From the very first days, they proclaimed that the new charter would be “edible”, in the sense that it will actually work and be substantive, especially in favour of the “people”, rather than just being completed for the sake of tradition.

That being the case, the Constitution Drafting Commission (CDC) introduced a new approach to the art of charter framing. Unlike its predecessors, which specifically defined the “rights and liberties of Thai people”, the CDC opted for a broad definition, with waivers of some rights addressed by particular laws.

The drafters have explained under the draft that people could actually have even more extensive rights and freedoms. Only some liberties will be restricted by law – everything else will be enjoyed by the people.

In regards to the draft being “edible”, the drafters said it means that all rights reserved for Thai people would be transformed into the state duties. It means the government must do its job to make sure that people get what they have the right to.

However, since the draft was released on Friday, critics have been pointing out that the new charter may have left reduced room for people’s participation in politics. There are apparently inadequate protections or even reductions of people’s rights and freedoms, and the issues of decentralisation and people’s participation in politics are only partially addressed.

Critics even claim that citizen and community rights and freedoms in this new charter amount to only half of those offered in the constitution of 2007.

The 17 Northern Provinces’ People and Communities Network issued a statement yesterday calling for a major revision of the draft charter, saying it failed to respond to their calls for increasing public participation in politics.

They said that even though the charter addresses people’s rights and freedoms in a broad manner, it has also left open a major loophole allowing potentially negligent implementation because it is not concrete enough to put into practice.

They called on the drafters to specify people’s basic rights and freedoms so that people’s participation in politics is fundamentally secure.

The network also claims that the draft fails to specifically address decentralisation, another crucial element to support people’s role in politics in addition to the conventional political structures and elections.

Pairoj Polpetch, a former member of the Law Reform Commission, said the constitution should not be dictated only by the powers-that-be at the latest seminar of the People’s Council for Reform, which is developing charter proposals to submit to the CDC.

Rather, Pairoj said, the people should also take part in directing the new constitution’s content.

“Community rights” should be included in the new charter, he contended, meaning that communities should have the right to determine economic development, conservation, restoration of traditions, and other plans and public policies.

Communities and people should also have a role in managing natural resources and working closely with the government to conserve and maintain those resources, Pairoj said. Any action regarding the use of such resources should not go ahead without public hearings.

Other rights relevant to people’s lives such as justice and social security, the right to participate in the formal political structures including at the decision-making level, and, more importantly, decentralisation must all be addressed by the draft, Pairoj said.

Last but not least, he added, people should have a hand in writing the draft because it would be a universal law for everyone.

Satitorn Tananitichote, a scholar from the King Prachatipok Institute, said public participation was very important and should be included in the new constitution.

Under a formal political structure that Satitorn recommends, political parties would adopt a primary voting system that allowed people to choose any candidate or party member in the early stages of the election process.

Additionally, in a checks-and-balances system, he added, people would have a greater role, for example by being allowed to appeal a Constitutional Court verdict. In this way, people would be more connected to the political system, he said.

Suriyasai Katasila, director of Rangsit University’s Thailand Reform Institute, said the charter drafters had put effort into stamping out the problem that they view as most critical – corruption.

However, what has been apparently brushed aside is civil society-based politics and public participation, values that were previously given importance by the former, now-defunct constitutional drafting committee.

In its draft that was rejected, the committee addressed those values as key components of a political structure under the term “citizenship”.

Besides, Suriyasai said, there are no tangible mechanisms to address reform and reconciliation. In the absence of such mechanisms, he said he had no idea how the country could move forward amid the deep divisions still remaining.

Pattara Kampitak, a former journalist and member of the CDC, said perceptions that the rights and freedoms of individuals and communities were limited might be inaccurate.

“Possibly it might be because the approach in writing is different from that of the previous constitution. So, people misunderstood it,” he said.

The drafters have addressed rights and freedoms in various articles, Pattara said, adding that rights had been enshrined as state commitments that will yield tangible results.

The post-coup Article 44 was included in the 2014 interim charter with the aim of giving the prime minister the option of wielding absolute power in a bid to find solutions for issues of importance.

