Deconstructing Thailand's (New) Eighteenth Constitution
Passions are inflamed currently in Thailand for reasons that are self-evident. The drafting of the new Constitution has been a polarized rather than consensusbased affair, brought about by the fact that Thailand's sixteenth Constitution (1997)1 known as the People's Constitution-was overturned by a coup in 2006. Intriguingly, the current text of the new Constitution has fewer articles than the sixteenth Constitution had, but it is longer in wording.2 It deserves to he deconstructed to reveal its constituents transparently. This is partly in view of the fact that national elections are due on 23 December 2007, possibly heralding a return to democratic rule.
The new Constitution re-affirms the central of role of the monarchy in the constitutional process. As it now stands, the Constitution-the eighteenth - which was put to a national referendum on 19 August 2007, and was approved by a margin, reads a little better than an earlier draft of this Constitution. It shies away from the idea of a totally selected (appointed) Senate by opting instead for a mixture of selected (seventy four in number) and elected (seventy six in number) Senate, partly to appease those who feel that a totally selected body would simply not be credible. The earlier proposal to include the possibility of setting up a National Crisis Council, which would have provided even more elbow room to the military to administer the country in times of so-called national crisis, has also been omitted from the current draft.
Yet, when tested against both the form and substance of the 1997 Constitution, there are key challenges at hand. As it stands, the draft is evidently a reaction against the previous Government which was embroiled in perceived or real conflict of interests, personified by the media-magnate premiership ultimately ejected by military action.
On the one hand, there are some innovations of note. First, there are many limits imposed on the executive branch of Government, especially the top-notch of the executive branch. For example, a person elected as Prime Minister cannot stay in power for more than eight years.3 The Premier, the spouse and under-aged children must declare their assets fully, and they are not allowed to have a hand in companies4, especially those in the media and telecommunications industry. One fifth of parliamentarians ("lower house") can propose a no-confidence vote against the Prime Minister5, a lower number than the two-fifths rule under the sixteenth Constitution.
Second, there are more detailed provisions concerning human rights in the new Constitution6 For instance, the rights of communities particularly in safeguarding the environment are expanded, and these communities as collectivities will be entitled to take action in courts. The tendency of the sixteenth Constitution to subject various rights to the condition that they were to be enjoyed "as stipulated by law" has also been discarded to some extent. That phrasing had meant that in order to exercise those rights, one had to look to other laws, e.g. Acts of Parliament, in addition to the Constitution, to enjoy those rights in practice. Thus the new Constitution makes such rights directly applicable in the courts without the need to have other laws. Interestingly, unlike under previous Constitutions, individuals will now be able to access the Constitutional Court directly to question the constitutionality of laws.7
Third, under the current Constitution, various independent agencies have more powers to protect people. The National Human Rights Commission will be able to take cases directly to court, in its own name and on behalf of the victims8 a power lacking under the sixteenth Constitution. The Ombudsperson will be able to scrutinize the conduct of parliamentarians and other political office-holders for ethical purposes.9
Fourth, the courts will have more power under the new Constitution. High ranking judges will sit in various selection committees to vet candidates for key organs such as the Senate and independent agencies, such as the Counter Corruption Commission and the Election Commission. Given the recent role of the Constitutional Tribunal in dissolving the Thai Rak Thai party (the party whose rule was overturned by the coup mentioned) for electoral malpractices and removing the electoral rights of over one hundred of its executives, including the previous Premier, for five years in May 2007, judicial power would seem to be on the rise.10
Fifth, the ordinary people will be able to question politicians more easily under the new Constitution as well to submit laws and seek transparency in Government. A minimum of ten thousand people will be able to propose a new laws11, as compared with fifty thousand under the sixteenth Constitution. A minimum of twenty thousand persons will be able to petition the Senate to dismiss the Prime Minister and other office -holders.12 Local Government bodies will have to submit their plans and related budgets to the local people, as well report their implementation for scrutiny.13
|* A Professor of Law at Chulalongkorn University, Thailand. He has helped the United Nations in a variety of capacities, including as an expert, consultant and Special Rapporteur. This article is derived from his lecture on human Rights Governance under Thailand's Constitution, delivered at the Australian National University, Canberra, 6 August 2007.
1. For text of Thailand's Sixteenth Constitution in English, see: Constitution of the Kingdom of Thailand, BE 2540(1997), Bangkok: Office of the Council of' State/Senate.
2. Draft Constitution of the Kingdom of Thailand, Bangkok: Constitutional Drafting Assembly, 2001. (in Thai, prepared liar the August referendum). For English version of the new eighteenth Constitution. see:www.asianlii.org/th/legis/const/2007 /1.html#TP
3. Section 171 of the Eighteenth Constitution.
4. Section 269; 265;48.
5 Section 158
6. Chapter III of the Eighteenth Constitution ff.
7. Section 212.
8 Section 257
9. Section 244.
10. Constitutional Court Case Number 3-5/2550 (30 May 2007): Prosecutor v Thai Rak Thai Party et al. See Judgment of the Constitutional Court, Number 3-5(2550), Bangkok: Constitutional Court, 2007 (in Thai)
11. Section 163.
12. Section 164.
13. Chapter 14 of the Constitution ff.