Before the assembly held its routine meeting, Alongkorn reported the results of the whip committee that represented the Cabinet, the National Legislative Assembly (NLA) and the NRSA, chaired by PM’s Office Minister Suwaphan Tanyuvardhana.

The meeting discussed four topics. Alongkorn said the government wants the NRSA and the six reform panels to work together as a team.

It also wanted the five core agencies including the Cabinet, the National Council for Peace and Order, the NLA, the NRSA and the Constitution Drafting Commissions to take public opinion into account when carrying out any task.

The meeting wanted joint discussion about establishing panels in the future with strategies involving government work, Alongkorn said.

Finally, the government would not send representatives to link up meetings of committees and NLA or NRSA whips. The government would rely on the whip committee to coordinate the work of the NLA, NRSA and the government. “This is to prevent the government from being accused of dominating reform work,” Alongkorn said.

He said to avoid costs from revamping laws and setting up new agencies to cater for reform, the whip committee resolved to call a meeting on January 27 of concerned agencies – such as the Civil Service Commission, the Office of the Public Sector Development Commission and the Budget Bureau – to hear their recommendations.

He said Prime Minister Prayut Chan-o-cha wanted the five core agencies to help the public understand that the word ‘democracy’ means not only rights and liberty – but also responsibilities among citizens.

The article was compared to the idea of the National Strategic Reform and Reconciliation Committee, which had appeared in the defeated constitutional draft. The idea to have special powers or a mechanism to handle crises remains in the new constitutional draft under Meechai Ruchuphan.

As many critics said this amounted to a “state within a state”, advocates of the special powers argued that France, a democratic model nation, had a similar article that gave absolute power to some political bodies during critical periods.

But Article 16 has been widely and highly criticised among French legal academics as well as politicians, Raimbault, director of Sciences Po Toulouse, said yesterday at an academic seminar titled “Legal Perspectives of Democracy’s Transition” at Thammasat University’s Tha Prachan Campus.

He elaborated that the article went against a principle of French constitutions involving the separation of powers, where the legislative, executive and judicial powers are independent from one another but related in terms of checks and balances.

The scholar cited former French president Francois Mitterrand as saying that the use of Article 16 was the same as staging a permanent coup d’etat. That is, the seizure of power was being enacted through a constitutional clause that allows such power.

Similar criticism also arose under the use of martial law and emergency decrees during urgent situations, especially when Paris was recently under attack.

One of the criticisms has been that it lacks a concrete time frame of when to use those special powers, said Piyabutr Saengkanokkul, a law lecturer at Thammasat who yesterday acted as a French-Thai translator. However, the French constitution was amended in 2008 to give a specific time frame for its use, he added.

Xavier Magnon, a fellow French public-law scholar from Toulouse Capitole I, added that Article 16 permitted the president to take absolute power only in situations where no political body was able to function.

The French constitutional court also had a role to play in scrutinising whether political bodies were genuinely paralysed in a way that would justify invoking Article 16, he said.

The court is also tasked with overseeing actions of a president ruling with absolute power, judging on both their appropriateness in a given situation and on whether they were steering the country back to normality.

Magnon went on to say that the French constitution court was meant to safeguard the people’s rights and freedoms.

However, the court’s existence is itself sometimes controversial. Critics claim it can help political players exploit the constitution to further their own aims and power.

Meanwhile others say it bolsters democracy by offering citizens a channel to contest decisions taken by the powers-that-be. Some see that as a weak point, claiming the court protects the majority interest – which often equates to state interest – rather than protecting the rights of individuals, Magnon explained.

 

The frequencies safeguards have been a staple of the rights chapter since the last two charters of 1997 and 2007. The country’s supreme law had ensured that the frequencies used for television and radio broadcasts and telecommunications belonged to the Thai people.

The protection was the fruit of the long struggle of the media and telecommunications industries plus pro-democracy enthusiasts that fought to liberate those industries from state control so that people could enjoy the same freedom of expression as in developed democratic countries.

Critics harboured doubts over the government’s intentions in changing the nature of frequencies to “state’s assets” instead of “public assets”. This would put frequencies for broadcast and telecommunications come under state control again.

Kamnoon Sidhisamarn, a member of the National Reform Steering Assembly, wrote on Facebookthat the fight to ensure that the public – not the government – owns the frequencies dates back to May 1992 when the broadcast media, which was then controlled by the state, blocked news and information about the pro-democracy protests.

The problem now was that under the rights chapter, Thai citizens would continue to enjoy such rights and liberties when the charter takes effect, but under the state policy chapter, the principles would be realised only when the government implements the policies.

“It’s not clear when that would happen as it will depend on many factors,” he said. Another significant move made by the CDC was changing the status of the agency overseeing frequencies – the National Broadcasting and Telecommunications Commission (NBTC) – from being “an independent agency” to “an agency that has freedom in carrying out duties”.

