Highlights of the Draft Constitution B.E. 2550
In formally submitting the constitution draft to the 12 concerned parties scheduled for Thursday, the 35member Constitution Drafting Committee has spelled out the comparison between the 1997 Constitution and the new draft.
Here is the unofficial translation of the reasons behind the first draft of the new constitution and how it has been designed to improve on the political system.
The Draft Constitution of the Kingdom of Thailand B.E. 2550 has been written with an aim of taking the Kingdom back to a full democracy, with a general election expected within 2007. It seeks to correct the weaknesses inherent in the 1997 Constitution, which led to monopoly and abuses of State powers, political mismanagement that lacked transparency, good governance, and ethics; to failure to scrutinize the exercise of State powers and inadequate protection of the rights and freedoms of the people.
The present Draft Constitution addresses those problems on four fronts, including:
1. Protection, promotion, and expansion of the rights and freedoms of the people;
2. Reduction of concentration of power and elimination of its abuses;
3. Making politics transparent, moral and ethical; and
4. Strengthening and increasing the effectiveness of the scrutiny process by making the scrutiny bodies freer, stronger, and more efficient.
1. Protection, promotion, and expansion of the rights and freedoms
A constitution does not belong to just a handful of people or politicians, but should belong to all people. It should give political space to all and encourage all to participate in determining their own destiny.
1.1. The present Draft Constitution provides more rights and freedoms than the 1997 Constitution. The new features include:
- Recognition of the rights and freedoms of international conventions, to which Thailand is party, with the same binding effect as those provided in the present Draft Constitution (Section 4);
- Protection of the privacy of personal information (Section 35);
- Increase of rights in the criminal justice process through reform to improve access to the justice process, making it easier, quicker, more convenient, and more widely available at reasonable costs. Children, youths, women, the old, and the disabled and handicapped will get appropriate protection in the criminal procedure (Section 40). And more significantly, for the first time the people will have the right to bring a case before the Constitutional Court directly;
- Legislation for the first time of labour rights to safety and welfare at work and security of employment during and after employment (Section 44);
- Greater protection of the rights and freedoms of the press than ever before, prohibiting not only closure of mass media, but also interference in the presentation of information, directly or otherwise (Section 45 and Section 46); prohibiting ownership or share-holding in mass media by holders of political office to prevent the use of mass media to advance their own personal benefits (Section 47 paragraph five);
- Twelve years of free education with special support for the needy, the disabled or handicapped, or those in financial difficulty so that they may receive education on par with others (Section 48). In addition, there will be educational courses and trainings by vocational units and the private sector. Alternative education, self-education, and learning as a life-long process will also receive support (Section 48);
- Children, youths, and family members to enjoy more rights for physical, mental, and intellectual development compatible with their potential and environment (Section 51);
- Persons without a home or adequate income to have the right to receive State aids for the first time (Section 54);
- Extension of community rights to cases where individuals get together, with duration not long enough to be an original local community (Section 66 paragraph one). Further, before undertaking any project or activity which may cause serious environmental damage, the public, particularly those directly affected, will have to be consulted (Section 66 paragraph two). The community can sue a government agency, State agency, State enterprise, local government, or other State agency which is a juristic person to ensure compliance with the community rights provisions (Section 66 paragraph three);
- Rights for the people to monitor and to demand scrutiny of the performance of duties of a holder of political office - first time ever (Section 61 paragraph one), including access to detailed contents of Bills being considered by the National Assembly (Section 138 paragraph five) in addition to the right of access to official information (Section 55);
- Public hearings to be required before signing any international agreement with an impact on the people. After signing the agreement, the State has to give the people access to the detailed contents of the agreement signed and promptly provide remedies for those adversely affected in a fitting and just manner (Section 186 paragraph two and paragraph four); and
- People of 100,000 or more to be able to petition to get the Constitution amended - another first (Section 281(1)).
1.2 To make the exercise of rights easier through the following measures:
- Rights and freedoms are arranged in a clear and readable form: rights and freedoms of individuals (Section 32-Section 38), rights of the criminal justice, rights of information and complaint (Section 55-Section 61), rights of community (Section 65-Section 66), rights to uphold the Constitution (Section 67-Section 68), etc;
- Rights and freedoms provided in the Constitution may be invoked even if they have not been enacted; the people may exercise those immediately in courts (Section 28 paragraph three);
- The State has to promote, support, and help the people to exercise rights and freedoms (Section 28 paragraph four); and
- The number of signatures needed to recall a holder of political office will be reduced to 20,000 from 50,000 (Section 160 and Section 262 paragraph three).
