Human rights governance under Thailand's draft constitution:
Dr. Vitit Muntarbhorn provides some historical background and assessment
By Jon Fernquest[Introduction|Vocabulary|Article]
[Reading Questions|Answers]
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The new draft constitution and the referendum on August 19th may well still be a cipher for many.
To dispel this uncertainty, Dr. Vitit Muntarbhorn, professor of law at Chulalongkorn University, provides a well-balanced appraisal of the draft constitution today from the perspective of human rights law.
This article is a summary of a lecture delivered on Human Rights Governance under Thailand's Constitution at the National Thai Studies Centre of the Australian National University (ANU). [See New Mandala Blog at ANU]
Dr. Vitit was awarded the 2004 UNESCO Prize for Human Rights Education.
His assessment provides insight into the often difficult to fathom day-to-day recent events of Thai politics.
His analysis contrasts the provisions in the new constitution with the provisions of the now defunct 1997 constitution.
He also cites historical events and contentious issues that have motivated provisions in the new constitution.
For further reading, read a short biographical piece on Dr. Vitit at UNESCO and his acceptance speech for his 2004 UNESCO award.
Reading Questions
Here are some questions to guide your reading (See answers at end):1. Why has the recent drafting of a new Thai constitution done more to polarise people politically than build a consensus?
2. How many constitutions has Thailand had in its history so far?
3. What is the centerpiece of the proposed new constitution?
4. What controversial articles were eliminated in the final draft of the proposed constitution?
5. How was Thaksin a media magnate?
(Outside research required)
6. How did Thaksin manage the media during his administration?
(Outside research required)
7. What is the draft constitution a reaction against?
8. What limits are imposed on the executive branch of the government in the new constitution?
9. What advances in human rights provisions does the new constitution make?
10. How would the power of the judiciary expand under the draft constitution?
(Skim the whole article)
11. How would the draft constitution empower ordinary people?
12. How does the drafting process of the draft constitution differ from the 1997 People's Constitution?
13. In what ways has the military exerted influence over the drafting of the constitution and the referendum process?
14. Why was responsibility for the scrutiny of politicians' assets shifted under the draft constitution?
15. How has the attitude towards polticians changed in the draft constitution compared to the 1997 constitution? How is this attitude reflected in the provisions of the draft constitution?
Bangkok Post Article August 06, 2007
OPINION / THAI POLITICSDeconstructing the (draft) constitution
The proposed constitution has fewer articles than the previous one, but it is longer in wording. It deserves to be deconstructed to reveal its constituents transparentlyBy VITIT MUNTARBHORN
Passions are inflamed currently in Thailand for reasons that are self-evident. The drafting of the new constitution has been a polarised rather than consensus-based affair, brought about by the fact that Thailand's 16th constitution (1997) - known as the People's Constitution - was abolished by a coup in 2006. Intriguingly, the proposed constitution has fewer articles than the 16th constitution, but it is longer in wording. It deserves to be deconstructed to reveal its constituents transparently.
The current draft reaffirms the central role of the monarchy in the constitutional process. As it now stands, the proposed constitution - the 18th - which will be put to a national referendum on August 19 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 (74 in number) and elected (76 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.
However, 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. The premier, the spouse and underaged children must declare their assets fully, and they are not allowed to have a hand in companies, especially those in the media and telecommunications industry. One-fifth of parliamentarians can propose a no-confidence vote against the prime minister, a lower number than the two-fifths rule under the 16th constitution.
Second, there are more detailed provisions concerning human rights in the current draft. 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 16th 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 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 current draft makes such rights directly applicable in the courts without the need to have other laws.
Third, under the current draft, 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 victims - a power lacking under the 16th constitution. The ombudsperson will be able to scrutinise the conduct of parliamentarians for ethical purposes.
Fourth, the courts will have more power under the draft constitution. High ranking judges will sit on 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 Constitution Tribunal in dissolving the Thai Rak Thai party 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.
Fifth, the ordinary people will be able to question politicians more easily under the new draft as well to submit laws and seek transparency in government. A minimum of 10,000 people will be able to propose a new law, as compared with 50,000 under the 16th constitution. A minimum of 20,000 persons will be able to petition the Senate to dismiss the prime minister and other office-holders. Local government bodies will have to submit their plans and related budgets to the local people, as well report their implementation for scrutiny.
On the other hand, there are various gray areas affecting the current draft constitution, inviting deep reflection.
