, he later forced the merger of coalition partners, both middle-size and smaller parties, with the Thai Rak Thai Party to form a uniform, single party in power. The Prime minister, in so doing, attained an unassailable position in politics, allowing him to exert, unchallenged and with minimal negative political impact on the Government, his influence over the Cabinet and reshuffle of his ministers at will.

After the 2005 Election, the Thai Rak Thai Party won a landslide elect ion, gathering under i ts fold a record number of House representatives, more than two-thirds of the total House membership. And only 4 parties, of the many parties contending for House seats, won seats in the House of Representatives. The Democrat Party was the second large party trailing a far distance behind the Thai Rak Thai. There was therefore a strong likelihood that in this political scenario only two big parties will vie in a general election in the near future.

But there was a drawback, a victim rather, to this new development: The inspection of the exercise of State power was rendered ineffective due to a number of factors. Becoming too strong, the political parties r u l ed the i r member s w i th an i ron f i s t , e xace rba t ed by the constitutional provisions making it extremely tough for politicians to change a party and still become eligible for reelection in a next election. Shackled by their parties and the Constitution, members of Parliament had to listen to and abide by the party resolution without fail; dissenting members might be expelled from the party and risked losing their parliamentary seat. Furthermore, the required number of


45


members of the House of Representatives wanting to submit a motion for a no-confidence vote against the Prime minister or ministers was somewhat high. In the 5 years during which the Thai Rak Thai Party led the one-party Government, the Opposition was not even once able to open a House debate for a vote of no confidence against the Prime minister.

Independent constitutional organizations designed in such a way as to free them of political influence to enable them to perform their inspection duty, thereby providing the necessary checks and balances, were instead plagued with a host of problems, not the least of which was internal management. After some heavy criticisms, they suffered a corrosion of public confidence as time went on. The selection process for the Election Commission left it under a cloud of suspicion so that it led in the end to vacating of the office of its president. The selection of the Auditor-General, also fraught with controversy, was subjected to a subsequent lawsuit. The National Counter Corruption Commission fared no better when the entire commission was prevented from carrying out its work after being embroiled in a court proceeding until being convicted of wrongdoing, thereby forcing it to resign en masse.

While the public confidence in the independence of constitutional organizations reached a lowest ebb, the inspection of the Government was likewise rendered impotent, leaving a gaping vacuum that sorely needed to be filled. Meanwhile, or rather because the Parliament and inspecting organizations failed to do their duty, the Government came face to face with a spate of extra-parliamentary oppositional forces. Despite the overwhelming number of support for the Government in the Parliament, the political situation remained volatile, with the Government facing opposition both inside and outside the Parliament. Prime minister Thaksin Shinawatra finally opted for the dissolution of the Parliament on 24 February 2006, with the election date slated for 2 April 2006. But the trouble did not end there: the three Opposition

46


KPI YEARBOOKS 4

parties—the Democrat, the Chart Thai, and the Mahachon—boycotted the election, leaving the Thai Rak Thai the only big party contending with small, ‘no-name’ political parties. Problem after problem kept piling up. The public grew increasingly uneasy at the disturbing anomaly when in the 2 April 2006 election up to 9 million voters cast ‘no-vote’ ballots in apparent defiance of the ruling party. That election itself became the problem. The Ombudsmen thereafter petitioned the Constitutional Court for a ruling on the problem of legitimacy of the election.1 The Constitutional Court ruled the election unconstitutional on 8 May 2006.2

After the April election was ruled unconstitutional, the Election Commission proposed the 22nd of October 2006 as the new date for holding another election. The Election Commission, however, was sued by a former MP from the Democrat Party, prompting one commissioner, General Charuphat Ruangsuwan, to resign his post. The other commissioners - Police General Watsana Phoemlap, Khun Weerachai Naeobunniam, and Khun Parinya Nakchatree - were all found guilty and sentenced to imprisonment by the Criminal Court on 25 July 2006. The commissioners thus were forced to quit their posts.

In the midst of the political turmoil, there was a chorus of calls from various quarters, seeking amendments to the 1997 Constitution. A diversity of reasons and opinions were given for the amendment calls, but there seemed to be a kind of consensus that the amendments, if there be such, should be made by non-politicians. A suggestion was made that Article 313 of the Constitution be amended first to pave the way for outsiders to step in and undertake the proposed amendments. The idea seemed quite acceptable even to the Government; it was

1 http://www.concourt.or.th/concourt/judgement_sum.jsp

2 ibid.


47


suggested that the approach be made after the forthcoming election at the year end (2006). Meanwhile, street protests and pro-Government groups continued to make their pitches, splitting the country into two clearly opposing factions as never before seen. There were strong indications that a violent confrontation was imminent. Then, what every lover of democracy has always feared finally occurred: On the 19th of September 2006 the Council of Democratic Reform under the Constitutional Monarchy seized power, toppling the Government and abolishing the 1997 Constitution.3

Just 12 days into the coup, the junta declared into effect the Interim Constitution of the Kingdom of Thailand on 1 October 2006. The provisions, among other key items, prescribed the establishment of a 100-member Constitution Drafting Assembly tasked with the job of drafting a new constitution to be completed within a 180-day period as of the date on the Constitution Drafting Assembly convened its first meeting.4 The year 2007 thus marked a dramatic one for the drafting of a new constitution that would decide the destiny of the nation under the presumed 2007 Constitution. Unless marred by an unforeseen round of political violence, a general election was expected by the end of 2007.

Intractable Political Problems and the 1997 Constitution In the course of drafting a new constitution replacing the Interim Constitution of 2006, society asked how the new constitution might differ from the 1997 Constitution and whether or not it would prove

3 19 September 2006 Coup: Smooth and Yet Subtle, The Council of Democratic Reform under the Constitutional Monarchy, by the editorial staff, Matichon, p. 93.

4 2006 Interim Constitution, Articles 19 and 29.

48


KPI YEARBOOKS 4

to be superior to the 1997 Constitution. The misgivings stemmed from the belief that the abolished constitution was one of the best constitutions Thailand has ever had. The first draft of that constitution resulted from the vigorous team effort of the Constitution Drafting Assembly, comprising representatives from every province and leading scholars of the day. Extensive hearings were further held nationwide to garner public feedback and comments. Significantly the 1997 Constitution per se embodied a new wave of political changes, representing the momentous political reform of Thailand, and even hailed by some as the first as such (but wrongly).

Before this article can profitably discuss any changes to be expected of the 2007 Constitution, a review will first be made of the political problems that dogged the implementation of the 1997 Constitution. Presumably the drafters of the new constitution would inevitably be called into account to point out how the new version might differ from the 1997 version.

As specifically ordered by the Interim Constitution, “After the completion of a Draft Constitution, the Constitution Drafting Assembly shall prepare and submit an explanatory memorandum to clarify the differences between the Draft Constitution and the Constitution of the Kingdom of Thailand, B.E. 2540 (1997), together with reasons of amendment thereon,…”5

The drafters of the 1997 Constitution, wanting to see changes introduced in 3 directions, laid the basic framework for approaching the task, as enumerated by the chairman of the drafting select committee, Khun Anand Panyarachun, before the Constitution Drafting Assembly during its first sitting:

5 2006 Interim Constitution, Article 26.


49


“The first frame of reference centers around rights and liberties and public participation. The people’s human rights, liberties and participation are to be given full recognition, and certain basic principles shall form the foundation for resolving complex problems on human rights, l iberties and public participation. All legal limitations of human rights and liberties, originating in laws or regulations, will be reviewed to ensure non-violation of basic civil rights and liberties. The door will be wide open to empower greater public participation in politics and to resolve the persistent problems of decentralization toward establishing concrete and practical results. The second frame of reference centers around the inspection of the exercise of State power. Its instruments consist of the Constitutional Court, the Courts of Justice, the corruption control system, the declaration of assets and debts, the independent Commission of Counter Corruption, a criminal court for holders of political office, and the State Audit Commissioners. The third frame of reference highlights political institutions and their relationship. The institutions include the House of Representatives, senators, political parties, the Cabinet, and the relationship between the National Legislative Assembly and the Cabinet.”6

The above frames of reference clearly show that the drafters of the 1997 Constitution were resolved to drastically change the face of Thai political landscape both in manner and scope of political power relations. Prior to this, Thailand had had many constitutions implemented as a basis for evolving its political system of national adminis t rat ion. But the centra l feature of that pol i t ic s was representative democracy whereby the people as owner of sovereignty exercise their power only through the election of their representatives

6 Anand Panyarachun, “Principles of Drafting the Constitution to Effect Political Reform,” in Thammasart Jounal, No. 23, January-April 1997, pp. 13-14.

50


KPI YEARBOOKS 4

for setting up the government, controlling the government, and making legislation on their behalf. Outside of the polling booth, the role and power of the people are marginalized; even at the election time, once the polls close and the people finish their vote, ballot returns seem the dominant issue of the day, even too big to be questioned or reviewed.

Representative democracy, according to some political analysts, essentially has 3 main characteristics. When viewed objectively, certain features may be missing from the picture. The 3 characteristics are:7

1. The people are truly in control;

2. Representation must be broad-based and general. People in general must be entitled to representation. The right to vote therefore is not to be restricted to any particular group of the population, nor to be subject to restricting conditions in any matters;

3. People have the fundamental right to some guarantee, for example freedom of speech, freedom of expression, freedom of religion, and the right to equality in judicial proceedings.

The historical development of Thai politics from its inception in 1932 to 1996, however, indicates otherwise, for the Thai people were allowed to exercise the right to vote for representatives on certain occasions only, and were disenfranchised on other occasions. Even when the people were allowed to elect their representatives, the elected representatives were still matched with appointed representatives, in the equal number or only slightly less, who had the same power as the elected representatives. On very few occasions the people were really in control: their chance came only at election time. Worse was the

7 George B. de Huszar and Thomas H. Stevenson. Political Science. (Ames, Iowa: Littlefield, Adams & Co., 1955), p. 65.


51


guarantee of human rights and freedom: very little progress has been made, and citizen participation in politics was minimal. As noted by one core member of the drafting commission concerning the goals of the new constitution for extending the role of public participation beyond the election time only: “The politics in the past was essentially the politicians’ partisan power play under the cloak of representative democracy. This constitution aims to right the wrong by installing participatory democracy in increasing measures in all levels of politics.”8

The obvious intention of the first frame is therefore to arm the people with political clout and give them a clear role to help inspect the Government over and above merely exercising the right to vote at election time. In real terms, the people can petition for legislative proposal and removal of politicians, and the constitutional provisions guarantee civil rights and liberties greater than in the past, including imposing on the people the duty to go to the polls.9

The third frame dealing with the political institutions and the relationship between important political institutions aims to empower a strong government and its leader, that is the Prime minister, who must first be popularly elected as a people’s representative.

To make the Prime ministership strong, a clause is provided, prohibiting the Prime minister and ministers to be members of the House of Representatives at the same time. The prohibition clause is designed to prevent certain groups of House representatives to use their legislative power as a bargaining chip for a ministerial position by putting pressure on the Prime minister. Once made a minister, the

8 Borwornsak Uwanno, Intentions of the Constitution. (Bangkok: King Prajadhipok’s Institute), p. 42.

9 Constitution of the Kingdom of Thailand, B.E. 2540, Article 68: “Every person shall have a duty to exercise his right to vote at an election.”

52


KPI YEARBOOKS 4

representative shall lose their membership of the National Legislative Assembly, and, if later removed from his ministerial office, cannot revert to being a representative right away.

Moreover, any attempt to open a no-confidence debate against the Prime minister was made so much more difficult. Under the 1991 Constitution, immediate predecessor to the 1997 Constitution, no less than one-fifth of the entire membership of the National Legislative Assembly could petition for a motion to launch a no-confidence debate against the Prime minister, the same as other ministers.10 In the 1997 Constitution, however, the no-confidence debate motion topic was separately deposited in two articles, one for Prime minister and the other for minister. In the case of Prime minister, the required number of petitioners was doubled to “two-fifths of the membership of the entire House” and the naming, prior to the motion proposal, of “the next worthy Prime ministerial nominee” as well.

The Prime minister’s high ground was made even more secure by an additional measure for use by the party leader to rein in wayward party members with an iron hand, making it extremely difficult for House members to switch party allegiance. Under Article 107 (4) of the 1997 Constitution, in order for a person to be a candidate in an election to the House of Representatives, he must “be a member of any one political party only for an uninterrupted period of not less than ninety days, up to the date of applying for candidacy in an election.”

The impact was two-fold: House members could not switch party allegiance so easily, and the party or its leader had so much control over House members under its wing that it affected the House members’ effectiveness in conducting House affairs, be it on the Government or Opposition side. The Prime minister with his

10 Constitution of B.E. 2540, Article 150.


53


prerogative to dissolve the House was thus made too powerful for political good.

Once political parties and the Prime minister were made powerful, securing the Government stability, the drafters, through the second frame, created independent constitutional organizations for the in spec t ion o f the exe rc i s e o f St a t e power. Under the 1997 Constitution, the new, hitherto unknown chapter, also unheard-of in many Western democracies, was introduced: inspection of the exercise of State power. The chief aim of the chapter, a brand-new State mechanism provided under the constitution, was to balance representative democracy with the control features of participatory democracy.

The newly created independent constitutional organizations consist of : the Elect ion Commiss ion for overseeing e lect ions11; the Constitutional Court for adjudicating disputes on the powers and duties of organizations, whose decision is final and binding on the National Legislative Assembly, the Council of Ministers, the Courts, and other State organizations12; and the National Counter Corruption Commis s ion , newly made independent and not sub jec t to Government control like in the past, for overseeing the prevention and suppression of corruption cases, as well as the declaration of assets and debts of holders of political office.13 The State Audit Commission, another constitutional organization that evolved from an older government agency, had the duty to examine the Government. Also included were the Ombudsmen14 and the National Human Rights


12 Constitution of B.E. 2540, Article 268. 13 Constitution of B.E. 2540, Article 291.


54


KPI YEARBOOKS 4

Commission15, both independent organizations, having the powers and duties to inspect other additional matters.

But after only 8 years of implementation, the 1997 Constitution apparently provided a fertile ground for spawning a government whose strength and power went from strength to strength: the Prime minister could reshuff le his ministers without suffering any polit ical consequences. To open a no-confidence debate against the Prime minister was made very difficult now that the number of House representatives required to approve such a motion was set at two-thirds of the membership of the entire House. In a progression of events hitherto unheard-of, Prime minister Pol Col Thaksin Shinawatra held his office for two consecutive terms after two general elections in 2001 and 2005 without being once grilled in a parliamentary no-confidence debate. The unassailable position of the party leader under the auspices of the Constitution was thus the central debate point for analysts and the public in the course of drafting the 2007 Constitution. A proposal to counter the overly strong government trend, for example, was made in the Matichon:

“1…[Not relevant to our discussion]…

2. Members of the House of Representatives need not belong to a political party within a period of 90 days prior to the election date in order to free MPs to per form their legis lat ive duty ful ly and conscientiously.

3. Seeking approval of a motion to open a no-confidence debate against the Prime minister is made easier by prescribing the number of MPs required to approve such a motion being only one-fifth of the House members, the same number required for seeking a debate against a minister. The new numerical quotient is based on the



55


number of members of the biggest Opposition party in the House of Representatives.

4. The inspection system must keep guard over politicians abusing their power to benefit biased business groups. Measures must be written into the constitution for inspecting the decisions of politicians, especially the Executive power’s actions, to see whether or not there is abuse of power by awarding projects or revising regulations in favour of business groups of their own affiliation.”16

The paper went on to discuss the covert influence political parties exerted over constitutional organizations and the National Assembly:

“The off ice-taking process for members of constitutional organizations had been tampered with by political cliques, distorting the fair selection and appointment process. Despite attempts to cut off the political party representation in the composition of the selection committees, the Senate was still subjected to the interference from political parties, particularly in the selection (or election) stage in the Senate.”

Further comment was aimed at the failure of constitutional instruments:

“The failure of constitutional instruments originally designed to make the checks and balances work is due to the monist character of the Thai parliamentary system that buttresses a centralist tendency in favour of the key political organization, namely political party, as the watershed of formal political will. And when Thai politics evolved to the capitalist-dominated democratic stage, political parties are

16 “The Constitution, the King Prajadhipok’s Version, Favours ‘Liberation of MPs’, in “Abstract of a research paper on the findings on the amendment of the 1997 Constitution,” King Prajadhipok’s Institute, January 2006, in Matichon (31 January 2007), p. 2.

56


KPI YEARBOOKS 4

controlled by money-minded men who use their financial clout to interfere with the Senate, effectively debilitating its inspection efficiency and heavily influencing the appointments to constitutional organizations in their favour.”17

A wide body of opinion has thus spread about that the problems most likely stem from the provisions in the 1997 Constitution, and they needed to be revised if the problems are to be dealt with properly. It is in the context of this debate that the 2007 Constitution has been framed. But how much will be accomplished and the extent of approval it will get depends on the prevailing situation, method and t ime constra ints – condit ions governing the draft ing of the constitution in real time.

Political Parallels: Similarities and Differences in the Making of the 1997 Constitution and the 2007 Constitution Both s imi lar i t ies and di f ferences ex i s t between the 1997 Constitution and the 2007 Constitution, and they seem instrumental in shaping the character of the two charters. Let’s look first at the political situation the country was in before each constitution was made.

On 23 February 1991, the so-called National Peace Keeping Council led by a group of top military brass seized power from the elected Government and abolished the 1978 Constitution.18 On 9

17 ibid.

18 Siam Almanac (No. 10, Vol. 12), p. 309.


57


December 1991 the 1991 Interim Constitution was declared into effect, along with the appointment of the Constitution Drafting Committee. Following close on its heels was a general election on 23 March 1992. Instead of leading the country back to normal, a new crisis loomed large when General Suchinda Kraprayoon, then Army Commander and Supreme Commander, became the Prime minister without going through the election process. Apologists tried to justify the necessity and suitability of the Suchinda Kraprayoon Prime ministership,19 but to no avail. Mounting street protests finally led to the violent military and police crackdown between 17 and 19 May 1992, commonly known as the “Black May” incident.

The anti-Government protests called for the amendment of the 1991 Constitution, focusing on these 4 points:

1. That the Prime minister must be an elected member of the Parliament;

2. President of the National Assembly must also be the president of the House of Representatives;

3. Senators cannot participate in a no-confidence debate against the Government, and

4. Amendment of the sitting sessions, allowing members to consider motions during the second session.

In the violent “Black May” crackdown the massacre of many pro-democracy demonstrators forced Prime minister Suchinda Kraprayoon to resign. On 10 June 1992 the National Assembly approved the 4 po in t s above , and on th i s s ame day Anand Panyarachun, the former Prime minister who had never been an

19 Thai Rath (18 April 1992), p. 6.

58


KPI YEARBOOKS 4

election candidate, was appointed the interim Prime minister, on the understanding that the National Assembly would be dissolved and another general election held. In the course of the election campaign, those political parties opposed to the NPKC junta gave an election pledge that the constitution would be amended after the installation of the next Government.

Even when the new government in power was elected and based on political parties and that the 1991 Constitution had been amended to incorporate the 4 demands, a sense of restlessness still permeated the prevailing atmosphere. There were constant extra-parliamentary calls from such groups as private organizations and democratic activist groups while in the House of Representatives, factions of the MPs also called for a new round of reform. A select committee was therefore formed in the House to conduct amendment feasibility studies aimed at the 1991 Constitution. A report was subsequently presented to the House of Representatives, comprising 25 recommended articles of amendment.20

Still, there had not been a trace of constitutional amendment in sight simply because both the Government and the Opposition, agreeing as they did with the amendment proposal, refused to table a motion for constitutional amendment at the National Assembly session. The Government, although controlling a majority in the House of Representatives, did not yet control the Senate, and a motion for constitutional amendment requires the approval vote of more than half of the National Assembly membership, comprising a combined number of seats in the House of Representatives and the Senate, to come through.

20 See “Constitution Amendment Number Games from 47 to 25 and finally to 8,” Matichon Weekly (No. 14, Vol. 704).


59


The calls for additional constitutional amendment had dragged on for over a year. Meanwhile, a new chorus of voices sprang up, demanding a complete rewriting of the constitution that excludes any involvement of politicians, that is, the MPs. Further, the rewriting should not be a mere preparation of a new constitution, but must represent a significant advance over the past, and result from a systematic amendment overhauling, not a mere rewriting of any particular point. This therefore was tantamount to pushing for a national political reform. In the election of 1995, the Chart Thai Party under Banharn Silpa-archa ran its election campaign under the banner of ‘political reform,’ pledging to push for a political reform and the rewrit ing of a new constitution i f i t became part of the next Government leadership.

The predominant sentiment of the political situation prior to the drafting of the 1997 Constitution therefore went the way of calls for constitutional amendment, preferably the drafting of an entirely new constitution. As to the substance, there had been expressed a strong desire to see new developments in ideological thinking and practices in Thai politics. Since the proposed changes would likely affect the standing and vested interests of the politicians, it was demanded that the politicians not take part in the drafting process directly. They would, however and as the people’s representatives, be the final arbiter of its acceptance or otherwise, that is, voting in approval or rejection of the constitution.

The unmistakable similarity between the 1997 Constitution and the 2007 Constitution is the desire of society to see a new constitution installed and implemented as the instrument for resolving the country’s political problems. In the case of the 1997 Constitution, the previous amendment of the 1991 Constitution remained largely unsatisfactory as it was the product at the hands of the politicians, that i s , members of the House of Representat ives and the Senate

60


KPI YEARBOOKS 4

themselves. This was in spite of the agreement that many weaknesses of the 1991 Constitution, sponsored by the junta who staged the coup in early 1991, had largely been corrected, and the overall substance of the constitution was already quite good. It must, therefore, have been very difficult to improve on it and make it more democratic or guarantee greater rights and liberties for the people.

In the case of the 2007 Constitution, despite the public desire to see the constitution completed and implemented in due time, the unstable situation the country found itself in, by contrast with the 90s, made it doubly more difficult to forge ahead: a coup was staged on 19 September 2006 and the (1997) constitution, widely regarded as one of the best Thailand has ever had, was ditched. Amid the volatile situation, the plan to draft a new constitution to replace the 1997 Constitution faced a certain amount of resistance even though in reality the 1997 Constitution had already been abolished, and it became unavoidable that a new charter be written to replace it.

A const i tut ional convention of 100 delegates , ca l led the Constitution Drafting Assembly, was selected from the so-called National Council whose 2,000 members hailed from the government sector, private sector, academic sector, and social sector. The council represented a diverse composition of people in terms of occupation and locality, and academics in law and political science. These people in no way were elected directly by the people.

Constraints of time were definitely imposed on the preparation of the 2007 Constitution, not unlike those imposed on the preparation of the 1997 Constitution. The timeframe for the completion of the 2007 Constitution, however, was considerably shorter, a mere 180 days. The key task for the Constitution Drafting Assembly was to come up with a good constitution, retaining all the essential features of democracy and winning approval of the people, meaning that the


61


drafters would have to listen to the people. Fulfilling these conditions was therefore difficult, due mainly to the constraints of time. The preamble to the 2006 Interim Constitution laid down the terms of drafting as, more or less, the rules to follow: “A new draft constitution shall be prepared with widespread pubic participation in all stages.”

From the beginning, the preparation of the 2007 Constitution had to take into account a broad, nationwide spectrum of public opinion. As constitutionally mandated, “The Constitution Drafting Assembly shall disseminate the draft constitution and an explanatory pamphlet under Paragraph 1 to inform the general public, as well as promoting and holding public hearings on the constitution.”21

More important, the constitution must be subject to a referendum so that the people themselves, who had no role in selecting the drafters, could be the final arbiter. “Upon completion of the draft constitution, information shall be disseminated to the general public, and a referendum held for the people to give yeas or nays to the entire draft constitution.”22

Under the mandate, the Constitution Drafting Committee simultaneously gathered public opinion and prepared a first draft; the first draft was disseminated to the public, together with an explanatory pamphlet. Public consultation was conducted extensively, spreading to all the regions. Once the Constitution Drafting Assembly completed the draft constitution, a dissemination and publicity campaign was given while the Election Commission prepared and supervised a referendum, as the final step of the entire process. The constitution, having passed the referendum, was presented to the King for his signature and subsequent formal announcement of ratification.



62


KPI YEARBOOKS 4

Since the political condition at this time was still unstable, as was wont to be after a recent coup, the preparation of the constitution was fraught with problems and obstacles, owing to misgivings and suspicion. Nevertheless, it cannot be denied that the preparation of the 2007 Constitution was undertaken openly and under the watchful eye of the media: publicity was widespread, and live broadcast was made via radio and television. The intention was to lessen public doubt and suspicion to the greatest extent possible.

Second Political Reform Under the 2007 Constitution Before we can discuss profitably the probable effects of the 2007 Constitution on the second round of political reform, it should be noted that the dominant structure of politics has stayed the same as always.

First, the political setting remains a parliamentary democracy that has been in use ever since the 1932 Revolution. It is further a bi-cameral parliament divided into the House of Representatives with 480 members, and the Senate with 150 members.

Second, the House of Representatives still plays the leading role in forming the Government because the Prime minister must be chosen from the House of Representatives; the House of Representatives also has the sole privilege to introduce legislation at the first stage, meaning that all laws must start with the House first. Members of the House of Representatives, with the right quorum as determined by the Constitution, can submit a motion calling for a no-confidence debate against the Prime minister and ministers.

Third, candidates for membership in the House of Representatives of both types must be members of some political party and belong to


63


one single party continuously for a period of time no less than that determined by the Constitution. The 2007 Constitution sets it at only 30 days.

Fourth, the Prime minister designate must be a member of the House of Representatives and is chosen for the office from the House of Representatives. The President of the House of Representatives counter-signs the Royal Command appointing the Prime minister.

Fifth, apart from the Legislative Power, the Executive Power, and the Judicial Power, there are still other pillars of political authority in the form of constitutional organizations for the inspection of State powers.

As for any differences, or departures from the old themes, or other additions over the former provisions of the 1997 Constitution, a fair number of these have arisen in due course. The distinct differences include the following.