1.3 Making the exercise of rights and freedoms more efficient with clear safeguards:
- Removing the phrase "as provided by law" from all Sections on rights and freedoms, which means the provisions of the people's rights and freedoms take immediate effect upon the passage of the Draft Constitution, not pending their enactment;
- Placing a time limit on enactment of organic-law Bills, so as to prevent those in authority from delaying their passage to restrict rights and freedoms (Section 293 and Section 298);
- Giving the people the right to bring before the Constitutional Court directly cases involving violation of the rights and freedoms provided in the Constitution (Section 208);
- Giving a community the right to bring cases involving violation of the rights and freedoms directly before the Constitutional Court (Section 66 paragraph three); and
- Allowing the National Human Rights Commission initiate legal action in the Constitutional Court and the Supreme Administrative Court where a law, rules, or injunctions contravene the Constitution, or human rights have been violated, doing so on behalf of the injured party (Section 248(1) and (2)).
1.4 Making the Directive Principles of the Fundamental State Policies explicit all round and more binding than before on the government by:
- Clearly differentiating the Chapter on the Directive Principles of the Fundamental State Policies to cover all aspects, including security, religion, society, education and culture, law and justice, international affairs, economy, land, natural resources and environment, science, intellectual property, energy, or public participation;
- Increasing the Principles of the Fundamental State Policies in key areas. Inter alia, the State has to develop a work system that stresses development of quality, morality and ethics of its staff; has to encourage the State agencies to adopt good governance; has to undertake law and criminal justice reforms (Section 80(5), (6)); has to encourage and support the philosophy of sufficiency economy (Section 82); has to restructure the tax and duty system to make it more equitable (Section 83(3)); has to protect the interests of farmers in production and marketing (Section 83(9)); has to provide basic public utilities and make sure they do not fall into private monopoly (Section 83(11)); has to regulate land uses based on professional principles, covering lands and waters throughout the country; has to give farmers land-use rights widely (Section 84), etc; and
- Requiring the in-coming government to declare its policy to the National Assembly ensuring that it is in line with the Directive Principles of the Fundamental Policies, stating setting out clearly what it plans to do and the related timeframes. In addition, it has to submit an annual report to the National Assembly documenting the implementation progress and results as well as problems or obstacles encountered over the past year.
1.5 Allowing public participation in the administrative activities of the local government and greater decentralization of powers to local governments so as to make them the bedrock of democracy at the national level.
- The local government has complete freedom to manage its own affairs in all aspects, including organization of public services with variety and diversity (Section 274 paragraph one) and determination of its own administrative structure to suit the local conditions and needs (Section 275 paragraph nine).
- Personnel management of the local government will be reformed such that the personnel will have the status of civil servants like their counterparts at the national level, with their own committees independent of the central government's control, powers to transfer personnel across agencies, and their own ethic committee as well (Section 279).
- Public participation at the local level will be boosted, allowing local residents to hold referendums on local matters of importance (Section 278 paragraph one and paragraph two), reducing the number of signatures required to recall a holder of local political office and to legislate local ordinances (Section 276 and Section 277), making the local government inform the public with respect to budgeting, spending, and performance so that the latter can tale part in scrutinizing and monitoring its management (Section 278 paragraph three).
- The supervisory and monitoring system of the local government will be restructured to improve its efficiency, adopting a common standard so that the administration can operate independently, giving due consideration to the suitability and difference in development levels and management efficiency of the area. The local authority is to be encouraged to determine its own modus operandi according to its needs and to set up their scrutiny mechanism (Section 273 paragraph two).
2. Reduction of concentration of power and elimination of its abuses
The 1997 Constitution wants a strong and efficient government, which is well and good. However, if the strength and efficiency is concentrated in the hands of one single person, it can easily lead to abuses of powers, as it obviously did. It is therefore necessary to reduce concentration of power and adjust the balance of power. This the new Draft Constitution tries to do by the following measures:
2.1 Empowering the people so that they become players, not watchers on the sideline by virtue of the numerous Sections cited in Part 1, for example:
- Allowing public participation in all political spheres, e.g., in administering affairs of the State (Section 55, Section 138 paragraph five, and Section 186 paragraph two), holding referendum on important issues (Section 161), and amending the Constitution (Section 282 paragraph one);
- Giving the people and the community power to sue the State for improper use of powers (Section 208 and Section 66 paragraph three); and
- Making it easier for the people to exercise their rights, e.g., reduction in the number of signatures required to recall a politician and to propose a law both at the national and local level (Section 159, Section 160, Section 276, and Section 277).