First, the typology of democracy. Clearly, given the circumstances giving birth to the new constitution, the march towards democracy is managed directly or indirectly by the ruling elite. The process is more along the line of "directed democracy" rather than full-fledged democracy of a participatory kind. This is manifested by the drafting process of the new constitution which has avoided the use of broad-based consensus building techniques which the process leading to the 16th constitution used, such as public hearings throughout the whole country. Rather, a select group has been in charge of the current draft and they owe their appointments to the Council for National Security (composed of the armed forces) which came to power as a consequence of the coup. It should also not be forgotten that the interim constitution - the 17th constitution, introduced in late 2006, enables the Council for National Security to adopt another constitution if the draft text is rejected by the forthcoming referendum.
Second, the presence of the military. An analysis of the draft text cannot be self-contained. While the drafting process has been taking place, the military has been consolidating its power over the country. This has been bolstered by a rise in the national budget allocated to the armed forces as well as replenishment of the secret funds under their control. Uniformed personnel are thus the unwritten power behind the constitutional process and are able to use various intermediaries as their interlocutors. The draft constitution also has a provision giving them blanket amnesty for the events leading to the demise of the previous civilian government.
Third, the judicialisation process. Interestingly, because of their role in the drafting process as well as in the contents of the text; the draft constitution has thus been "judicialised." There is a large number of judges and lawyers on the 35-member drafting committee. It is likely that they helped to introduce the notion of the "rule of law" which now appears prominently for the first time in a Thai constitution. In addition to the increased powers of the judges in the various selection committees noted above, the judiciary will also be able to propose laws under the new constitution. This poses an intriguing question as to how to balance the functions of the legislature, the judiciary and the executive. From the angle of scrutiny of the assets of parliamentarians, the mandate has been shifted from the Constitution Tribunal to the Supreme Court (Criminal Division for Politicians).
This is a consequence of the unsettling fact that the Constitution Tribunal under the previous administration found in favour of the premier in a case where he had been charged with failure to declare his assets.
Fourth, the mind-set towards politicians. The draft text clearly shows a degree of mistrust towards politicians, especially those in the executive. In future, all parliamentarians will have to declare their assets and many controls are to be introduced on them. The draft constitution has a key section on conflict of interests, and measures to address them, such as scrutiny by the Counter Corruption Commission and the Supreme Court. A code of ethics will be evolved to test the conduct of politicians. The power of the prime minister in controlling the cabinet ministers is to be reduced, since in the future those appointed as ministers will not lose their parliamentary seats - unlike under the 16th constitution whereby those who became ministers automatically lost their seats, and as a result, became more beholden unto the prime minister for further benefits.
However, the rule under the previous constitution which stipulated that a candidate needed to be a member of his/her political party for at least 90 days to be eligible to run as a candidate is now modified under the current draft constitution; there is an exception in regard to dissolution of parliament, in which case the candidate need only have been a party member for 30 days or more.
Fifth, adjustments of the political party system. Under the new text, large-scale parties are likely to be diluted. There is to be a lower house of representatives with 480 members of parliament (MPs) - 400 will be elected on a constituency basis and 80 will be elected through proportional representation. This is different from the 16th constitution which provided for 500 MPs, out of whom 100 would come through proportional representation. Unlike under the 16th constitution, there will no longer be a single candidate, first-past-the post system. Rather there will be bloc voting in the sense that voters will be voting for up to three MPs per constituency.
As for those to be chosen by means of proportional representation, smaller parties will benefit from the abolition of the old rule under the 16th constitution whereby each party needed to obtain at least 5% of the total votes in the country (as a single constituency for the purpose of proportional representation) to be eligible to a share of the seats allocated. The country will also be divided up into smaller areas (possibly eight) under the new constitution for the purpose of computing the seats for proportional representation, thus enabling smaller parties to benefit from the arrangement. The possibility of coalition governments will arise more frequently in future.
Vitit Muntarbhorn is a Professor of Law at Chulalongkorn University. He has helped the United Nations in a variety of capacities, including as an expert, consultant and Special Rapporteur. This article is derived from a lecture on Human Rights Governance under Thailand's Constitution , delivered at the Australian National University, Canberra, on August 6, 2007.