First, the membership of the House of Representatives, albeit comprising the same two types of members, is reduced from 500 to 480, seemingly a negligible difference. But the new requirement of b igger const i tuencies for the 400 members of the House of Representatives is a different matter. The new constituencies consist at least of no more than 3 representatives in each constituency, a reversal to the former constituency make-up practiced before the enforcement of the 1997 Constitution. The difference is clearly visible to all. The other type of representatives, or proportional representatives, also is no longer a single national list of party MPs. Rather, the former single national constituency is broken up into 8 smaller constituencies, each having 10 representatives. The total number of proportional representatives is 80, down from the former 100-member national list of party MPs. Political parties therefore are forced to restrict their party-list candidates to no more than ten names for each constituency.

64


KPI YEARBOOKS 4

The chief qualification demanded of the election candidates is that they be registered residents in that particular constituency.

Second, the senators are also divided into two types, making the group def in i te ly d i f f e rent f rom the Senate under the 1997 Constitution, composed of 200 senators of a single type and elected by the people from the provinces, each province being counted as a constituency. Under the new constitution, a total of 150 senators are divided into two types: the elected senators and appointed senators. Of these, 76 are elected senators, one senator for each province; the other 74 are appointed senators, to be selected by the selection committee of non-politicians: president of the Constitutional Court, president of the Election Commission, president of the State Audit Commission, president of the National Counter Corruption Commission, a judge of the Supreme Court of Justice holding the position of not lower than judge of the Supreme Court of Justice as entrusted by the general meeting of the Supreme Court of Justice and a judge of the Supreme Administrative Court as entrusted by the general meeting of the Supreme Administrative Court.”23

Third, changes were introduced in the composition of the selection committees for justices of the Constitutional Court, and members of constitutional organizations including the Ombudsmen. The election procedure in the Senate was also overhauled, investing the selection committee with the power to reaffirm its selection. The new selection committee consists of the president of the Supreme Court of Justice, president of the Constitutional Court, president of the Supreme Administrative Court, president of the House of Representatives, and the leader of the Opposition in the House of Representatives, forming the core of all selection committees. The only exception is in the selection committee for justices of the Constitutional Court, which



65


does not have the president of the Constitutional Court as a member and wil l instead have one representative of the presidents of constitutional organizations24 who choose that person among themselves.25 For any selection committee consisting of 7 members, the additional members will be a person selected at a general meeting of the Supreme Court of Justice and a person selected at a general meeting of the Supreme Administrative Court.26

Fourth, the most noticeable difference lies in the restraints of single party membership time requirement imposed on election candidates to the House of Representatives. In Article 107 under the 1997 Constitution, the candidate must “be a member of any and only one political party, for a continuous period of not less than ninety days, up to the date of applying for candidacy in an election.” In contrast, the 2007 Constitution shortens the duration considerably, as provided in Article 101 (3): the candidate must “be a member of any and only one political party for a continuous period of not less than ninety days up to the date of applying for candidacy in an election, or being a member of any and only one political party for a continuous period of not less than thirty days up to the date of applying for candidacy in an election in the case of the general election being held because the House of Representatives has been dissolved.”

While the old time frame is retained for party changing in the case of a new election occurring normally, giving candidates plenty of time to know beforehand on what date the election falls, in the case of House dissolution the single party membership time is shortened to

24 Under the Constitution of B.E. 2550, there are 4 constitutional organi-zations: 1. Election Commission, 2. Ombudsmen, 3. National Counter Corruption Commission, 4. State Audit Commission.



66


KPI YEARBOOKS 4

only 30 days prior to the election day. In the past, no election could be held less than 30 days as of the date of House dissolution.

To prevent voting monopoly in the House mid-term, interpreted as possibly contravening the will of the electorate, political parties are prohibited to merge after a general election and throughout the term of the House of Representatives. The provision is, “During the term of the House of Representatives, the merger of the political parties whose members are elected to the House of Representatives shall not be made.”27

Fifth, the previous prohibition against members of the House of Representatives simultaneously being the Prime minister and ministers was lifted, pointing to the renewed focus on the importance of the affairs of the House of Representatives once more or greater than previously. The original intention of the 1997 Constitution was to separate the legislative power from the executive power, providing a sort of armor for the executive side. Ironically the Prime minister’s political position was made so much stronger for he could wield the clause like a club for pummeling into submission the minister who happens also to be a House member for fear of losing his House membership and thus the political arena altogether in case he has to leave his ministerial office. Besides, when the office of the member of the House of Representatives who is also a minister was vacated, it became necessary to hold a by-election to fill the vacancy; the public, sensing a waste of taxpayers’ money, could take a dim view of the member of the House of Representatives who became a minister. As a result, some Government leaders made it their policy not to allow constituency members of the House of Representatives to become a minister and to appoint only party list MPs to ministerial office; if and when a party list MP becomes a minister, the next election candidate on the party’s list need only be promoted to fill the vacant slot, thereby

27 Constitution of B.E. 2550, Article 104, Paragraph 2.


67


doing away a waste caused by a by-election altogether. This way of thinking and practice, however, puts party list MPs (or proportional representatives) in a superior position for they can become a minister without complications while constituency MPs get shunted sideways unquestioningly. There was even a suggestion that constituency MPs, should they so desire, might become a minister if they would be willing to shoulder the cost of holding a by-election on behalf of the Government. Alas, the idea seemed to give rich polit icians a commanding posit ion to monopolize candidacy chances for ministership even further.

Sixth, political parties and party executives are strictly forewarned to watch over and guard against their election candidates committing or abet t ing a v io la t ion of the e lec t ion law for the House of Representatives. Should there be enough convincing evidence that the party leader or any party executive connives at or neglects or is aware of and yet refuse to deter or rectify the alleged wrongdoing, that party shall be regarded as directly responsible, for which a case against it can be brought before the Constitutional Court for possible party dissolution. If convicted, the election rights of the party leader and party executives may be suspended for a period of five years.28 The provision is necessary, considering that the chief problem preventing a clean and fair election is still the rampant vote-buying practice that largely escapes being caught and punished.

Seventh, the 2007 Constitution includes stricter provisions governing the conflict of interest issue, aiming to create better transparency in politics. Measures are spelled out to guard against a conflict of interest, making it clear what acts constitute a conflict of interest. A whole division (Part 2) of Chapter 12 on the inspection of the exercise of State power is devoted to the issue. The former provision applicable to the Prime minister and ministers is expanded


68


KPI YEARBOOKS 4

to cover marital spouses and children of non sui juris status.29

The declaration of assets and debts of holders of political office is further extended to cover their assets in the possession or guardianship of other people as well.30 It is further provided that the accounts showing assets and debts of members of the House of Representatives and the Senate shall be made public.31

Moreover, the prohibitions against the holders of the office of Prime minister, ministers, members of the House of Representatives and the Senate, as cited above, are heightened by the addition of the phrase “either directly or indirectly.”32 Apparently the aim is to warn wielders of political power to exercise more prudence since it refers not only to direct action; any action, indirect though it appears, may be taken to contravene constitutional provisions.

In case the Prime minister, ministers, members of the House of Representatives and of the Senate are sentenced to imprisonment, the 2007 Constitution makes it clear that these holders of political office shall vacate their office if they “are sentenced to imprisonment even if it be a suspended sentence, except for the suspended sentence handed out for an offence committed through negligence, a petty offence or a defamation offence.”33

Restraints are also imposed on the president of the House of Representatives and vice-presidents of the House of Representatives,

29 Constitution of B.E. 2550, Articles 265, 269, and 119 (8).

30 Constitution of B.E. 2550, Article 259, Paragraph Three, and Article 269, Paragraph Three.

31 Constitution of B.E. 2550, Articles 261, and 124.

32 Constitution of B.E. 2550, Articles 265, and 266.

33 Constitution of B.E. 2550, Articles 119 (8).


69


the Prime minister and his ministers with respect to the probity in performing their duties. The president and vice-presidents of the House of Representatives must maintain impartiality of their office. As provided in the Constitution: “During the term of office, the President and the Vice-Presidents of the House of Representatives shall not be members of the Executive Committee of a political party or hold any position in a political party simultaneously.”34

In the case of the Prime minister and ministers who are also members of the House of Representatives, a prohibitive provision is included in Article 177, Paragraph 2 under the 2007 Constitution: “In the case where a Minister is a member of the House of Representatives simultaneously, he must, at the sitting of the House of Representatives, abstain from voting on such matters as connected to his position or the performance of his duty or to which he is an interested party.”

Eighth, additional measures were added to fortify and increase the efficiency of constitutional organizations and other organizations under the Constitution. As said above, the 1997 Constitution had already instituted constitutional organizations. The prestige of the constitutional organizations, however, suffered a setback after a while once the 1997 Constitution had been implemented, and the much touted inspection of the exercise of State power, supposedly by the organizations, was severely tested. On this matter, two areas have been given the correctives:

First area, the selection elements and system for constitutional organizations have been revised to prevent political manipulation;

Second area, the organizational setup and duties of constitutional organizations have been streamlined for more expediency, for example:

34 Constitution of B.E. 2550, Articles 124.

70


KPI YEARBOOKS 4

1. the Constitutional Court may accept a lawsuit directly from the people for cases involving a violation of civil rights and liberties;

2. the Supreme Court of Justice’s Criminal Division for Persons Holding Political Positions shall decide if holders of political positions intentionally avoid submitting an account of assets and debts, or submit a false account of assets and debts;

3. the Ombudsmen may by themselves pick matters deemed damaging to the public for investigation without having to wait for a complaint being lodged first.

Ninth, revisions are made to reinforce the works of the National Legislative Assembly in inspecting the executive departments or the Government in the House of Representatives and to ensure the Senate diverse representation of people by occupation via the selection procedure.

To ensure that the House of Representatives can inspect the Government more readily, only one fifth of the entire membership of the House of Representatives35 is required to submit a motion for opening a no-confidence debate against the Prime minister, and only one sixth of the entire membership of the House of Representatives against a minister.36

Moreover, after two years into the administration of the country, the Opposition in the House of Representatives can open a no-confidence debate if more than half the membership of the House of Representatives submits a motion calling for a no-confidence debate.37

35 Constitution of B.E. 2550, Articles 158. 36 Constitution of B.E. 2550, Articles 159. 37 Constitution of B.E. 2550, Articles 160.


71


And a minister can be subjected to a no-confidence debate even after he changes his ministerial portfolio, having moved to another minis t r y i f and when the normal condit ions of the number requirement for members of the House of Representatives submitting such a motion are met. As stated by the provision: “In the case where the Minister having vacated his portfolio is appointed to hold another portfolio after the date of submission of a motion under paragraph 1, he is still a subject of the no-confidence debate as under paragraph 1.”38

Tenth, c ivi l r ights and l ibert ies and the people’s pol i t ical participation have been considerably expanded and made easier to implement.

Eleventh, ethical provisions are especially emphasized. While ethical requirements had already been written into the 1997 Constitution, the 2007 Constitution specifically empowers the Ombudsmen, a constitutional organization, to investigate possible breaches of ethics by politicians as follows:

(1) Holders of political office and State officials must be subjected to and abide by some clear ethical standards in the form of codes of ethics; measures and system of enforcement aimed at compliance with the codes shall be devised, together with a punitive procedure;39

(2) Violation of or non-compliance, in politicians, with established ethical standards is liable to be cited as a cause leading to removal from office;40

38 Constitution of B.E. 2550, Articles 159, Paragraph 2. 39 Constitution of B.E. 2550, Articles 279.


72


KPI YEARBOOKS 4

(3) the National Counter Corruption Commission, a constitutional organization, is clearly mandated to supervise the conduct and ethics of holders of political office,41 in addition to the mandate given to the Ombudsmen to report ethical problems to the National Legislative Assembly, the Council of Ministers or the local council concerned.42

Twelfth, monetary and fiscal policy and budgeting are given a separate chapter for the first time in a constitution, with fresh additional provisions, in the hope that the National Legislative Assembly will supervise the Government’s fiscal plan spending and budgeting process to create disciplinary prudence, with objectives, activities, plans and projects clearly laid down.43

All the differences introduced into the 2007 Constitution shows the intention of the Constitution Drafting Assembly to fortify the works of the Legislative Power so that the inspection of State power (the Executive Power) produces better results than in the term of implementation of the 1997 Constitution.

From the above review of the noticeable similarities and differences between the 2007 Constitution and the 1997 Constitution, changes in and continuity of the following political conditions will most likely occur:

First, the Thai system of national administration will continue to be a bicameral parliamentary system; from the popularly elected House of Representatives the Government is formed and controlled through a no-confidence debate in the House of Representatives; the Prime





73


minister is and must be a member of the House of Representatives, being a distinct prescription. Other modifications introduced in no way affects or distorts the basic principles of a democratic government system, including a new order in the Senate consisting of 74 senators selected by a selection committee of 7 high-ranking permanent officials and the other 76 senators chosen in a general election, one for each province.

Second, there are two kinds of constituencies: large, separate constituencies having no more than three representatives each, and proportional constituencies consisting of 8 groups of provinces distributed throughout the country. The new constituency order in no way alters the results of the election for the House of Representative, compared to the former order under the 1997 Constitution, as confirmed by the election returns on 23 December 2007. The electorate continued to support politicians based on a single party, voting en masse for constituency representatives whether in urban constituencies or rural constituencies. It should be noted that creating smaller proportional constituencies by splitting the former single national constituency into eight smaller groups spread evenly throughout the country has achieved the effect of truly apportioning party House seats to local candidates.

Third, that a portion of the Senate comprises senators chosen through a selection process will definitely free senators from political party domination because the selection-based senators are people invested with experience and expertise by occupation: government officials, private sector, academic sector, and professional sector. What about their performance in their role and duty? We will just have to wait and see.

Fourth, barriers to the inspection of the Government are removed, setting the stage for better transparency in national administration:

74


KPI YEARBOOKS 4

members of the House of Representatives gain voting independence in the National Assembly; members of the House of Representatives can switch party allegiance at the next general election; the number of members of the House of Representatives required for petitioning for a no-confidence debate against the Prime minister and ministers is reduced; members of the Opposi t ion block in the House of Representatives can very easily petition for a no-confidence debate against the Government after two years at the helm of national administration.

Fifth, changes introduced into the process of selection of justices of the Constitutional Court and members of the board of directors of independent constitutional organizations have yet to produce expected results owing to the technical complications involved and the necessity for allowing a lapse of time, especially after the Constitution has been implemented for one year.

Sixth, the enactment of organic laws on the protection of civil r ights and l iber t ies i s due to fo l low sui t as scheduled in the Constitution, with the consequences to be expected thereafter.

A f t e r r e v i e w i n g t h e p o l i t i c a l c h a n g e s i n c u r r e d b y t h e implementation of the 1997 Constitution, compared with the demand for another round of reform to come after the implementation of the 2007 Constitution, it becomes clear that the 1997 Constitution indeed rang the new radical changes on the old, established order, making the time and aftermath constitute a historic phase of political reform. In particular, the creation of independent constitutional organizations that are outside the control of the Executive Power, the Legislative Power and the Judicial Power for the purpose of power inspection as an instrument of balancing the traditional stalwarts of political sovereignty. The chief aim of the 2007 Constitution is to modify the substance of the 1997 Constitution to render legislative


75


power strong enough to check the operations of the Government with greater ease and to give const i tut ional organizat ions, other organizations under the Constitution and the Judiciary a greater role to play in national politics.

In a gesture of support for people’s politics, the people are encouraged and given easier access to actively engage in political participation, as well as opening up avenues for the people to learn to get stronger as a result. Political decisions are increasingly to be conducted in the arena of consultation between political elites and civil society. All this of course takes time and only time will tell if any progress has been made on this important front; right now it is too early to make any predictions.

For instance, the people not only participate in politics by going to the polls to elect MPs to the House of Representatives and the Senate, but they, in a petition of 50,000 names, can initiate constitutional amendment as well.

Such measures as making the inspection of State power easier to implement, requiring members of the National Legislative Assembly to declare their assets in public, prohibiting the Prime minister, ministers and their spouses and children of non sui juris status from forming partnership with or keeping shares in firms or companies up to the limit imposed by law, and prohibiting the Council of Ministers and members of the National Assembly from interfering in or securing concessions from the State either directly or indirectly, all have only one aim: to inject increasing transparency into politics.

Both the political elites and other politicians will more readily be subject to a no-confident debate even if they collectively maintain a majority of seats in the National Assembly. After two years of national administration, the Government may be grilled by the Opposition through a no-confidence debate that can be launched with ease.

76


KPI YEARBOOKS 4

These initiatives are written into the text of the 2007 Constitution for the purpose of encouraging active citizen participation and making national politics transparent and accountable to everyone. Political elites and elected politicians shall be made more aware of and imbued with a sense of responsibility toward the public good - the cornerstone of good governance in politics. Although this is not quite a grand-scale political reform, the people should find the scenario worthy of their support and realization.

The immediate, practical impact the 2007 Constitution brings to bear on the political arena is to bring politics back to normal through a general election for the people to make their political choice in and to push forward politics on a democratic course. Of course, this Constitution is no panacea to cure all political ills; nor should it be made the scapegoat for all political evils or undesirables to follow if any.

Political reform will occur not only when the constitutional provisions are in place but also if and when soon-to-be-enacted supplementary laws, political organizations and institutions in society work together to make it happen. The writing of a new constitution verbalizes the hoped-for changes, a procedure that can be completed quickly, but changing human behaviour and the course of human actions in society will take some doing: it can be neither forced nor hastened over a relatively brief period of time. It is well nigh impossible to engineer society. In some cases, written provisions may have wayward and undesirable effects, in which case it will call for further revision as needs be. Quite a normal thing to happen, and to follow through on actions accordingly.

State Policy Directives under the 2007 Constitution

77


State Policy Directives under the 2007 Constitution From “Guidelines” to

“Framework of Actions for the State”

Asst. Prof. Dr. Pakorn Priyakorn*

Introduction

This ar t ic le a ims to c la r i fy the prov i s ions in the 2007 Constitution, declared into effect on 24 August 2007, focusing on the state policy directives. The following points will be

covered accordingly:

A. Sources for the inclus ion of the direct ive pr inciples of fundamental State policies in the Constitution;

B. Policy directives and the underlying political spirit in other constitutions;

* Dean of the School of Public Administration, the National Institute for De-velopment Administration.

78


KPI YEARBOOKS 4

C. Directive principles of fundamental State policies in the 1997 Constitution: Overview, problems and solutions;

D. Directive principles of fundamental State policies in the 2007 Constitution: Overview, similarities and differences between the 1997 Constitution and 2007 Constitution;

E. Possible impact of the directive principles of fundamental State policies on future Government operations.

1. Sources for the inclusion of the directive principles of fundamental State policies in the Constitution The idea of state policy directives in a constitution was first sprouted in the constitution of the Republic of Ireland written in 1937. The constitution was approved in an Irish referendum of 1939 with voter approval of 56.5 percent and non-approval of 43.5 percent. The constitution was subsequently declared into effect on 29 December 1937.

The Irish constitution has seen some 25 amendments on the policy points with the exception of the directive principles of social policy, remaining unchanged since its inception, as provided in Article 45. The will of the article has been to set down fundamental principles for the Government to carry out its economic and social policies in conjunction with the protection of human rights and liberties of its citizens. To achieve this will, institutions must be created to maintain justice through the creation of public welfare and well-being, protection of a free market economy, and operations to prevent economic and commercial monopolization or exclusiveness.


79


At the same time, the Government must guarantee to provide efficiency and equality for the private sector by giving support to providing administrative and management capacity while preventing social abuse or tyranny. Under the constitutional article, all citizens are guaranteed a right to receiving the Government’s support for education and occupation and that the Government must provide for the underprivileged, particularly the disabled, orphans, and senior citizens. Most important, the Government must provide a guarantee that no labour oppression or abuse with respect to age, gender and health condition shall be allowed.

The Ireland example has set a strong precedent to the drafting of India’s constitution, to include the first draft (February 1948), the second draft (17 October 1948), and the last draft (26 November 1949). In the Indian constitution, the heading of this section was written with these words: “The directive principles of state policy.” In addition, the drafters also incorporated in the directive section the ideas concerning human rights pronouncements in the French Revolution, the Declaration of Independence of the United States, as well as the 1946 Universal Human Rights Declaration of the United Nations.

The chief intention of the directive principles of state policy of the Indian constitution is for the Government to create social and economic conditions that are conducive to the well-being of citizens while at the same time trying to establish a democracy partaking of a welfare state status. The directive provisions therefore specify the rules for use by the people to monitor the Government’s operations, as well as possible impeachment of the Government in case it goes back on its campaign promises and commitments. In the 1971 amendment of the Indian constitution, therefore, there were included more stringent clauses on the implementation of the directive principles of state policy, particularly when the State lays down policy that violates the

80


KPI YEARBOOKS 4

principles of human rights and liberties of the people. Although the people cannot resort to court proceedings to force the Government to act in accordance with the directive principles of state policy, it is assumed in all the countries that include this section on state policy directive in their constitutions that by convention the Government must ab ide by the s t a t e po l i cy d i rec t i ve a s a ba s i s fo r s t a t e administration and management. All its public policy statements dealing with the economy, society and other administrative fields, including policies connected with legislation that promotes human rights and liberties of the people must follow the constitutional directive closely.

It should be noted that the constitutions of many countries also include similar state policy provisions, for example, in Europe, Spain, the Netherlands, and Portugal; in South Asia, Pakistan, Bangladesh, Sri Lanka, and the Maldives; in Africa, Nigeria, Ghana, Ethiopia, and Zimbabwe; in Latin America, Mexico, Costa Rica, Venezuela, Chile, and Peru. Even the ongoing drafting of a constitution of the Organization of Islamic Conferences (OIC), with democratic aspiration for its constitutional membership, also follow in the footsteps of the guidelines and norms set by the Indian constitution.

In the case of the Thai Constitution, it is therefore not so far wrong to say that the Indian constitution is its prototype for inclusion of the state policy directive provisions, particularly the B.E. 2492 (1949 AD) Constitution, going down in the history of constitutional drafting in the international annals as the third country, after Ireland and India, to include such a section in its constitution.


81


2. Policy directives and the underlying political spirit in other constitutions The 1949 Constitution was relatively a modern constitution because it was the first constitution to contain a state policy directive, in Section 5 and having 15 articles. The directive spelled out what the State should do, the emphasis being the word “should.” In Article 1, it was stated that the provisions in the section “provide the directive for legislation and public administration in accordance with declared policies and preclude thereof any grounds for taking the State to court,” this being a similar clause to those found the Irish and Indian constitutions before it.

A comparison of the various constitutions since 1949 to the present can be made as follows:

Evolution of the State Policy Directives in Thai Constitutions

1949 Constitution Chapter 5 Articles 54-72 19 Articles

1932 Constitution, Amended Version of 1952

Chapter 3 Articles 38-44 7 Articles







82


KPI YEARBOOKS 4

According to Article 54 in Chapter 5, entitled “State Policy Directive,” of the 1949 Constitution, the following rationale was given for this chapter, “to provide the directions for legislation and public administration in accordance with declared policies and preclude thereof any grounds for taking the State to court.” Other articles in the chapter gave the following statements:

1. The State must preserve its independence, promote international relations, and adhere to the principle of equality in mutual relations with other nations in maintaining international justice and preserving world peace.

2. The armed forces shall be maintained to the extent necessary for the defence of national independence and remain under the supreme command of the King, and shall not be subject to control by any private individual, group or political party. The armed forces must be used for doing battles or waging war or suppressing rebellions and shall be so used only at the command of the King, except under the announcement of martial law. The use of armed forces to help with other government affairs must be in accordance with the law.

3. Individuals, groups or political parties may not use the armed forces, either directly or indirectly, as their political tool. Military personnel and other persons under the jurisdiction of the armed forces, during their active service, shall not be a member or official of any political party or show association with any political party.

4. In education and training, the objectives are to make the Thai people good citizens of the country, to promote the strength of their bodies and health, to develop knowledge and competence in occupations, and to have a democratic spirit and turn of mind.


83


5. The State shall make it its duty to promote and support educat ion and t ra in ing . In par t icu lar, a l l educat iona l establishments shall come under the supervision of the State. For t e r t i a r y educa t ion , the St a t e sha l l a l l ow educa t iona l establishments independence in self-management within the limits of the law. All primary education in State and municipal educational establishments shall be provided free. In addition, the State shall provide assistance in the form of educational equipment as appropriate.

6. The State shall provide support to researches in the arts and science, the preservation of national culture, the maintenance of historical, cultural and artistic sites and valuable objects, and the prevention of smuggling of these objects out of the country.

7. The State shall promote free market enterprise for private individuals, but must not endanger those enterprises engaged for public consumption and must not erode humanity or threaten social security or personal freedom.

8. The State shall oversee economic activities in the private sector to ensure benefit for the public good. Any monopolistic enterprise or any private enterprise having the nature of satisfying public consumption can be engaged in only in accordance with the law.

9. The State shall promote and nurture agricultural enterprise with respect to increasing productivity, supporting cooperatives and trade, and private manufacturing both in agriculture and industry. Care must be exercised to prevent child labour that is harmful to the child’s physical condition. All public healthcare, prevention and elimination of diseases must be undertaken by the State for the public good without consideration of expenses incurred.

84


KPI YEARBOOKS 4

These provisions as written in the 1949 Constitution have been retained continuously in later constitutions until 1968, with the intention that the chapter on the state policy directive shall be binding on the State to implement those important affairs.

After the drastic political change in October 1973, the 1974 Constitution is found to contain as many as 33 articles in Chapter 5 on the state policy directive. The extravagant overstatement drew much caustic criticism from political scientists as “laying down whatever is wanted done by whoever so desiring.”

In the course of drafting the 1997 Constitution, the drafting committee assigned Drs. Kamol Thongthammachat and Suchit Bunbongkan to make a first draft of Chapter 5, resulting in 19 articles, Articles 71-89. The first important change involved the inclusion of only important matters the Thai State must carry out, thereby changing its name from “state policy directive” to “directive principles of fundamental State policies.” The second important change involved the change in wording from “The State shall…” to “The State must…” In addition, Article 88 makes it clear that the provisions of this chapter are intended to serve as directive principles for legislating and determining policies, excluding the previous wording, “…preclude thereof any grounds for taking the State to court,” since the phrasing “The State must…” already shows commitments the State shall be bound to carry out.


