Abhisit Vejjajiva

Leader, Democrat Party Thailand, former Prime Minister of Thailand

Thailand is in need of a legitimate, liberal  democratic Constitution which will move the country forward from the political problems of the past and enable a mature and sustained democracy to take root. To this end, the Draft Constitution should be put to a referendum to allow the Thai people to choose whether to put the proposed Constitution into effect or to revert to the one effective before the coup. Such a vote will prevent the country from being trapped in endless arguments about constitutional amendments once democracy returns. The Constitution should also build on democratic progress made in the past decades so that any rights enjoyed by the people to participate in the political process should only be expanded, not curtailed. This must be the guiding principle when it comes to the design of the political system. It should also address the main problem which caused past crises, namely, the abuse of power by those who obtain an electoral mandate in the forms of corruption, intimidation of political opponents through the use of state power and violence, and stifling the role of Parliament and the media to hold those in power to account. Hence a consolidation of the political party system and a higher standard of accountability, coupled with the ability of people to directly participate in the political process should be the aim. Any attempt to turn the clock back on democracy will only be a recipe for further conflicts which Thailand can no longer afford.

Assoc. Prof. Allen Hicken

Department of Political Science of the University of Michigan, Ann Arbor, with main research areas in political parties and party systems in developing democracies and their role in policymaking

Thailand’s Containment  Constitution

The drafters of the new Thai constitution seem determined to go much farther than their predecessors were willing or able to in 2007 to try and replace “bad people” with “good people”, while putting a hedge around the power of elected politicians. The term that is often used is a system of better checks and balances. However, the meaning of that term is very different in Thailand than what it means in much of the rest of the world. Usually, checks and balances refer to elected representatives checking each other. For example, the opposition is given power to limit the power of government, or one elected branch of government checks the power of the other, or elected representatives grant independent agencies oversight power.

This new constitution suggests that reformers have a very different model of checks and balances in mind – one which follows from their belief about the problem with Thai Democracy. According to this view all of the problems and instability in Thailand boil down to one thing: ignorant voters keep electing bad people. This suggests two solutions. First, reeducate voters and teach them how to cast their votes for “good people”. CDC head Borwornsak argues that the new charter requires the state to take an active role in promoting “good citizenship” (see http://www.bangkokpost. com/print/493602/). Efforts to help voters learn to vote the “right” way are embedded throughout the draft constitution – including a section on “Citizenship and Citizens’ Duties” (which comes before the sections on “Rights and Liberties” and “Human Rights”), a lengthy chapter on “Good Leadership and Desirable Political System”, and a new National Moral Assembly that will provide the helpful service of pre-screening potential candidates and monitoring elected representatives, and passing along that information to voters.

The second solution to the election of “bad” people is to limit the power of bad politicians, and instead, put in place institutions that let “good people” (almost by definition, unelected people) make the key decisions. Hence the birth of, or more properly, the resurrection of, the Containment constitution. The list of institutions in the new constitution that are designed to contain the power of elected representatives is truly stunning. These include institutions that not only constrain the authority of elected politicians and monitor their behavior, but which also set the legislative agenda for elected representatives. A partial list of these containment institutions follows:

• More powerful Senate, most of which is not directly elected
• Stronger Constitutional Court
• New Appointment Committee
• Public Finance and Budgeting Division
• National Reform Assembly
• National Reform Strategy Committee
• National Moral Assembly and Council
• Referendum required for constitutional amendment

Much like the containment of a virulent virus, this new constitution appears to be designed to try and cordon off and contain elected politicians and thus prevent their influence from infecting the rest of the Thai body politic. All this while empowering “good people” to manage Thailand’s affairs without the corrupting and inconvenient interference from elected representatives.

Assoc. Prof. Dr. Gothom Arya

Institute for Human Rights and Peace Studies, Mahidol University, long time peace and human rights advocate, co-initiator of the newly established website “prachamati.org” providing an internet plat-form for debate on the draft constitution

The draft constitution seemingly tried to meet one important objective: How to prevent elected politicians to exercise actual power and to do so without appearing to be undemocratic. This objective may come from the perception that politicians are bad but clever enough to lure uninformed citizens to vote for them by offering ‘populist policies’. To meet this objective, the drafters came out with many regressive innovations. They introduce, for instance, the notion of ‘good citizens’ as holders of sovereignty (in Thai ‘Pen Yai’) who would be immune from the luring of bad politicians. This discourse on ‘citizen’ provides a nuanced concept of ‘demo’ as in the word ‘democracy’ and counters the discourse of ‘one man one vote’ based on universality and equality of rights. ‘Good citizens’ are empowered to supervise or inspect the use of state power and to enforce virtue and ethics upon all office holders. A plethora of new bodies will be created to exercise this supervisory power over elected bodies. Members of new bodies need not receive the consent of the people, suffice to trust that they will be good citizens selected by elite good citizens.