But given its absoluteness, critics have viewed the use of it with scepticism, and its fruitfulness remains in question in the eyes of those watchdogs and individuals affected by its application.

Article 44 grants absolute power to Prime Minister General Prayut Chan-o-cha in his capacity as the head of the National Council for Peace and Order. It is an absolute authority in ordering and retraining people or performing any act, whether legislative, executive or judicial.

Enacted after the lifting of martial law last April, Article 44 has been evoked by Prayut to deal with a variety of issues, from reorganising lottery prices to removing officers alleged of corruption.

“Article 44 is [designed] to grant the government the authority to deal with problems which that could hardly be solved or solved at a slow pace [if tackled using regular laws],” said Prayut last June. “That’s why [a special] law is needed. Some problems need urgent solutions and some need integrated law enforcement for solutions.”

As monitored by The Nation and the Internet Dialogue on Law Reform, Prayut invoked this power 54 times between December 2014 and January 20. Three orders were issued in the name of national security and nine were issued to enforce laws and implement measures to reorganise society.

There was also an order to set up a new agency, two orders to improve the economy, seven orders to adjust administrative processes and 28 orders to appoint, shift or suspend officers.

Despite the government’s effort to do this in a legal manner, there are doubts over whether the practice truly aims to accelerate solutions and is merely designed to allow the premier to end critical issues. For instance, instead of seeking a royal endorsement as usually practised, Prayut signed order No 26/2015 last September to revoke the police rank of the former PM Thaksin Shinawatra.

Many people are concerned this absolute power could be wielded without discussions with relevant parties, like when Prayut signed order No 17/2015 last May to declare five special economic zones that resulted in the acquisition of land in the designated areas.

The order was declared out of the blue, said Chompunut Kraekonwong, whose mother’s crop fields in Tak’s Mae Sot district have been expropriated following the order. Chompunut’s mother and some 90 other farmers can still make a living in the fields, but they have no idea when that will end.

“We have learnt that the authorities will turn our farmlands into industrial districts,” Chompunut said “But we were never asked if we want that to happen.”

Local people would gain little to nothing from the industrial zones, she explained. She said that as a borderland, the economically advanced Mae Sot would be flooded with Myanmar workers on one-day entry visas once the SEZ was activated. Increasing construction would affect fertile lands, which locals inherited from generation to generation, she said, adding that locals were concerned.

Chompunut said the committee for the Mae Sot Special Economy Zone had promised to provide between Bt7,000-Bt12,000 per rai as compensation, but had decided to rely on compensation figures calculated by the Irrigation Department. The exact amount of compensation remained undecided, she added.

“No matter how much it is, it will never be a substitute for the land that has fed our lives,” she said.

Chompunut and other affected locals have written to several governmental agencies, including three letters to Prayut via the Damrongdhama Centre, and were told the matter would be reconsidered by relevant agencies. “And we’ve seen no progress so far,” she said, adding: “We can’t see how the Article [44] will ever benefit the country. [The authorities] can stimulate the economy in other ways without affecting people. We should also be the ones contributing for such development.”

The phrase “out of the blue” was also used to describe the issuance of order No 21/2015 that resulted in Lt-General Pongsakorn Rodchompoo being dismissed as deputy secretary-general to the National Security Council (NSC) on July 23. He was transferred to an inactive post as an adviser to the PM.

“Till today, I don’t know why I was transferred,” Pongsakorn said. “At the NSC, I was working on terrorism issues, such as pushing for a more integrated immigration data base in the region. But with my current position, I can do nothing further on that.”

Now a subcommittee member in the drawing up of a 20-year national strategy and an adviser to the National Reform Steering Assembly (NRSA) committee on local administration, Pongsakorn admitted that his current positions involved about only 20 per cent of his full capability.

“I feel it is a pity. There are not many NSC officers capable of working on terrorism issues, and now there is not even a senior [officer] pushing them,” he said. “There should have been discussions with officers over where they would have liked to be reassigned.”

