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Published on September 19, 2007

Law professor Yud Saeng-uthai, who taught many of the 2007 Constitution drafters, once wrote in a text book - "Basic Principles of the Constitution" (eighth edition, 1983) - that the charter is the primary regulation for state sovereign bodies and sets the pattern for the relationship of power among groups of people.

An ideal constitution, he said, should have three main components: a guarantee of equality and liberty for the people, a clear division of sovereignty and a written form.

The September 19 coup d'etat scrapped the 1997 Constitution, the so-called "people's constitution" and probably the best one Thailand has ever had, and the junta wrote its own version to lay out new relations of power to secure the position of the military and the bureaucracy in politics, but failed to make an ideal constitution for the people.

The junta-sponsored constitution can meet only one of Professor Yud's criteria: existing in written form. It has failed to meet the other two.

The junta is about to step down soon but will leave the Thai people with its constitution as a legacy of its aristocracy in politics, perhaps until the next coup.

The junta's constitution won victory in the August 19 referendum by a narrow margin with 14 million approval votes and 10 million against, indicating more than 40 per cent of voters disliked the constitution.

People voted against it for many reasons. Some disapproved of the source of the constitution as it came from a coup which was an anti-democratic action, while many others disagreed with the details, many of which were undemocratic.

The people who voted for the constitution shared the hope that it could move Thai politics towards an election which will restore a semblance of normalcy.

However, this new constitution seems unlikely to restore political normalcy. On the contrary, many analysts say political instability will last even after the general election as the constitution was designed to weaken the government. The next government after the poll will be a coalition of many political parties and will have a short life, they say.

With the fear of another strong administration like the one under deposed prime minister Thaksin Shinawatra, the new constitution is designed with a new election method and expanded constituencies to prevent a single party scoring a landslide victory. An eligible voter can vote for three candidates in a constituency so that the scores could be allocated to many parties.

A weak elected government would be easy for the military to control through instruments like the Senate and independent bodies designed by the constitution.

The constitution empowers the Senate to impeach the prime minister and members of the cabinet. Unlike the previous constitution, the new charter authorises a seven-member body to pick half of the 150 senators rather than having every single one elected.

Non-elected senators could possibly be retired generals who want to enjoy political power after the junta is phased out and play a behind-the-scenes role.

Bureaucrats are empowered to play a crucial role in the selection of the Senate. Three of seven members of the Senate selection committee are judges. In that extent, the constitution allows the judicial sovereign body to intervene in the legislative body. Such a move is regarded as being opposed to the basic principles of a good constitution.

Judges are also empowered to pick many independent bodies which have the power to scrutinise administrative bodies. In other words, the constitution again authorises the judicial sovereign body to interfere in the executive.

As Professor Yud put it in his book, the basic role of a democracy is that the authorities can come together with accountability.

It would be OK for a constitution in any democratic country to design checks and balances to counter authorities and commission the judges to do so. But the 2007 Constitution does not address the accountability of the judges.

Actually, the judges do not represent the people but the bureaucracy. The constitution does not address their responsibility in case they pick the wrong people for the job.

The drafters claim their constitution offers and guarantees basic rights for the people, but they never said the constitution has opened many loopholes for the authorities to issue organic and subordinated laws to violate such rights.

For the benefit of "state security", the 2007 Constitution allows the authorities to issue laws to violate basic rights of communication, property and expression.

In practice, the junta and its subordinated agencies have passed and are drafting a number of laws to legalise basic rights violations. The computer crime law, for instance, authorises officials access to personal communications through computer networks.

Under the law, people could be easily arrested if police accuse them of posting information deemed a threat to security and the monarchy. Two suspects were arrested quietly under the law in late August. Legal experts criticise the law for its loose definition of the term "security threat" which allows officials too much latitude to use their judgement.

The military-installed government is also proposing an internal security bill which authorises the Army chief to have excessive power to violate all basic rights of the people for the benefit of national security. Prime Minister Surayud Chulanont insists it will pass into law before he leaves office.

This law could turn Thailand into a kind of authoritarian state, if not a full military state, with the Army commander enjoying the power to announce a curfew, bar people from joining movements and gathering together, as well as seizing property. If passed, it will give power to the Thai military that is second only to Burma's.

Supalak G Khundee

 The Nation