The exercise of executive power will seriously be hampered (1) in the formulation of policies by the Reform Prime-Mover Council comprising mainly of those who currently exercise reform and legislative powers, (2) in the spending of money by constitutional restrictions and by a new section to be established in the Administrative Court to adjudicate on ‘finance and budget discipline’, and (3) in manpower management by a ‘super board’ who will make proposals on the reshuffle or promotion of top level bureaucrats and by a largely unelected Senate.

The exercise of legislative power by the elected House of Representatives will be seriously hampered by the Senate which for the first time in Thailand will have almost the same legislative power as the House. The Senate will have 200 members, 123 of which will be either ex-officio or selected whereas 77 members will be elected but candidates in each province will be screened down to 10 persons. The Senate will be able to initiate and examine in the first instance draft legislation and in the case of legislation pertaining to reform as proposed by the National Reform Council, the Senate will prevail over the House.

Assoc. Prof. Phunthip Kanchanachittra Saisoonthorn

Faculty of Law, Thammasat University, specialized in the areas of international and human rights law, Member of the National Reform Council

Thailand is currently in the process of drafting the new Constitution with a view to pushing forwards national reconciliation and creating unity in Thai society after the prolonged political crisis. Furthermore, this Constitution is expected to effectively and systematically eliminate social inequity as a root cause of severe human rights problems.

Considering the first draft of the Constitution presented by the Drafting Constitution Commission to the National Reform Council on April 17, 2015, few humanism concepts were raised significantly. This is the first time in Thailand’s constitutional law history that human rights notions are adopted as a whole chapter in the Constitution. On the one hand, it clearly stipulates that the Constitution protects every human being, not only those with Thai nationality, but on the other hand, it is remarkable that only Thai nationals will be considered as so-called “citizens”, a new term under this Constitution. Regarding this, many human rights defenders are still skeptic that this draft Constitution may lead to economic, social and cultural inequity between Thais and non-Thais. However, due to the Section 45, this skepticism may be eased as such rights of the non-Thais, who have been residing in Thailand, are clearly  recognized  and  enactment  of  the  subsequent  laws  is  allowed  by  the provision.

Dr. Michael Nelson

Senior Research Fellow, CPG, Faculty of Law, Thammasat University, with Thai politics and constitutionalism as focal areas of research

One wonders whether the constitution’s traditional wording, “The sovereign power belongs to the Thai people” (Section 3) should not have better been replaced by something like the German constitution’s equivalent stipulation, “All state authority is derived from the people” (Article 20 II). However, this would not have allowed the drafters to include many bodies exercising state authority without this being derived from a declared will of the people, be it directly or indirectly. As things stand, the draft constitution is undemocratic in this respect, emphasizing the sovereignty of a paternalistic elite rather than that of the people. A positive development is the adoption of a mixed-member proportional (MMP) election system. This change moves away from the decisive role of local constituency contests in favor of emphasizing the concept of representation, meaning that the composition of the House will mirror the relative strength of all major political forces in the Thai polity, thereby also supporting the nationalization of the Thai electorate. Yet, MMP will not necessarily lead to a coalition government, as most members of the Constitutional Drafting Committee seem to expect. How many seats a political party will receive depends on the percentage of its vote total. After the elections of 2005, Thaksin could have formed a single-party government even if MMP had been in place at that time.

Dr. Paul Chambers

Institute of Southeast Asian Studies, Chiang Mai University, with research interest in democracy and authoritariams in Southeast Asia

In essence, the draft of the constitution presented by junta-appointed committee (without public participation) aims to diminish the role of those same citizens that it claims to empower. The new constitution would weaken the influence of elected politicians through proportional voting system that is designed to create weak  coalition  governments while the senate would be dominated by former military figures and bureaucrats. Under certain circumstances, the prime minister could be appointed from outside parliament. Autonomous agencies perceived to be tied to the establishment would get new powers. Along these lines, unelected elites could have more power than ordinary voters. The solution doesn’t lie in disempowering politicians or its own citizens. Solely voters can give government legitimacy. More importantly, any constitution that tries to get around basic democracy will only ensure to prolong the country’s political stalemate.