Legal academic Ekachai Chainuvati warned that using Article 44 in such a manner ran the risk of turning it into an abusive power as it could not be reviewed judicially.

The power was also deemed dangerous to any person who wielded it, Ekachai said. “As Prayut has a soldier background, his character tends to favour quick, clear, and immediate decisions. But it’s impossible for Prayut, and everyone else, to know everything,” he said.

He continued: “I believe he receives proposals from agencies, but it’s he who has to take sole responsibility when issuing orders.”

Despite Prayut‘s best intentions, an academic said, Article 44 might not be the best solution to deal with national-agenda matters. For instance, the public may believe it helped curb corruption, but there were existing options to solve problems without the need for such power, the academic said.

Ekachai said Article 44 could not be used alone to tackle national reform, as the process required a broader consensus from all sections of society.

The impact of the article could even stretch beyond Prayut‘s reach, he said, as its impact would remain until there was a new law or order to revoke it, and Prayut may no longer be premier.

The use of the article showed that society was tolerant of state authority, he said. It also indicated that society accepted “an end justifies the means, no matter what it is”. “To simplify that, it means that it is acceptable to do whatever [is decided] to achieve desirable goals. As a legal academic, I can’t accept that.”

PM’s Power

Orders issued under Article 44 by Prime Minister Prayut Chan-o-cha

National Security (3 orders issued)

– No 3 (April 1): Used in place of martial law to maintain public order and national security

– No 26 (September 5): Stripped Pol Lt-Colonel Thaksin Shinawatra of his police rank

– No 27 (September 11): Established the Command Centre for Resolving Civil Aviation Issues (CRCA)

Reorganising society

Law enforcement and implementation of measures (9 orders issued)

In 2015

– No 4 (April 8): Enhanced law enforcement to protect public interests, such as introducing measures against encroachment on forest, public areas, and others.

– No 11 (May 1): Implemented measures against overpriced lottery tickets.

– No 22 (July 22): Implemented measures regulating street car and motorcycle racing, and entertainment places.

– No 23 (July 23): Enhanced enforcement of the 1976 Narcotics Control Act

– No 24 (August 5): Implemented measures against illegal, unreported and uncontrolled fisheries.

– No 25 (August 10): Amended Order No 11/2015 on the Government Lottery Office’s spending objectives.

– No 42 (November 11): Additional measures against illegal, unreported and uncontrolled fisheries.

– No 46 (December 30): Ordered authorities to temporarily seize driving licences and/or vehicles of drunk drivers.

In 2016

– No 4 (January 20): Exempted law enforcement on regulation to adopt public urban planning for specific activities.

Establishment of new agency (one order issued)

– No 10 (April 29): Established the Command Centre for Combating Illegal Fishing.

Improving economy (2 orders issued)

In 2015

– No 17 (May 15): Declared five designated special economic zones (SEZs).

In 2016

– No 3 (January 20): Exempted law enforcement on urban planning and building control in SEZs

Public administration

Process adjustment (7 orders issued)

In 2014

– No 1 (December 25): Temporarily changed the nomination process of members of local councils and local administrators.

In 2015

– No 5 (April 10): Amended the definition of “Assistant Peacekeeping Officer” to be more inclusive.

– No 8 (April 24): Prevented the National Broadcasting and Telecommunications Commission (NBTC) from nominating new members to vacant NBTC positions.

– No 34 (October 5): Implemented measures to facilitate the charter-drafting process.

– No 39 (October 31): Granted protection to government officials working on cases stemming from the Yingluck government’s rice-pledging scheme.

– No 43 (November 25): Transferred the Office of the National Water and Flood Management Policy to the Department of Water Resources, National Resources and Environment Ministry.

– No 44 (December 4): Introduced solutions for police administration issues, including granting the police chief full authority to solve relating issues.

Officer appointment/reassignment / suspension (25 orders issued)

In 2015

– No 6 and No 7 (April 16): Assigned the roles of educational officers, including reassignment of six Education Ministry officers.

– No 9 (April 28): Removed the director of the Office of Foreign Workers Administration.