“The change likely affects the independence of the NBTC by becoming an agency under the supervision of the Digital Economy Board,” he said.

CDC spokesman Norachit Sinhaseni admitted that provisions on frequencies had been moved but said the change was not yet finalised.

The government had no mind to take control and ownership of the nation’s frequencies.

The NBTC would still allocate spectra and the public and the media would continue to enjoy freedom of expression.

Neither the government nor the National Council for Peace and Order had ordered the CDC to make such changes for security reasons as alleged, he added.

Pirongrong Ramasoota, a communication arts lecturer at Chulalongkorn University, said the change would let the state take governance and possession of frequencies.

The framers of the 1997 charter had debated at length on whether frequencies were national resources or public resources.

Then they decided to go for “national resources for the public interest”, she said.

Former charter drafter Manij Suksomjit said that if the CDC decides to write that frequencies are resources of the state, then the public would have to see if the state means the country or the government.

“If the state means the government, frequencies would belong to the government. It would be a pity that we would go back to square one,” he said.

NBTC member Supinya Klangnarong was worried that the CDC’s move was a step backward.

“We took almost two decades to achieve media reform and for the media to enjoy liberty and freedom from state control.

“It’s a joke to start all over again and debate to whom the frequencies belong. I hope we will not have to go through the epic drama – ‘who owns frequencies?’ – again”.

Lowdown on frequencies

The 1997 Constitution and 2007 Constitution

– Frequencies are under the “Rights and Liberty of Thai Citizens” chapter.

– Frequencies are the national communication resources for public interest.

– The NBTC is the independent agency tasked with allocating frequencies.

The new charter draft

– Frequencies are under the “Directive Principles of State Policy”’ chapter.

– Frequencies are state assets.

– The NBTC is the agency that would put frequencies into use.

The resolution came as the Constitution Drafting Commission (CDC) yesterday wrote the ‘Amendment of the Constitution’ chapter, the last chapter of the charter.

CDC chief Meechai Ruchupan explained that the drafters did not want to see those clauses amended too easily, especially when they had been trying to set rules that would keep away corrupt people from politics. Otherwise, those winning the majority vote in the national election would seek to amend them, he said.

Hence, drafters set conditions for constitutional amendments to ensure that they were well accepted by all parties, Meechai told.

The motion to amend the charter could be proposed by at least one-fifth of remaining members of the House of Representatives or at least 50,000 people signing a petition. The proposal will go through three readings, he explained. To pass the first reading, it must be endorsed by the majority of both the upper and lower houses, with at least one-third of senators voting for it. And for it to pass the last reading, at least 10 per cent of MPs from those parties having more than 10 seats in the lower house must also endorse.

Besides those clauses, chapters requiring a referendum before promulgation were General Provisions, The King, and Amendment of the Constitution.

Additionally, the drafter chief also noted that any amendment to change the constitutional monarchy was not feasible.

Yesterday was the penultimate day of the CDC retreat in Phetchaburi’s Cha-am district where the drafters are giving the final touches to the charter draft. They have completed all the 13 chapters of the new constitution containing about 260 articles in total.

As for the ‘Transitory Provision’ chapter, Meechai said it would be deliberated upon and written when drafters resumed their regular session in Bangkok.

According to the CDC’s schedule, the final version of the initial draft would be released on January 29 for the National Council for Peace and Order, the Cabinet, the National Legislative Assembly, the National Reform Steering Assembly, as well as the general public to see.

Concerned parties would have until February 15 to submit their comments regarding the constitution draft to the CDC before they start polishing the final version of the new constitution draft.

The campaign, which has run for a month, claims that Thai authorities have continuously sought to suppress people attempting to expose or investigate affairs at the park. People active on social media in relation to the issue including those who click “Like” on Facebook were also under threat by the authorities, it claims.

Amnesty, therefore, called on the government to stop such the actions and allow freedom of expression while dropping charges directed at activists.

Police spokesman Pol General Dejnarong Suthicharnbancha said yesterday that people still had freedom to travel to the park but were not allowed to stage political acts. The country needed a degree of peace at present and activist Sirawith Seritiwat knew well what was behind his moves.

Dejnarong said police had found some political motives behind Sirawith’s moves.The spokesman said police had issued arrest warrants against him and five other activists who rejected a previous police summons. He called on the activists to surrender and respect the law like others, he said.

Sirawith claimed on his Facebook account on Thursday that some four or five military officers went to his house to search for him without a search warrant. He claimed that they threatened his grandmother who was alone at a house to convince him to surrender. They also took a box containing his collection of railway tickets, he claimed. His whereabouts remains unknown.

This development came as drafters deliberated on a chapter related to independent agencies.

CDC spokesman Udom Rathamarit said five of the commissioners would be selected by a selection committee, while the other two would be chosen by the Supreme Court among Appeal Court chiefs or chief prosecutors.