Kasit Piromya

former Minister of Foreign Affairs of Thailand, former Ambassador to the Soviet Union, Mongolia, Russia, Germany, Japan and the USA

To undertake the reform of Thailand is to move the country forward into a modern society, politically, socially and economically. To forge a truly and matured democratic Thailand is to have a liberal constitution. The furthering of the decentralization – process and the enlarging of public participation and participatory politics in the decision – making process is vital and imperative. Civil and political education must go hand in hand with the actual practice of parliamentary democracy and the implementation of reform measures that are inclusive and fair and equitable. [A] Controlled, guided and top-down democratic framework and content is retrogressive, anachronistic, unproductive and but a platform for further conflict and exploitation.

Luc Stevens

United Nations Resident Coordinator and UNDP Resident Representative

We appreciate the intention of the charter drafters to focus on empowerment of Thai people and ensuring rights and liberties that are commensurate with the country’s international obligations. This is not an easy task under current conditions whereby public opinion has been significantly constrained. For a people-centred charter to be successful, it is particularly important to obtain broad public input and support for its acceptance. Moreover, a commitment to public understanding and substantive participation   throughout the process of implementing it will be a prerequisite to achieve a charter that will lay a foundation for national reconciliation and democratic reform.

Pornpen Khongkachonkiet

Director of the Cross- Cultural Foundation, with longstanding record of human rights advocacy

Many Thai citizens, including me, already expected that this constitution – no matter how well-written – will not properly address the transitional conflicts of current Thai politics. This constitution was drafted by military-appointed experts who have no link to the conflicting parties and Thai citizens in general. Human rights advancement and democratic development are topics that cannot be “fixed” quickly. I wish that my ideas for the new constitution would also be included. In this regard, the constitution drafting process between 1993 and 1997 would be my ultimate dream. However, a written constitution will not change the culture of our politicians and Thai politics at the national level. Letting the military participate in politics is not healthy and it caused more deadlock than conflict resolution. Rather, comprehensive civil education and the upholding of freedom of expression, assembly and association will facilitate mutual understanding. Tolerance and respectfulness is needed.

Pravit Rojanaphruk

Journalist, The Nation

Thailand is trapped in a cycle of tearing down the constitution and drafting of a new constitution due to successive and frequent military coups. I have little doubt that the current draft ‘permanent constitution’ will not be permanent as generals are often tempted to seize power. The drafting of this charter, as with many previous post-coup junta-sponsored charters, involved little or no meaningful public participation. As a result, the draft charter does not represent a  genuine social contract as  the majority of the people are left out of the process.

Prof. Dr. Boonsri Mewongukote

Faculty of Law, Thammasat University, with public law and political parties as focal research areas

This projected new constitution is another long, but by no means a well devised one. The controversial issues, for example the electoral system, should not be included in the constitution. It’s better to regulate such a hot issue in an electoral law, as the Thai constitution of 10 December 1932 and the German Basic Law respectively have already set such a good example.

Prof. Dr. Worachet Pakeerut

Faculty of Law, Thammasat University, founder and leader of the Nitirat Group

The first draft of the constitution contains many anti-democratic provisions. It limits the power of the elected politicians and places an emphasis on the non-elected institutions. The Council of Ministers and the House of Representatives will be weak, but the Constitutional Court, the Senate and other independent organs  will have much more power. Many rules in the first draft are vague and susceptible of several interpretations. This draft is not up to date and will precipitate a political conflict.

Prof. Wiriya Namsiripongpun

Faculty of Law, Thammasat University, former Member of the National Legislative Assembly and advisor to the Senate Committee on Children, Youth and Social Development, Women, the Elderly, the Disabled and the Disadvantaged

Society for Everybody (Inclusive Society)

The 1997 Constitution was the first constitution which guaranteed the right of disabled or handicapped persons to receive public conveniences and other aids from the State, as provided by law (Section 55). Then, the 2007 Constitution changed the word from “receive” to “access” according to a proposal of the disabled community. Section 54 stipulated: “The disabled or handicapped shall have the right to get access to, and to utilise of welfare, public facilities and appropriate aids from State”. However, in the current Draft Constitution the rights of disabled persons are laid down in paragraph 6 under section 46 which concerns the right of family and stipulates that every child, youth, woman, person over sixty years of age with insufficient income and the disabled or handicapped shall have the right to welfare, public facilities and appropriate assistance for the State as provided by virtue of law.