85


3. Directive principles of fundamental State policies in the 1997 Constitution: Overview, problems and solutions As said above toward the end of the previous section, when considering the overall picture the 1997 Constitution represented a s ignif icant departure from the past convention of draft ing a const i tut ion. The name-change to “Direct ive pr inc ip les of fundamental State policies” implies that every government must abide by and act in compliance with the directive principles when announcing its policies in the National Legislative Assembly. The Council of Ministers about to take over the administration of State affairs must make a clear declaration to the National Legislative Assembly concerning what operations it plans to undertake in administering State affairs to implement the directive principles of fundamental State policies in the chapter. It is required to submit to the National Legislative Assembly an annual report on the result of its implementation, including problems and obstacles encountered.

“The directive principles of fundamental State policies” in the 1997 Constitution comprises 17 topics that the Government about to take over the administration of State affairs must declare in its policy declaration made to the National Legislative Assembly. They are:

1. The State shall protect and uphold the institution of kingship and the independence and integrity of its territories.

2. The State shall arrange for the maintenance of the armed forces for the protection and upholding of national independence,

86


KPI YEARBOOKS 4

security of the State, monarchy, national interests and the democratic regime of government with the King as Head of State, and for national development.

3. The State shall patronise and protect Buddhism and other religions, promote good understanding and harmony among followers of all religions as well as encourage the application of religious principles to create virtue and develop the quality of life.

4. The State shall promote friendly relations with other countries.

5. The State shall ensure respect for the law, protect the rights and liberty of persons, provide efficient administration of justice and allocate adequate budgets for the independent administration of the Election Commission the Ombudsmen, the National Human Rights Commission, the Constitutional Court, the Courts of Justice, the Administrative Courts, the National Counter Corrupt ion Commit tee , and the Sta te Audi t Commission.

6. The State shall promote and encourage citizen participation in setting policies, political decision-making, planning of economic, social and political development, and inspecting the exercise of State power at all levels.

7. The State shall prepare political development plans, a code of ethics and morals for holders of political positions, Government officials, other State officials and employees in order to prevent corruption and improve efficiency of the performance of duties.

8. The State shall ensure decentralization in localities toward the goals of self-reliance and self-determination, including providing support for the development of large-sized local government


87


organizations in the provinces that are ready for the scheme, by paying regard to the will of the people in the provinces.

9. The State shall promote and encourage citizen participation in the preservation, maintenance and balanced exploitation of natural resources and biological diversity, and in the promotion, maintenance and protection of the quality of the environment, as well as the control and elimination of pollution that affects public health, sanitary conditions, welfare and quality of life.

10. The State shall protect and develop children and youth, promote the equality between women and men, and create and develop strong family relationships and community integrity. It shall also p rov ide suppor t fo r the e lde r l y, the d i s ab l ed and the underprivileged so that they may have a good chance of enjoying the good quality of life and having self-dependence.

11. The State shall provide education and training, and give support to the private sector to provide education and training toward the possession of both knowledge and morality. It shall also make legislation on national education that favours educational improvement, increasing knowledge and cultivating awareness of politics and public administration, and give support for researches and development in science and technologies, development of the teaching profession, promotion of local wisdom, national arts and culture.

12. The State shall provide and promote standard and efficient healthcare for all sectors of the population.

13. The State shall work to create fair income distribution.

14. The State shall work on creating an appropriate system of land holding and use, providing water sources for agriculture, and

88


KPI YEARBOOKS 4

safeguarding the interests of farmers.

15. The State shall promote, encourage and protect the cooperatives system.

16. The State shall promote employment opportunities for people of working age, support labour protection, particularly child and woman labour, reorganize labour relations and social welfare, and ensure fair wages.

17. The State shall support free market economy and ensure fair competition for all and consumer protection, and prevent monopolistic practices.

Moreover, so that this Chapter of the 1997 Constitution can be better implemented, the State shall establish the National Economic and Social Council and charge it with the duty to give advice and recommendations to the Council of Ministers on economic and social problems. All national economic and social plans and other plans as mandated by law must first be sounded out with the National Economic and Social Council before being put into effect.

In the past, all suggestions given as the directive principles of fundamental State policies in various constitutions were often passed over with little, if any, practical implementation. This was because there had been no measures or mechanisms for implementation or enforcement included in the clauses. There is therefore real need for inclusion of such implementation clauses for practical purposes.

The directive principles of fundamental State policies provide the framework of national administration to ensure continuity and consistency of the administration of public affairs of the country, without being subject to il logicality or idiosyncrasies of each administration. For this reason, a total of 19 articles were provided as


89


the guidelines of national administration for the Government to carry out continuously, depending on the ability of that administration in turn them into reality.

National administration is supremely important because it is the instrument for implementing state policies for practical ends as set out in the directive objectives. In order to do this with efficiency, national administrat ion must proceed within the framework of good governance; in essence, good governance consists of the following principles; rule of law, morality, transparency, participation, responsiveness, and effectiveness and efficiency.

In all national administration, it is imperative that the directive principles of fundamental State policies be laid down as the directions in which the national Government must take the country, in addition to determining the substance of national polity, being the ground rules governing competence, duty and power relations of every political institution involved.

In laying down the directive principles of fundamental State policies, the framework of national administration is delineated in clear terms, being instrumental to the preservation and promotion of the security of the nation, religion and monarchy, and the steady progress of a democratic governance and peaceful co-existence among the Thai citizenry. These intentions therefore lie behind the will of the past constitutional drafters who named this chapter “The fundamental principles of determining state policies.” The enforcement provisions directly related to the articles of the chapter are to be found in Articles 88, 89, and 170, where the previous no-enforcement condition was changed to enforcement (or requisite implementation) requirement albeit on a gradual basis. The Government is required to follow through with four stages of implementation, and the citizenry is empowered to directly submit a petition to the National Legislative

90


KPI YEARBOOKS 4

Assembly for consideration of their legislative proposal as pertaining to the chapter concerned.

There are six areas of national administration covered by the directive principles of fundamental State policies: national security; administration and distribution of justice for the people; democratic governance; religion, society, education and healthcare; and national and popular economy.

T h r e e m e c h a n i s m s h a v e b e e n p r o p o s e d t o e n s u r e t h e implementation of the directive principles of fundamental State policies:

First, Stating Policies

Under Article 88, Paragraph 2, in stating its policies to the National Legislative Assembly, the Council of Ministers about to assume the administration of State affairs shall state clearly to the National Legislative Assembly its plan of operations in national administration that must comply with the directive principles of fundamental State policies.

Second, Annual Reporting

Under Article 88, Paragraph 2, it is also specified that the Council of Ministers shall submit an annual report on the result of its operations, including problems and obstacles encountered to the National Legislative Assembly. In the report, it is to be pointed out to what extent the Government has done and what problems and obstacles it has encountered, and what is being done as solutions. All the government departments shall compile necessary information to be forwarded to the Secretariat of the Cabinet and the Office of the National Economic and Social Development Board for collating into a consistent report for submitting to the National Legislative Assembly


91


in due course.

Thi rd , Es tab l ishment o f the Na t iona l Economic and Social Council

Under Article 89, the National Economic and Social Council is established with the duty to monitor and assess the implementation under this chapter, and to give advice and make recommendations to the Council of Ministers concerning any important matters that have yet to be done.

Based on the proceedings of the meeting of the 1997 Constitution drafting committee where there were extensive discussions, it is quite possible to analyze the objectives of the directive principles of fundamental State policies. The phrase was coined for the first time in 1949, with a clear objective to ensure continuation of the integrity of the administration of State affairs. This is entirely necessary because with each change of the Government, each political party in power is l ikely to propose different policies, often to be subsequently dismantled all over again. There is thus a need for including general directives in the Constitution such that at least those 19 articles included in the Constitution for the first time shall be implemented continuously, a commitment imposed on the Council of Ministers. To what extent they can be fulfilled depends on the ability of the Council of Ministers in charge.

The most difficult problem of the past, however, involved a chronic inability to understand the intention of and implement the provisions on fundamental State policies to produce practical results. The reason was due to a lack of clear-cut measures of enforcement thereof. This lack of action was in turn caused by a provision in the previous constitutions giving immunity to the State from all prosecution leveled against it. For example, under Article 59 of the 1995 Amendment to

92


KPI YEARBOOKS 4

the 1991 Constitution, “The provisions in this chapter shall serve as the guidelines on legislation and determination of State policy directives and shall not be used as guidelines on prosecuting the State.” The provision prohibiting any prosecution against the State provides immunity for the State, subconsciously signaling that the State is free to do as it pleases without having to take into consideration the policy d i rect ives a t a l l , or i t may even conduct nat iona l a f fa i r s by misinterpreting or fumbling through the state policy provisions whichever way it chooses.

With respect to human rights, liberties and equality, regarded as the essence of the constitutions mentioned, under Article 29 of the 1997 Constitution, human rights and liberties are universally guaranteed and not to be narrowly limited to any particular case or person. According to the opinion of the drafting committee, “The provisions on human rights and liberties shall cover those implicit statements made in the Constitution or other judgments made under the Constitution as well. This clearly shows that human rights and liberties are not statically confined to those specific statements made in the Constitution, but shall evolve in keeping with changes in society.”

Human rights and liberties, as guaranteed, are not restricted to the written provisions in the Constitution only, but are extended to embrace those human rights and l iberties that are implicit ly guaranteed as well. This is indeed an affirmation of the principle “Personal rights and liberties are the rule; the restriction of rights and liberties is the exception.” Therefore, the organization, that is, the Constitutional Court, being invested by the Constitution with the duty to protect its status as the highest law of the land, can use civil rights and liberties, commonly possessed by all mankind and recognized by the Constitution, or the so-called “human rights,” as the pivot for making judgments on litigation cases. For this reason, the 1997 Constitution has this provision outlining the protection of civil


93


rights and liberties under Article 29: “The restriction of such rights and liberties as recognized by the Constitution shall not be imposed on a person except as mandated by statutory provisions on those affairs as determined by this Constitution and so far as necessary only and which must not affect or distort the substance of rights and liberties.”

The provision institutes the practical protection of civil rights and liberties and aims to prevent any illegitimate attempt to curtail civil rights and liberties as recognized by the Constitution.

With respect to the provisions on fundamental civil rights and liberties in the Constitution, there are two reservations concerning the recognition and protection of fundamental liberties:

Firstly, the protection of civil rights and liberties is classified by category of person in order to prevent state abuse. Persons are distinguished by two categories: national citizens and aliens. As it appears, each sovereign State provides different measures of civil rights protection for the two categories of persons, depending on the notion of “right.” In the case of natural rights belonging to all humans as their birthright, these rights, according to the natural law school, are basic to all, also known as “human rights.” These rights are applicable to all, no matter what nationality one has, because all human beings are entitled to the State’s equal protection of their basic rights. In the case of “rights” as applying to individuals of a nation, having the race and nationality specific to the nation, being the factors identifying them as (native-born or naturalized) citizens of the nation, only these individuals or “citizens” enjoy the recognition and protection of these rights, not extensible to aliens. The division of persons into these two categories therefore applies to the discrimination of rights protection between the rights of citizens of a nation and the rights as human beings, creating seemingly two unequal brands of human rights.

94


KPI YEARBOOKS 4

As for “human rights” according to the international law school, it is incumbent on each nation to keep watch over any violation of human rights. The United Nations demanded that member nations make internal legislation that recognizes its Universal Declaration of Human Rights, based on freedom, equality, human dignity, non-discrimination with respect to race, skin colour, gender, religion, etc, necessitating the separation of citizens’ rights from human rights. In 1966, however, an international code was instituted as a treaty binding on all member nations being party to and ratifying the treaty. The document lays down rules and requirements binding on member nations to observe. Still, recognition of the document differs markedly category by category.

Citizens’ rights imply recognition and protection for the citizens of the nation only, for the reason that the citizens of a state is duty-bound to serve their country first, in accordance with the international protocol on economic, social and cultural rights. These rights are delineated under the chapters on the rights and liberties of the Thai people, the duties of the Thai people, the directive principles of fundamental State policies, and the Courts.

Secondly, the Legislative has the duty to enact laws to recognize certain rights and liberties. Since the Constitution is the highest law governing the country, few details on a great variety of matters can be included in it; by necessity the Constitution contains essential principles and generalizations on various matters, particularly the recognition of basic rights and liberties. Nevertheless, so as to ensure that those rights and liberties can be implemented in practice, the Legislative is empowered to issue legislation that outlines specific details concerning rights and liberties. In other words, the Legislative has the duty to issue laws that recognize the exercise of those rights, as reiterated by the stock phrases in the Constitution, “as provided by law” and “in accordance with the law.”


95


These prescriptions in turn impose natural restraints on any attempt to amend laws, providing a protective umbrella over citizens’ rights and liberties and preventing the Legislative from arbitrary legislation. Because the Constitution as the highest law of the land guarantees the protection and recognition of civil rights, the State including its officials and agencies is required to respect the rights while the citizenry equally has the duty to respect the rights too. In the case of rights that cannot be exercised right away and await certain mechanisms or measures of application, or supporting legislation, the State has the duty to take appropriate actions to make it possible for the citizens to exercise those rights.

The 1997 Constitution gives recognition of basic rights under Article 27: “Rights and liberties recognized by this Constitution expressly, by implication or by decisions of the Constitutional Court shall be protected and directly binding on the National Legislative Assembly, the Council of Ministers, the Courts and other State organs in enacting, applying and interpreting laws.” Under this sweeping provision, all citizens enjoy the rights and liberties as recognized by the Constitution.

The problem, however, arises precisely from the phrases, “as provided by law” and “in accordance with the law.” What they imply is that should the Legislative or the Government fail to produce respective organic laws as stipulated by the Constitution, the case in dispute is outside the jurisdiction of the Constitutional Court.

In the case of the violation of other rights and liberties, as for example prescribed under Article 63 (crime against the State as a democratic entity), no person can bring a lawsuit directly before the Constitutional Court. Instead the case must be brought before an appropriate court with jurisdiction over the matter first, be it the Courts of Justice, the Administrative Courts, or the Military Courts, or through petitioning the Prosecutor General to first investigate the

96


KPI YEARBOOKS 4

facts of the matter before forwarding the case to the Constitutional Court, pending legislation under Article 233, allowing one to bring the case to the Court directly.

The meaning of legal recognition therefore refers to those laws in the form of the Constitution, or other Thai laws, or treaties that are binding on Thailand. Nevertheless, human rights recognized by the Thai Constitution can be found in Chapter 3 on Rights and Liberties of the Thai People, and Chapter 8 on The Courts and rights involving the judicial process where rights and liberties may be restricted in so far as the Constitution allows only, and that the essence of rights and liberties is not affected in any way.

Furthermore, in response to the will of the 1997 Constitution, democratic government shall be promoted and guaranteed through citizen participation in politics and administration, including decision making at both national and local administration levels, otherwise known as “participatory democracy.”

Participatory democracy under the 1997 Constitution involves the direct granting of several rights to the people, for example submitting a petition for law enactment proposal; recognition of the citizens’ right to join their representatives in exercising power, that is to say, political participation in managing the environment and community resources; and recognition of such basic freedoms as gathering, forming a group, expression of opinions, and conducting a public hearing.

Under the 1997 Constitution, “citizen participation” includes the citizen participation in determining the substance of law in the form of making a legislative proposal, and decision-making on the administration of State affairs in the form of referendum.

Although there are provisions in recognition of citizen participation in various forms under the Constitution as discussed above, in reality


97


citizen participation faces several hurdles that must be overcome. This is particularly so when it comes to social and cultural hurdles where much uncertainty abounds concerning the process of citizen participation. There are also legal problems where certain laws give little or no room for citizen participation and that there has yet to be a law wholly devoted to citizen participation.

4. Directive principles of fundamental State policies in the 2007 Constitution: Overview, similarities and differences between the 1997 Constitution and 2007 Constitution Under the 2007 Constitution, Chapter 5, from Articles 75 to 86, lays down the directive principles of fundamental State policies. They are:

Part 1: General Provisions

Article 75. The provisions of this Chapter are intended to provide the directions for the State making legislation and determining policies for the administration of State affairs.

The Council of Ministers, about to administer the State, must state policies to the National Legislative Assembly, making clear what operations it will pursue in what time frame in administering the State so as to fulfill the directive principles of fundamental State policies. Subsequently, it shall prepare a report on performance results, including problems and obstacles encountered, to be presented to the

98


KPI YEARBOOKS 4

National Legislative Assembly once a year.

Article 76. The Council of Ministers shall prepare the national administration plan that details the measures and directions of official operations for each year of the administration of the Government, in accordance with the directive principles of fundamental State policies. In administering the State, the Council of Ministers shall prepare a plan of legislation deemed necessary for the execution of the administration policies and programs.

Part 2: National Security Policy

Article 77. The State shall protect and uphold the monarchy, the independence, sovereignty, and integrity of its territories, and shall arrange for the maintenance of the armed forces, weapons and military equipment and technology, ensuring that they are kept modern, adequate and necessary for the protection and upholding of its independence, sovereignty, security of the State, monarchy, national interests, and the democratic governance with the King as the Head of State, and for national development.

Part 3: State Administration Policy

Article 78. The State shall implement the policy directives on administration of the State affairs as follows:

(1) Administration of the State affairs shall aim for sustainable social, economic, and national security development; including the promotion of the Sufficiency Economy philosophy and the consideration of overall national interests.

(2) The central , regional and local administrat ion shal l be reorganized in such a way that there is a clear-cut picture of jurisdiction, authority, and responsibility suitable for national


99


development; support shall be given to provincial authorities to have plans and budget for provincial development to further the interests of people in the locality.

(3) Decentralization to local administrative organizations shall be in place to give independence and self-determination of local affairs; effort is made to encourage local administrative organizations’ participation in realizing the directive principles of fundamental State policies, development of local economy, public utilities and facilities, as well as fundamental information infrastructure in the locality, to be done thoroughly and equally throughout the country. Each province shall be developed and made ready to become a large-sized local administrative organization, paying heed to the will of people in that province.

(4) The State administrative system shall be developed, with emphasis on development of quality, morals and ethics of the State officials in tandem with improvement of the model and method of operations to ensure efficient administration of the State affairs; State agencies shall be promoted to adopt Good Governance as the directive principle for official operations and services.

(5) Bureaucracy and other operations shall be improved so as to make the provision and delivery of public services speedy, efficient, accountable, and subject to monitoring, with full public participation.

(6) A State legal agency having duty to give legal advice on public administration under law and to monitor all legislation of the State so as to ensure autonomy in so doing so that the administration of State affairs proceeds under the rule of law.

(7) Political development plan is to be made, including establishing

100


KPI YEARBOOKS 4

an independent political council entrusted with ensuring strict implementation of such a plan.

(8) Government officials and State employees shall receive adequate fringe benefits.

Part 4: Religious, Social, Healthcare, Educational and Cultural Policies

Article 79. The State shall give patronage and protection to Buddhism, the long-held religion of the majority of Thai people, as well as other religions, promote good understanding and harmony among followers of all religions, and encourage the application of religious principles in promoting morality and good quality of life.

Article 80. The State shall carry out the Policy Directives on society, healthcare, education, and culture as follows:

(1) Protect and develop children and youth by supporting their rearing, care, and education at the primary level; promote equality between women and men; promote and develop the institution and strength of family and community; provide aid and welfare to the elderly, the indigent, the disabled or handicapped and the underprivileged so that they may enjoy the good quality of life and can rely on themselves.

(2) Promote, support, and develop the healthcare system that emphasizes the promotion of sustainable happiness of the people; provide and promote the people’s universal access to standard and efficient health services; encourage the private sector and communities to participate in health development and provision of health services; and protect under the law service personnel who have a record of professionalism and ethics in performing their duties.


101


(3) Develop the quality and standard of education management in all levels and all types in consonance with changes in economic and social environment; to prepare the national education plan and laws that favour development of national education; develop the quality of teachers and educational personnel to help them keep up with changes around the world; develop students’ awareness and appreciation of Thai-ness, order and discipline, a sense of public-spiritedness, and adherence to the democratic governance with the King as the Head of State.

(4) Promote and support decentralization of local administrative organizations, communities, religious organizations, and private sector, to empower them to organize and participate in the management and development of education toward achieving comparable quality in compliance with the directive principles of fundamental State policies.

(5) Promote and support researches in various branches of the arts and science, and disseminate those State-subsidized research results.

(6) Promote and support love, harmony and learning, and cultivate awareness of and disseminate arts, culture, traditions and customs of the nation, as well as good values and local wisdom.

Part 5: Law and Justice Policies

Article 81. The State shall follow the policy directives on legal affairs and justice as follows:

(1) Ensure the correct, timely, impartial, and comprehensive compliance with and enforcement of laws; promote the legal aids and legal learning among people; organize the bureaucratic system and other State affairs as related to justice administration

102


KPI YEARBOOKS 4

to ach ieve e f f i c i ency and so that there a re c i t i zen and professional organization participation in the justice procedure and provision of legal aid to the citizens.

(2) Protect rights and liberties of person from violation by State officials and other people, and provide justice to all people equally.

(3) Enact legislation to establish an independent agency to undertake law reform for improving and developing laws of the country, and amend laws in compliance with the Constitution, paying heed to opinions of those affected by the laws concerned.

(4) Enact legislation to establish an independent agency to reform the justice procedure, in order to improve and develop the operations of agencies involved with the justice procedure.

(5) Support the operations of private organizations that provide legal aid to people, particularly those affected by domestic violence.

Part 6: Foreign Policy

Article 82. The State shall promote friendly international relations and cooperation and adopt the principle of non-discrimination, and shall observe the treaties and agreements on human rights that Thailand is party to, as well as other commitments made with other countries and international organizations.

The State shall promote trade, investment, and tourism with other countries, and shall provide protection and oversee the interests of Thai citizens abroad.


103


Part 7: Economic Policy

A r t i c l e 8 3 . T h e S t a t e s h a l l p r o m o t e a n d s u p p o r t t h e implementation of the philosophy of Sufficiency Economy.

Article 84. The State shall follow the policy directives on economics as follows:

(1) Encourage a free and fair market economy, and encourage sustainable economic development by abolishing and refraining from legislation and regulation of business operations, that are uncalled for by economic necessity; refrain from engaging in enterprise endeavors in competition with the private sector, except out of necessity to maintain State security, to preserve the common good, or to provide public utilities.

(2) Promote the recourse of morality, ethics, and good governance in business affairs.

(3) Control and maintain monetary and fiscal discipline in support of the country’s economic and social stability and security; improve the tax system to ensure fairness consistent with changing social and economic circumstances.

(4) Promote savings as retirement income security for people and State officials across the board.

(5) Supervise and ensure free and fair competition in business enterprise; guard against all forms of monopolistic practices, direct or indirect; and provide consumer protection.

(6) Ensure fair distribution of income; protect, promote, and expand business opportunities among people for economic development; promote and support the development of local

104


KPI YEARBOOKS 4

wisdom and Thai know-how for generating goods, services, and jobs.

(7) Promote employment opportunities for working-age people; protect children and women at work; organize labor relations and tripartite system whereby workers have the right to elect their own representatives; provide social security system; protect workers at jobs of comparable value to get fair wages, fringe benefits, and welfare without discrimination.

(8) Protect and safeguard the interests of farmers in production and marketing; promote the highest price possible for agricultural products; encourage the grouping of farmers in the form of a farmer council for working out agricultural plans and protecting common interests.

(9) Promote, encourage, and protect independent co-operatives systems, as well as grouping by occupation or profession of the people for the advancement of economic activities.

(10) Provide basic public utilities necessary for facilitating the people’s livelihood, for maintaining the economic security of the State, as well as ensuring that such basic public utilities shall not fall under monopolistic private control possibly to the detriment of the State.

(11) Any operation that shall cause the State’s infrastructure or network of basic public utilities necessary for the people’s livelihood, or for the security of the State, to fall into private ownership, or reduce the State ownership of such to less than 51% shall not be permitted.

(12) Promote and support maritime commerce, rail transportation, and the logistics of domestic and international transportation systems.


105


(13) Strengthen private economic organizations both at local and national levels.

(14) Promote the agricultural product processing industry to add economic value to products.

Part 8: Land, Natural Resources and Environment Policies

Article 85. The State shall follow the policy directives on land, natural resource, and environment as follows:

(1) Establish rules on land use to be applied nationwide, taking into account such vital elements of the natural environment as land area, water surface, ways of life of local communities, and the efficient conservation of the natural resources; provide the standard measures for sustainable land use, and allow residents of the area affected by that land-use policy to participate in decision-making;

(2) Distribute land possession rights fairly, and ensure that farmers equally have ownership of or rights to the lands for agricultural production via land reform or other means; provide water resources to farmers adequately and properly for agricultural production.

(3) Provide for town planning and implement those town plans with efficiency and effectiveness for sustainable preservation of natural resources.

(4) Provide for systematic water and natural resource management planning for public benefits, with citizen participation in the conservation, maintenance, and balanced use of natural resources and biological diversity.

106


KPI YEARBOOKS 4

(5) Promote, maintain, and protect environmental quality through the principle of sustainable development; control and eliminate pollution that is hazardous to health, sanitation, safety, and quality of life of the people, with citizens, local community, and local administrative organization participating in determining directions of operation.

Part 9: Science, Intellectual Property and Energy Policies

Article 86. The State shall observe the policy directives on sciences, intellectual property, and energy by:

(1) Promoting scientific and technological development and innovation in various fields by means of specific legislation, and appropriations to support education, research and analysis; establishing educational and development institutes; applying the results of research and development; facilitating efficient technology transfer; developing appropriate human resources; disseminating modern scientific and technological knowledge; and encouraging the people to apply scientific principles to living;

(2) Promoting inventions and innovations, preserving and developing local and Thai wisdom, and protecting intellectual property rights;

(3) Promoting and supporting research on, development and use of alternative energy from natural sources that are eco-friendly, sustainable, and systematic.

Part 10: Citizen Participation Policy

Article 87. The State shall implement the citizen participation policy directives as follows:


107


(1) To promote citizen participation in making policies and economic development plans at local and national levels across the board;

(2) To promote and support citizen participation in making political decisions, making economic and social development plans including the provision of public services.