Vocabulary (in discussion above)
Dr. Vitit Muntarbhorn - a professor of law at Chulalongkorn unversity, has served the United Nations as an expert, consultant and Special Rapporteur
human rights law - the system of laws both internationally and within Thailand which promotes human rights (See Wikipedia on human rights law)
the proposed constitution, the new constitution, the draft constitution - the constitution described in this article that will be voted on in a referendum on August 19th (See Wikipedia)
the 1997 People's Constitution - (See Wikipedia on the 1997 constitution of Thailand)
interim constitution - the temporary constitution put in place after the 2006 coup (See Wikipedia on the 2006 interim constitution of Thailand)
Council for National Security (CNS) - the council with representatives from the military set up after the coup to govern (See Wikipedia)
a referendum - when people are asked to vote on a policy to show whether they agree with it or not
forthcoming referendum - the national vote on the new constitution that is about to take place (on August 19th)
* put to a national referendum
a cipher - a secret code, a secret system of writing that cannot be understood by others
an appraisal, an assessment - an evaluation, a careful consideration followed by judgement
difficult to fathom - difficult to understand
Australian National University (ANU) - a public university located in Canberra, the capital of Australia, founded in 1946 as a postgraduate research university, in 1960 undergraduate education was added, in 2006, London's Times Higher Education Supplement and Newsweek ranked ANU 16th and 38th in the world respectively, both indicies ranking it as the top university in Australia (See Wikipedia and National Thai Studies Centre website)
UNESCO Prize for Human Rights Education - a prize awarded for an efficient, exemplary and genuine contribution to the development of the teaching of human rights, prize is awarded to teaching institutions, organizations or persons (See website and list of prize winners)
a provision - an arrangement in a law, agreement, or contract
defunct - not longer exists, not operating anymore
cites - mention or quote as proof a source with authority
contentious - causing a lot of disagreement and arguments
passions are inflamed - people are very emotionally involved (with the issues)
polarised - increased the differences and gap between two groups with opposing opinions
a consensus - general agreement among a group of people
* broad-based consensus building
deconstruct - to break into pieces and analyse, the recently deceased French philosopher Derrida also used "deconstruction" to mean "analyse and reinterpret with a strategy"
constituents - parts
reveal its constituents transparently -
reaffirm - state again clearly and firmly
* reaffirms the central role of
shies away from - avoids doing (because it looks difficult or dangerous)
appease - doing something to make angry people happy
credible - believable (See glossary)
embroil in - get deeply involved in
x embroiled y in z - event or person x causes y to get deeply involved in a fight or argument z
conflicts of interest - a situation with competing professional and personal interests, that might cause biased decisions or advice, by someone in a position of trust, such as a lawyer, insurance adjuster, politician, manager in a corporation, or a physician (See Wikipedia)
perceived as - people see it as, have the opinion that
perceived conflicts of interest - people have the opinion that it is a conflict of interest (but it may not be)
* embroiled in perceived or real conflict of interests
personified by - are the perfect example of, have all the qualities of
magnate - a person whjo has grown welathy from a particular kind of business (for example, a media magnate or a shipping magnate)
premiership - the period of time during which someone serves as leader of the government
* media-magnate premiership
impose on - use authority to force people to accept
* limits imposed on
a notch - a level
the top-notch of - the highest level of
a parliamentary motion - the way that proposals are brought before a parliament to be voted on (See Wikipedia on parliamentary procedure)
a no-confidence vote - a parliamentary motion traditionally put before a parliament by the opposition in the hope of defeating or embarrassing a government (See Wikipedia on motion of no confidence)
a collectivity - a unified group of people, a group of people acting as one
communities as collectivities - a unified group acting as one
stipulate - state clearly that something must be done (for example in a condition in an agreement or contract) (See glossary)
x as stipulated by law y - law y states clearly that x must be done
independent agencies - agencies that are empowered to act independently of the influence of politicians, such as the UNHRC human rights organisation in Thailand (during the Thaksin era attempts were made to influence and then take power away from the UNHRC when it made negative findings)
National Human Rights Commission (NHRC) - the indepdendent commission set up by the 1997 constitution to investigate complaints of human rights violations (See website and Wikipedia)
on behalf of - for
do x on behalf of y - do x for the benefit of y
ombudsperson - an independent official appointed to investigate complaints
scrutinise - examine carefully (See glossary)
vet - checked carefully, to make sure they are acceptable
vet candidates - check candidates carefully
x is an organ of y - x is an organisation used by y to get things done or to provide information to the public (for example, the most powerful organ of government will no longer be the Prime Minister's Office)
key organs - important organisations within the government
transparency in government - visibility of government operations and policy
petition - a formal request to the government or other authority for action, often accompanied by many signatures
gray areas - unclear areas (unclear due to classification, responsibility, or lack of understanding, expertise, or experience)