Therefore, the group for persons with disabilities voiced that the current constitutional provision on the rights of disabled is old fashioned, because it used to be a main provision, but now it is only a part of a provision concerning the family’s right. Moreover, it reverts back the word “receive” instead of “access”. The group for persons with disabilities worked hard to promote the new concepts in the 2007 Constitution, but in the current Draft Constitution the rights of disabled or handicapped is not only not extended, but also old- fashioned.

The current Draft Constitution has no provision that implicitly promotes the society of the elderly people. Moreover, it has a lot of extravagant provisions, such as the mentioned section 46 paragraph 6 and section 59 which reads as follows: “A citizen shall have the right to access and utilize public service provided by the State continually, comprehensively and equally and State shall regularly modernize such public service,” and section 61: “A citizen shall have the right to obtain and access to public information in possession of the State, unless …”

Making the current draft constitution to guarantee that the Thai society is going to be the society for everybody and prepare for the elderly people, and to make the constitution not to be extravagant and old-fashioned in this regard, I propose to annul the section 46 paragraph 6, section 59 and section 61, by adding a new section 59 which would say:

A Citizen shall have the right to access to public environment, like buildings, transportation, information, communication and public service, adaptive technology and reasonable accommodation, including welfare and other aids as provided by law comprehensively and equally, unless the disclosure of such information shall affect the security of State, public safety, interests of other persons which shall be protected, or personal information of other persons as provided by law.

This draft of section 59 could integrate children, the youth, elderly and disabled people to be part of the citizens. It would guarantee that all citizens have the right to access all public facilities comprehensively and equally. It would guarantee that Thai society is a society for everybody.

When the draft of section 59 would be changed, section 91 has to change too for reasons of consistency. So far, section 91 of the draft constitution reads as follows: “The State shall ensure that the people to have access to Public environment, Public services, Adaptive Technology and Reasonable Accommodation comprehensively and equally. …”

To make the Thai society based on the constitutional right, not a society based on pity, I proposed to change the word “assist” in section 85 and use the word “develop”, which would be in accordance with the end of section 85 that says:  “… for their better livings upon self‐reliance basis”

Another urgent issue is to create a strong community that supports the elderly persons and welfare system. All benefit the disabled, because the community of disabled people wants the strong community. Almost all of disabled persons are the elderly persons. They want the welfare for their living based upon self-reliance basis and they want to have a living quality with human dignity. There are other issues, which need to be reformed, to make the society a society for everybody. Among them are:

• A reform on access to public environment, by enacting a law on access to public environment like in other civilized countries.
• A reform to  eliminate  unjust  discrimination,  especially  by  enacting  a  law  on eliminating unjust discrimination.
• A reform about the public monetary to promote the person with disadvantage for their living based upon self-reliance so that can benefit the society.
• A social enterprise should be established. For making the social enterprise grow rapidly, I propose to change the lottery office to become the social enterprise.
• The world tends to have more serious disasters. Facing this, we have to reform the disaster prevention system and to relieve the victims of the disaster. We have to support the community for their living upon self-reliance basis by enacting the law to protect people’s rights and liberties in an emergency case and public calamity, especially, the management of news, information and communication. In this regard I propose to amend section 295 (2) by eliminating the clause (…) improve the assistance system to be continuous to the underprivileged people, disabled people and marginal people. These shall include the architecture and the housing system which are appropriate to eliminate the disparity and to establish the fairness and good quality of life of the public; (…) and by adding (…) improve the system to develop living quality be continuous to the underprivileged people, disabled people and marginal people, especially the special education, the employment opportunities, the proper residence, reforming the system for accessing to public environment, the system to eliminate the unjust discrimination, establishing the public monetary system for society by creating the social enterprise organisation and the system to protect the people in time of emergency case and public calamity to eliminate the disparity and to establish the fairness and good quality of life of the public.

