Thailand Law Journal 2009 Spring Issue 1 Volume 12

Ninth, the accountability issue. In addition to the various methods for scrutinizing the conduct of politicians noted above, the new Constitution will also make national policies and those responsible for them more accountable. While in previous Constitutions, there was a tendency to treat national policies (impliedly including National Economic and Social Development Plans) as non-binding and thus exempt from action before the courts, in future these policies are to be backed by laws, with the possibility of the public questioning them through judicial and other processes.²⁰ On another front, while the right of the public to resist, by peaceful means, attempts to subvert the Constitution is recognized²¹, there remains a paradox when a group uses force to overturn a constitutionally elected government, even where the latter is seen to be corrupt. The quandary is furthered by the possibility of an amnesty granted to a group where it is tantamount to self-amnesty.

• Tenth, the checks and balances. One of the problems of the previous administration was that not only was it in total control of Parliament, but also it was influential in many of the independent agencies which should have acted as checks and balances on executive power. This was seen in the pre-coup phase by the furors facing one group of election commissioners who were seen to be all too close to the executive branch and were ultimately imprisoned for breach of the electoral law. There were also parallel problems facing a group of commissioners under the Counter Corruption Commission.

To the public, under the previous administration, the independent agency which seemed to be the most independent from the executive branch was the Human Rights Commission. Yet, that Commission was continually faced with an uphill struggle to get the executive branch to address human rights violations, such as in regard to extra-judicial executions in the war against drugs, abductions of human rights defenders, and the impact of the gas pipeline in Southern Thailand which was built without adequate public participation in impact assessment. It is thus not surprising that the new Constitution has adjusted the selection process concerning these independent agencies so as to pre-empt influence from the executive branch. Yet, there lingers the question whether there is to be an effective separation of powers and functions between the legislative, executive and judicial branches of Government.

Eleventh, the rural mass and the equity issue. It is well-known that part of the appeal of the previous government among the general populace was its populist policies which gave direct benefits to the rural people and those in the lower economic stratum, such as through the thirty baht health care for all and one million baht fund for every village in the country.²² It knew how to exploit the longstanding loophole based on the widening gap, and the lack of equity, between the rich and the poor, the urban and the rural. Part of the opposition to the current Constitution from some members of civil society suggests that while the text talks of more local participation in decision making and guaranteeing various rights which will ultimately benefit the poor, not enough is said on how to share wealth more equitably. Much will thus depend on not only the new Constitution but also how development policies in the country can aim for greater incentives for the poor and for resource redistribution to nurture an enabling ambiance for pro-poor growth.

Twelfth, the fluctuating political environment. Even without a new Constitution, the country is faced with an age-old problem of how to transition towards democracy and ensure that it is led by civilians rather than those in uniform. The current situation suggests that the tide has turned, to a lesser or greater extent, towards a closer coalition of the power base between uniformed personnel and the ruling elite, backed in part by those at the middle stratum of economic development. Government and governance are thus en route to become more vertical than horizontal in their outreach. A disquieting development, side by side with the new Constitution, is the proposed draft National Security Act which will confer even more powers on the army chief to act as the focal point on security matters, even to- the extent of overriding human rights and protecting officials from scrutiny. The draft law will exempt them from action in the administrative courts and will constrain other courts from exercising oversight, thus contributing to impunity for official malpractices.

Of critical importance also is the longstanding problem of Southern Thailand, a predominantly Muslim region, whose situation has become more aggravated- by daily violence. While the current Prime Minister's apology to the local population in regard to various excesses committed in the South is welcome, this needs to be advanced by concrete measures such as more decentralization of power and respect for the particular identity of the region. While current law enforcement has been claiming success in pursuing militants and apprehending them, there remains the longer term aspiration of reconciliation and peace awaiting the region which a merely militaristic approach is unable to fulfill.

In sum, the challenge facing the country is to revert to democracy and to nurture a progressive process of evolving democratic solutions-even imperfect ones-rather than fast-track measures through the use of force. The choice of the country in the march towards a new Constitution on 19 August and the national elections on 23 December will doubtlessly be influenced by a plurality of factors and social forces-based on faith, fervour, rigour, apathy, skepticism and/or resignation. Whatever the outcome, there will be plenty of space for political versatility in the midst of all that volatility - deconstructed.

20. Chapter V of the Eighteenth Constitution ff.
21. Sections 68 and 69 of the Eighteenth Constitution.
22. V.Muntarbhorn, "Human Rights in the Era of Thailand Inc.", in R.Peerenboom, C.J.Petersen and A.H.Y. Chen (eds), Human Rights in Asia, London/New York: Routledge, 2006, pp. 320-345. See also V. Muntarbhorn, "Rule of Law and Aspects of Human Rights in Thailand: From Conceptualization to Implementation ?", in R.Peerenboom (ed.), Asian Discourses on Rule of Law, London/New York: Routledge, 2004, pp.346-370.

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