2.2 Preventing monopoly and abuse of State powers by the government as follows:
- The Prime Minister can only serve two terms or eight years (Section 167 paragraph three);
- In issuing a Royal Decree, the government will be subjected to scrutiny by the Constitutional Court. Not something to be done at whims and fancy, such legislation is reserved only for unavoidable emergency, not just to evade the scrutiny of the National Assembly (Section 181).
- A Chapter on money, finance, and budget is to be added - the first ever in Thailand - to prevent undisciplined spending and creation of a financial burden on the future government and on the country (Section 162 to Section 166). Under the present Draft Constitution, the government is required, specifically in its budget statement, to clearly state objectives, activities, plans, and projects (Section 163 paragraph one); spending from the central budget will be capped and must be justified on the basis of necessity (Section 163 paragraph two);
- The National Assembly, courts, and statutory Independent Agencies can request amendment directly to Parliamentary committees so that the government can no longer use budget appropriations as a bargaining chip (Section 164 paragraph nine). Similarly, the statutory agencies can table amendment to its own regulations to the National Assembly directly and unobstructed by the government (Section 138(3));
- The Office of Public Prosecutors will be independent from the government and can thus inspect the exercise of State powers without the government's interference, especially in proceedings against holders of political office (Section 246); and
- The scope of responsibilities of the care-taker government will be defined clearly such that it will not be able to interfere with civil servants' performance of duties, nor to use State apparatuses to support any political party or any candidate in a general election (Section 177).
- Merger of political parties with sitting members is prohibited during the term of the House to prevent excessive majority (Section 99).
2.3 Giving good people a chance to sit in the House of Representatives and freeing the members of the House from the undue influence of their party so that they can fully and truly represent the interests of the electorate and country, with the following provisions:
- The electoral system of the House of Representatives will be changed. Constituencies will be larger so that good candidates can compete in a more level field with their moneyed counterparts. The party-list system will be replaced by proportional representation with constituencies based on provincial groupings rather than the whole country, which will prevent excessive concentration of representatives from the central region. The 5% cutoff rule will also go, which will give small parties a better chance, thus conducive to political diversity.
- Members of the House of Representatives will be free from parties' resolutions in interpellating, debating, and even voting on a motion of no confidence (Section 158 paragraph two); and
- Members of the House of Representatives will be table a Bill without his or her own party's permission (Section 138(2)).
2.4 Members of the Senate will be free from the dominance of political parties since they will be selected from provinces and, separately, from occupational groups (Section 106), not through election which is prone to political meddling. With the proposed selection process, Thai politics will cease to be the exclusive preserve of elected politicians, but will belong to the people from diverse backgrounds, areas, occupations, and genders while opening up opportunities to the socially underprivileged as well (Section 108 paragraph two).
2.5 Members of the House of Representatives and of the Senate are prohibited from intervening and interfering with the performance of duties by civil servants to advance their own or party's interests, directly or otherwise, as well as in posting, appointment, move, transfer, promotion or salary increases (Section 257).
3. Making politics transparent, moral and ethical
Political transparency, morality and ethics were in serious deficit in the 1997 Constitution. Flouting those rules, the ruling politicians used all tricks and cunning to get round the law, breed conflict of interests, and enrich themselves on the back of hardships of the nation and people. For good governance, the present Draft Constitution offers the following solutions:
3.1 A clearly written Chapter on morality and ethics for holders of political office and State officials
- The ethics for holders of political office and State officials will set a clear code of conduct and criteria, apparatus, and system for efficient performance of duties, complete with a penal procedure for breaches of the code (Section 270 paragraph two); and
- A serious breach will, under the present Draft Constitution, result in removal from office (Section 270 paragraph three).
3.2 Measures to prevent political conflict of interests:
- Members of the House of Representatives and of the Senate are not permitted to hold any position in the civil service, State agencies, State enterprises, local councils, or as an administrator or civil servant in the local government. They must not receive, infringe, and interfere in the award of concessions from the State, civil service agencies, State agencies or enterprises, or be a partner in contract with the State, civil service agencies, State agencies or enterprises construable as monopoly, collusion, or partnership or holding shares in companies that obtain concessions or be a partner in contract thereof, directly or otherwise. They are not permitted to receive any payments or benefits from civil service agencies, State agencies or enterprises beyond what the civil service agencies, State agencies and enterprises offer others in a comparable business deal. Nor are they permitted to be partners or shareholders in companies involved in mass media, or partners in contract (Section 256);
- The Prime Minister, ministers, spouse, and minor offspring are prohibited to be a partner or a shareholder in partnership companies or companies, or to retain partnership or shares in the partnership companies or companies in amounts as specified by law. If the Prime Minister or a minister wishes to continue to receive the said benefits, he or she must inform the President of the National Counter Corruption Commission within 30 days of his or her appointment to office. He or she must transfer all the shares into a trust to be managed by an assets management company as required by the law. And he or she must refrain from any act that bears the resemblance of management of the shares or in the activities of the company in question (Section 260).