The word “Civilized Architecture” was used by Mr. Krissana Lalai for promoting a building which everybody can access (Universal Design), but not including the information, communication, transportation, adaptive technology and reasonable accommodation.

Saman Zia-Zarifi

Regional Director Asia-Pacific Programme, International Commission of Jurists

The ICJ has not had sufficient time to assess fully the compatibility of the 315 Sections of draft Constitution with international human rights standards. But after an initial, somewhat cursory review of the leaked, unofficial translation of the draft charter, we fear that the new draft Constitution will neither serve as a firm basis for protecting and promoting Thailand’s international human rights legal obligations, nor the establishment of the rule of law in Thailand.

There are two significant problems to point out with the draft Constitution, before even addressing its substantive provisions: First, the procedure under which the draft has been elaborated falls short of international principles of participation, representation and transparency; Second, the preservation of the Martial Law of 1914, which has been repeatedly criticized for its grant of broad, arbitrary, unaccountable authority to the military, undermines Thailand’s international legal obligations.

The International Covenant on Civil and Political Rights (ICCPR), to which Thailand is a party, guarantees under Article 25 the right of every citizen: “(a) To take part in the conduct of public affairs, directly or through freely chosen representatives; (b) To vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.”

The UN Human Rights Committee (the body providing authoritative interpretations of the ICCPR) has affirmed in its General Comment No. 25 (The right to participate in public affairs, voting rights and the right of equal access to public service (Art. 25) CCPR/C/21/Rev.1/Add.7) that:

the conduct of public affairs, referred to in paragraph (a), is a broad concept which relates to the exercise of political power, in particular the exercise of legislative, executive and administrative powers. It covers all aspects of public administration, and the formulation and implementation of policy at international, national, regional and local levels. The allocation of powers and the means by which individual citizens exercise the right to participate in the conduct of public affairs protected by article 25 should be established by the constitution and other laws.

The Committee also recognized (in the same General Comment’s subsequent paragraphs) that Article 25 guarantees that: “peoples have the right to freely determine their political status and to enjoy the right to choose the form of their constitution or government”; and that “[c]itizens also participate directly in the conduct of public affairs when they choose or change their constitution or decide public issues through a referendum or other electoral process.”

The constitution drafting process has not provided for the establishment of a representative and democratically elected body responsible for drafting the Thai Constitution, nor does it ensure adequate time for a comprehensive public dialogue in order to draft a constitution that fully represents the views of Thai people. This procedure undermines the rights of the Thai people to fully participate in the constitution-making process and to make an informed decision about the basic framework of governance and law for their society, particularly in the context of the deep political instability of the past few years.

Satit Pitutacha

Deputy Leader, Democrat Party Thailand

This Constitution intends to solve the country’s problem.

Unfortunately, the wrong proposition was set. Persons, who know and understand the problems, have a chance to participate in constitutional drafting process inadequately. The drafters have ideas and concepts to find the new solution which creates the country’s new rule under their understanding of the so-called “Thai-style democracy”. But this idea is contrary to democratic values. It distorts the main principles of parliamentary democracy, reflected for instance in the fear of political parties able to reach a majority in parliament. Additionally, the drafters rely on a number of new organizations created to control the government’s work, rather than to set a strong democratic control system which is linked to the people’s voices. The elected government should work under the control from the people, media and opposition.

Actually, we can go to the right way to draft a new constitution, if we can find the country’s primary culprits. Importantly, the reform has to be created out of the cooperation which all parts of society and state authorities. All Thai people have to come together. The problem is not that we don’t have enough laws, but the effectiveness of law enforcement. People don’t trust that the state authority enforces laws equally. Thus, people don’t obey the law. The State has to make law enforcement effective. Every person should be equal before the law. An attitude of good disciplines to live together should be created.

Virot Ali

Faculty of Political Science, Thammasat University with research areas in global political economy, and political economy of development in Thailand

The new constitution generally weakens political parties and elected representatives while strengthening the judiciary and bureaucracy. Article 121 allows for a Senate which is even less democratic than the previous one: only 77 members are elected by votes while at least 20 appointed Senators can be retired military officers. Meanwhile, Article 207 empowers bureau-crats (including military officials) to alone nominate other bureaucrats for appointments or transfers, diminishing the power of elected officials. Ultimately, Thailand’s 20th Constitution, born as a result of military putsch, enshrines juristocratic-bureaucratic polity atop enfeebled democracy.