typology of democracy - the many different kinds of democracy each with its own features (Wikipedia lists several different varieties of democracy: Anticipatory democracy, Athenian democracy, Defensive democracy, Deliberative democracy, Demarchy, E-democracy, Market democracy, Democratic centralism, Democratic dictatorship, Direct democracy, Dominant-party system, Economic democracy, Grassroots democracy, Illiberal democracy, Jacksonian democracy, Jeffersonian democracy, Liberal democracy, Multiparty democracy, New Democracy, Non-partisan democracy, Parliamentary democracy, Participatory democracy, Radical democracy, Religious democracy, Republican democracy, Representative democracy, Social democracy, Sortition, Soviet democracy, Totalitarian democracy, Westminster democracy, Workplace democracy...) (See Wikipedia on varieties of democracy and a list of types of democracy)
the elite - a small group with special characteristics such as most powerful, richest, most talented, or most famous
the ruling elite - the small powerful group of people who rule a country
full-fledged - complete and fully developed (Note: "fully-fledged" also possible)
participatory - with ordinary (non-elite) people participating
select - a small specially selected group or people or things
a select group - a small specially selected group of people
forthcoming - will happen soon, about to happen
consolidate - strengthen to become more powerful and secure (See glossary)
* consolidating its power over
bolstered by -
replenishment of - making full and complete again
intermediaries - people in between who help two sides communicate and put an end to disagreements
interlocutors - representatives in talks or negotiations
blanket - affecting everyone
amnesty - a pardon, an exemption from a law (when certain people can no longer be charged with certain crimes anymore)
blanket amnesty - everyone is pardoned, the law will not be used against anyone
the demise of - the end of
judicialisation process - used to describe how the role of judges has expanded significantly recently, especially in the drafting of the new constitution
rule of law - the principle that governmental authority is legitimately exercised only in accordance with written, publicly disclosed laws adopted and enforced in accordance with established procedure, makes law something to be applied objectively in the same fashion to all people, rather than subjectively in different ways depending how much power and influence you have (See Wikipedia on rule of law)
prominent - important, visible position seen by everyone
appears prominently - appears in an important position that all can see
intriguing - interesting (perhaps because it is a little bit strange and not expected)
an intriguing question - an interesting unexpected question
the angle of scrutiny of - an approach to assessing and evaluating
given a mandate - given official authority to do something
unsettling - makes you feel worried or uncertain
an unsettling fact - a fact that makes you worry a bit
mind-set towards - attitude to, general way of thinking about
code of ethics - a list of ethical rules to follow in an activity
x beholden unto y - x is in debt to y and has a duty to repay that debt (a more abstract "debt of gratitude" rather than a "monetary debt")
dissolution - ending and breaking up an organisation or institution
dissolution of parliament - officially ending parliament
diluted - made less powerful (originally means "mixed with water")
a legislature - the participatory part of governments, where an assembly of elected representatives meets, debates, and passes laws (See Wikipedia)
a parliament - a legislature that appoints the executive of the government, the Prime Minister (See Wikipedia on parliamentary systems of government)
bicameralism - the system of parliamentary electoral democracy with two houses or groups (See Wikipedia on bicameralism)
the two chambers of parliament - the upper and lower house (See Wikipedia on the chambers of parliament)
lower house of representatives - one of two chambers in a bicameral legislature
Compared with the upper house, the lower houses usually has certain characteristics:
* More powwerful than upper house
* Directly elected (apportionment is usually based on population).
* More members.
* Elected more often.
* Control over budget and monetary laws.
* Able to override the upper house.
* Power to start impeachment of the executive
a constituency - a geographical area that a particular elected representative or group of elected representatives represents
* elected on a constituency basis
first-past-the post system - when the candidate with the most votes wins a seat in parliament (See Wikipedia on plurality voting systems)
bloc voting - voting which elects several representatives from a single multimember constituency (See Wikipedia on bloc voting)
proportional representation - a method of electoral democracy that aims at a close match between votes and seats receive in parliament (See Wikipedia on proportional representation)
* elected through proportional representation
abolition of - a formal ending of
* abolition of the old rule
coalition governments - government with people from more than one political party
Special Rapporteur - person specially appointed to investigate or report on a problem
Answer Key:
1. Why has the recent drafting of a new Thai constitution done more to polarise people politically than build a consensus?
The 1997 People's Constitution was abolished by the 2006 coup.
2. How many constitutions has Thailand had in its history so far?
17 constitutions.
The current constitution is the 17th constitution.
The 16th constitution was known as The People's Constitution.
The 18th constitution will be voted on in a referendum on August 19th.
3. What is the centerpiece of the proposed new constitution?
The Monarchy.
4. What controversial articles were eliminated in the final draft of the proposed constitution?
a. A completely appointed senate was replaced with a senate in which 74 out of 150 senators are appointed.
b. A National Crisis Council was eliminated that would have empowered the military to intervene and resolve problems during a national crisis.