– Special order No 1 (May 2): Appointed new chairman of the Government Lottery Office.

– No 12 and No 13 (May 8): Extended the term of the National Anti-Corruption Commission (NACC) chairman and sought candidates for vacant positions in the NACC.

– No 16 (May 15): Suspended 45 officers suspected of corruption and misconduct.

– No 18 (June 22): Allowed committees under certain laws to continue working.

– No 19 (June 25): Reassigned 60 officers.

– No 20 (July 15): Suspended the member-selection process of the Law Reform Commission of Thailand.

– No 21 (July 23): Appointed new positions and assigned officers to the positions, including reassignment of Lt-General Pongsakorn Rodchompoo, the then deputy secretary-general of the National Security Council (NSC).

– No 28 (September 16): Ordered the NACC chairman to continue his duties.

– No 29 (September 16): Ordered the filling up of vacant positions in the State Audit Commission (SAC).

– No 31 (September 22): Reassigned Kanokthip Ratchatanant, another then-deputy secretary-general of the NSC.

– No 32 (September 22): Appointed a new director to the Office of SMEs Promotion (OSMEP).

– No 36 (October 15): Amended order No 29 on the SAC’s effective date.

– No 37 (October 16): Reassigned Charae Panpruang, the then secretary-general of the House of Representatives, to the position of adviser to the PM’s office and assigned Nut Phasuk, a legal adviser to the Secretariat of the Senate, to replace Charae.

– No 38 (October 18): Amended order No 37, cancelling the reassignment of Nut Phasuk.

– No 40 (November 8): Revamped the Social Security Board and related positions

– No 41 (November 11): Assigned the Secretariat to the House of Representatives to provide general services to the National Reform Steering Assembly (NRSA).

– No 45 (December 9): Dismissed the NACC chairman from the position.

– No 47 (December 30): Appointed Prasarn Trairatvorakul as a new member to the Board of Investment.

– No 18 (December 31): Appointed four new members to the special OSMEP.

In 2016

– No 1 (January 5): Suspended 59 officers, including seven board members of the Thai Health Promotion Foundation (ThaiHealth).

– No 2 (January 18): Appointed a new temporary vice president to ThaiHealth.

First order signed on December 25, 2014

Latest order signed on January 20, 2016

Reference: ilaw.or.th

 

LOUD DIPLOMACY employed by Western envoys has displeased the military-installed government as well as its supporters, but both a veteran diplomat and an academic see no real implications for |relations with Thailand.

Last year, a group of conservative nationalists lodged a petition with police to have a lese majeste investigation launched over a speech given by US Ambassador Glyn T Davies. United Kingdom Ambassador Mark Kent also receives strong reaction from Thai officials whenever he expresses on social media his views on Thai politics and the country’s human rights practices.

Such a diplomatic style has resulted in minor debates in Thailand as to whether it is right and whether there has been anything said that has affected the entire relationship between Thailand and the US and the UK.

Government Deputy Spokesperson Maj-General Werachon Sukondhapatipak expressed disappointment over the UK ambassador voicing support for the activists who criticised the controversial Rajabhakti project, while the Thai envoy to the UK Kittipong Na Ranong commented via BBC Thai that Kent should have used diplomatic channels to express his opinion.

The US and UK embassies, however, have maintained their positions and said they saw nothing wrong in using such a loud diplomatic style as part of their relations with Thailand.

“The US will continue to urge the interim government to remove restrictions on freedom of expression and peaceful assembly,” US embassy deputy spokesperson David W Whitted told The Nation via email.

The US will also continue calling for the full restoration of civil liberties, Whitted said, to institute a “genuinely inclusive reform process that reflects the broad diversity of views” within the country, and return the country to democracy.

The British embassy told The Nation via a phone interview that Kent’s messages have been clear and he wished to speak no further on the matter.

Former foreign minister and career diplomat Kasit Piromya said: “All those stories are open agendas from the West.”

Kasit served in the foreign service in countries including Russia, Indonesia and the US.

