Published on August 13, 2007
The difference between two controversial but crucial articles pertaining to the military in the junta-sponsored draft constitution is that one became headline news and the other has barely been mentioned.
The one that's been attracting attention is Article 309, which grants de facto amnesty for the junta's past and, arguably, even future actions. The article that got little notice in the news media is Article 77, which states that it is the state's duty to "adequately" provide "modern" arms and armed forces.
The words "modern" and "adequate" didn't appear in the 1997 constitution, and critics like Assoc Prof Prasit Pipawattapanich, from Thammasat University's Law Faculty, pointed out that it is quite the opposite of what Article 83 says. Article 83 states that the state must follow the "sufficiency" policy when it comes to arms purchase, but it is "adequacy", or phieng phor in the Thai, and not "sufficiency" or phor phieng that is preferred.
There was virtually no debate on the issue when the junta-appointed Constitution Drafting Committee (CDC) penned it, before the junta-appointed Constitution Drafting Assembly (CDA) speedily approved it, also without any debate or objection.
When The Nation recently asked Kiatichai Pongpanich, a member of the CDA, if this approval would lead to a further increase in the arms budget, he merely said that there was nothing "irregular" about it.
Yet material published by the anti-coup and anti-junta-sponsored-draft-charter group noted that the annual increase in percentage figures of armed forces expenditure over the past decade was never above 10 per cent. But the figure has risen by 66.4 per cent since last September. "This is the cost of the coup," the September 19 Network Against Coup stated categorically in one of its booklets.
On the much-publicised controversy over the issue of amnesty to the junta granted in Article 309, which is the last article under the draft charter, another Thammasat University law lecturer Vorachaet Phakeerat said that having such an article simply undermined the whole "principle" of the constitution being supreme law.
Vorachaet reasoned that the charter itself cannot allow an "unconstitutional act" to be regarded as "constitutional" while still wanting to have the charter considered sacred by others.
Prasit, meanwhile, pointed out that the de facto amnesty was not retroactive, but perversely covered future actions of the junta which may otherwise be "unconstitutional" even after the draft charter comes into effect - provided it is endorsed in the referendum.
Many opponents pointed out that such an article sets a wrong precedent and could encourage more coups in the future.
Just last week, junta leader Sonthi Boonyaratglin continued toying with the idea of entering electoral politics and said there was nothing to be afraid of since he had been involved in something a lot more risky - staging a coup to oust Thaksin Shinawatra.
Prasit went on to speculate that this may also have something to do with the unfinished probe against Thaksin's alleged ill-gotten wealth that may not be completed in time for the elections. Those examining Thaksin's assets have been hand picked by the Council for National Security (CNS) itself.
Supporters of the draft charter say the junta may have already granted itself amnesty in the 2006 interim charter written by the coup-makers themselves.
As witnessed by the recent one-time televised debate, both Articles 309 and 77 are not something proponents and writers of the junta-sponsored draft charter are proud of.
Meanwhile, their opponents are quick to claim that some appalling form of conflict of interest is at work here and that there are no checks and balances whatsoever when it comes to the increasing role of the junta in particular and the military in general.