(3) To promote and support citizen participation in the scrutiny of the exerc i se of State powers a t a l l l eve l s in the form of professional or occupational bodies, or in other forms.

(4) To promote and support strong citizen roles in politics and to enact a s ta tute for e s tab l i shment of c i t i zens’ po l i t i ca l development fund in aid of community activities, including giving support to all forms of citizen networking groups that are informed and capable of voicing the opinions and desires of local communities.

(5) To promote and educate the people on political development and democratic governance with the King as the Head of State and encourage the people to exercise their voting rights freely and honest ly. Under this ar t ic le , the process of c i t izen participation must take account of proportional representation of men and women involved.

In interpreting the will of the 2007 Constitution, the directive principles of fundamental State policies provide the framework or directions of tasks that the State is duty-bound to perform for the people, and of legislation and formulating policy to the end, as were similarly provided in the 1997 Constitution and other previous constitutions. The latest edition, however, provides not only the “directions” but also the “framework,” meaning that the State is obligated to implement. In addition, the new constitution makes its

108


KPI YEARBOOKS 4

substance clear in diverse policy topics for each department, thereby making it easier to scrutinize the performance of the Council of Ministers and the National Legislative Assembly to see if they proceed in compliance with the fundamental State policies.

There are a number of similarities and differences between the new (2007) Constitution and the 1997 Constitution as follows:

1. General Provisions (Articles 75-76)

As stated in Art ic le 75 (General Provis ions) , the wording concerning the status of the directive principles of fundamental State policies has been changed from “as the directions…” to “as the will…” (Article 75, Paragraph 1). Under Article 75, Paragraph 2 and Article 176, the Council of Ministers is required to state its policies to the National Legislative Assembly before administering the Government, making it clear what operations it plans to do in compliance with the directive principles of fundamental State policies and in what time frame. Under Articles 76 and 176, the Council of Ministers, on taking office, must make a national administration plan in compliance with the directive principles of fundamental State policies. It therefore becomes clear that the directive principles of fundamental State policies as provided in the Constitution are mandatory for the State to follow in unequivocal terms.

2. Various Aspects of the Directive Principles of Fundamental State policies

2.1 National Security Policy (Article 77)

This article was derived from the previous Articles 71 and 72. A clarification clause was added, whereby the State must provide weapons and military equipment and technology, making sure they are modern, adequate and necessary for protecting national security.


109


2.2 State Administration Policy (Article 78)

This article was derived from the previous Articles 77 and 78. More provisions were added and the previous themes were modified for better clarity. For example, the administration of the Government shall aim for sustainable social, economic, and national security development, promoting in the process the Sufficiency Economy philosophy and particularly emphasizing overall national interests (Article 78 (1)). Emphasis is to be placed on development of quality, moral i ty and ethics of the State of f ic ia l s to ensure ef f ic ient administration of the Government and the promotion of Good Governance as the directive on carrying out official operations (Article 78 (4)). State mechanisms are to be reorganized to give public service delivery lauded for speed, efficiency and transparency (Article 78 (5)).

2.3 Religious, Social, Healthcare, Educational and Cultural Policies (Articles 79 and 80)

With respect to religion (Article 79), the State must give patronage and protection to all religions, this being the same principle as in Article 72 of the 1997 Constitution, with the phrasing “Buddhism being the long-held religion of the majority of Thai people” freshly added. Article 80, stating social, healthcare, education and culture policies, was derived from the previous Articles 80-82, with some fresh principles being added. For example, the State must ensure that the private sector and communities participate in health development and providing healthcare services and that service personnel who adhere to professional standard and code of ethics shall be protected by law (Article 80 (2)). The State must promote and support decentralization of local administrative organizations, communities, religious organizations, and private sector that empowers them to organize and participate in the management and development of education toward achieving equal quality in compliance with the

110


KPI YEARBOOKS 4

directive principles of fundamental State policies (Article 80 (4)).

2.4 Law and Justice Policies (Article 81)

The previous principle under Article 75 was retained, to wit “the State must organize the judicial and justice process system to achieve efficiency, quick and non-discriminating rendering of justice, with the words “correct” and “comprehensive” freshly added (Article 81 (1)). A law is to be enacted to establish an agency to undertake law reform with a view to improving and developing laws of the country in compliance with the Constitution (Article 81 (3)). Legislation is also to be enacted to establish an agency to reform the justice procedure, in order to improve and develop the operations of agencies involved with the justice procedure (Article 81 (4)). Furthermore, under the Transitional Provisions, Article 308, the Council of Ministers shall appoint a legal reform committee for preparing legislation to establish an agency for undertaking legal reform as under Article 81 (3) within one year of the date of promulgation of this Constitution.

2.5 Foreign Policy (Article 82)

This article added to the previous Article 74, whereby the State shall observe the treaties entered into with other countries and international organizations, shall promote trade, investment and tourism with other countries, and shall protect the safety and interests of Thai citizens abroad.

2.6 Economic Policy (Articles 83, 84)

Under Article 83, the State shall promote and support the implementation of the Sufficiency Economy. Article 84 was a combination of the previous Articles 83-87, with some new principles added. For example, the State shall improve the tax systems to ensure fairness (Article 84 (3)). The State shall protect and maintain the


111


interests of farmers in production and marketing; encourage the grouping of farmers in the form of a farmer council for working out agricultural plans and protecting their common interests; and promote the agricultural product processing industry to add economic value to products (Article 84 (8), (14)). The State shall provide basic public util ities necessary for facil itating the people’s l ivelihood, for maintaining the economic security of the State, as well as ensuring that such basic public utilities shall not fall under monopolistic private control possibly to the detriment of the State (Article 84 (10)). The State shall not be permitted any operation that shall cause the State’s infrastructure or network of basic public utilities necessary for the people’s livelihood, or for the security of the State, to fall into private ownership, or reduce the State ownership of such to less than 51% (Article 84 (11)). In addition, under Article 303, a law on farmer council shall be enacted as prescribed under Article 84 (8) within the stated time frame.

2.7 Land, Natural Resources and Environment Policies (Article 85)

The State shall establish rules on land use, taking into account the vital elements of the natural environment and the efficient conservation of the natural resources (Article 85 (1)). The State also shall distribute land possession rights fairly, ensure that farmers equally have ownership of or rights to the lands for agricultural production, and provide adequate water resources (Article 85 (2)).

2.8 Science, Intellectual Property and Energy Policies (Article 86)

The State shal l promote scientif ic and technological development and innovation in various fields by means of specific legislation, appropriations to support education, research and analysis;

112


KPI YEARBOOKS 4

establishing educational and development institutes; applying the results of research and development; effecting efficient technology transfer; developing appropriate human resources; disseminating modern scientific and technological knowledge; and encouraging the people to apply scientific principles to living (Article 86 (1)). The State shall preserve and develop local wisdom (Article 86 (2)). The State shall promote and support research on, development and use of alternative energy from natural sources that are eco-friendly, sustainable, and systematic (Article 86 (3)). In addition, under Article 303, the Council of Ministers has the duty to enact laws as prescribed under Article 86 (1)) within two years as from the date of stating policies to the National Legislative Assembly.

2.9 Citizen Participation Policy (Article 87)

The important policies include promoting and supporting citizen participation in the scrutiny of the exercise of State powers (Article 87 (3)); legislation to establish the people’s political development funds within a prescribed time frame (Article 87 (4) and Article 303); promoting and educating the people on political development and democratic governance with the King as the Head of State; and encouraging the people to exercise their voting rights freely and honestly (Article 87 (5)).

5. Possible impact of the directive principles of fundamental State policies on future Government operations The 2007 Constitution was drafted amidst expectations of the nation being guided on the path to full democratic governance, of correcting the flaws in the 1997 Constitution that resulted in State


113


authoritarianism and power abuse, lack of transparency, corruption of morality and ethics, breakdown of the State power scrutinizing system, and infringement and aggravation of human rights and liberties.

The 2007 Constitution aims to resolve the above difficulties by adopting 4 lines of operation:

a) Protection, promotion and expansion of citizen rights and liberties to the fullest extent;

b) Reduction of State authoritarianism and elimination of power abuse;

c) Creation of political transparency, morality and ethics;

d) Strengthening the scrutinizing system and its efficiency.

As for the protection, promotion and expansion of citizen rights and liberties to the fullest extent, the 2007 Constitution is determined not to serve a handful of politicians and power-players, but to be accepted as the people’s constitution wherein the people find a place to stand, and citizen participation becomes the standard and norm for achieving self-determination. The following actions have been accomplished:

1. Expansion of categories of rights and liberties beyond those found in the 1997 Constitution

The rights and liberties added include:

1. Rights and liberties accepted and recognized by Thailand as part of its international commitments shall be binding on the country, the same as the rights and liberties provided under the Constitution (Article 82);

114


KPI YEARBOOKS 4

2. Protection of persons from exploitation through abuse of private information (Article 35, Paragraph 3)

3. Rights to the judicial and justice process as a result of relevant legal reform that guarantees the people due process characterized by facility, expediency, quickness, and accessibility to all; children, youth, women, the elderly, the handicapped and invalid shall without exception be entitled to due process (Article 40); and for the first time individuals have the right to petition the Constitutional Court by themselves (Article 212);

4. Labour rights guaranteeing individual persons personal safety and security at work, including decent living during and after termination of employment, being provided herein for the first time (Article 44);

5. An unprecedented protection of media rights and liberties. Not only media enterprises cannot be closed down, also there can be no banning, censorship or interference with news coverage. Any such act by politicians or State officials, either directly or indirectly, shall be construed as intentional abuse of power or duty (Articles 45 and 46). Holders of political office are further prohibited from owning or having shares in media businesses, in order to prevent the use of media for their own ends (Article 48).

6. The public are entitled to free education for up to no less than twelve years, and the poor, the disabled, the invalid or those in difficult situations shall be entitled to the same rights to educational opportunities, equal to other people. Further, educa t ion and t r a in ing management by p ro f e s s iona l organizations or private sector, alternative education, self-education, and life-long learning shall be protected and promoted by the State (Article 49).


115


7. Children, youth and family members are entitled to expanded rights to physical, mental, and intellectual development suited to their potential and environment (Article 52, Paragraph 1). Children, youth and family members are entitled to rights of protection from violence and unfair treatment, and when subject to such incidents have the rights to be cured and rehabilitated by the State (Article 52, Paragraph 2).

8. The homeless and those earning insufficient income shall have the right to receive aid from the State, being the first time for this right to be included (Article 55).

9. Communit ies are given expanded r ights . The r ights of communities and local communities are extended to the grouping of people to form one such community even in a short time and therefore falling short of being a long-standing traditional community (Article 66). Any project or activity d e emed l i ab l e t o impac t adve r s e l y the qua l i t y o f th e environment, natural resources and public health must first be subject to public hearing, particularly from those affected (Article 67, Paragraph 2). Communities have the right to sue a government agency, State agency, State enterprise, local government organization, or other State agencies acting as jurist ic persons, to act according to the laws providing community rights protection (Article 67, Paragraph 3).

10. For the first time, the public have the right to monitor and demand scrutiny of holders of political office or State officials (Article 62, Paragraph 1). They also have the right to access the contents of any bill tabled for deliberation to the Parliament (Article 142, Paragraph 6), in addition to the right of access to the data and information in the possession of government agencies (Article 56).

116


KPI YEARBOOKS 4

11. In entering into treaties or international agreements with other countries that will have important impact on the people, the State shall make known information and arrange a public hearing to sound out public opinion first, and, after the signing of any treaty, the public shall be allowed to access the details of the treaty. Those who are affected by the implementation of the treaty shall be redeemed or compensated quickly, appropriately and fairly (Article 190, Paragraphs 2 to 4).

12. For the first time, the right is recognized for a petition signed by 50,000 people requesting a constitutional amendment (Article 291 (1)).

13. State officials shall have the right to assembly, the same as the general public (Article 64).

14. Greater importance is accorded to women’s rights, with the first principle being laid down: Men and women are equal in rights and protection (Article 30). The State shall promote equality between women and men (Article 80 (1)), and, in implementing the policy on citizen participation, shall take into consideration quota consideration between women and men as well. In addition, in order to promote better women participation in politics, it is prescribed that in proposing the names on the party-list of a given political party, consideration must also be given to opportunity, acceptable quota, and equality between women and men (Article 97 (2)). In forming a select committee for considering a bill whose substance relates to children, women, and senior citizens, the National Legislative Assembly must ensure an equal proportion of women and men members so that women as the weaker sex shall partake significantly in deliberating over the bill concerning its delicate issues involved.


117


2. Steps to facilitate the exercise of constitutional rights and liberties

1. Rights and liberties are more clearly subdivided into categories and sections to make it easier for the public to read and comprehend the Constitution. For example, personal rights and liberties (Articles 32-38), rights to access the judicial process (Articles 39-40), rights to information and petitioning (Articles 56-62), community rights (Articles 66-67), rights to protect the Constitution (Articles 68-69), etc.

2. With respect to the rights and liberties enshrined and recognized by this Constitution, even though there has yet to be an organic law enacted directly for the exercise of those rights and liberties, the public are able to reclaim such rights by petitioning the court (Article 28, Paragraph 3).

3. The State shall have to promote, encourage and help the people in exerc i s ing the r ight s and l iber t i e s enshr ined in the Constitution (Article 28, Paragraph 4).

4. The number of eligible voters having the right to sign a petition to make a legislative proposal is reduced from 50, 000 to 10,000 (Article 163, Paragraph 1), and a select committee formed to consider the draft bill shall be composed of no less than one-third of the petitioners (Article 163, Paragraph 4). In the case of a petition to have political office holders or high-ranking government officials removed from office, the number of eligible voters signing such a petition is reduced from 50,000 to a mere 20,000 (Article 164).

118


KPI YEARBOOKS 4

3. The exercise of rights and liberties is made more efficient and clearly protected by these measures.

1. The phrasing “as provided by law” was struck out from provisions dealing with rights and liberties in several articles to signal that citizen rights and liberties occur instantly under the Constitution, and not by legislation.

2. The time frame for enacting organic laws relating to citizen rights and liberties is spelled out clearly (mostly within one year or thereabouts) to forestall any attempt by the powers-that-be to stall for time in enacting relevant organic laws, which tactic is tantamount to restraining citizen rights and liberties (Article 303).

3. The people have the right, in the case of perceived abuse of citizen rights and liberties as provided under the Constitution, to directly petition the Constitutional Court for decision on whether the law concerned contravenes or opposes the Constitution in any way (Article 212).

4. Communities have the right to bring to court a case of violation or neglect of community rights and liberties with a view to enforcing suitable actions thereof (Article 67, Paragraph 3).

5. The National Human Rights Commission can petition the Constitutional Court and the Administrative Courts concerning any law, order, or action deemed contravening the Constitution and can file a lawsuit with the Court of justice on behalf of the injured for right-abuse cases (Article 257 (2), (3) and (4)).

6. In case State officials are accused of misfeasance or malfeasance


119


that affects the general public, the Ombudsmen can launch a fact-finding investigation without having to wait for a complaint to be lodged (Article 244, Paragraph 2).

4. The directive principles of fundamental State policies are made clearer, more well-rounded and more binding on the State

1. The directive principles of fundamental State policies have been comprehensively grouped into clear-cut categories in the following areas: security; religion, society, healthcare, education and culture; law and justice; foreign policy; economy; land, natural resources and environment; science, intellectual property and energy; and citizen participation.

2. The directive principles of fundamental State policies have been written to include additional important themes. For example, the State shall streamline State bureaucracy by focusing on development of quality, morals and ethics of State officials and promote good governance as the first principle for government operations (Article 78 (4) and (5)). The State shall carry out legal and judicial process reforms (Article 81 (3) and (4)). The State shall promote and support the implementation of the Sufficiency Economy philosophy (Article 83). The State shall improve the tax system to ensure its fairness (Article 84 (3)). The State shall protect and safeguard the interests of farmers in production and marketing of farm produce (Article 84 (4)). The State shall provide basic public utilities necessary for the people’s livelihood and prevent the utilities from falling under private monopolization (Article 84 (10)). The State shall lay down rules on land use that cover the whole country, consistent with the natural environment and lifestyle of local communities, and

120


KPI YEARBOOKS 4

carry out operations to distribute land to farmers for agricultural purposes equitably and across the board (Article 85). The State shall refrain from any action that causes the basic structure or network of basic public utilities necessary for the people’s livelihood or State security to fall into private ownership or to reduce State ownership to less than 51% (Article 84 (11).

3. The State shall set up organizations to carry out relevant operations as outlined in the directive principles of fundamental State policies. For example, the State shall set up a political development council to oversee the implementation of a political development plan (Article 78 (7)). The State shall set up a citizen fund for political development to help and support activities designed to strengthen the citizens’ role in politics (Article 87 (4)). The State shall enact a law to establish an organization to carry out the judicial process reform by improving and developing agencies involved with the judicial process (Article 81 (4)). The State shall establish a farmer council to formulate agricultural plans and protect the interests of farmers (84 (8)). Under Article 303, it is prescribed that legislation shall be made to establish organizations as described above within 1 year from the date of the Council of Ministers stating its policies to the National Legislative Assembly. Further, a legal reform commission is established to study and make recommendations on legislation in accordance with the provisions of the Constitution (Article 81 (3)).

4. The Council of Ministers on assuming the administration of State affairs must state its policies to the National Legislative Assembly, declaring what operations are to be done in what time frame so that the administration of State affairs is geared toward implementing the directive principles of fundamental State policies, and shall prepare an annual progress report, stating


121


what problems and obstacles have been encountered, to be submitted yearly to the National Legislative Assembly (Articles 75 and 76).

5. Increasing citizen participation in local administration and decentralization to local administrative organizations as a foundation of national democratic governance

1. Local administrative organizations have full autonomy in carrying out activities of self-government in all fields and form the principal agency that provides a great diversity of public services (Article 281, Paragraph 1). There shall be a local revenue law that governs taxation and other incomes due to the local administrative organization (Article 283, Paragraph 4). A local administrative organization is to be reengineered for better efficiency (Article 284, Paragraph 9).

2. There is to be reform of personnel administration of local admin i s t r a t i ve o rgan i za t ions . The per sonne l o f loca l admini s t ra t ive organizat ions enjoy the same s ta tus a s government officials in their capacity as national-level civil servants and yet remain under their own local government commissions that have autonomy from central government; p e r s o n n e l t r a n s f e r s c a n a l s o b e m a d e b e t w e e n l o c a l administrative organizations. A local ethics preservation commission is to be established for overseeing local ethical standard and compliance (Article 288).

3. As part of the local citizen participation in local government, local citizens can organize and participate in referendums on local affairs (Article 287, Paragraphs 1 and 2). The number of

122


KPI YEARBOOKS 4

eligible voters signing a petition calling for the removal of local politicians from office and proposing local ordinances has been reduced (Ar t ic le s 285 and 286) . Loca l admini s t ra t ive organizations are required to make performance reports to be submitted to the people, detailing budgeting, expenditure, and yearly performance, whereby the people are enabled to get involved in scrutinizing and supervising their organization’s performance (Article 287, Paragraph 3).

4. The efficiency of monitoring local administrative organizations shall be improved by setting a central standard for the purpose, to be adopted or adapted by local administrative organizations for their own use, with due consideration of the suitability and differences of administrative ability and efficiency of each local administrative organization concerned. Mechanisms for the assessment and monitoring of the performance of local administrative organizations, managed by the people, must also be put in place (Article 282, Paragraph 2).

It is apparent that the newly elected Government following the first general election after the promulgation of the 2007 Constitution faces a great many enormous tasks that need to be performed in the administration of State affairs as mandated by the provisions on the directive principles of fundamental State policies.


123


Cit

izen

pol

itic

s un

der

the

Con

stit

utio

n C

hap

ter

1,

Gen

eral

P

rovi

sion

s, H

um

an

dign

ity (A

rtic

le 4

) C

hapt

er 3

, Civ

il ri

ghts

an

d lib

ertie

s C

hapt

er 5

, Pol

icy

on

part

icip

atio

n (A

rtic

le

87)

Cha

pter

7, C

itiz

en’s

dir

ec

t p

oli

tic

al

part

icip

atio

n

N

etw

orks

an

d

part

ies

Tha

iHea

lth

Kno

wle

dge

build

ing

and

soci

al m

obili

zati

on

B

uild

/Dev

elop

/Upg

rade

soc

ial

mob

iliza

tion

pro

cess

of v

ario

us

soci

al n

etw

orks

and

par

ties t

owar

d th

e ex

erci

se o

f rig

hts/

part

icip

atio

n/ex

amin

atio

n

Con

stitu

tion

guar

ante

eing

ci

vil r

ight

s and

hea

lth

for

peo

ple

, fa

mil

ies

and

com

mun

itie

s at

nat

iona

l an

d lo

cal l

evel

Basic

con

cept

s of a

ctio

ns

Rev

iew

ing/

Rev

isin

g/Pr

epar

ing

bills

Part

icip

ator

y P

ubl

ic

Polic

y Pr

oces

s: P4

C

urre

nt C

ounc

il of

Min

ister

s

Nex

t C

ounc

il of

Min

ister

s (fr

om e

lect

ion)

Con

stitu

tiona

l law

s,

rule

s, an

d re

gula

tions

on

right

s an

d he

alth

of p

eopl

e/fa

mili

es/

com

mun

ities

2007

Con

stit

utio

n

Cha

rt 1

Act

ions

for

Impl

emen

tati

on o

f Civ

il R

ight

s and

Lib

erti

es a

nd C

itiz

en P

arti

cipa

tion

und

er th

e 20

07 C

onst

itut

ion

Mec

hani

sms/

Proc

ess/

Met

hods

Stat

e M

echa

nism

s un

der

the

Con

stitu

tion

Expe

cted

Res

ults

Publ

ic p

olic

y D

evel

opm

ent p

lans

C

riter

ia/s

tand

ards

G

uide

lines

/han

dboo

ks

Etc

124


KPI YEARBOOKS 4

Cit

izen

pol

itic

s und

er th

e C

onst

itut

ion

Cha

pter

1, G

ener

al P

rovi

sions

, Hum

an

dign

ity (A

rtic

le 4

)

Cha

pter

3, C

ivil

right

s and

libe

rtie

s of

Tha

i peo

ple

Cha

pter

5, S

tate

pol

icie

s on

cit

izen

pa

rtic

ipat

ion

(Art

icle

87)

Cha

pter

7, C

itiz

en’s

dire

ct p

olit

ical

pa

rtic

ipat

ion

(Art

icle

s 163

, 164

, 165

)

Cur

rent

Cou

ncil

of M

inis

ters

Ap

po

ints

th

e L

egal

Ref

orm

C

omm

issio

n un

der A

rtic

le 3

08 fo

r

Stud

ying

and

rec

omm

endi

ng t

he

prep

arat

ion

of n

eces

sary

law

s in

co

mpl

ianc

e w

ith

cons

titu

tion

al

prov

ision

s

Enac

ting

law

for

est

ablis

hing

the

Le

gal R

efor

m A

genc

y un

der A

rtic

le

81 (3

) with

in o

ne y

ear

10,0

00 c

itize

n pe

titio

ners

fo

r leg

islat

ive

prop

osal

Nex

t C

ounc

il o

f Min

iste

rs

(fro

m e

lect

ion)

Prep

ares

or

revi

ses

law

s u

nd

er A

rtic

le 3

03

, co

mpl

eted

wit

hin

1 or

2

year

s Se

lect

com

mit

tee

fo

r co

nsid

erin

g bi

lls

Part

icip

ator

y pu

blic

po

licy

proc

ess

Nat

ion

al L

egis

lati

ve

Ass

embl

y

Cha

rt 2

Rel

atio

ns a

nd C

onne

ctio

ns b

etw

een

Mec

hani

sms u

nder

the

2007

Con

stit

utio

n fo

r Pr

omot

ion

of C

itiz

en P

olit

ics

Mec

hani

sms/

Proc

ess/

Met

hods

Lega

l Ref

orm

Age

ncy

un

der

Art

icle

81(

3)

Set u

p Fu

nd fo

r Citi

zens

’ Pol

itica

l D

evel

opm

ent u

nder

Art

icle

87(

4)

Tech

nical

suppo

rt Bu

dget

su

ppor

t

Nomina

te rep

resen

tative

s

for on

e thir

d

Constitutional Organizations 169


Constitutional OrganiZations: Will the New Editions Work?

Paiboon Varahapaitoon*

Introduction

Under the 1997 Constitution, a number of independent state agencies are created, that are not incorporated into any of the government departments . The intention i s for these

commissions and agencies to monitor and regulate the exercise of power of state administrative organizations and agencies in the executive and legislative branches, including judicial bodies. These organizations are further vested with powers for the protection of the people’s rights and freedom under the law. For these reasons, individuals tasked with these regulatory or adjudicatory functions must be persons of unquestioned character and with strong reputation

* Secretary-General, The Office of the Constitutional Court

170


KPI YEARBOOKS 4

of nonpartisanship. In exercising their respective duties, they are not subject to executive control or direction of any other state agencies or political office-holders, thereby removed effectively from partisan politics. Since they are incorporated under the provisions of the Constitution and exercise their power as prescribed in the respective provis ions, they are given the designation, “Constitutional Organizations.”

But, the implementation of the 1997 Constitution in real-world politics has resulted in a phenomenon that has been the subject of hot criticism since: interference in the decisions of those monitoring organizations and mechanisms under the Constitution be they the Legislature or other independent constitutional organizations. Among the notable targets of interference with serious consequences are, among others, the Election Commission, the State Audit Commission, and the National Counter Corruption Commission, involving specially the insidious interference in the Senate with the selection process for and confirmation of appointments to independent organizations. Bearing this problem in mind, the drafters of the 2007 Constitution lay down the mechanisms and balance of relations between the monitor organizations and executive departments in such a way that both sides can proceed with their respective duties with checks and balances functioning properly. The major changes involve the reviewing of the processes and sources from which eventual appointments are made to independent organizations, and the reworking of the powers and duties of each organization toward attaining better efficiency. The new editions of constitutional organizations as decreed under the 2007 Constitution await to be shown if they wil l work out as intended: to drive the diverse mechanisms under the Constitution that put Thailand on the right track, producing real and progressive results out of this latest round of political reform.