A freer political situation would facilitate the capitalistic agenda to the benefit of Western policy, he said, adding: “It’s true that Thailand needs improvement, but will capitalism be an answer?”

The two Western envoys’ public expressions could be seen in two ways, he said. Firstly, they could imply the government was unable to inform the global community about the Kingdom’s failed administration during the 2013-14 political crisis and that some absolute control, such as the 2014 coup, was essential.

He said the envoys’ stance could also mean that they chose not to adhere to normal practices and insisted on expressing their opinions based on their agendas. The envoys could have officially discussed their grievances with authorities but chose to publicise their opinions, he said, and could have been pressed by their |respective governments to openly show their stances.

However, the West’s signals could be seen in a positive light by the authorities, he said. The US and the UK have had an alliance with the Kingdom since the Cold War era.

“It means that we are urged to make ourselves more transparent,” Kasit said “Foreigners still doubt our obscured justice process and how we put balance in laws on freedom of expression. We must also be able to assure foreign countries that we will surely hold a general election by the middle of 2017.”

A foreign minister from 2008 to 2011, Kasit recalled when he faced similar reactions from some Western envoys who disagreed with the appointment of Abhisit Vejjajiva as premier.

“They doubted Abhisit because he didn’t win the general election,” he said. “I basically explained to them that we always follow the rules. Abhisit was appointed from elected MPs as the former PM [Somchai Wongsawat] was removed.”

Now a member of the National Reform Steering Assembly’s political committee, Kasit is inviting officials from Thailand-based embassies, mostly from countries with developed democracies, to provide knowledge to the committee in the hope of sparking ideas on political reform. “This kind of support is what true friends do for each other,” he added.

Natthanan Kunnamas, an academic expert on international relations at Chulalongkorn University, observed the matter more broadly citing Article 41 of the Vienna Convention 1961. “Despite enjoying such privileges and immunities [in order] to respect the laws and regulations of the receiving state, they also have a duty not to interfere in the internal affairs of that state.

“If the envoys are from the major donor countries, shall they have the right to interfere with the use of grants, development aid and supportive cooperation that they used to provide to us?” she said. “And Western powers could criticise [our] internal affairs to make sure that their financial aid is used to serve the donors’ purposes,” she added.

Natthanan said that the matter could be looked at in greater depth. “It might be unfruitful to seek an absolute debate or totality as to whether the acts of the two ambassadors are right or wrong regarding diplomatic protocols.

But to what extent have those acts created relative impacts on us is important and should be debated,” she said.

 

ANOTHER CRUCIAL phase has arrived in Thai politics as the Constitution Drafting Commission (CDC) has completed more than 95 per cent of the new constitution during its seven-day camp in Petchaburi’s Cha-am District last week, leaving only the transitory provisions chapter to be deliberated on and written in Bangkok. And in less than two weeks, the complete initial draft will be made available to the public.

Now, all eyes are on the canon because of its potential status as the supreme law, which could dictate so much in Thai politics. The political fate of the country, as well as the fate of so many individuals, depend on this 261-article social code written by the panel led by Meechai Ruchupan, which in an unprecedented move was given authority to root out corruption as well as chart a course for reconciliation.

Following the instructions of the 2014 interim charter, which set out to give the country a fresh start after a long period of turmoil, the draft aims at tackling corruption in the public sector. Under the new constitution, political office holders and civil servants would face stricter scrutiny and tight regulations about being disqualified from office. Among the new rules is the stipulation that officials who are found guilty of electoral fraud or are found to have misused public money would face lifetime political bans.

The drafters have also empowered independent agencies as well as the Constitutional Court. The panel agreed that the Election Commission (EC), the National Anti-Corruption Commission (NACC) and the Auditor-General’s Office could jointly issue warnings to the Cabinet when its policies or practices potentially posed threats to the country. Although it is not binding on the government to heed the warning, it would be held legally responsible for its mistakes.

In addition, while the drafters have not yet settled whether the Constitutional Court should be turned into a “super body”, the court now has the final authority on constitutional arguments, in a provision that replaces Article 7 of past constitutions, which paves the way for a royally-appointed prime minister.