3.3 Stricter rules on the declaration of assets and liabilities for the holder of political office. Apart from his or her own, his or her spouse's, and minor offspring's, the amounts declared must include assets entrusted to others as well, directly or otherwise (Section 250). Just like ministers, members of the House of Representatives and of the Senate are also required to disclose their wealth to the public (Section 252).
3.4 Easier removal of members of the House of Representatives, of the Senate, the Prime Minister, and ministers on judgment by the court
- Upon the final judgment of imprisonment by the court, regardless whether it is a suspended sentence or not, a member of the House of Representatives or of the Senate is considered officially removed from office except in the case of negligence or minor offence (Section 119(4)).
- Upon delivery of a prison sentence regardless whether a final judgment or a suspended sentence, the Prime Minister or the minister is considered officially removed from office, except in the case of negligence, a minor offence, or defamation (Section 178(4)).
3.5 The President and Vice-President of the House of Representatives, the Prime Minister and ministers are prohibited from engaging in anything that bears the characteristics of a conflict of interests.
- The President and Vice-President of the House of Representatives are not permitted to concurrently hold an executive post in a political party (Section 119 paragraph six).
? The Prime Minister and ministers are not permitted to vote on matters relating to post assignment, performance of duties, or being party to the benefits thereof (Section 173 paragraph three).
4. Strengthening and increasing the effectiveness of the scrutiny process by making the scrutiny bodies freer, stronger, and more efficient
The scrutiny bodies and statutory Independent Agencies, which were the high hope of the people in the 1997 Constitution, were subjected to heavy political meddling and in the event failed to discharge their duties effectively. They stand in need of restructuring.
4.1 The selection process for the scrutinizing bodies must be restructured, and persons of independence recruited. Under the Draft Constitution, the Selection Committee will comprise the President of the Constitutional Court, the President of the Supreme Court, the President of the Supreme Administrative Court, the President of the House of Representatives, and the Opposition Leader.
4.2 The powers and duties and the way the scrutinizing bodies work must be improved. The Draft Constitution proposes the following measures:
- Under the Draft Constitution, the Constitutional Court will be vested with the power to consider cases of rights and freedoms violation brought before it directly by the people (Section 208).
- The Division of the Prosecution of Holders of Political Office of the Supreme Court will consider cases of politicians accused of not declaring their assets and liabilities or cases involving falsification of assets and liabilities declared (Section 254 paragraph two).
- The National Counter Corruption Commission will only handle cases involving high-ranking political officer holders and civil servants so as to increase its efficiency (Section 243(3)).
- Ombudsman may initiate lawsuits where public damage has occurred or public interests must be protected without waiting for complaints (Section 237(1) paragraph two).
- The National Human Rights Commission is also to receive a boost in power as it will be allowed to bring cases before the Constitutional Court and the Supreme Court if any a law, ordinance, decree, or act contravenes the Constitution; and to act for and on behalf of the injured party whose human rights have been violated (Section 248(2) and (3)).
- The National Economic and Social Advisory Council will give comments on all Bills (Section 249).
- The statutory Independent Agencies, the National Assembly, and the courts can amend their own budgets directly before the Parliamentary committees (Section 164 paragraph nine).
- Members of the House of Representatives can censure the Prime Minister more easily if they can gather votes of one quarter of the total number of the existing members of the House (Section 154 paragraph one). They can also lodge a no-confidence debate against a minister who has moved to another cabinet post to avoid sanctions (Section 155 paragraph two and paragraph three). Both the Prime Minister and ministers can now be made to answer questions in person on the House floor (Section 158).
- The Office of Public Prosecutors will be separated from the government so that it can work more independently in the scrutiny of the exercise of State powers (Section 246).
4.3 Setting up a system of scrutiny over the performance of the statutory Independent Agencies
- Issue of a "red card" and "yellow card" by the Election Commission can be appealed to the Supreme Court. Similar problems at local government elections can be dealt with by the provincial appellate court or regional appellate court (Section 233).
- Rules, orders, or other actions of the statutory bodies relating to the application of law or to performance of administrative duties can be scrutinized by the Supreme Administrative Court (Section 218 paragraph one).
- Ombudsman will have power to investigate negligence of duties or misfeasance of other statutory agencies or agencies within the justice process (Section 237(1)(d or ?)).