1. Ways of Resolving Problems Encountered for “Constitutional Organizations” under the Constitution, B.E. 2540 The intention of the B.E.2540 (A.D. 1997) Constitution is to equip the Executive Branch with real muscles and stability. What happens, instead, is a bitter object lesson in abuse of power committed by the Administration. The more power the Administration has, the more feeble the Legislature and monitoring organizations entrusted with scrutinising duties seem to become to the point of being too crippled to do their duties to any degree of efficiency as intended by the Constitution. The ensuing scenario of the Government’s monopoly of power and its scandalous interference in the decisions of many independent constitutional organizations therefore frustrates many. The critics especially point the finger at the alleged interference in the Senate with the process of nomination, selection and confirmation of persons for appointment to constitutional organizations.

The Drafting Committee of the 2007 Constitution therefore, after serious deliberations on causes that may hamper the functioning of constitutional organizations, attempt to create a true balance between the exercise of state power and the monitoring of that exercise of state power, as well as ensuring a better safeguard of the rights and liberty of the citizens. The due deliberations range over the following points:

172


KPI YEARBOOKS 4

1.1 Improvement of the selection system for monitoring organizations to ensure that knowledgeable, capable, experienced and independent people receive appointment

In drafting the 2007 Constitution, the drafters have gone over the experiences gained from the promulgation of the 1997 Constitution. They found that the chief problem is traceable, concerning the effectiveness, or lack thereof, of the monitoring of the exercise of state powers by independent constitutional organizations, to the nomination and confirmation of appointments to those organizations. Specifical ly the problem lies in the process of appointment to independent organizations from start to finish. The vexing points start with the composition of a selection committee and by extension the process of electing or approving the appointment, the entire process of which is the sole power of the Senate. Apparently the Senate itself has been heavily interfered with by ‘partisan politics’ (i.e. the Executive Branch) so as to lose its supposed independence in doing its duty. To rectify the situation, it is necessary to revise the steps involved, from the composition of a selection committee to the nomination and confirmation steps in the Senate.

The 2007 Constitution aims to have an organization for the selection for appointment to constitutional organizations of persons who are proven to be highly independent and impartial, thereby preempting any outside attempt by partisan politics to interfere in the organization’s performance of its duty. It does this by excluding representatives from political parties, and instead including the President of the House of Representatives and the Opposition Leader in the House of Representatives, both of whom are considered the people’s representatives in virtue of being elected in the general election. Other members in the selection organization include presidents of various courts of justice be they the Constitutional Court, the Supreme Court, the Supreme Administrative Court, or a



general meeting of the Supreme Court and a general meeting of the Supreme Administrative Court and presidents of various constitutional organizations. The composition of these selection commissions is such that it is likely to result in the eventual appointment, free from political interference, of impartial and independent persons. In virtue of the criteria framework, the composition of the selection committee for appointment to the National Counter Corruption Commission consists of the president of the Supreme Court, the president of the Supreme Administrative Court, the president of the House of Representatives, and the Opposition Leader in the House of Representatives (Article 246, Paragraph 3). As for the composition of the committees for selecting and confirming appointments to other constitutional organizations, namely the Election Commission (Article 231, Section 1), the Ombudsmen (Article 243), the State Audit Commission (Article 252, Paragraph 3), and the National Human Rights Commission (Article 256, Paragraph 5), additional external representatives are added, to be selected by a general meeting of the Supreme Court and a general meeting of the Supreme Administrative Court each, who shall not be the same person. In other words, each of such selection committees shall comprise the president of the Supreme Court, the president of the Constitutional Court, the president of the Supreme Administrative Court, the president of the House of Representatives, the Opposition Leader in the House of Representatives, a person selected at a general meeting of the Supreme Court, and a person selected at a general meeting of the Supreme Administrative Court. Those persons selected by the Supreme Court and by the Supreme Administrative Court shall not be a judge and shall not be a member of the selection committee for other constitutional organizations simultaneously. The reason for the latter stipulation is to ensure the optimum profitability of the selection to be gained by including persons from other fields in addition to the judicial circles, members of whom are already ex officio members of the selection committee.

174


KPI YEARBOOKS 4

Under the 2007 Constitution, the confirmation in the Senate of persons for appointment to constitutional organizations has been changed from the former practice of submitting to the Senate for its election votes a list of nominations that doubles the requisite number of appointments to the new practice of selecting the exact number of persons equal to the composition of that constitutional organization and nominating the name list to the Senate for approval or rejection only. Should the Senate disapprove of any names whether in toto or in part, it must send back that list to the selection committee together with reasons for its rejection for possible re-selection, or a new round of search. Should the selection committee disagree with the Senate and after deliberation reaffirm unanimously its resolution in favour of the name list, or in the case of at least two members of a general meeting of the Supreme Court for the selection of Election Commissioner disagree with the Senate and no less than two-thirds of the Supreme Court meeting vote in favour of the original resolution, the name list is to be forwarded to the president of the Senate for submitting to the King for appointment. If the vote of the selection committee in favour of its original name list lacks unanimity, the selection process shall recommence, which must be completed within thirty days as from the date on which there are grounds for the said action.

1.2 Mechanisms of Checks and Balances and Monitoring the Operations of Constitutional Organizations

1.2.1 BudgetIndependence

As constitutional organizations are empowered to watch over the operations of various agencies from the process leading to the assumption of a political office, office-holding, and exercise of power in national administration, and if the factors relating to budgetary allocation for these independent organizations are still subject to the approval of the Executive Branch, the Administration



may seek to abuse this budget-allocation power and thereby meddle with the performance of the independent organizations in order to bend them to the wishes of the Administration, which means that independent organizations are rendered practically impotent in checking the Administration’s exercise of power. Therefore, the budgetary allocation for constitutional organizations should follow the fixed proportion model, which neither the Administration nor the Legislature can tinker with with intent to alter, reduce or increase it. With this single condition, there can be no interference with constitutional organizations from executive departments. Nevertheless, that constitutional organizations are entirely independent with respect to budgetary allocation does not mean that these organizations are at liberty to authorize the allocation of remuneration for themselves as they deem fit.

For this reason, the 2007 Constitution lays down provisions on the budget independence of constitutional organizations to the effect that the State must ensure that adequate budgetary a l l o c a t i on be made , th a t make s po s s i b l e th e au tonomous administration of the Parliament, the Constitutional Court, the Courts of Justice, the Administrative Court, and the constitutional organizations. In this respect, should the Parliament, the courts and the constitutional organizations deem that their budgetary allocations are inadequate, they are entitled to petition for readjustment the Parliament’s committee for vetting the annual appropriations bill directly (Article 168, Paragraphs 8 and 9).

1.2.2M o n i t o r i n g t h e Pe r f o r m a n c e o f D u t i e s o fConstitutionalOrganizations

Although constitutional organizations are independent in the sense that they are free from the control or supervision of any executive departments or the Legislature, the decisions of these

176


KPI YEARBOOKS 4

organizations are yet reviewable in court, whether by the Constitutional Court in case of the direct exercise of power under the Constitution, or by the Administrat ive Court in case of the exerc i se of i t s administrative power, as the case may be. That is to say, whenever the constitutional organization issues rules, orders or decisions that result from its exercise of power under the law at the level of an act, or from any administrative decisions, for example the issuing of orders under the law, all these decisions are reviewable by the Administrative Court (Article 223).

2. “Constitutional Organizations” under the 2007 Constitution In Chapter 11 of the 2007 Constitution, there are designated two types of constitutional organizations:

First, Independent Organizations under the Constitution (from Articles 229 to 254) They consist of the Election Commission, the Ombudsmen, the National Counter Corruption Commission, and the State Audit Commission;

Second, Other Organizations under the Constitution (Articles 255 to 258) They consist of the Prosecution Organization, the National Human Rights Commission, and the National Economic and Social Advisory Council.

2.1 Independent Organizations under the Constitution

2.1.1 ElectionCommission

Under the 1997 Constitution, the Election Commission was incorporated for the first time, tasked with the duty of organizing



elections. The intention is to establish an independent and neutral body responsible for organizing an election, that is also removed from the control or supervision of any administrative departments in order that an election proceeds under unsullied and fair conditions whether t h e y a r e a Ge n e r a l E l e c t i o n f o r m e m b e r s o f t h e Ho u s e o f Representatives, a Senate election, and an election for local councils and councilors. The 2007 Constitution largely retains all the main powers and responsibilities of the Election Commission as previously and makes some improvements on its power mechanism toward better efficiency.

Under the 2007 Constitution, the means of appointing Election Commissioners are stated in Article 231, which retains the same process as prescribed in the 1997 Constitution, except for the change from the former practice of selecting and nominating a name list of persons to be elected by the Senate to a search for nominees in the required number as to be appointed. The name list is then submitted to the Senate for confirmation or rejection, so that it can be submitted to the King for appointment. The selection process starts with a selection committee for the Election Commission, who nominates three persons for the Election Commission, and a general meeting of the Supreme Court nominates two other persons for the Election Commission. The entire list is then submitted to the Senate for confirmation. In the case of a selection committee for the Election Commission being unable to proceed with the selection, or there is no selection committee in place, a general meeting of the Supreme Court will instead nominate a name list in the exact number as to be submitted by a selection committee. This provision is laid down as a way out of a possible scenario in which an Election Commission cannot be chosen normally. Another significant change requires the Senate to have the power to give confirmation or rejection of the name list only, replacing the former practice of submitting nominees that double the requisite number of appointments for confirmation voting by the Senate.

178


KPI YEARBOOKS 4

The 2007 Constitution gives broad powers to the Election Commission in holding an election to ensure that it proceeds in an honest and fair manner. To achieve this, the Commission is empowered to lay down rules governing the running of election campaigns and related actions of political parties, electoral candidates and eligible voters, including laying down those guidelines that promote a level playing field and equal opportunities in canvassing for votes (Article 236, Section 1). Furthermore, the Election Commission is empowered to impose restrictions on the caretaker Cabinet and ministers who must remain in their respective offices until the new Cabinet is sworn in and assumes its duty, to keep them from abuse of authority by putting rival parties at a disadvantage and creating a state of iniquity in the run-up to the upcoming election (Article 236, Section 2, and Article 181). These extra powers accorded to the Election Commission to lay down rules and regulations covering all aspects of election campaigns are for the purpose of ensuring that an election proceeds in an honest and fair manner.

The Election Commission is also empowered to prescribe control measures on contributing to campaign funds of political parties, the State’s contribution to political parties, campaign expenditure allowed to political parties and electoral candidates, including openly auditing political parties and monitoring spending and income involved in campaigns (Article 236, Section 3). It further is empowered to hold a referendum in response to the Cabinet’s decision to call for one on any affairs that might affect the nation or the people, or in the case of legislation requiring a referendum, all of which are aimed at, through the referendum, settling a controversy or providing advisory feedback to the Cabinet (Article 165).

A point of contention arises with respect to the Election Commission’s seemingly absolute power, under the 1997 Constitution, concerning investigation and decision made in its name



such as to order a by-election and disqualify persons from involvement in election, including the issuance of regulations involved. In this respect, the Election Commission is said to have power to order and hold an election and to adjudicate election abuse. Thus arises the question whether the authority of the Election Commission actually contravenes the principle of separation of powers, making it difficult at the same time to monitor the actions of the Election Commission itself. To rectify this imbalance, the 2007 Constitution mandates that the power of decision of the Election Commission must also, if necessary, be reviewed by a court of law to ensure that the Election Commission, whose decision affects the rights and liberty of individuals, exercises its authority proper to the case in hand. That is to say, any decision made by the Election Commission to have a by-election or to disqualify persons from involvement in election, which occurs prior to the announcement of results of election of members of the House of Representatives or of senators, the decision of the Election Commission shall be final. If and after the announcement of results of the election has been made, however, and the Election Commission is of the opinion that a by-election or disqualification f rom invo lvement in e l e c t ion o f member s o f the House o f Representatives or of senators is to be ordered, it must refer its decision to the Supreme Court for decision. In the case of an election of a local assembly or local administrators, the referring is made to the Court of Appeals (Article 239).

Under the 2007 Constitution, the Election Commission not only is empowered to check the qualifications of a politician prior to his taking office, it also is empowered to check the qualifications of a politician during his office holding. That is to say, the Election Commission may submit a petition to the president of the House of Representatives and the president of the Senate so that the presidents of the respect ive as sembl ies may submit the pet i t ion to the Constitutional Court for decision as to whether that member of the

180


KPI YEARBOOKS 4

House of Representatives or the Senate lacks the qualifications or legitimacy for holding that office to result in termination of the office holder status (Article 91). Alternatively, it may submit a petition directly to the Constitutional Court for decision as to whether the ministership of any one minister may terminate or not (Article 182, Paragraph 3).

The Election Commission consists of a chairman and 4 other commissioners, making up a total of 5 commissioners (Article 229, Paragraph 1). Election Commissioners shall hold office for a term of seven years and serve for only one term (Article 232, Paragraph 1). The Office of the Election Commission shall have full autonomy in personnel administration, budget and other affairs, as provided by law (Article 235, Paragraph 3).

2.1.2TheOmbudsmen

An agency established to serve the complaint needs of the people, the Ombudsmen are empowered to make deliberation and fact-finding investigation into complaints targeting at state agencies or officials who are accused of nonfeasance (failure to uphold the law) or overstepping the bounds of the law or whose actions inflict damages on the filer of a complaint or the public in an unfair manner no matter if the actions are within the law or not, including other cases as provided by law. The Ombudsmen are to report all these cases, together with their opinions and recommendations to the Parliament.

Nevertheless, the Ombudsmen are not empowered to decide on and order state agencies to comply with their judgement or order; instead the Ombudsmen are empowered only to offer their opinions and make recommendations to those state agencies to act on, or to propose amendment to the law concerned, in which case even if the state agencies concerned refuse to act on the advice, the Ombudsmen are not empowered to enforce its recommendations



directly. In such a case as this, the Ombudsmen may forward the matter to the Prime Minister or minister in command or in charge for the man in charge to issue an order as befits the case. If and when the matter has been forwarded to the Prime Minister or minister, and the state official concerned remains nonchalant and refuses without due reason to act on the recommendations, and since the matter has consequences on public interest or affects a large number of people, the Ombudsmen may report the matter to the Parliament. Past experiences, however, point to an entanglement not easy to resolve. The operations of the Ombudsmen under the 1997 Constitution ran into problems and obstacles in several aspects, particularly arising from the fact that the Ombudsmen are powerless to initiate an investigation by themselves. With respect to the power to file a complaint and present opinions to the Constitutional Court or the Administrative Court, on provisions in a law, regulations, orders, or any actions of those in power in regard to their legitimacy under the Constitution or the law, the initiation must come from the citizens only, who file such compla ints to the Ombudsmen. Then and only then do the Ombudsmen submit the matter to the Constitutional Court or the Administrative Court. Furthermore, there is this problem of uncertainty concerning the criteria for submitting a matter to the Constitutional Court or the Administrative Court, leading to a stalemate in practice, particularly regarding the powers of constitutional organizations to issue rules or regulations.

In the course of drafting the 2007 Constitution, the drafters review the operations of the Ombudsmen to determine if there is any overlap of powers and duties with other constitutional organizations, and if so in what way. It is particularly so with the National Human Rights Commission, itself another agency tasked with handling the citizens’ complaints directly as well. Yet the Ombudsmen agency is preserved, but its powers and duties are overhauled to achieve better efficiency. The previous phrase in Thai,

182


KPI YEARBOOKS 4

“the Ombudsmen of the Parliament” is truncated to become “the Ombudsmen” in recognition of the fact that the powers and duties of the Ombudsmen under the 2007 Constitution have undergone change in several respects from the 1997 Constitution. For example, under the new constitution the office has the duty to keep watch over the conduct of political office holders and state officials (Article 244, Section 2), or to follow up on, evaluate and make recommendations on honoring and ensuring compliance with the Constitution (Article 244, Sect ion 3) . With duties such as c i ted above, i t shal l be inappropriate for the Ombudsmen to be classified under Chapter VI any longer, as the office has the duty to monitor the exercise of power of the legislative branch as well, thereby necessitating the name change to comply with its extended, all-inclusive duties.

The Ombudsmen are empowered to review and conduct fact-finding investigation into a petition against alleged nonfeasance or overstepping the bounds of the law, as committed by government officials, officers or employees of government agencies, state agencies or state enterprises or local government organizations, which is deemed to unjustly cause injury to the filer of the petition or to the citizens, regardless of whether such an act is lawful or not (Article 244, Section 1). This scenario in effect resolves the problem under the 1997 Constitution of the former Ombudsmen being unable to initiate action against alleged wrongdoings until it has received such a petition filed by others. Under the 2007 Constitution, two options are open to the Ombudsmen: either the office waits for a petition being f i led and proceeds to review and conduct fact-f inding investigation accordingly, or the Ombudsmen themselves may initiate an action against wrongdoers even if there is no petition made thereof, particularly in such cases as deemed potentially damaging to the public interest or to protect public interest (Article 244, Paragraph 2).



Under the 2007 Constitution, the Ombudsmen are further empowered to report to the Parliament, the Cabinet or local council concerned, as the case may be, with respect to the conduct of political office holders and state officials who breach or ignore the code of ethics. The agency is empowered to propose or advise the making or revising of a code of ethics and to raise ethical awareness among political office holders, government officials, and state officials, including reporting any incident of violating the code of ethics so that those in charge of enforcing the code of ethics under the circumstances may act to enforce the code of ethics for that particular case (Article 244, Section 2, and Article 279). In Chapter XIII of the 2007 Constitution, a Code of Ethics for political office holders and state officials has clearly been ordained, aiming at clear goals and invoking compliance, and that a Code of Ethics must be completed within one year from the promulgation of the Constitution (Article 304). The monitoring of the exercise of state powers therefore not only follows the provisions under the Constitution and the laws but also must enforce observance of the Code of Ethics as well, in order to ensure that the exercise of state powers is honest and just, and violators shall be punished accordingly.

Three persons may hold the office of Ombudsmen, the same as in the 1997 Constitution, but under the 2007 Constitution the Ombudsmen may choose among themselves to elect one member to be president, and hold office for a term of 6 years and for one term only (Article 242). The Office of the Ombudsmen shall have a free hand in running its personnel, budget and other affairs, as provided by law (Article 242, Paragraph 6).

2.1.3NationalCounterCorruptionCommission

Inasmuch as the 1997 Constitution decrees that constitutional organizations must be established as independent

184


KPI YEARBOOKS 4

agencies tasked with the duty to monitor the exercise of state powers in the form of the National Counter Corruption Commission (NCCC) for the first time for the purpose of making Thai politics and bureaucracy transparent, open and accountable, it is therefore essential that candidates for appointment to the NCCC must be persons of integrity and strict nonpartisanship. The Commissioners serve for only one term and a selection committee for the NCCC submits a name list of candidates to the Senate for confirmation.

The experience gained from the promulgation of the 1997 Constitution, however, shows a number of pitfalls, practically rendering the NCCC impotent in carrying out its duties as mandated by the Constitution, that is to monitor the exercise of state powers. The problems involve the recruitment process of the commissioners from initial nomination to confirmation in the Senate, including snags encountered by the NCCC in the performance of duties involving a huge pile-up of corruption cases it has to deal with. The 2007 Constitution therefore decrees the establishment of provincial counter corruption commission (Article 246, Paragraph 5), a subsidiary body working in affiliation with the NCCC itself. The provincial organization is not entirely autonomous or separate from the NCCC operations, but is intended to increase the NCCC’s efficiency in all levels and all jurisdictions. Through the extended network, local citizens in each province have a chance to participate in monitoring corruption and graft, and help to relieve the already heavy workload of the NCCC.

The NCCC is empowered to conduct investigation and sum up a case and tender opinions on removal from office of political office holders or high-ranking office holders to the Senate (Art ic le 272). It i s a l so empowered to conduct fact- f inding investigation and sum up a case together with opinions on criminal proceedings against political office holders, and refer the matter to the



Supreme Court’s Criminal Division for Holders of Political Positions for those cases in which the Prime Minister, ministers, members of the House of Representatives, senators or other political officials are accused of being unusually rich, or of malfeasance in office under the Criminal Code, or of malfeasance under any other laws. This same clause applies also to the said person or others who are the principal, instigator or accessory, including the giver, fixer or pledgor of property or other benefits to the said person (in the previous sentence) as an incentive to act or omit or delay an act, which constitutes malfeasance (Article 275). The NCCC is also empowered to directly investigate and decide whether a state official who holds an executive post or a government official at director level or its equivalent or higher has become unusually rich, has committed malfeasance in office or connected with his office, or malfeasance in judicial office, including any state official or government official at lower level who has colluded with the said state official or government official to commit an offence or other offences that the National Counter Corruption Commission deems appropriate to investigate (Article 250, Section 3). This latter power i s to enable the NCCC to act quickly and punish the wrongdoer without delay. For government officials at lower level, they are still subject to monitoring within due process of law, already in place for the supervision of corruption and malfeasance committed by state officials in general.

Under the 1997 Constitution, for the NCCC to launch investigation of corrupt practices committed by a political office holder, a victim must first lodge with the NCCC an allegation to the effect. Because of the limitation, the NCCC is powerless to carry out investigation against a suspected wrongdoer in some cases even though there are reasonable grounds for believing that the person has committed an offence. The 2007 Constitution rectifies this situation by empowering the NCCC to start an investigation of wrongdoing by itself without having to wait for any person to lodge an

186


KPI YEARBOOKS 4

allegation first. This power is all the more necessary as, in some cases, a person supposed to lodge an allegation may refrain from so doing for fear of reprisal from the politician, or he himself gains unlawful benefits and therefore does nothing about the graft; under these circumstances the NCCC is powerless to do anything.

Furthermore, the NCCC is empowered to review a case in which a political office holder intentionally withholds submitting an account of his assets and liabilities and supporting documents, or intentionally submits a false or incomplete account of his assets and liabilities and supporting documents, and to refer the matter to the Supreme Court’s Criminal Division for Holders of Political Positions for decision (Article 263). The NCCC is also empowered to supervise the ethics and conduct of political office holders. That the NCCC is vested with this extraordinary clause on supervising the ethics of pol i t ica l of f ice holders marks an important object ive of the Constitution and the very expectation to produce real results in practice (Articles 250, Section 5, and 279).

The NCCC consists of the president and eight other members, making a total of 9 commissioners (Article 246), who shall hold office for a term of 9 years and can serve for only one term (Article 247). A new revision enables the NCCC, in the case of its composition falling short of the full statutory panel, to carry on its duties uninterrupted such that a mechanism for monitoring the exercise of state powers continues as always and no impending case involving malfeasance that may have grave consequences for the nation is dismissed because the statute of limitations has lapsed. The NCCC is an organization with autonomy in running personnel, budget and other affairs as provided by law (Article 251, Paragraph 3).



2.1.4StateAuditCommission

Under the 2007 Const i tut ion, the State Audit Commission retains all the powers and duties found under the 1997 Constitution. The composition number of the panel, however, is reduced from 10 persons to 7, apparently to streamline its work performance. The Commission holds office for a term of 6 years (Article 252) and serves for only one term. The Commission has an independent secretariat, supervised by the Auditor General who is directly responsible to the Chairman of the State Audit Commission (Article 254).

Under the 2007 Const i tut ion, the State Audit Commission is empowered to set standards of the state audit, to give advice and recommendations, and to make recommendations for correcting flaws found in state audit works. It also has the power to appoint the Financial and Fiscal Disciplinary Committee, an independent unit, to make decision on financial, fiscal and budgetary disciplinary matters. Any disputes arising from the decisions of the Financial and Fiscal Disciplinary Committee shall come under the jurisdiction of the Administrative Court (Article 253). The Office of the State Audit Commission shall have autonomy in personnel administration, budget and other activities as provided by law (Article 254, Paragraph 2).

2.2 Other Organizations under the Constitution

2.2.1ProsecutionOrganization

Public prosecutors have a mandate to conduct lawsuits in courts on behalf of the State and to conduct lawsuits against political office holders and state officials too. For this reason, under the 2007 Const i tut ion the Prosecut ion Organizat ion i s made a constitutional organization and not incorporated into any of the

188


KPI YEARBOOKS 4

executive departments: public prosecutors have independence in their prosecution duties, not subject to partisan influences of the Executive Branch. This institutional independence is consistent with the duty of public prosecutors who are expected to maintain impartiality and shall have to prosecute political office holders according to provisions in the Constitution.

To this end, public prosecutors have an independent secretariat for running their various affairs. The appointment of the Prosecutor General requires the President of the Senate to countersign the Royal Decree appointing the Prosecutor General . Public prosecutors are prohibited to be members of the board of directors of state enterprises or other affairs of the State, except with the approval of the Public Prosecution Committee, or to engage in any affairs that may affect the performance of duty or bring discredit on their office. They are also prohibited to be a board member, manager, legal advisor or any other position with such similar functions in a business firm or company (Article 255).

2.2.2NationalHumanRightsCommission

The rights and liberties of the Thai people are dealt with under provisions in Part 3 of the 1997 Constitution and the National Human Rights Commission is established as a specific instrument for safeguarding human rights by scrutinizing the exercise of state powers to ensure that conformity with the human rights pr inc ip les under the Const i tut ion and the laws in nat ional administration is respected (Article 200, Section 1). Accordingly the National Human Rights Commission is empowered to examine and report an act or neglect to act which clearly constitutes violation of human rights, or non-compliance with obligations under international treatises on human rights to which Thailand is party.