5. How was Thaksin a media magnate?
(Outside research required)
The detailed biography Thaksin: The business of politics in Thailand by Pasuk Phongphaichit and Chris Baker (2004) describes how Thaksin became a "media magnate":
The first TV channel independent of the government (ITV) was launched in 1996...But, founded on the eve of the financial crisis, the channel never made a profit. This gave an excuse for a shake-up in 2000...A rule restricting any single shareholder to a mximum holding of 10 percent was removed. Thaksin's family company [Shin Corp] acquired a controlling interest that peaked at 55 percent before the company was listed on the stock market in 2002. Just before the 2001 general election, journalists on the channel complained that Thaksin was interfering in its election reporting. Twenthy-three were summarily sacked. They went to the Labor tribunal, which ruled that their dismissals were illegal, but the company launched an appeal
that bogged down in the courts...In September 2003, several other ITV employees were sacked, reportedly for resisting political interference. In February 2004, a reporter was removed after an interviewee had criticized the premier. The channel's programming was changed to lighten the content, while the management petitioned government to remove the restrictions written into its original charter and allow it to broadcast more entertainment." (Pasuk and Baker, 2004, 149-150).
6. How did Thaksin manage the media during his administration?
(Outside research required)
Read (Pasuk and Baker, 2004, 149-155).
7. What is the draft constitution a reaction against?
The perceived or real conflicts of interest of the Thaksin administration.
8. What limits are imposed on the executive branch of the government in the new constitution?
a. The Prime Minister cannot stay in power for more than eight years.
b. The family of the prime minister must fully declare their assets
c. The family of the prime minister cannot be involved in companies.
d. 1/5th (rather than 2/5ths) of the parliament can propose a no-confidence motion.
9. What advances in human rights provisions does the new constitution make?
a. Communities will be entitled to take action in courts on issues that affect them such as the environment.
b. Making rights directly actionable through the constitution rather than waiting for an additional law to be passed to enable those rights. ("as stipulated by law" clauses have been discarded in the constitution)
c. The National Human Rights Commission (NHRC) will be able to take cases directly to court on behalf of victims.
d. Members of Parliament (MPs) will be subject to scrutiny by an ombudsperson.
10. How would the power of the judiciary expand under the draft constitution?
(Skim the whole article)
a. High ranking judges will be on the selection committees for the Senate and independent government agencies.
b. The notion of "rule of law" is a prominent part of the constitution for the first time.
c. Judges will be able to propose laws.
11. How would the draft constitution empower ordinary people?
a. New laws can be introduced by 10,000 people (50,000 before).
b. A petition to the Senate to dismiss the Prime Minister or other office holders can be introduced by 20,000 people.
c. Local government will have to report plans, budget, and implementation to local residents for scrutiny.
12. How does the drafting process of the draft constitution differ from the 1997 People's Constitution?
The 1997 People's Constitution used broad-based consensus-building and public hearings all over the country.
In the draft constitution a small select group of people, essentially appointed by the military, has been in charge of drafting the constitution.
13. In what ways has the military exerted influence over the drafting of the constitution and the referendum process?
a. The Council of National Security (CNS) consists of members of the armed forces.
b. The CNS appointed a small group to draft the constitution.
c. The CNS is empowered by the interim constitution to adopt another constitution if the draft constitution is rejected.
d. The military has a larger budget than before as well as secret funds.
e. The draft constitution gives the coup leaders amnesty for leading the coup.
14. Why was responsibility for the scrutiny of politicians' assets shifted under the draft constitution?
Because the Constitution Tribunal under the Thaksin administration found in "favour of the premier in a case where he had been charged with failure to declare his assets," and this close decision in favour of Thaksin was viewed by many as a legal exception being made for a very popular Prime Minister, in other words a violation of objective "rule of law."
("From the angle of scrutiny of the assets of parliamentarians, the mandate has been shifted from the Constitution Tribunal to the Supreme Court (Criminal Division for Politicians). This is a consequence of the unsettling fact that the Constitution Tribunal under the previous administration found in favour of the premier in a case where he had been charged with failure to declare his assets.")
15. How has the attitude towards polticians changed in the draft constitution compared to the 1997 constitution? How is this attitude reflected in the provisions of the draft constitution?
The constitution places less trust in polticians than the 1997 constitution, especially in the executive branch under the Prime Minister. This lack of trust is reflected in:
a. Asset declaration for all members of parliament (MPs).
b. New controls on MPs.
c. Increased scrutiny and control of conflicts of interest.
d. A code of ethics for politicians.
e. Reduced power of Prime Minister over cabinet ministers since cabinet members do not automatically lose their seats.
f. The power of large parties is reduced and smaller parties increased.
