Thailand Law Journal 2009 Spring Issue 1 Volume 12

On the other hand, there are various grey areas affecting the current draft Constitution, inviting deep reflection.

First, the typology of democracy. Clearly, given the circumstances giving birth 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 avoided the use of broad-based consensus building techniques which the process leading the sixteenth Constitution used, such as public hearings throughout the whole country. Rather, a select group was 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 seventeenth Constitution, introduced in late 2006, enabled the Council for National Security to adopt another Constitution if the draft text were to be rejected by the referendum provided for under the interim Constitution.¹⁴

Second, the presence of the military. An analysis of the new Constitution text cannot be self- contained. While the drafting process was taking place, the military was consolidating their 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 new Constitution also has a provision giving them blanket amnesty for the events leading the demise of the previous civilian Government¹⁵.

Third, the judicialization process. Interestingly, the role of judges has expanded significantly because of their role in the drafting process as well as in the contents of the text; the new Constitution has thus been "judicialized". There was a large number of judges and lawyers on the thirty-five 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 Constitutional Court to the Supreme Court (Criminal Division for Politicians). This is a consequence of the unsettling fact that the Constitutional Court under the previous administration found in favour of the media-magnate Premier in a case where he had been charged with failure to declare his assets.¹⁶

Fourth, the mind-set towards politicians.. The new Constitutional 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. For instance, they are not allowed to have a hand in the communications industry or government concessions. The new 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 future those appointed as ministers will not lose their parliamentary seats-unlike under the sixteenth 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 ninety 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 thins' days or more.¹⁷

14. Interim Constitution (Seventeenth Constitution) (2006). For English version, see: www.geocities.com/aritprapa/data8.htm#63.
15. Section 309 of the Eighteenth Constitution.
16. Constitutional Court Case 20/254L (3 August 2001 ): Counter Corruption Commission v Thaksin Shinawatra. (in Thai)
17. Section 101 of the Eighteenth Constitution.

This article is published with the kind permission of Vitit Muntarbhorn. This article originally appeared in Chulalongkorn Law Volume 26 No.3 February 2008.