Nevertheless, the 1997 Constitution gives the National Human Rights Commission a task of only promoting and supporting human rights protection to the people; it is not to be an organization for directly monitoring the exercise of state powers. For this reason, the National Human Rights Commission is powerless to bring cases of human rights abuse to a court of justice. It also faces the problem of having similar and overlapping duties with other constitutional organizations, particularly the Ombudsmen. Under the 2007 Constitution, therefore, the National Human Rights Commission is empowered to br ing cases to the Const i tut iona l Cour t , the Administrative Courts or Courts of Justice directly for the case in which a complaint of any law infringing on human rights and contravening the Constitution, including a complaint of an act of human rights abuse which is clearly unlawful, is filed with the Commission. The litigation mandate provides an additional channel for safeguarding the rights of the citizens. Specifically it is empowered to:

1. Submit to the Constitutional Court any complaints approved together with opinions involving the provisions of any law that infringe on human rights and contravene the Constitution, as consistent with the o r g a n i c l a w o n r u l e s a n d p r o c e d u r e o f t h e Constitutional Court (Article 257, Section 2);

2. Submit to the Administrative Courts any complaints approved together with opinions involving any regulations, orders, or other actions that infringe on human rights and contravene the Constitution, as c o n s i s t e n t w i t h t h e Ac t o n E s t a b l i s h m e n t o f Administrative Courts and Administrative Court Procedure (Article 257, Section 3);

190


KPI YEARBOOKS 4

3. File lawsuits with the Court of Justice on behalf of the injured when requested and deemed appropriate to resolve problems of human rights violation, in the interest of common good and as consistent with the law (Article 257, Section 4).

The National Human Rights Commission consists of a president and 6 other members, totaling 7 commissioners, appointed by the King on the advice of the Senate. The Commissioners shall hold office for a term of 6 years and shall serve for only one term (Article 256). The Office of the National Human Rights Commission shall have autonomy in personnel administration, budget and other activities as provided by law (Article 256, Paragraph 6).

2.2.3NationalEconomicandSocialAdvisoryCouncil

The National Economic and Social Advisory Council is established to give advice and make recommendations to the Cabinet on various economic and social issues and to comment on the National Economic and Social Development Plan and other plans as provided by law prior to their promulgation.

Under Article 258 of the 2007 Constitution, the powers of the National Economic and Social Advisory Council are revised to further give opinions on legislation on economic and social issues in order to more thoroughly sound out other views on the Cabinet’s legislative proposals. The Office of the National Economic and Social Advisory Council is an independent secretariat responsible for personnel administration, budget and other affairs, as provided by law (Article 258, Paragraph 4).



Conclusion From the above exposition, it is to be expected that

First, “Constitutional Organizations” under the 2007 Constitution are created out of careful review of the real problems arising in the course of implementation of the 1997 Constitution. Revision and improvement are introduced regarding the appointment of persons for office which will garner approval and confidence better than previously;

Second, the roles and powers are revised to reflect more clarity and to overcome past obstacles encountered in the exercise of powers of those organizations. Loopholes have been closed so that these organizations can function more efficiently in monitoring the exercise of state powers and safeguarding the rights and liberty of the citizens;

Third, these organizations—the 4 independent constitutional organizations and 3 other organizations under the Constitution—will exercise their authority truly efficiently and independently, free from interference as in the past. Their autonomy, however, does not translate into unaccountability: each organization is subject to monitoring and removal from office for cause and through regular, specified legal channels;

Fourth, the good supervising and monitoring system rests entirely on the strength of the organization concerned based in turn on the possession of integrity, impartiality and ethics. Bearing its raison d’être in mind, each organization must perform in keeping with the intentions for their existence under the Constitution;

192


KPI YEARBOOKS 4

Fifth, the performance of duty of constitutional organizations must follow the rule of law, that is to say they must function on the basis of just provisions under law, which can be accounted for with a rationale, and must refrain from arbitrary exercise of power unsupported by law.

Whether the new editions of the constitutional organizations under the new Constitution will be worthy of their mandate and public expectation remain to be seen. It is vital for them to work toward stated goals with diligence within the framework given, appropriate to the Thai context and thereby invoking confidence and faith, ultimately for the wellbeing of the citizens they are supposed to serve.

The Powers of the Judiciary 193


Professor Vicha Mahakun*

The Powers of the Judiciary The New Composition Toward Social Justice

Introduction

According to Article 197 paragraph 1 and paragraph 2 under the Constitution of the Kingdom of Thailand,

“The trial and adjudication of cases are the powers of the Courts, which must proceed justly in accordance with the Constitution and the law and in the name of the King.

A judge is free and independent to adjudicate correctly, quickly, and justly in accordance with the Constitution and law.”

Whether it is a normal time or critical, the Courts receive the complete confidence and credit for exercising its powers independently

* Commissioner of the National Counter Corruption Commission.

194


KPI YEARBOOKS 4

in the name of the King to ensure that primarily legal, that is, judicial processes are engaged to resolve disputes in accordance with the Constitution and the law for the protection of the public and individuals such that justice is seen to be done. The Courts of today therefore are not only the organizations to end social conflict but must help to solve social problems as well, particularly in the case that other institutions are made impotent and unable to solve them with any efficiency. The importance of the powers of the Courts in society and polit ics has become a normal feature in a democracy, known increasingly as the judicialization of politics, by which is meant the expansion of the jurisdiction of the Courts or judiciary in general to handle political or administrative disputes. On the other hand, in the opinion of some analysts, the expansion of the adjudication duty of the Courts beyond the normal confines of the judicial powers is not tantamount to the enlargement of the judicial powers at all, but is already within its own jurisdiction. Nevertheless, under the first opinion, judicialization represents a stage of progress for the Courts.1

The emergence of the phenomenon is one significant step in a long process of democratization, indicating that the judicialization of politics is not inconsistent with or runs counter to democratic values. There is no doubt that a democratic country whose judiciary can function to the full capacity of its powers will be strengthened in the process even, for the rights of its citizens will come under due protection of the law. Nevertheless, the judicialization of politics varies from country to country. The trend itself is not new in the United States but quite a recent phenomenon in Europe, for example in Great Britain and Germany, and particularly in France, Portugal, Spain, and Italy.

1 Carlo Guamieri & Patsizia Pederzoli, The Power of Judges (Great Britain: Oxford University Press, 2003), p.1



The Powers of the Courts under the 1997 Constitution Montesquieu, the French jurist and political philosopher, advocates the separation of powers into the legislative, the executive, and the judiciary. The three departments are independently distinct from one another in duty and exercise of state powers. That is to say, the legislative has the duty of legislation, the executive has the duty of national administration and implementing of the laws, and the judiciary has the duty of adjudication according the letter of the law.2

The separation of powers, as framed above, aims at preventing power abuse presumably committed by the executive, which explains why the boundary line of division between the legislative and the execut ive must be c lear-cut whi le the judic iary i s g iven ful l independence. The executive therefore can only exercise its powers within the limits set by the legislative and the judiciary is empowered to examine if the executive’s exercise of state powers is within the limits imposed by the law, including deciding if the legislative has made enactment correctly and in accordance with the provisions of the Constitution. Only in this scenario will the checks and balances mechanism is in place, bringing about the counter-balancing of powers against each other to prevent power abuse and that there is in practical reality the rule of law and true democracy functioning.3

Prior to 1997, there had been several constraints against the checks and balances mechanism. Firstly, the organizations instituted under the

2 Montesquieu, The Spirit of Laws (1750), Vol I, Book II, C 6, p.215. 3 “Directions of the New Constitution,” Proceedings of the Sixth National

Legal Science Conference, 2006, 28-29 March 2007, p.3

196


KPI YEARBOOKS 4

separation of powers principle could not perform their duties with efficiency, for the executive controlled the majority in the National Assembly, while the legislative could check only major policy issues and the judiciary was hampered by a knotty and sluggish bureaucracy, largely inflexible and unresponsive to changing circumstances. Although attempts were made to create several more monitoring organizations, for example the National Counter Corruption Commission (NCCC), the Office of the Auditor General of Thailand, and the Constitutional Tribunal. These organizations, however, carried no real clout and lacked true independence in monitoring the executive. For this reason, the 1997 Constitution gives a whole chapter to the checking of the exercise of state powers in which the existing organizat ions are to be revamped and hitherto non-exist ing organizations created in order to institute comprehensive checking of the exercise of state powers that is independent, transparent and free from interference from the executive and the legislative. The investing of the independent organizations with independent powers is based on the 5 principles:

1. Guarantee of independence, especially with the appointment of long tenure and only one term of office-holding, independence of personnel, finance, and budget administration, including an independent secretariat which lays down its own rules, regulations, and restrictions;

2. All aspects of the Government affairs must be subject to non-repetitive checking by organizations;

3. They must have real power to achieve working effectiveness;

4. Checking can be targeted at the politicians as well as the bureaucrats in connection with the politicians;



5. No organization(s) holds absolute power and is subject to mutual checks and balances.4

The pre-existing organizations that have been revamped and the newly-created organizations having the duty to control and check the exercise of state powers under the above principles, to be called collectively “Constitutional Organizations under the Constitution of the Kingdom of Thailand”, B.E.2540 (A.D.1997), comprise5:

1. Courts of Justice

2. Constitutional Court

3. Administrative Courts

4. Election Commission

5. The National Counter Corruption Commission

6. State Audit Commission

7. Ombudsmen

8. The National Human Rights Commission.

Of the eight independent organizations, only three are judicial organizations with real judicial powers. They are:

1. Courts of Justice

2. Constitutional Court

3. Administrative Courts.

4 Chalat Chongsuephan, “Analysis of the Independence of Constitutional Organizations of the Kingdom of Thailand, B.E. 2540,” Summary of the Eighth Academic Conference of King Prajadhipok’s Institute B.E. 2549, p.285.

5 Ibid, p.286.

198


KPI YEARBOOKS 4

The three organizations are grouped under the chapter on the Courts. Previously, there were only the Courts of Justice, which try and adjudicate cases under the Constitution and the law in the name of the King, making it a unitary court system, like that in those countries which use the common law system, for example England and the United States of America, including some of the countries that have a system of codified written laws, for example Japan and South Korea. In the course of drafting the 1997 Constitution, however, studies had been made on checking of the exercise of state powers, to produce an opinion that the Courts of Justice, the Constitutional Tribunal, and the Commission for Consideration of Complaints, all of which were regarded as judicial and semi-judicial organizations, faced the problem of being deprived of a true mechanism and efficiency to really check the exercise of state powers. This is all the more apparent, due to the fact that the Courts of Justice were faced with an overload of impending cases and the public therefore were not receiving its due of the justice process while the Constitutional Tribunal lacked true independence and had a very limited role, for it had to await cases referred from the Courts of Justice, the Parliament, or the Prime Minister. Likewise for the Commission for Consideration of Complaints, it had no real authority to enforce its decisions on the complaints lodged, as it was up to the Prime Minister to issue an order, as the case may be, rendering the organization’s role impotent and devoid of true independence.6 The impasse convinced the Constitution-Drafting Assembly to decide on reorganizing the judicial organization into a binary court system in which the Criminal Division for Holders of Political Positions was created and included in the Supreme Court; the Constitutional Tribunal was made the

6 Yuwarat Kamolwet, “Summary of the Study on the Checking of the Exer-cise of State Powers,” Report of the Workshop of the National Research Council of Thailand for Political Science and Public Administration, 25-26 February 1997, 11-12 and 25-26 March 1997, pp.2-7 and 2-8.



Constitution Court, and the Commission for Consideration of Complaints was reformed to have the duty to try administrative cases in the form of Administrative Courts. The revamped system closely parallels the binary court system found in European countries, for example France and Germany.

Although there was a refutation of the claim that the majority of countries in the world have a binary court system and in its place strong insistence that most countries have a unitary court system, citing the fact that the binary court system belongs in the minority, which are found in Europe only, being a historical incidence originating in France, and despite the argument that should a binary court system be instituted, there should be established vertical uniformity in the country’s judicial system, the argument, however, received no support in any way.7 The 1991 Judicial Crisis, involving the controversial appointment of the president of the Supreme Court, was cited to back up the insistence that the entire judicial system be made independent. In the incident, the Minister of Justice interfered in the appointment of the president of the Supreme Court, as the Supreme Court at the time was still under the jurisdiction of the Ministry of Justice, in which the Justice Minister was empowered to nominate a name-list of candidates for judges appointed to the Judicial Commission, and had the power to veto the decisions of the Judicial Commission as well as to carry out an investigation and punishment of wayward judges. In view of the considerations, the constitution drafters insisted on liberating the Courts of Justice from the yoke of the Ministry of Justice, which is part of the executive. The Office of the Judiciary was to be created and put under the president of the

7 Charan Phakdithanakun, “Constitution Court, Courts of Justice, Adminis-trative Courts,” Report of the Workshop of the National Research Council of Thailand for Political Science and Public Administration, 25-26 February 1997, 11-12 and 25-26 March 1997.

200


KPI YEARBOOKS 4

Supreme Court. The composition of the Judicial Commission was also overhauled, which consisted, in the old arrangement, of only the Chief Justices of the Supreme Court; instead, the new arrangement incorporates justice representatives from the three tiers of the Courts of Justice, namely the Court of First Instance, the Court of Appeal, and the Supreme Court, the exact same number of 4 representatives from each tier of which are to be nominated. Two additional independent judicial organizations are also created separately, namely the Constitutional Court and the Administrative Courts, whose organizational structure is similar to the Courts of Justice. On the surface, these courts gained independence in terms of judicial power; but in reality, an ominous amount of complications ensued to result in a coup d’e ta t in September 2006 and the dra f t ing o f a new constitution in 2007, to be discussed in due order.

In summary, the 1997 Constitution changed the composition of the judicial organization from a unitary system, established from the first constitution in 1932, to a binary system, comprising altogether 3 courts with different adjudicating functions. The Constitutional Court gives decisions on the possible contradiction or opposition of clauses and provisions of laws to the Constitution and questions on the powers and duties of constitutional organizations, including the false dec la ra t ion of a s se t s and debt s by po l i t i ca l o f f i ce -ho lder s . Administrative courts adjudicate cases involving government agencies, agencies of the State, state enterprises, or local administrations, and disputes between state officials and private citizens, or between government agencies, agencies of the State, state enterprises, or local administrations, or between state officials under the command or jurisdiction of the Government itself, all of which stem from actions or non-actions in fulfillment of the law or being the responsibilities according to the law. The Courts of Justice try and adjudicate all cases excepting those which, as stated by the provisions of the Constitution or the law, come under the jurisdiction of other courts. The Supreme



Court itself has been assigned the Criminal Division for Holders of Political Positions.

The Military Courts, which have jurisdiction over criminal cases involving soldiers, have been retained exactly as in all the constitutions in use.

The Powers of the Courts under the 2007 Constitution As said above, the 1997 Constitution gives extensive power of checking of the exercise of state powers in the form of independent organizations and through the separation of judicial power into 3 organizations, that is the Courts of Justice, the Constitutional Court, and Administrative Courts. But after only 8 years of implementation, the constitution was abolished through a coup by the Council for Democratic Reform under the Constitutional Monarchy (CDRM) and replaced by the 2006 Interim Constitution, paving the way for the drafting of a new charter within a period of 6 months. The following reasons are given for the coup d’etat8:

1. Corruption and conflict of interest,

2. Policy blunders leading to the violation of human rights and liberty,

3. Ine f f i c i ency o f o rgan iza t ions in super v i s ing na t iona l administration and checking the exercise of state powers,

4. Serious rifts in society that infringe on almost all institutions in the country,

8 Council of Democratic Reform under the Constitutional Monarchy, Facts on Administrative Reform in Thailand on 19 September 2006, 2006.

202


KPI YEARBOOKS 4

5. Continued controversies involving general election,

6. Political gap widening for more than a half year without the Government, National Assembly and Senate fully functioning,

7. Acts bordering on lese-majeste,

8. Tendency of the incitement of anarchical disturbance and serious conflict reaching its extreme.

This unprecedented nat ional cr i s i s l ed inexorably to the ‘Administrative Reform’ incidence. Some provisions of the 1997 Constitution, as was alleged, were misinterpreted or abused or overexploited beyond the proper bounds to the point of a certain finger-pointing that “The Constitution is dead.”9 Incidents cited in support of the assertion in connection with the Constitution Court overextending its power and contravening the constitutional provisions involve as many as 10 cases.10 Among the most notable cases is the court decision concerning the case of alleged assets and debts concealment by the Prime Minister, popularly known as the “Share Concealment Case,” in which Pol Col Thaksin Shinawatra, the Prime Minister, was acquitted and therefore not liable to offense under the constitutional article 295; he was not required to leave his prime ministerial post and not barred from politics. The case is highly controversial, arousing widespread suspicion and tarnishing the confidence in the judicial organization among the public. On 25 April 2006, His Majesty the King addressed a gathering of administrative judges : “If you cannot fulf i l l your pledge to work for the furtherance of democracy, you may have to resign and the problem remains unsolved. Still, it must be solved somehow. You may turn to the Constitution Court for advice, but the Constitution Court

9 Khanin Bunsuwan, The Constitution Is Dead (Bangkok: Kho Khid Duai Khon Publishing, B.E.2548).

10 Ibid, pp.107-132.



says it is not in its jurisdiction, claiming the matter originated with the drafting of the constitution, and once the constitution was completed, it is no longer of its concern.” On the same day, the King addressed the President of the Supreme Court and his entourage, “The justices of the Supreme Court hold important duties commensurate with their court. We have other courts, that is the Administrative Courts and the Constitution Court. But no other court holds more important duties than the Supreme Court, which has [final] jurisdiction to adjudicate. I therefore ask that you give it your utmost deliberation, perhaps in consultation with justices of any other courts, the Administrative Courts and the Constitution Court, concerning a possible course of action to take, and you must act in a hurry. Or else the country stands in peril of going down. This time is among the worst crises in the world.”11

In drafting the 2007 Constitution, the drafters retain the same compos i t ion o f the jud ic i a r y a s in the 1997 Const i tu t ion : Constitutional Court, Courts of Justice, and Administrative Courts. But, the justice recruitment process of the Constitutional Court, on account of its past flaws, has been modified, in which representatives from political parties and universities, who had been shown to be the weak points susceptible to political interference, were omitted and replaced by representatives of those five institutions tied closely to the sovereign power itself: President of the Supreme Court, President of the Supreme Administrative Court, one, chosen among themselves, from the presidents of constitutional organizations, President of the National Legis lat ive Assembly, and the Opposit ion Leader. Furthermore, the Constitutional Court consists of the following justice appointments: three must be selected by a general meeting of the Supreme Court justices, two by a general meeting of the Supreme Administrative Court, two legal experts with highest qualifications to

11 Vicha Mahakhun, Legal Reasoning (Bangkok: Nitibannakan Publishing, B.E.2549, fifth printing), pp.252-254.

204


KPI YEARBOOKS 4

be selected by a special selection panel, and two distinguished specialists in political science, public administration, or other social s c i ences who t ru ly a re exper t ly knowledgeab le in na t iona l administration to be selected by a special selection panel, making up a total of 9 justices.

To sidestep the objection that all the confirmation voting in the Senate is severely interfered with by politics, a modification of the procedure was put in place, in which a name-list of nominees is submitted to the Senate for a confirmation ballot. In the case of Senate confirmation, the President of the Senate shall submit the name(s) to the King for his signature in approval. In the case of the Senate rejecting the name-list in toto or in part, it must send the list back to the selection committee. If the selection committee still insists on its original decision with a unanimous vote, the list is resubmitted to the President of the Senate for forwarding to the King for appointment. But if the decision of the selection committee is divided, a new selection process is to start anew, to be completed within 30 days. (Article 206)

Since the majority of the courts tend to give too much importance to the letter of the law and interpret its meaning strictly by the letter so as to violate the spirit of the law, which is not so apparent in the letter, but as every law is created in that spirit always, it therefore may be said that “justice” is the spirit of the law. For this reason, the drafters of the 2007 Constitution stress the importance of the courts delivering just decisions in addition to carrying out the trial and adjudication of cases in accordance with the law and in the name of the King, as well as to so act correctly and justly. According to Article 197,

“The trial and adjudication of cases are the powers of the Courts, which must proceed with justice in accordance with the Constitution and the law and in the name of the King.



A judge is free and independent to adjudicate correctly, justly, and quickly in accordance with the Constitution and the law.”

In addition, whereas Article 3 of the 1997 Constitution states in one paragraph only:

“The sovereign power belongs to the Thai people. The King as Head of State shall exercise such power through the National Assembly, the Council of Ministers and the Courts in accordance with the provisions of this Constitution,”

the 2007 Constitution adds a new principle of supreme importance concerning “the rule of law” in Paragraph 2 of Article 3 thus:

“The performance of duties of the National Assembly, the Council of Ministers, the Courts, the constitutional organizations and state agencies shall proceed under the rule of law.”

The “Rule of Law” is no vogue word but is grounded in the belief that law is an essential device for building society, originally conceived in England and becoming a most influential legal theory in the world. Under the rule of law principle, a supreme government must be government by law. As A V Dicey, the renowned British legalist explains in his book The Law of Constitution, under the rule of law everyone is equal under the law: no man is above the law or enjoys any privileges whatsoever and everyone, regardless of rank, is subject to the ordinary laws of the land, whether they are government officials or common people. Human rights and liberty must be respected, and man shall commit offence only in breaches of law and therefore be punished for it, as authorized by law, or else the authorities cannot lawfully interfere with his actions. And his case shall be tried in a court of law, which is empowered and independent in adjudicating in accordance with the laws of the land.12

12 P.G. Osborn, A Concise Law Dictionary (London: Sweet & Maxwell, 1964), p.285.

206


KPI YEARBOOKS 4

The 2007 Constitution further has provisions for the rights and liberty of Thai citizens under Articles 26, 27 and 28, Paragraphs 2 and 3, namely:

Article 26 In exercising their authority, all State agencies must show regard for human dignity, rights and liberty under the provisions of this Constitution.

Article 27 The rights and liberties, recognized by this Constitution expressly, by implication or by decisions of the Constitutional Court, shall be protected and directly binding on the National Assembly, the Council of Ministers, the Courts, and other State organs in enacting, applying and interpreting laws.

Article 28 (Paragraph 2) A person whose rights and liberties recognised by this Constitution are violated can invoke the provisions of this Constitution to bring a lawsuit or to defend himself in the Courts.

(Paragraph 3) A person shall be able to directly exercise his or her judicial right to bring a lawsuit to cause the State to comply with the provisions of this paragraph. However, where there already exists a law detailing the exercise of such rights and liberties as enshrined in this Constitution, the exercise of the rights and liberties shall be in compliance with the provisions of the said law.

In conclusion, the 2007 Constitution lays down the principle of protection for the independent exercise of judicial power, without arbitrariness and in recognition of the rights and liberties of citizens to bring a lawsuit in a court of law completely under the rule of law.



Constitutional Court The 1997 Constitution, in being implemented, caused the following three problems:13

1. Structure of the Constitutional Court, for example the composition of the Constitutional Court, qualifications and forbidden qualities of the constitutional judges, the quorum at court sessions, and issuance of directives of the Constitutional Court;

2. Selection process for constitutional judges, accused of being dominated by the executive;

3. Relations and status of organizations, for example the manner of bringing cases to the Constitutional Court for decision, which has yet to be resolved.

For this reason, the 2007 Constitution determines the following principles as a basis for resolving the above problems, including removing other obstacles that can render the Constitutional Court impotent in its operation:

1.CompositionandTerms ofOffice-holdingofConstitutionalJudges

1.1 Composition (Article 204)

The Constitutional Court consists of the President and eight judges of the Constitutional Court to be appointed by the King upon

13 Banjerd Singkhaneti, “Political Reform: Case Study on Constitutional Organizations,” paper presented at the 6th National Legal Science, B.E.2549 on “Directions of the New Constitution,” 28-29 March 2007.

208


KPI YEARBOOKS 4

advice of the Senate from the following persons:

1.1.1 three judges of the Supreme Court of Justice holding a position of not lower than judge of the Supreme Court of Justice and elected at a general meeting of the Supreme Court of Justice by secret ballot;

1.1.2 two judges of the Supreme Administrative Court elected at a general meeting of the Supreme Administrative Court by secret ballot;

1.1.3 two qualified persons in law with thorough knowledge and expertise in this field, to be selected under Article 206;

1.1.4 two qualified persons in political science, public administration or other social sciences with thorough knowledge and expertise in public administration, to be selected under Article 206.

In the case where no judge of the Supreme Court of Justice or judge of the Supreme Administrative Court has been elected under 1.1.1 or 1.1.2, the Supreme Court of Justice or the Supreme Administrative Court, as the case may be, shall elect, at its general meeting, other qualified candidates who are without prohibited characteristics, and who have thorough knowledge and expertise in law fit for the performance of duties as judges of the Constitutional Court to be judges of the Constitutional Court under 1.1.1 or 1.1.2, as the case may be.

Those selected shall hold a meeting and select one among themselves to be the President of the Constitutional Court and notify the result to the President of the Senate accordingly.



The President of the Senate shall countersign the Royal Command appointing the President and judges of the Constitutional Court.

1.2 Terms of Office-holding (Articles 208, 209)

The President and judges of the Constitutional Court shall hold office for nine years as from the date of their appointment by the King and shall hold office for only one term.

In addition to the vacation of office upon the expiration of term, the President and judges of the Constitutional Court vacate office upon:

(1) death;

(2) being of seventy years of age;

(3) resignation;

(4) being disqualified or being under any of the prohibitions under Article 205;

(5) having done an act in violation of Article 207;

(6) the Senate passing a resolution under Article 274 for the removal from office;

(7) being sentenced by a judgment to imprisonment even if the judgment is not final or the sentence is suspended except for negligence, minor offences, or defamation.

210


KPI YEARBOOKS 4

2.CompetenceofandOpeningProceedings intheConstitutionalCourt

2.1 The Case of the Provisions of Any Law which are Contrary to or Inconsistent with this Constitution (Article 6)

2.1.1 In applying the provisions of any law to any case, if the Court by itself is of the opinion that, or a party to the case raises an objection that, the provisions of such law fall within Article 6 and there has not yet been a dec i s ion o f the Cons t i tu t iona l Cour t on such provisions, the Court shall submit its opinion in the course of official service, to the Constitutional Court for consideration and decision. Meanwhile, the Court can continue deliberation, but hold the judgment pending the decision from the Constitutional Court.