Moreover, the court will have great powers to steer the country through times of crisis – powers similar to those previously suggested for the National Strategic Reform and Reconciliation Committee or “crisis panel” that has since been rejected.

All these mechanisms have been heavily criticised by veteran political figures who say they weaken politics and future elected bodies.

Well-known red-shirt Weng Tojirakarn, for example, has given this draft the title of “Constitution of the Four Powers”, referring to the Constitutional Court and the three agencies empowered to admonish the government.

“This is not a democratic constitution because the supreme power is not in the people’s hands,” Weng said. “It has entirely been deformed. Those elected representatives of the people from the entire country would be violated, interferred with, discriminated against and destroyed by independent agencies in many ways.”

Others have voiced similar complaints that these mechanisms will be inconvenient and hinder the government from fulfilling its tasks.

Meechai addressed those arguments during a press conference yesterday. “This charter will be tough on corruption. If curbing corruption is going to be inconvenient for them, then let it. If the government is not corrupt or does not violate the constitution as it has, then there should not be any inconvenience.”

Another of the most attention-capturing points in the new draft are the “National Assembly” stipulations that encompass issues involving the electoral system, the selection of parliamentarians and the procedures involved in legislation – all measures to achieve reconciliation, according to Meechai. Amid a chorus of opposition voices from political parties, including major players such as the Democrats and Pheu Thai, drafters have resolved to stick to their original proposals of a single-ballot system, the PM being selected from a list of three candidates, and that senators will be “indirectly elected”.

Meechai said these elements would subtly bring about “reconciliation” by giving rights to political minorities. Unlike the previous winner-take-all system, the new system would offer a compromise to voters whose candidates lose the election in their constituencies by counting the votes for their national party. Previously, votes for a losing candidate were discounted.

“Every single vote cast in an election must matter. There would be no more of the ‘winner-take-all’ thing. Now the minority votes will be regarded and respected, as everyone has called for,” said Meechai, a noted lawyer with extensive experience in constitutional drafting. A similar principle would apply to constitutional amendments, which would have to be approved not only by a majority of parliament but also by a proportion of the MPs from the minority.

Meechai said drafters did not want the charter to be amended too easily on the grounds that election victors could then change the provisions meant to curb corruption. However, while the CDC was still in Cha-am, Noppadon Pattama, a key figure in the Shinawatra political camp, criticised the resolution.

“If only one person from one party disagrees with the amendment, it cannot be carried out … That is having the minority ride on the majority’s neck,” Noppadon said. “The drafters don’t listen to us when all parties are voicing [favour] for a two-ballot electoral system, but they want us to listen to all parties when amending a constitution.”

Noppadon, who has been a member of the parliamentary majority in several governments, said the proposed political system was unusual and unlike any system found in other countries, but he stopped short of commenting on whether the new system would help to bring about reconciliation, and peace to the country.

NEW CREATURES

Mixed Member Apportionment

The electoral method is also known as a single-ballot system. Votes cast determine not only constituency winners, but also the total number of House of Representatives seats apportioned to a party. The number of constituency winners will then be deducted from the total to determine the number of party-list seats.

While the CDC argues this system means every vote will count, reflecting a party’s true popularity, politicians who oppose the measures say that a single ballot won’t reflect the intention of voters who might favour party-list and constituency candidates from different parties.

Selection of Prime Minister

Although the three-candidate list proposal is optional, the draft stipulates that a PM must be picked from the lists of parties that have at least 5 per cent of parliamentary seats. Some commentators have said this could pave the way for an outsider PM, but the drafters have refuted the argument by saying that candidates would be selected by parties themselves, not the drafters. However, the question remains whether such lists would be redundant and confusing, as usually voters acknowledge that a person who is listed first on a victorious party’s list will become prime minister.

Senate Selection

In the interest of an Upper House free of political influence, the CDC has agreed that 200 senators will elected from 20 social groups at three different levels from district to national. Although the Senate would not have impeachment authority, some still favour directly elected senators because the Upper House is still significant in terms of the process of checks and balances.