During their non-extendable seven-year term, the commissioners would be authorised to hold fair elections and referenda, investigate cases of electoral fraud, and set or change election dates freely without having to consult the government.

In addition, they would be eligible to ban candidates temporarily from an election if they were found to be involved in electoral fraud. Only a court has the authority to ban a candidate permanently, Udom explained.

Apart from that, the drafters deliberated on the duties and authority of ombudsmen. The spokesman said the draft stipulated that the ombudsman commission should comprise no more than three personnel serving a non-extendable six-year term.

The commission would act as an advisory body to government organisations related to the revision of laws and regulations in order to help them serve the public properly.

The ombudsmen would also advise the Cabinet when people got into trouble as a result of government agencies violating law. The ombudsmen could also petition the Constitutional Court to rule on whether a bill, a law or an order was constitutional.

As for the National Anti-Corruption Commission, the drafters resolved to maintain the agency’s authority as per the 2007 Constitution, but set the time frame for every case it investigates at no more than two years in total. The NACC would still have the power to investigate officials below the rank of C8.

The drafters have agreed in principle that independent agencies would be tasked with examining the use of state authority and also ensuring that the law and the charter are being followed. Hence commissioners and agents must be trustworthy, the spokesman explained.

The drafters also specified that commissioners share the same qualifications as Cabinet members, with extra qualification of expertise in their fields.

All independent agencies’ commissioners will be chosen by a selection committee comprising 10 people. The agencies are the Supreme Court’s president, the House of Representatives’ president, the leader of the opposition, the Supreme Administrative Court’s arbiter, and representatives from each independent agency and the Constitutional Court.

The CDC completed more than 210 articles yesterday. An initial version of the draft should be completed tomorrow, when the committee members wrap up their retreat in Phetchaburi’s Cha-am district. As per the schedule set by drafters, a complete draft should be released by January 29.

The resolution, which is seen as unprecedented, is intended to prevent malpractice in connection with state budgets among parliamentarians as well as Cabinet members.

Miscreants would be removed from office and have to repay the money spent in relation to the project or projects they had voted for, said Udom Rathamarit, the CDC spokesman.

If the malpractice concerned a particular Cabinet member, the whole Cabinet could be subject to removal from office as well.

Udom said the charter drafters had also agreed that any annual state-budget expenditure should be in accordance with relevant laws, to ensure that it would not cause financial damage to the country.

There would therefore be an organic law on “the principles of financial discipline” to regulate government spending, he added.

The CDC’s charter draft review ran into a fifth day, which saw the committee considering a crucial section concerning parliamentary elements, as well as other issues regarding independent organisations.

Regarding the selection of a prime minister under the new charter, the CDC resolved that he or she must win a majority among the House of Representatives’ 500 members, or the caretaker government would continue to be in charge, the spokesman said.

Udom did not confirm when the reselection process could take place in the event of no candidate gaining more than 250 votes in the House.

Whether or not the caretaker government would have full authority, including that flowing from the enforcement of Article 44 as under the current government, would be stipulated in the provisions, he said.

However, he added: “Would the House members be so divided that they could not choose the PM? In politics, people [politicians] must talk at a certain level.”

Udom said a prime minister must be picked from the three-candidate lists submitted to the Election Commission before a general election.

Political parties that failed to come up with a list in the first place would not be eligible to propose any candidate afterwards, while those that win less than 25 seats – or 5 per cent of the total number of MPs – would not be able to use their lists either, he explained.

The prime minister would be allowed serve no more than eight consecutive years in office, although after a pause, he or she would be eligible to run for the top government job again, he said.

Regarding the Cabinet, if found to be involved in corruption, the member in question would also be banned for life from politics, Udom stressed.

The CDC agreed that the Cabinet would comprise 36 members, including the prime minister.

Cabinet members would be subject to the same qualifications as MPs, except that they must not be younger than 35.

Should they be disqualified, they would not be able resume a Cabinet position for the next two years.

The CDC also resolved that the executive branch’s scrutiny could be done through interpellation, he said.

Also, a minimum of one-fifth of House members could once a year propose a motion of no confidence against a minister or the whole Cabinet, and such a motion would only be successful if more than half of the overall House members agreed, Udom said.

A minimum of one-fifth of MPs could also open a debate in the House and question one or more members of the Cabinet.

Government policies, meanwhile, must be tabled in the House within 15 days of a Cabinet taking office.

They must be in accordance with constitutional clauses on state duties, directive principles of fundamental state policies, national strategies, and the state’s financial status, the spokesman said.

Apart from these issues, the drafters resolved that governmental and independent agencies could inspect organic laws related to them before they were enacted, in addition to approval by Parliament and the Constitutional Court.

If the bills could possibly cause difficulties for an agency’s work, it could submit a proposal to the prime minister, who would forward the case to the Constitutional Court for a ruling.