Case against setting up charter drafting assembly
That one idea is popular does not necessarily mean it is the most workable, and this can be applied to a favourite concept of the hours, which calls for an elected body to be formed and take over from Parliament in changing Thailand’s Constitution, partly or entirely.
The idea is a big hit politically, although the prime minister has hinted he is against it, and Parliament, which is taking one month to consider whether or how the current Constitution should be amended, has to go through a serious self-demeaning process to support it.
But advocates of the drafting assembly idea take one look at the 1997 “People’s Charter” and decide that its conception formula is the best there is. They forget about one thing very important, though.
An elected drafting assembly came up with the People’s Charter, which introduced a tough, formidable checks-and-balances system that mainly comprised the Constitutional Court, the National Anti-Corruption Commission (NACC) and the Election Commission (EC).
The initial results were great, but things went downhill pretty quickly, and Thailand’s political divide has been revolving around decisions and rulings of the agencies, whether they have made the right calls or not.
In other words, the pivot of checks and balances prescribed by the 1997 charter has been through a short but winding road. Take the Constitutional Court for example. Critics of the judges think they have reasons to be aggrieved, but so do their supporters. Like an appointed Senate, the Constitutional Court divides political opinions and is at the center of Thailand’s political crisis. But while the “upper House” is accused of always siding with the status quo, the court’s records have been more colourful and, arguably, more impactful.
Dealing constitutionally with the Senate is hard, but the Constitutional Court is even a tougher nut to crack. Firstly, the judges work on evidence submitted by the NACC and have rather solid rules on their side. This means if some people want to get rid of the Constitutional Court or make it virtually irrelevant, maybe they have to target the NACC first. Secondly, while opponents of the court have listed key verdicts that they describe as biased against one side of the political divide, they have downplayed key rulings that looked anything but.
The court once banned a Democrat Party strongman, late Sanan Kachornprasart, from politics for merely “hiding” a Bt15 million amount which was not even an “income” from his mandatory asset report. The same court also let Thaksin Shinawatra off the hook on the “Servants’ shares” scandal.
Those were the Constitutional Court’s first big verdicts after its conception a few years earlier. The most remarkable, though, is the court’s origin, rooted in the 1997 “People’s Charter”, lauded as one of the most democratic constitutions Thailand has ever had. That Constitution, it needs to be repeated, was written by a drafting assembly.
MPs have been more united against the Senate, disliking its provisional powers to jointly elect the prime minister with the House of Representatives. When it comes to the Constitutional Court, the split is more glaring. The Democrats, for example, have suggested they do not agree with Piyabutr Saengkanokkul, a former leader of the now-dissolved Future Forward party who wants to virtually wipe out the judges.
The 1997 Constitution seeks to address concerns that elected representatives may be indulged in vested interests, become corrupt and abuse their authority, thus undermining the noble idea of empowering the people. The charter thus made the court, along with the EC and the NACC, a new counter-balancing mechanism, something that could make democracy more transparent, reliable and honest.
The agencies got off to a fearless, flying start, tackling vote buying in elections regardless of party affiliations and banning powerful Sanan regardless of his influential ministerial and party roles. “Yellow” and “red” cards were issued to election candidates suspected or accused of vote-buying.
Then came the Thaksin absolution in the “Servants’ Shares” case, a move which considerably affected the Constitutional Court’s public standing. That was followed, rather ironically, by the dissolution of Thaksin’s political party and then rulings started to come out against politicians who were on his side, kicking start accusations that the pivot of checks and balances was not helping democracy.
When Thanathorn Juangroongruangkit was banned from politics and his Future Forward Party was dissolved, the Constitutional Court faced local and international criticism. However, few people mentioned its origin, initial role and part in a much-needed mechanism to bring quick action on political cases that otherwise could have taken years or disappeared into thin air.
This is not to say that the mechanism does not have itself to blame as well. Cases like the one against Deputy Prime Minister Prawit Wongsuwan were seen as not properly tackled by the NACC, whereas action against Thanathorn failing to steer clear from alleged involvement in an apparently meaningless “media” business was perceived as making a mountain out of a molehill at best, and political conspiracy at worst.
But here is the key question: How else can Thailand establish a truly neutral, independent and powerful mechanism to deal with mischievous acts of elected representatives? Parliamentary impeachment or indictment depends on the number of legislative votes, which could distort cases, favour the powers-that-be and bring about injustice. The drafting assembly that wrote the 1997 charter had tried, and it failed miserably in this regards.
Let’s get back to Parliament, some may say. Where things stand at the moment, it’s not that easy. What should Thais do then? Nobody knows the definite answer, except that using an elected drafting assembly is unlikely to be the one.
One thing is certain, though: Constitutions always failed no matter who wrote them, because people always ask what they can get from a charter, not the other way round.
By Tulsathit Taptim