‘Reset’ by charter drafters fails to deliver
The Constitution Drafting Committee’s (CDC) current effort to deliberate the draft organic laws to “reset” independent organisations fails to touch on anything of real substance.
The draft laws include bills on political parties, the elections of parliamentarians, and the Election Commission (EC).
They are a work in progress, and details have not made public, even though the CDC is supposed to be organising so-called “hearings”.
Changes to existing laws are aimed at ensuring they are harmonised with the new conditions set by the new constitution.
Changes are likely to affect politicians and political parties as well as public independent agencies that have become more powerful. The charter drafters intend to let these agencies control the political process. Murmurs of discontent are therefore coming far and wide.
The EC is one of these contested independent agencies. Since its inception in 1997, the EC has been controversial. It is empowered to hold elections and cease or revoke them if there are irregularities at the polls.
It can submit charges against politicians to the Supreme Court, suggesting a revocation of their right to run for public office or their voting rights. In essence, a guilty verdict will ban them from politics.
The EC is also tasked with overseeing political parties’ functions. It sets rules and regulations for their political campaigning.
Under the new constitution, the number of election commissioners will be increased from five to seven. Five members will be picked from a pool of specialists from various academic fields by an independent panel.
The other two members will be chosen from groups of judges or prosecutors at a general meeting of Supreme Court judges.
The qualifications of commissioners of independent agencies are the same as those required for prospective Constitutional Court’s judges. For the EC, the new constitution makes room for those who may not possess those qualifications but have worked in the social sector for at least 20 years.
Anyone associated with political parties or who has held political positions in the past 10 years is prohibited.
There are some indications from the CDC — though not definite — that all current members of these agencies will be able to keep their job until their term expires as long as they are qualified under the new constitution; otherwise they could be challenged and risk losing their seat.
In case of the EC, the new charter could affect at least two commissioners, Somchai Srisutthiyakorn and Prawit Ratanapian. Mr Somchai, outspoken and controversial, who previously worked for the People’s Network for Election (P-Net), has alleged that the new rule is a conspiracy to unseat him and appoint those closer to the regime. Mr Prawit, a former cabinet minister and political party member was more subtle, saying he will abide by whatever the law requires.
The existence of the EC and other independent agencies is questionable. In a peculiar way, the coup d’etat of 2014 abolished the constitution which provides the mandate for these agencies. But an NCPO order keeps the agencies untouched and lets their members stay on in their jobs. When their term expires, the current National Legislative Assembly (NLA) seeks a replacement.
Elements of democracy were crushed while authoritarian and control functions thrived.
The Constitutional Court, for example, has become more powerful as the omnipresent body under the new constitution. The court has the authority to issue rulings which could determine the fate of members of the government and the parliament.
These independent agencies in fact act as necessary checks and balances to prevent abuses of power by politicians. However, it does not mean that they should not be subject to checks and balances themselves.
The charter drafters hold the belief that they have moral and ethical superiority that enables them to dismiss the people’s will and determine the fate of the country. Thus, the selected are chosen over the elected. Control over self-determination. They can do no wrong.
With the new principles of the constitution, the devil is always in the details. The organic laws will tighten the noose around the people’s neck with no room to manoeuvre.
This is Mr Meechai’s specialty — the tying of knots and placing of traps in the legislative maze, ending up with interpretations favourable to the powers that be.
It is essential we do not let this pass easily.
First, we must call for an open debate on all the organic laws being drafted.
It cannot just be a routine process of the CDC finishing the drafts and then sending them to the NLA to deliberate. All stakeholders must be able to participate in the lawmaking and speak freely without intimidation. The mainstream media must provide forums to present different points of view.
Second, public involvement in the roles of all independent agencies must be institutionalised in the written organic laws.
Take the EC as an example. The
EC is being bureaucratised more and more. Its debate on whether to abolish provincial EC offices and replace them with inspectors is irrelevant if these inspectors are appointed by the central EC.
People should be able to elect members to be on a committee that monitors elections. This is part of a citizen’s civic duties.
How to evaluate the performance of each independent agency and its commissioners is also unclear.
There is an annual ritual in which these agencies submit their reports to the NLA. But there is no voting process to impeach their members found guilty of wrongdoing.
They are not subject to scrutiny by any agencies. The organic laws should make clear how to counter balance abuses of power by commissioners of independent agencies.
The effort to rest all of the independent agencies by re-selecting their members fails to touch on the real issue.
These agencies should instead use the organic laws to introduce more checks-and-balance mechanisms and boost people’s participation in such a process.
These agencies should instead use the organic laws to introduce more checks and balance mechanisms.