Thailand Law Journal 2009 Spring Issue 1 Volume 12

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 four hundred and eighty Members of Parliament (MPs)-four hundred will be elected on a constituency basis and eighty will be elected through proportional representation. This is different from the sixteenth Constitution which provided for five hundred MPs, out of whom one hundred would come through proportional representation. Unlike under the sixteenth 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 sixteenth Constitution whereby each party needed to obtain at least five per cent 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.

Sixth, the nature of the mixed Senate. It should not be forgotten that under the sixteenth Constitution, there was provision for only elected senators. This contributed to the country's democratization process, although the quality of senators varied and some were more subjected to political influence from the ruling party than others. The new Constitution reduces that process, since out of the projected one hundred and fifty senators, seventy four will be selected by a selection committee with inputs from a variety of professional and other organizations. This is different from the two hundred elected Senators provided for under the previous Constitution. While the details of the selection procedure will be evolved under a separate Act of Parliament, the possibility of selected/appointed senators lends itself to a greater degree of instrumentalization by the powers-that-be.

Seventh, human rights in principle and practice. While it can be claimed that the Constitution is more detailed in listing a whole series of rights, ranging from those pertaining to non-discrimination to a variety of civil, political, economic, social and cultural rights, the problem in Thai society, as elsewhere, has often been lax implementation and poor quality law enforcement, rather than a lack of stipulations in the Constitution and other laws. Conceptually, the current text, as with previous Constitutions, also limits the section on rights to the "rights of the Thai people", thus differing from human rights in international law which pertain to all persons irrespective of nationality and other origins.¹⁸ In reality, the safeguards for ordinary people have tended to come from the Criminal and Civil Codes and Criminal and Civil Procedure Codes which have remained constant for many years, rather the seemingly ever-changing nature of Thailand's Constitutions.

 Eighth, the attitude towards civil society. The new Constitution provides for more access by civil society on some fronts in proposing laws and questioning the conduct of politicians. Interestingly, in future public hearings will need to be conducted before international treaties with key impact on Thai society and economy (such as Free Trade Areas) are to be concluded, thus enabling the public to have a greater say in international agreements. This is the impact of section 90 of the new Constitution which stipulates such hearings as a pre-condition for the country's membership of treaties where they affect Thailand's territory or jurisdiction, or where they have immense impact on the country's security in the economic and social fields.¹⁹

Yet, there is also a degree of hesitation towards fuller participation by civil society. For example, there is very little space for civil society in the various selection committees that will propose candidates to be appointed to the various independent agencies, such as the Counter Corruption Commission. The realities on the streets and in rural areas are also self-evident with a more subdued atmosphere for demonstrations and the enjoyment of freedom of expression, assembly and .association through public action to question the power base.

18. Chapter III of the Eighteenth Constitution ff.
19. Per section 190 of the Eighteenth Constitution: "The King has the prerogative to conclude a peace treaty, armistice and other treaties with other countries or international organizations.

A treaty which provides for a change in the Thai territories or the Thai external territories that Thailand has sovereign right or jurisdiction over such territories under any treaty or an international law or requires the enactment of an Act for its implementation or affects immensely the economic or social security of the country, or results in the binding of trade, investment or budget of the country significantly must he approved by the National Assembly. In such case, the National Assembly must complete its consideration within sixty days as from the date of receipt of such matter.

Before the conclusion of a treaty with other countries or international organizations under paragraph two, the Council of Ministers must provide information thereon to the public, conduct public consultation and state information relevant thereto to the National Assembly. In such case, the Council of Ministers must submit negotiation framework to the National Assembly for approval.
Upon giving signature to the treaty under paragraph two, the Council of Ministers shall, prior to giving consent to be bound, facilitate the public to get access to the details of such treaty. In the case where the application of such treaty has affected the public or small and medium entrepreneurs, the Council of Ministers must revise or render remedy to such effects rapidly, expediently and fairly.

There shall be a law determining measure and procedure for the conclusion of a treaty having immense effects on the economic or social security of the country or resulting in the binding of trade or investment of the country significantly and the revision or rendering of remedy to the effects of such treaty with due regard to the fairness among the beneficiaries, the affected persons and the general public.

A matter arising from the provisions of paragraph two falls within the jurisdiction of the Constitutional Court and the provisions of section 154(1) shall apply mutatis mutandis to the referring of the matter to the Constitutional Court". Unofficial English translation from the internet www.asianlii.org,ih/legis/const/2007/1.htm#TP

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