2.1.2 As for the control of enactment that contravenes the Constitution (Article 154), before the Prime Minister submits a Bill passed by the National Assembly to the King for his signature, or before re-submitting a Bill that the National Assembly has reaffirmed to the King for his signature, and if members of the House of Representatives, of the Senate, or the two Houses combined numbering not less than one-tenth of the existing members of the two Houses combined find anything contradicting the Constitution in the Bill, or if its passage is procedurally unconstitutional, they shall express their opinion to the President of the House of Representatives, the President of the Senate, or the President of the National Assembly, thereby causing the said President who have received the opinion to submit tha t op in ion to the Cons t i tu t iona l Cour t fo r



consideration. Or if the Prime Minister thinks the said Bill contains any statement that is in conflict with this Constitution or is procedurally unconstitutional, he shall submit such opinion to the Constitutional Court for consideration.

2.2 The Case of Suspension of a Bill under Article 147

The Cabinet or members of the House of Representatives are forbidden to submit another Bill with similar substance. Should a Bill be submitted that the House of Representatives or the Senate considers the said Bill to have the self-same or similar substance to the one suspended previously, the President of the House of Representatives or the President of the Senate shall submit it to the Constitutional Court for review (Article 149).

2.3 The Case of Violation of Personal Rights or Freedoms Provided by the Constitution

That person is entitled to petition to the Constitutional Court for decision whether the provisions of the law contradict the Constitution. (Article 212)

2.4 The Case of Arising of a Dispute as to the Powers and Duties of the National Assembly, the Cabinet, or Two or More Non-court Constitutional Organisations under the Constitution

The President of the National Assembly, the Prime Minister, or such organizations shall submit the matter together with an opinion to the Constitutional Court for decision. (Article 214)

2.5 The Case of Deciding Whether an Emergency Decree Is Consistent with Article 184, Paragraphs 1 or 2

212


KPI YEARBOOKS 4

Before the House of Representatives or the Senate approves such an Emergency Decree, members of the House of Representatives or senators of not less than one-fifth of the total number of the existing members of each House have the right to submit an opinion on the impending question to the President of the House of which they are members for the respective President(s) to refer the matter to the Constitutional Court for decision. (Article 185)

2.6 The Case of Whether a Peace Treaty, Armistice and Other Treat i ses wi th Other Countr ie s or Internat ional Organizations Must Be Approved by the National Assembly

The case arises out of the treaty providing for a change in the Thai territories, the extraterritorial areas in which the Kingdom has a sovereign right, or any jurisdictional area the Kingdom has acquired through treaty, or which has extensive impacts on the country’s economic and social stability, or which has significant bindings on trade, investment, or national budget. The question, if and when arising, as to whether it must be approved by the National Assembly shall be decided by the Constitutional Court. (Article 190, Last Paragraph) The matter shall be submitted following the same procedure as determined in Article 154, as shown in 2.1.2 of this article.

2.7 The Case of Not Less Than One-tenth of the Total Number of the Existing Number of Members of the House of Representatives or of the Senate Petitioning to the Their Respective President to Have the Membership of Any of Their Members or the Ministership of the Member Terminated (Articles 91, 92 and 182, Last Paragraph)

The President of the House concerned must forward the petition to the Constitutional Court for decision.



Courts of Justice The Courts of Justice has the powers to try and adjudicate all cases except those specified by this Constitution or the law to be within the jurisdiction of other courts. (Article 218)

1.CompositionandCompetence oftheCourtsofJustice(Article219)

1.1 There shall be three levels of Courts of Justice, namely: Courts of First Instance, Courts of Appeal, and the Supreme Court of Justice, except otherwise provided by this Constitution or other laws. (Article 219, Paragraph 1)

1.2 The Supreme Court of Justice shall have powers as provided by the Constitution or the law to consider and adjudicate cases brought before it directly, appeal cases, or review the decisions or orders of the Courts of First Instance or the Courts of Appeal except in cases in which the Supreme Court of Justice thinks that the legal point and facts presented for appeal are not sufficiently substantive. In such cases, the Supreme Court shall have the powers not to accept the case subject to the procedure of its general meeting. (Article 219, Paragraph 2)

1.3 The Supreme Court shall have the power to consider and adjudicate a case connected with elections and revocation of the right to stand in the election of members of the House of Representatives. And the Appellate Court shall have the power to consider and adjudicate cases connected with elections and revocation of the right to stand in local elections and election of local administrators. The court proceedings shall be in accordance with that laid down by the general meeting of the Supreme Court, using the inquisitorial procedure and acting quickly. (Article 219, Paragraph 3)

214


KPI YEARBOOKS 4

1.4 There shall be in the Supreme Court of Justice a Criminal Division for Persons Holding Political Positions, which quorum in court consists of nine Judges of the Supreme Court of Justice holding a position of not lower than Judge of the Supreme Court of Justice and elected at a general meeting of the Supreme Court of Justice by secret ballot and on a case-by-case basis. (Article 219, Paragraph 4)

2.JudicialCommission oftheCourtsofJustice(Articles220,221)

2.1 The appointment and removal from office of a Judge of a Court of Justice must be approved by the Judicial Commission of the Courts of Justice. (Article 220, Paragraph 1)

2.2 The promotion, salary increase, and punishment of judges of the Courts of Justice must be approved by the Judicial Commission of the Courts of Justice. For this purpose, the Judicial Commission of the Courts of Justice shall appoint a sub-committee in each level of Courts for preparing and presenting its opinion on such matter for consideration. (Article 220, Paragraph Two) In the act of approval, the Judicial Commission of the Courts of Justice under paragraph 1 and paragraph 2, has to significantly take into consideration the erudition, performance and ethics of the person. (Article 220, Paragraph 3)

2.3 The Judicial Commission of the Courts of Justice consists of the following persons:

2.3.1 President of the Supreme Court of Justice as Chairman;

2.3.2 Qualified members of all levels of Courts: six from the Supreme Court, four from the Appellate Courts, and



two from the Courts of First Instance, who are judges of each level of Courts and elected by judicial officials of all level of Courts;

2.3.3 Two qualified members who are not or were not judicial officials and who are elected by the Senate.

Administrative Courts

1.JurisdictionofAdministrativeCourts

1.1 Administrative Courts have the powers to try and adjudicate cases of dispute between a State agency, State enterprise, local government organization, Constitutional organization, or State official(s) on one part and private individual on the other, or between a State agency, State enterprise, local government organization, Constitutional organization, or among State officials themselves, which dispute is a consequence of the exercise of the administrative power under the law, or the performance of an administrative act by such State agency, State enterprise, local government organization, Constitutional organization, or State official, as provided by law, as well as to try and adjudicate matters prescribed by the Constitution or the law to be under the jurisdiction of the Administrative Courts, but excluding decisions made by Constitutional organization which exercises its competence directly as accorded to it under the Constitution.

1.2 There sha l l be the Supreme Adminis t rat ive Court and Administrative Courts of First Instance, and there may also be the Appellate Administrative Court.

216


KPI YEARBOOKS 4

2.JudicialCommissionoftheAdministrative Courts(Articles224,225,226)

2.1 The appointment and removal from office of an administrative judge must be approved by the Judicial Commission of the Administrative Courts before they are tendered to the King.

2.2 Qualified persons in the field of law and in the administration of State affairs may be appointed as judges of the Supreme Administrative Court. Such appointment shall be made in the number of not less than one-third of the total number of judges of the Supreme Administrative Court and must be approved by the Judicial Commission of the Administrative Courts and by the Senate before it is tendered to the King.

2.3 The promotion, increase of salaries, and punishment of administrative judges must be approved by the Judicial Commission of the Administrative Courts.

2.4 Number of administrative judges in each Administrative Court shal l be determined by the Judicial Commission of the Administrative Courts.

2.5 The appointment of the President of the Supreme Administrative Court shall, when already approved by the Judicial Commission of the Administrative Courts and the Senate, be tendered by the Prime Minister to the King for appointment.

2.6 The Judicial Commission of the Administrative Courts consists of the following persons:

2.6.1 President of the Supreme Administrative Court as Chairman;

2.6.2 Nine qualified members who are administrative judges and elected by administrative judges among themselves;



2.6.3 Three qualified members, two of whom are elected by the Senate and the other by the Council of Ministers (Cabinet).

Conclusion The powers of the judiciary in Thailand had always been played out cleanly, away from the meddling of politics. Alas, the designers of the 1997 Constitution have joined the powers of the judiciary with politics. From its previous status as a unitary court system, whose principal task was tied with dealings with the laws, there has arisen a binary court system to include the Courts of Justice, the Constitutional Court, and Administrative Courts, with the three Courts invested with political power. For instance, the general meeting of the Supreme Court has the power to select the Election Commission, and the Criminal Division for Holders of Political Positions was established in the Supreme Court while the Constitutional Court is empowered to adjudicate cases concerning assets concealment or false announcement o f a s s e t s ( the so - ca l l ed “sha re concea lment ca s e” ) and the Administrative Courts are empowered to try and adjudicate wrongful acts committed by the executive. For this reason, it is unavoidable for the three Courts to interfere with political powers. And then, the power fu l execut ive s tar ted to inter fere with const i tut iona l organizations to result in the agencies going astray and lacking in credibility in the end. The situation was worsened by the widespread graft and abuse of power supposedly committed by politicians, as was widely publicized, that no one or any organization could do to contain the damage or halt the cris is unti l strong street protests and movements were mobilized against the Government. The political problems went from bad to worse to result in another general election being held, which was branded undemocratic. On 25 April 2006, the K i n g a d d re s s e d a g a t h e r i n g o f t h e j u d g e s o f t h e Su p re m e Administrative Court: “The Court itself has the right to speak out

218


KPI YEARBOOKS 4

on election, particularly an election in which the vote count is less than 20 percent and there is only one candidate. This is important because it shows that that kind of election is incomplete... I ask that you study if there is connection, that is, how and in what way are you involved? If you are not, you had better resign.” On yet another occasion, the King addressed the President of the Supreme Court and the Supreme Court Bench: “The time now is [one of ] the world’s worst crises. You therefore have a duty to perform...” Eventually, the Courts of Justice, the Administrative Courts and the Constitutional Court have joined hands in resolving the political problems and breaking the deadlock, as allowed by their competence and duties. And yet, the supreme objectives could not be reached. In the end, a coup was staged by the military, like many such coups in the past, and a stage was set for the re-drafting of a new constitution, the 2007 Constitution, in which the old principle of instituting the Constitutional Court, the Courts of Justice, the Administrative Courts, and the Military Courts, constituting the judiciary and connected to independent Constitutional organizations in that the Courts are involved in the selection of key operators of those organizations, similar to the 1997 Constitution, but revised in such a way as to make it tough for politics to get a hand in, is maintained. There is therefore a strong suspicion if the judiciary is being dragged too far into politics. In my opinion, so long as the State continues to hold threats of violation of human rights and freedom, and the executive and the legislative are still without moral compunctions and liable to abuse of power, that involvement is a necessary evil and even a kind of legitimacy in that the judiciary must expand its powers to monitor the other two powers and thereby provide the necessary checks and balances. The ultimate goal is of course to have a guarantee for the protection of the citizens’ human rights and freedom and to create justice for society with equity. The expansion of the judiciary into politics is thus unavoidable.

Local Administration as a Foundation of Citizen Politics 219


Local Administration as a Foundation of Citizen Politics A Political Participation Classroom in

Thai Society

Assoc. Prof. Woothisarn Tanchai*

Measures and Mechani sms for Ci t i zen’s Pol i t i ca l Participation under the Constitution of the Kingdom of Thailand, B.E. 2540 (1997)

The 1997 Constitution of Thailand laid the groundwork for the citizen’s political participation, comprising the following 6 ground-breaking power-sharing frameworks:

* Deputy Secretary-General King Prajadhipok’s Institute

220


KPI YEARBOOKS 4

1.Referendum The provisions of Article 2141 of the 1997 Constitution and the Referendum Act, B.E. 2541 (1998) prescribe the extent, intention, criteria and main methods of organizing a referendum. But the referendum result, as dictated by the constitutional provisions, has only an advisory force on the Council of Ministers, even though the vote is being cast on issues which may affect interests of the nation or people in general. The advice, from the people to Government, is not binding on the Council of Ministers to follow through with the referendum decision, and certainly not legislative in any way. This key intention of the referendum as decreed obviously is oppositional to the meaning, principle and intention of referendum found in use around

1 “In the case where the Council of Ministers is of the opinion that any issue may affect national or public interests, the Prime Minister, with t h e a p p r o v a l o f t h e C o u n c i l o f M i n i s t e r s , m a y c o n s u l t t h e President of the House of Representatives and the President of the Senate for the purpose of publishing in the Government Gazette an official call for a referendum.

A referendum shall be for the purpose of public consultation as to whether the important issue under Paragraph 1, which is not the i s sue contrary to or inconsistent with this Const i tut ion, wi l l be approved or not. A referendum shall not be held on an issue relating specifically to any individual or group of persons.

The pub l i c a t i on unde r Pa r ag r aph 1 sha l l f i x t h e d a t e o f t h e referendum, which shall not be earlier than ninety days and shall not be l a t e r than one hundred and twenty days a s f rom the da te o f i t s p u b l i c a t i o n i n t h e G ov e r n m e n t G a z e t t e , a n d t h e d a t e o f t h e referendum shall be the same throughout the Kingdom…

The referendum under this section shall have the mere effect of advice given to the Council of Ministers on that issue.

The rules and procedure for voting in a referendum shal l be in accordance with the organic law on referendum.”



the world. The universal principle of referendum is taken to imply that the electorate as owner of sovereignty in national government shall participate in direct decision-making on certain political issues, displacing their representatives who otherwise are elected to make decisions on their behalf in national administration.2 In this sense, a referendum is an act of seeking the mandate directly from the nation-wide electorate to give a ratification of certain issues of enormous consequence on civil rights and liberties, prior to the implementation or otherwise of the proposed legislation3.

But , throughout the implementat ion per iod of the 1997 Constitution, no referendum, not even once, had ever been put to voting. This was because nowhere in the Constitution has there been a provision specifically pinpointing an issue that shall be put to a referendum vote, or giving the right to the people to petition for a referendum. No constitutional provision therefore existed to sanction an immediate call for a referendum. In short, the occurrence of the referendum vote under the Constitution depended entirely on the decision of the Council of Ministers whether or not it desired to seek advice from the people. Naturally for any sensitive issue that may have grave political consequences for the Government, there was only a remote possibility for the Government to seek a referendum decision from the people.

2.TheRighttoPetition Petitioning for legislative changes both at national (draft bill proposal before National Legislative Assembly) and local (local ordinance proposal before local legislative council) levels constitutes

2 Somkhid Loetphaithoon, Encyclopedia of Thai Politics, (Bangkok: King Prajadhipok’s Institute, B.E. 2549), p. 39.

3 Nanthawat Boramanan, Referendum System, a research paper on political reform proposal presented to the Committee for Democracy Development, September 1995, pp. 19-32.

222


KPI YEARBOOKS 4

the endowment of the people with the right to make legislative initiatives themselves. This principle of citizen’s direct participation is intentional ly supplemental to the legis lat ive role of e lected representatives in the National Legislative Assembly.

Under Article 170 of the 1997 Constitution and the Legislative Petitioning Act, B.E. 2542, eligible voters have the right to submit a signed legislative petition. The petition shall be accompanied with a draft bill and be concerned with issues defined in Chapters 3 and 5 of the Constitution. There are two ways in which eligible voters can present their petition: (1) Self initiated petitioning started by certain initiators organizing a petition signing campaign. Once a signed list of fifty thousand names is completed following a correct procedure, the organizers shall represent the signers in presenting the petition. After having the petition checked for completeness, the President of the National Legislative Assembly shall table the proposed bill for consideration before the Assembly; (2) Petitioning under the Election Commission. In this latter case, no less than one hundred eligible voters may petition the Election Commission to organize a legislative petition campaign. Once the petitioning procedure is followed correctly, an announcement is made, determining the duration of the petition signing, which shall last no less than 90 days. Once a list of fifty thousand names is completed, the President of the Election Commission presents the draft bill and the list of petition signers to the National Legislative Assembly. If the list falls short of the required fifty thousand names, the President of the Election Commission shall report the matter to the President of the National Legislative Assembly for subsequent disposal of the case.

Despite the good intention of Article 170 in favour of citizen participation in monitoring the State sector at all levels, in practice the Article 170-styled participation never materialized, for it was extremely difficult to follow through the entire procedure. For example, the 50,000 name requirement necessary for petition submission was



simply too big a figure to secure in practice. As for the second way of petitioning, through the Election Commission, and even though it is not necessary for someone to hunt for eligible voters, it was still very difficult to implement it to completion unless an extensive publicity campaign has been launched to drum up enough support.

3.LocalPetitioning Article 2874 of the 1997 Constitution empowers the people to engage in political participation through local petitioning for ordinance proposals, along with the Local Petition Act, B.E. 2542, which prescribes the steps, methods, and criteria for presenting a local ordinance petition. Nevertheless, the constitutional requirement that no less than half of the entire eligible voter population in that local organization electorate is extremely difficult to carry through to completion, especially in large localities like the metropolis of Bangkok. For Bangkok with its 4,159,040 population, there will be required at least no less than half the figure, amounting to 2,079,520 persons5 – an impossible number to round up for all practical purposes, not least for making a local ordinance proposal. Compared with the legislative proposal at national level, it is obviously much

4 “Persons, having the right to vote in any local government organiza-tion, of not less than one-half of the total number of the persons having the right to vote in that local government organization, shall have the right to lodge with the President of the local assembly a request for the issuance by the local assembly of local ordinances.

The request under Paragraph 1 shall be accompanied by the draft local ordinances.

The rules and procedure for the lodging of request and the examination thereof shall be as provided by law.”

5 Statistics showing the voter figure from the 2007 Constitution referendum on 19 August 2007 (by province), available at www.ect.go.th.

224


KPI YEARBOOKS 4

harder for local petitioning to succeed, what with the inordinate number of petition-signers required, considerably more than even a national legislative petition.

4.RemovalofHolders ofPoliticalOfficeat NationalLevel Article 3046 of the 1997 Constitution prescribes the removal of holders of political office at national level, and so does the Organic Act on Counter Corruption, B.E. 2542. Should any holder of political office at national level is found to become inordinately rich, implicating that person in corruption, malfeasance in office, malfeasance in judicial office, or exercising his authority contrary to constitutional provisions or law,7 that person is liable to be removed from office by eligible voters of no less than fifty thousand people petitioning the President of the Senate in order to have him removed by the Senate. The removal process must be initiated by no less than one hundred initiators, who prepare a complaint and certify the signatures of petitioners. The initiators must present themselves to the

6 “Members of the House of Representatives of not less than one-fourth o f t h e t o t a l n u m b e r o f t h e e x i s t i n g m e m b e r s o f t h e Ho u s e o r voter s o f not l e s s than f i f ty - thousand in number have the r ight to lodge with the President of the Senate a petition in order to request the Senate to pass a resolution under Article 307 removing the persons under Article 303 from office. The request shall clearly itemise circumstanc-es in which such persons have allegedly committed the act.

Senators of not less than one-fourth of the total number of the existing members of the Senate have the right to lodge with the President of the Senate a complaint requesting the Senate to pass a resolution under section 307 removing a senator from office.”

7 Article 58 of the Organic Act on Counter Corruption, B.E. 2542.



President of the Senate before beginning the signature-gathering process. When the signature-gathering process is completed, the petition must be filed with the President of the Senate within 180 days as of the date on which the initiators present themselves to the President of the Senate. After checking for completeness, the petition is forwarded to the National Counter Corruption Commission (NCCC) for investigation. Once the NCCC decides that the accusation from the removal petition has grounds, it shall be reported to the President of the Senate in order for him to call for a floor sitting of the Senate for considering and passing a resolution without delay.

But the petition process hits the number crunching snag. The required number of House representatives, senators or voters (no less than fifty thousand) necessary for launching the removal procedure with the President of the Senate and subsequent forwarding to the NCCC is simply too high. Besides, there is also the problem of the interpretation of the role and duty of the Senate President in the removal process.

5.RemovalofMembersof LocalGovernmentCouncils orLocalAdministrators Article 286 of the 1997 Constitution prescribes the procedure for removing local government councils or local administrators. 8 Under

8 “If persons, having the right to vote in an election in any local government organization, of not less than three-fourths of the number of the voters who have cast ballots consider that any member of the local assembly or any administrator of that local government organization is not suitable to remain in office, such member or administrator shall vacate the office, as provided by law.

The voting under Paragraph 1 shall be made by not less than one-half of the total number of the persons having the right to vote.”

226


KPI YEARBOOKS 4

the Act on Impeachment of Member of Local Council or Local Administrator, B.E. 2542 (1999), the removal petition must include factual details on the alleged malfeasance or misconduct making the accused liable to removal from office. The member of the local council or local administrator who is the object of removal must prepare a statement of facts in his defence and present it to the Governor of the province (in the case of Bangkok, to the Minister of Interior). The Election Commission thereupon holds a recall election. Should the number of electors fail to reach half of the entire electorate, the removal petition shall be made void, and no further recall can be held on the same ground. Should the number of voting electors exceed half of the entire electorate and account for no less than three-fourths of the electors who vote in the recall against the politician, that person shall be removed from office as of the date of recall election.9

Ever since the official announcement of the Act on Impeachment of Member of Local Council or Local Administrator, B.E. 2542 (1999), only a few recall elections have been held. The reason once again is due to too high a proportional requirement of voting electors, which made it difficult for a removal petition to succeed, especially in large local government districts such as Bangkok with its 4,159,040 electors. In order to remove an incumbent governor in Bangkok, at least 30,000 petitioners is required to sign a petition; on the recall day, there must be no less than 2,079,520 electors at the polling booths; the removal vote must number no less than 1,559,640 ballots cast (in case there are 2,079,520 voters at the poll). The current Bangkok Governor got elected on a mere 911,441 votes,10 a figure considerably smaller than the number of electors required to remove him. Furthermore, it is prescribed that electors in the local government organization must

9 Article 23, the Act on Impeachment of Member of Local Council or Local Administrator, B.E. 2542 (1999).

10 http://203.155.220.230/gov/f_elec.htm



form the core of petitioners for removing a local administrator or member of the local council. Therefore, if a member of a tambon administrative council who represents a village (at village election) is to be removed, the removal process aimed at that councilor must be foisted on electors from the entire tambon (township comprising villages). This scenario seems to uncover a cross-electoral conflict between the principle of derivation of power and the principle of removal from office since during any one election certain segments of the electorate have no part in the election.

6.PublicHearing The principle of public hearing gives opportunities to the people as owner of the power to listen to information or explanation of facts involved and to present their arguments before their electoral representatives can proceed to decide on an administrative action.

Although Article 59 of the 1997 Constitution prescribes the right to make one’s opinions known,11 to date there has yet to be organic legislation on public hearing introduced in compliance with the article. What we have is only the Prime Minister’s Office Regulations on Public Hearings, B.E. 2539; that ministerial mandate opens the way for people to make a reques t to ho ld a publ i c hear ing . Nevertheless, as of to date, whenever the Government would launch a project and allow a public hearing for it, the most likely scenario was

11 Article 59, the 1997 Constitution: “People shall have the right to receive information, explanation and reason from a State agency, State enterprise or local government organization before permission is given for the operation of any project or activity which may affect the quality of the environment, health and sanitary conditions, the quality of life or any other material interest concerning them or their community and shall have the right to express their opinions on such matters in accordance with the pubic hearing procedure, as provided by law.”

228


KPI YEARBOOKS 4

that that project had already been decided and given approval to go ahead prior to the public hearing.

Although, as said above, these measures and mechanisms are, in principle, of immense use to political administration in Thailand, in reality they have not been implemented to successful ends. Be that as it may, the provisions, measures and mechanisms as prescribed by the 1997 Constitution form a principal capital that the 2007 Constitution draws its inspiration from for shoring up citizen’s direct and indirect political participation.

CivilRightsandLibertiesasFoundationforOpeningUpCitizenPolitics The 2007 Constitution puts especial significance on 4 approaches to the establishment of civil rights: first, protection, promotion, and expansion of civil rights and liberties to the fullest extent possible; second, curtailment of State power, equipping the people with more power, and decentralization; third, making politics accountable (clean), upright, and ethical; fourth, creating autonomous, strong and funct ioning organizat ions as monitor instrument (over the Government’s exercise of power).

Before these measures and mechanisms provided under the Constitution and designed to free up room for the growth of citizen politics can be discussed with any profit, we should first endeavor to understand the essential changes for protecting, promoting and expanding civil rights and liberties, for these underlying changes provide the push needed for activating the dynamics of citizen politics.

The 1997 Constitution provides a starting capital for driving civil rights and liberties at both personal and community levels, and yet several other rights or liberties have not been covered at all and, worse,



the mechanisms, avenues and process needed to facilitate the exercise of the prescribed rights got bogged down. The 2007 Constitution considerably adds and expands these rights and liberties, clarifies the extent and manner of implementation, and categorizes them into clear-cut divisions. For instance, Article 82 (in the chapter on fundamental State policies) prescribes that international commitments Thailand pledges itself as a party thereunto shall be binding on the Government in the same way as those rights and liberties provided under the Constitution itself. Article 35 prescribes protection of persons from illegitimate exploitation as a result of information abuse. Article 40 adds rights in the judicial process, guaranteeing due process of law that is easy, expedient, quick, and thorough, and extends similar protection to children, youth, women, senior citizens, the handicapped and disabled, who must be accorded legal and judicial treatment as befitting their circumstances. Article 44, referring to labour rights, prescribes the guarantee of employment safety and welfare, including livelihood guarantee both during and after employment. Article 45 prescribes freedom of speech, guaranteeing the rights and liberties of persons and the press (mass media), for example protection against shutting down of the media business interest, and interference in the press’ freedom to present news and express opinions.

Under Article 49, free education is provided for no less than 12 years of schooling, with an added clause guaranteeing the same and equal right for the poor and destitute, the handicapped and disabled. In Paragraphs 1 and 2 of Article 52, children, youth and family members are protected against violence and unfair treatment, and, when subject to such incidents, shall receive rehabilitation from the State. Article 55 prescribes State assistance for the homeless and those without sufficient means.

