Unlike the 2007 charter, which guaranteed that existing terms for officeholders would be respected, the current draft constitution does not clearly address the issue.
All eyes are now on the Constitution Drafting Commission, which has been tasked with writing organic laws covering the matter.
Meechai Ruchupan, the CDC chairman, has not given a clear answer, saying that his commission had not yet discussed terms of office. He added, however, that members of independent agencies would have to meet the standards under the new constitution.
Those who failed to do so would need to vacate their positions.
His remarks have triggered criticism that the CDC is writing a law whose impact will be retroactive and negative. Critics argue that the Constitutional Court judges, the auditor general and others assumed their office under the rules of the 2007 constitution, and the CDC should respect those terms of office for the sake of continuity. Among the critical voices are members of independent agencies.
The CDC chairman said the drafters might consider making an exception for current officeholders but added that constitutional rules would be absolute.
Article 273 of a new constitution, set to be ratified later this year, states that the Constitutional Court judges, members of Constitutional Organisations, and the auditor-general holding office before the promulgation of the new constitution “shall continue to perform duties and, when the concerned Organic Acts come into force, the continual holding of such positions shall be as provided by such Organic Acts”.
In other words, the CDC has the power to specify in the organic laws how long current officeholders can continue serving.
Article 273 also states that, “During the period where the Organic Acts have not been enacted, the vacation from office of the Constitutional Court judges, the Constitutional Organisation members and the auditor-general shall be in accordance with the provisions of the 2007 constitution and the concerned Organic Acts or laws.”
In other words, members of independent agencies will be able to remain in their current positions for about a year after the new constitution is promulgated or the organic law comes into effect. If any legal problem arises over their duties or qualifications during that period, the rules of the 2007 constitution will apply.
The new constitution sets a seven-year term of office for all independent agencies, while the previous charter set different tenures.
The drafters now face a headache in deciding exactly how long current officeholders in each different independent agency can remain in office.
Meechai says that a nine-member selection committee will be tasked with checking qualifications of would-be officeholders and solving any related disputes. The panel, whose verdict would be final, would consist of the Supreme Court president, House of Representatives speaker, parliamentary opposition leader, Supreme Administrative Court president, and representatives from each of the five independent agencies – the Election Commission, the National Anti-Corruption Commission, Office of the Auditor-General, the Ombudsman and the National Human Rights Commission.
Critics say a loophole will now open for officeholders to leverage their ties with ruling figures to gain exemption from the new rules. We can only hope that such self-serving corruption can somehow be minimised and that this charter ushers in a new era of “clean” democracy.