In addition to the civi l r ights and l iberties of persons and organizations, Article 66 of the 2007 Constitution gives similar protection to communities and expands the rights definition of

230


KPI YEARBOOKS 4

community that covers communities in general and local communities in particular to include those communities developed at a relatively recent date. In Paragraph 2 of Article 67, with any project that is likely to have violent impacts on the environment, natural resources and public health, there must first be a public hearing to hear the opinions of the people and interested parties before it can be subject to approval. In Paragraph 3, communities have the right to sue government agencies, State agencies, State enterprises, local government, or other State organizations which are a juristic person, to force compliance with legal provisions that recognize community rights.

To facilitate the exercise of civil rights and liberties and to help citizens read the 2007 Constitution with better understanding, the rights and liberties have been categorized in clear sections to include, for example, personal rights and liberties, rights in judicial process, rights to information and petition, community rights, and right to protect the Constitution. In Paragraph 4 of Article 28, the State is prescribed to help the people exercise their civil rights and liberties under the Constitution. In Paragraph 3 of the same article, the people are able to exercise their constitutional rights and liberties without delay and by recourse to petitioning the Courts.

To make the protection of civil rights and liberties efficient and immediate, the 2007 Constitution lays down clear provisions aimed at achieving practical results. The phrasing “as provided by law,” once found sprinkled liberally in the 1997 Constitution, was for the most part struck out of the 2007 Constitution, especially in those provisions that guarantee civil rights and liberties. The aim is to make clear the intention that these rights and liberties, under the 2007 Constitution, take effect right away, even without organic legislation yet to back them up. Furthermore, in order to make organic laws do the job they are supposed to, Article 303 prescribes the time frames within which various organic laws are scheduled to be enacted, a measure designed



to forestall any attempt to delay organic legislation that can be interpreted as knowingly or unknowingly infringing on basic civil rights and liberties. In Paragraph 3 of Article 67, in the case of communities whose human rights are infringed, they can bring their grievances to the Courts. Alternatively, in Paragraph 2 of Article 244, should any State official be found to commit illegitimate acts that a f f ec t the pub l i c in genera l , the Ombudsmen can make an investigation into the matters without having to wait for a complaint being filed first.

Those are only some sample provisions for civil rights and liberties, out of a great many more. They should be sufficient to show the importance the Constitution gives to laying the solid groundwork of basic human rights and liberties for opening up citizen politics in the course of the constitutional implementation.

LocalGovernment–CitizenPoliticsunderthe2007Constitution Local government is a governing institution for which central government decentralizes itself, and by law it has administrative jurisdiction over a demarcated area (or unit) with its own population. Most important, a local government unit must have proper autonomy, meaning that the purpose of decentralization is to enable local people to participate in self-governing, in conformity with the ideals of a democracy. This participation may take the form of jointly identifying public problems, making decisions, monitoring public operations, and receiving public and social services. Nevertheless, despite its semi-autonomous status, local government still comes under a certain measure of supervision by central government.

232


KPI YEARBOOKS 4

Local government forms a foundation for democratic government on account of its immense potential for providing political training and education for the people. Wherever there is strong sel f-government by local people, there will be awareness and familiarization of the importance of one’s civic and political role, developing into unqualified faith and allegiance to a democratic system. The key turning point in the history of local government of this country is the inclusion of provisions outlining the principles and substance of local government in the 1997 Constitution, thereby giving unmistakable prominence to the idea of local government, as mandated under Article 78 in Chapter 5 on the Directive Principles of Fundamental State Policies:

“The State shall decentralize power to local government units to give full autonomy and self-determination of local affairs, to develop local economy, systems of public utilities and facilities and information infrastructure in the localities thoroughly and equally throughout the country, and to develop provinces into large-size local government units, paying respect to the will of the people in the provinces.”

The State was therefore to give importance to decentralization for local government organizations, giving them decision-making autonomy with respect to all local affairs whether it be economic matters or public utilities and facilities. Under this article those provinces which are ready may have their statuses transformed into large-size local government organizations, provided they respect the will and demands of local population. Included for the first time, in the 1997 Constitution, was a chapter devoted entirely to the topic of local government – Chapter 9 (Articles 282-290). The following is a brief discussion of the provisions and substance of the chapter.

The 1997 Constitution attached so great importance to local government that the subject was provided for in a separate chapter,



comprising 10 articles which illustrate 8 substantive approaches:

Approach One: Principle of autonomy, regarded as the cornerstone of local government and which must expressly permeate such areas as policy, personnel administration, power and duty, treasury and finance.

Approach Two: Structure of local government organization, c o n s i s t i n g o f l o c a l c o u n c i l a n d e xe c u t i v e b o a rd ( o r l o c a l administrators). Members of the local council shall be elected while the executive board or local administrators shall either be elected directly by locals or be appointed with approval of the local council. Both branches have their term of office lasting 4 years.

Approach Three : Powe r and du ty o f l o c a l gove rnmen t organization, to be focused in a decentralizing agenda that spells out authority and duty in local management, including the promotion and conservation of the environment.

Approach Four: Provisions on the revenues of local government organizations.

Approach Five: Personnel administration by local government organizations, to be given full power in personnel administration, and the establishment of a local personnel administration standard committee.

Approach Six: Supervision of local government organizations, to be done by the State and to the extent as is necessary.

Approach Seven: Citizen participation in local government, to include the right of local eligible voters to petition for making local ordinance proposals and removal of local administrators or local councilors.

Approach Eight : Decent ra l i za t ion to loca l government organizations. This decentralization determines the (positive) direction of the working and development of local government organizations.

234


KPI YEARBOOKS 4

These momentous changes reinventing the dynamics of local government introduced in the 1997 Constitution represents the turning point of and principal capital for driving the development of local government in Thailand. The 1997 Constitution obviously hopes to launch the local government vehicle into orbit by fueling it with decentralization mechanisms and reengineering real transformative changes in the old structural grid of local government on several fronts. The twin format of local council (aka legislative assembly) and administrators elevated the former sanitation district to tambon municipality government. Those provinces well prepared for this transformation will be allowed to become full-on province-wide local government organizations. Local people can submit their own petition for making local ordinance proposals: this act represents the right and participation of community citizens to jointly issue common rules for public af fa irs . They are a lso empowered to remove, through petitioning, local administrators and members of the local council found entangled in unbecoming conduct. These together with the many structural changes in local government and decentralization make up a vast pool of constantly expanding capital gains that will boost the development of local government in Thailand.

Provisions on local government and decentralization to local government organizations under the 2007 Constitution appear in two chapters: Part 3 on State Administration Policy (Article 78) and Part 4 on Religion, Social, Public Health, Education and Culture Policies (Article 80) in Chapter 5 on the Directive Principles of Fundamental State Policies, and Chapter 14 on Local Organization.

In essence the constitutional provisions on local government deal with five strategic moves:

First: The powers and duties of local government organizations are greatly expanded for clarity and extensiveness. This is particularly set down under Article 78. The State shall realign the working operations and relationship obtaining between central administration, provincial



administration, and local administration, making clear their respective powers and duties. It shall support the role of local government organizations in providing public services to the people in their localities. The overall work system in all branches of the public sector shall be improved by placing emphasis on quality, merit and ethics of State officials, along with the development of work efficiency and good governance. Also, the State shall see to it that public services be provided to the people with speed, efficiency, honesty, accountability, and citizen participation. In order for these fundamental State policies to reach the objectives, a detailed list of directives is provided as the guidelines for State agencies and local government organizations follow, for example operating directions on religion, society, public health, education and culture (Article 80).

In Chapter 14 on Local Government, it is prescribed that with the State support local government organization shall be made the principal agency for providing public services and facilitating participation in decision-making for resolving local problems (Article 281). These provisions ensure that the State shall promote and support local government organization as the principal agency in handling all local affairs through the mechanism of decentralization. Under Article 283, it is specifically prescribed, with an eye for concrete results, that local government organization has the power and duty to supervise and provide public services, and has autonomy to determine its own policies, administration, provision of public services, personnel administration, treasury and finance, and has its own authority for local rule in general. Local government organizations shall be given promotion and support to gain full autonomy and fiscal discipline for providing local public services in all areas, and for singly or jointly establishing an organization for providing public services within its assigned power and duty. Under this same article, a decentralization law shall be enacted to define the power and revenue allocation between central administration, provincial administration, and local administration, as well as among local government organizations

236


KPI YEARBOOKS 4

themselves, with particular consideration of gradual increase of decentralized power as determined by the growing capability of these local government organizations, whatever type they belong to. Most important, to help them achieve financial stability and sustainability, a local revenue law shall be enacted that formulates a steady and sufficient increase of revenue of local government organizations with which to enable them to provide public services. The last point in this article deals with determining the power and revenue allocation of the local government organizations already vested with such power and revenue. A committee shall be appointed to review every five years their performance records, with particular emphasis on the possibility of increasing decentralization.

Local government organizations also have the role and duty to perform, with regard to the preservation of arts, customs, local wisdom and other aspects of the good cultural heritage of each locality (Article 289). Each organization has the right to provide education and occupational training as appropriate and in response to local needs, and to participate in the State’s provision of education and training, with particular consideration of conformity with the national educational standard and system.

The promotion and conservation of environmental quality also comes within the scope of power and duty of local government organizations (Article 290). It incorporates the management, maintenance, and utilization of natural resources and the environment of that locality. A local government organization may also participate in the maintenance of natural resources and the environment in areas outside its jurisdiction in so far as the livelihood of people in that locality may be affected. This also extends to the locality’s right to join in considering the initiation of projects or activities outside its locality in so far as its environment or the health conditions of its people may be affected. As well, these extraterritorial rights represent community participation.



To launch the engine of local government in motion, particularly for decentralization, two laws on local administration shall be enacted: (1) local decentralization law, determining plans and stages of decentralization which covers three basic areas – demarcation of powers and duties between central administration, provincial administration, and local administration; revenue allocation between central administration, provincial administration, and local administration; and monitor and assessment of decentralizing effects on that locality (Paragraph 3, Article 283); (2) local revenue law, a brand-new piece of legislation in the field of local government in Thailand, to determine the power and duty to levy taxation and other revenues due that local government organization, and to help that local government organization earn enough revenue to meet its expenditure (Paragraph 4, Article 283). Every five years these laws shall be reviewed to determine the effects of the power and duty assigned and the revenue allocation performed, with particular consideration of the possibility of increasing decentralization (Article 303(5)).

It is therefore apparent that the 2007 Constitution attaches importance to the strict monitor activity and enforcement of constitutional provisions to ensure that legislation concerned with local government actually materializes. Under Article 303(5), the following laws are prescribed for enactment: law determining plans and stages of decentra l i sat ion, law on local revenue, law on establishment of local government organizations, law on local officials and other laws within two years as from the promulgation of the 2007 Constitution. The prescription under the Transitory Provisions is given as a guarantee and to spur the Government agencies concerned to revise, amend, prepare and develop respective laws for the purpose of moving forward decentralization faster than in the past.

Second: The 2007 Constitution tries to resolve the problem about the imbalance between the supervision and autonomy of local government organizations. For the moment, it gives a clear mandate

238


KPI YEARBOOKS 4

that supervision shall be done only as necessary, employing such clear criteria, means and conditions as are consistent with and suitable for that particular form of local government organizations (Paragraph 1, Article 282). It is therefore advisable that a certain benchmark of standard practices is created for discretionary use by local government organizations while the format, method and intensity of supervision will have to vary, depending on what type of local government organizations it is and the active strength and political maturity of its citizens.

Additional clout is further given to the supervising organization(s) when the people themselves are empowered to have a role in supervis ion as wel l . Under Artic le 282, a new mechanism of supervision by the “people” is to be established, for which the State shall give its total support. In a word, local government organizations shal l henceforth operate under the monitor, assessment and supervision of three main organizations – central administration, provincial administration, and (local) people (Paragraph 2, Article 282).

Third: The operation and management system inside local government organizations shall be developed so as to enhance their autonomy and versatility in response to increasing responsibility and external changes. The principle of autonomy shall apply to all aspects of their operation: policy, management, provision of public services, administration of personnel, treasury and finance (Paragraph 1, Article 283). Personnel administration, however, shall be structured following the same standard. Staff of local government organizations may share their development experience and training, and an exchange of staff across various local organizations is quite feasible (Paragraph 1, Article 288). A so-called Local Merit and Ethics Watchdog Agency shall be established to watch over and promote the ethical conduct of local officials (Paragraph 2, Article 288).



Treasury and public finance is another department that merits serious development and upgrading, being the key indicator of success or failure in local government. Local government organizations shall be given every opportunity possible to develop their treasury management capability toward attaining full professional efficiency, thereby honing their power and duty to the sharpest level. Apart from treasury capability, local government organizations are given an opportunity to set up or jointly set up a “co-operative” type of organization for preparing and managing public services for the locality (Article 283).

The 2007 Constitution gives double-track development choices to local government organizations with respect to intra-organizational growth. For local government organizations of the general kind, the twin pillars consisting of a local council and a local administrative board, all elected, may be in use. For those of the special kind, some ‘sp e c i a l ’ gove rnment s t r uc tu re , t hough s t i l l w i th e l e c t ed administration, may be adopted, differing from that of the general kind (Article 284). This latter leeway allows the local people and their locality flexibility and a chance to develop quickly and expediently, fitting the status of “special local government organization” with its own special objectives of establishment.

Fourth: People, community and civil society sectors are given room for participation in local management jointly with local government organization. Specifically, local people who are eligible voters may petition for the recall election of local councilors or administrative board members (Article 285). It is likewise for ordinance proposals. The same manner of petitioning may be submitted for making ordinance proposals. The criteria for submitting such a petition are the same as for the removal petition – as provided by law (Article 286).

The Constitution opens doors for citizen participation in the running of local government organization, in which local government organization must find ways to encourage or allow local people to participate in local government. Under Paragraph 1, Article 298, it is

240


KPI YEARBOOKS 4

prescribed that people in a locality have the right to participate in the administration of local government organization and the local government organization shall facilitate citizen participation thereto. The provision is tantamount to forcing local government organization to open the door for citizen participation, that is, in identifying the problems, searching for choices, assessing those choices, generally running the affairs of the local government organization, monitor and assessment, and reaping the benefits. More important, provisions like this will spur on local government organizations to initiate all manner of mechanisms and avenues of citizen participation.

Under Paragraph 2, Article 287, the nature of relations between local government organization and local people is determined, particularly in the case of the local government organization carrying out any act that may have detrimental impact on local people’s livelihood and living conditions. The provision serves as the reminder to local government organizations that before taking any action they must undertake some sort of environmental impact studies to gauge possible positive and negative consequences of such an action. The people must also be allowed to examine and analyze the impact studies jointly with the local government organization itself. And if it is found that that proposed action will probably have negative impact or inflict injury on the people, they must be notified accordingly beforehand. The phrase “within a reasonable period” is designed to prevent local government organization from making a false claim that the notification is already done (but actually given only at short notice), meaning that the notification must be done within a reasonable period of time, as the case may be. In the same paragraph, it is further prescribed that in some cases and as appropriate, or upon the request of the people, the local government organization must organize a public consultation session or a referendum for a deciding vote prior to the actual launching of the project. Nevertheless, these conditions cannot be fulfilled unless there has been legislation introduced on the matter first.



Under Paragraph 3, Article 287, the local government organization shall make an annual report of its performance to the people every year, detailing its proposed budget, expenditure, and general performance. Although this added responsibility represents an extra load for local government organizations, they can use it as a tool to show their accountability for organizational performance as well as to publicize, to good effect, their performance in general, and the performance of the administrative board, administrators and councilors in particular. The report will further cement a good understanding between local government organization and its people. On the other hand, the local government organization will find it easier and more efficient to work and the people need not bombard it with requests or questions frequently since local government organizations are henceforth required to report to the people continually and regularly.

Fifth: Local politics is made accountable and marked by merit and ethics. In Paragraph 10, Article 284, it is stated, “The provisions of Articles 265, 266, 267 and 268 shall apply mutatis mutandis to members of local council and local administrative committee or local administrators.” Going through these articles, one finds that the provisions deal with conflict of interest.

Under Article 265, local administrators or local government employees are prohibited to receive or interfere or intervene in any concession from, or to be party to a contract with the State, a government agency, a State agency or enterprise, whether directly or indirectly, or to receive any special payment or benefit from a government agency, a State agency or enterprise over and above that given by a government agency, State agency or enterprise in the normal course of business or work operation. Nor are they allowed to become a partner or shareholder in a partnership or company that operates in mass media business, nor to be party to a contract with such partnership or company. These provisions are aimed to create

242


KPI YEARBOOKS 4

accountability and rid local government of any possible involvement with corruption because they essentially block any possible avenue of business favourit i sm, both direct or indirect , between local administrators or local administrative board or local government employees and contractors, which is clearly a case of conflict of interest. These provisions should free local administrators, or local administrative board, or government employees to do their jobs to their full potential. For instance, when haggling and inspecting the fulfillment of contract, they should feel totally unencumbered and clear-headed, safeguarding the best interest of their constituency.

The re-application of Article 266 to local administrative board, local administrators, local government officials is to render local politics pure and ethical to the fullest extent possible. These local politicians are thus prohibited to use their position or influence to interfere or intervene for personal gains or for the gains of other persons or political party both directly and indirectly. Specifically, they shall not interfere or intervene in the performance of official duty or normal official work of government officials, officials or employees of a government agency; or shall not interfere or intervene in the recruitment, appointment, reshuffle, transfer, promotion, raising the salary, or removal of a government official, an official or employee of a government agency. The provisions in the article are aimed to promote good governance and ethics at work, and, more important, to prevent a l l forms of inter ference in the system of considerat ion and administration of persons, outfits, or agency concerned directly. It is to guarantee that all persons involved whether they be government officials, State officials, employees of government agencies, or local officials shall be safeguarded and protected under the “merit system.”

Apart from the changes in the substance of local government outlined above, attempts have also been made to reinvent the prevailing conditions in local administration and development in favour of the development of local government. Chapter 13, dealing



with the ethics of holders of political office and State officials, is newly created, prescribing the making of the codes of conduct for holders of political office, government officials, and State officials of all types to be used as the governing standard of ethics for these groups of officials. The provisions under this article are extended to cover local politicians and local regular officials as well, with the mandated understanding that local administrators, local administrative boards, and local government officials must abide by the codes of conduct, or else they run the risk of being removed from office. All in all, provisions such as these shall have positive effect on the performance and administrative affairs of local politicians and officials and that they will operate within the bounds of the codes of conduct, and provide distinguished public services, marked by quality and efficiency, to the community and its people.

LocalGovernmentasaDemocracySchoolroom Of the many dimensions of democracy, local government is a necessary one as well as the most solid foundation of democratization because local government is the subnational localization of democracy. In principle, local government is perceived as an institution of democracy. Since, under this dimension, democracy is looked on as a form of dispensing government authority, democratization consists in strengthening free political institutions, for example, the legislative council (or assembly), political parties, monitor organizations, military organizations, election process, and constitution, with differing organizations performing differing functions and roles. In the case of local government, it consists essentially of laying down a system of administration along the institutional line, with the tiers of local organizations serving as mechanisms of local government and local development. In each tier, its internal structure consists of two

244


KPI YEARBOOKS 4

branches: the council and the executive, with the roles, powers and duties of each branch being clearly defined. The executive has the authority to run governing and administrative operations of the local government organization while the local council follows up on, monitors, advises and screens the governing operations of the executive branch.

The second dimension of democratization is that of process. Process involves the desire to see the existence of continuous change and development as the progressive element of democratization, to be aided or strengthened by means of certain mechanisms. In the context of local government, a number of activities are introduced for engagement to familiarize local people with and help them to understand the meaning of “democracy,” whether they be the election of local administrators and local council, the petition of local ordinances to be submitted to the local council and initiated by local people themselves as a form of direct political participation, and the organizing of pubic hearing sessions at village and tambon levels to consider the making of local development plans. These processes engage local people, whose interest will be directly affected by the governing authority’s actions and who are the owners of resources, directly in political participation in the management of their locality, in the expression of opinions, in the exchange of opinions, and in the determination of local development directions. As for the local councilors and local administrators themselves operating under the council and executive system, they will have an excellent chance to learn the ways of democracy by engaging in, for the executive, the proposing of projects and budget plan to the local council for acknowledgment and approval before any executive action can be taken. This dua l interp lay provides idea l t ra in ing for loca l administrators and local councilors on the use of reasons in analyzing and deciding activities designed to promote the welfare of the local community.



All these diverse activities in the context of local government form a vital part of the ongoing process of democratization, the promotion of a democratic way of life, and the political culture of democracy.

Another lesson of import is the “valuing of democracy.” This dimension looks on democracy as a set of values to cherish and uphold: equality, non-discrimination, everyone being equally endowed with rights, dignity and freedom, and respect for differences. Local government provides an excellent public ground for growing democratic values. The structuring of organizational authority into two branches - the executive and the local council - for instance, demands the actualization of certain values to succeed. The local council has the duty to follow up on, monitor, screen the governing by, and advise the executive, or local government organization in the course of its governing activity. Under the system of relationship between the executive and the local council, such values as the use of reason has to prevail since all projects or activities proposed by the executive must be approved by the local council first, meaning that the local council must consider those projects, activities and proposed use of budget reasonably, and may refer the issue to a joint session of consultation between the executive and the local council. No doubt, for these sessions to succeed and the result acceptable to all, it calls for the fair, restrained use of reason in analyzing and considering the issue concerned under democratic principles.

There i s fur ther a speci f ic re lat ionship between the local government organization on the one hand and the local people, community, and community organizations on the other hand. Both sides are expected to work together in local development through such mechanisms and avenues as a public hearing. The local government organization must sound out the opinions of local people first before making a local development plan, or must organize a public hearing for projects and activities deemed likely to affect the people and the livelihood of the community.

246


KPI YEARBOOKS 4

At the risk of stating a tautology, the valuing of democracy occurs only through the forging of democratic values. The positioning of democratization can only occur if and when “democracy” is made a “way of life,” that is, embedded in the use of reason and respect for opposing reasons, acceptance of differences, respect for the right and dignity of others in the course of living one’s own life.

Local government then is a trope of “democracy classroom.” Having made this learning an ingrained part of living, people will come to know and understand the meaning of democracy and democratic way of life. Local government is a classroom in which people develop their democracy by learning to live together under the panoply of differing opinions and viewpoints, acceptance of and respect for dignity of others as well as oneself, the use of reason in analyzing and synthesizing issues of urgent and long-term concern. The classroom of local government provides a setting where people readjust themselves as they go along and learn by a process of trial and error until a lesson is learned and there is real learning at last.

The 2007 Constitution equips local government organizations with the necessary means be they “monetary clout,” “manpower clout,” o r “ inte l l ec tua l c lout .” More impor t an t , i t g i ve s g re a t e r empowerment in terms of decision-making on all important local government affairs. This represents a turning point to jumpstart the process of local development nationwide, stressing the process of working together between local government organization and people. In the context expounded above, local government shall be a classroom for learning and embracing democracy for all Thais, and form a dedicated ground for the flowering of democracy that shall not perish from this soil.

AUTHOR PROFILES 247


AUTHOR PROFILES

Assoc. Prof. Noranit Setabutr

A widely-acknowledged political scientist, Noranit Setabutr has watched and studied Thai politics over a long stretch of time. He was a former dean of the Faculty of Political Science, Thammasart University and subsequently its rector. He was also a former secretary-general of the King Prajadhipok’s Institute. As president of the Constitution Drafting Assembly, he played a major role in drafting the 2007 Constitution. He is currently president of the Political Development Council.

248


KPI YEARBOOKS 4

AUTHORS’ PROFILES

Somkit Lertpaithoon is one of the foremost public law experts, hailing from the Faculty of Law, Thammasart Univiversity. He played a role in the 2007 Constitution drafting process as the secretary of the Constitution Drafting Committee, and member of the 2007 Constitution Drafting Assembly. He is currently dean of the Faculty of Law, Thammasart University.

Prof. Dr. SomkiT Lertpaithoon

AUTHOR PROFILES 249


AUTHORS’ PROFILES

Asst. Prof. Dr. Pakorn Priyakorn

Pakorn Priyakorn, a political scientist from the National Institute for Development Administration, was spokesman for the Constitution Drafting Committee, and member of the 2007 Constitution Drafting Assembly. A shrewd thinker and speaker, Priyakon is currently dean of the School of Public Administration, the National Institute for Development Administration.

250


KPI YEARBOOKS 4

AUTHORS’ PROFILES

Choochai Supawongse

Choochai Supawongse is a physician with a difference. He has keen interest in such issues as civil society, human rights, liberty and dignity. A former secretary-general of the National Human Rights Commission, he played a role as the fourth vice president of the Constitution Drafting Committee, and member of the 2007 Constitution Drafting Assembly. He had a major hand in writing the chapter on human rights and liberty of the Thai people. He is currently advisor to the Office of the National Human Rights Commission.

AUTHOR PROFILES 251


AUTHORS’ PROFILES

Paiboon Varahapaitoon

Phaiboon Varahapaitoon is an experienced jurist working with the Parliament. He was formerly director of the Bureau of Committee, the Secretariat of the Senate prior to his transfer to the Office of the Constitutional Court. He was spokesman for the Constitution Drafting Committee, and member of the 2007 Constitution Drafting Assembly. He is currently secretary-general of the Office of the Constitutional Court.

252


KPI YEARBOOKS 4

AUTHORS’ PROFILES

Prof. Vicha Mahakun

Vicha Mahakun is a former Supreme Court justice. He was one of the players in the 1995 Judicial Crisis affairs. His last position in the Judiciary was chief justice of the Juvenile and Family Division of the Supreme Court. He played a role in drafting the 2007 Constitution as the third vice president of the Constitution Drafting Committee, and member of the 2007 Constitution Drafting Assembly. He is currently a commissioner of the National Counter Corruption Commission.

AUTHOR PROFILES 253


AUTHORS’ PROFILES

Assoc. Prof. Woothisarn Tanchai

Woothisarn Tanchai, a Thammasart University scholar, holds especial interest in decentralization and played a role in the Constitution Drafting Committee, and member of the 2007 Constitution Drafting Assembly. He is currently deputy secretary-general of the King Prajadhipok’s Institute.

EXPLORING THE 2007 CONSTITUTION

Documents

Transcript of EXPLORING THE 2007 CONSTITUTION