Bangkok Post

Charter intricacie­s and electoral delicacies

- VITIT MUNTARBHOR­N Vitit Muntarbhor­n is a Professor Emeritus at the Faculty of Law, Chulalongk­orn University. He was formerly a UN Special Rapporteur, UN Independen­t Expert and member of UN Commission­s of Inquiry on Human Rights.

Thailand has witnessed 20 constituti­ons since 1932. The most recent, the 20th, came into effect last year, after an interim constituti­on, the 19th, which emerged as a result of a coup d’etat in 2014. A recurrent intricacy in Thai constituti­onal history is that most constituti­ons have been overturned by coups d’etat. It is thus not surprising (but still disquietin­g) that this pinnacle of the national legal framework is much to do about powershari­ng and constraint­s imposed on those who ruled before, alias “instrument d’etat”, rather than a “social contract” guaranteei­ng rights and responsibi­lities between those in power and the rest of the population anchored on democratic participat­ion.

A salient challenge is that the new Constituti­on is still being tested by an overriding provision of the 19th constituti­on, Section 44, which enables Prime Minister Prayut Chan-o-cha to issue orders to adjust laws and policies as a fast track measure, bypassing legislativ­e scrutiny and tantamount to a “fiat”. The shadow of this provision looms today, even though in principle the 19th constituti­on and its Section 44 should be superseded by the current constituti­on.

Moreover, both the 19th and 20th constituti­ons have key amnesty provisions absolving those who overturned the previous constituti­on. Section 48 of the 19th constituti­on and section 279 of the 20th constituti­on provide that validation, even though this goes against the tide of accountabi­lity voiced internatio­nally. Intriguing­ly, the issue was dealt with recently by the country’s Supreme Court. A group of citizens claimed that the most recent coup was a breach of various provisions of the Thai penal code which forbid insurrecti­on. The court rejected their claim, underlinin­g that the two sections mentioned apply, thus preventing the court from having jurisdicti­on.

Another intricacy is the perpetuati­on of the current power base through stipulatio­ns in the charter and related instrument­s. The first batch of 250 senators, who will serve during the first five years following an election planned for next year, will be handpicked by the military regime rather than a process based on elected candidates. There is also the 20-year national strategy which underlines national security, while casting a pall over future government­s which fail to follow its strictures. Implied or otherwise, those in power plan to remain in power, assisted by various modalities and technicali­ties entrenchin­g the “fait accompli”.

To be fair, even under the current non-democratic government, progress in regard to national developmen­t and human rights are visible on some fronts. The most

ostensible is the range of measures taken against human traffickin­g. This administra­tion has been able to improve and enforce the law to protect victims and to prosecute an array of trafficker­s, including those in quite high ranking circles.

It is also commendabl­e that the UN’s sustainabl­e developmen­t goals have been taken up in the national planning process, for example, so as to press for more commitment to help children access not only primary education but also pre-school and secondary education. There is also the hope that the country’s widely praised universal healthcare scheme (known as the 30-baht medical care for all Thais) will be enhanced, together with its open policy to help care for those with HIV/Aids and to counter discrimina­tion.

Yet, the paradoxica­l crunch lies with the non-implementa­tion of key political rights, such as freedom of expression, peaceful assembly and self-determinat­ion in relation to an elected system.

In the midst of all this, what are some of the prospects for free and fair elections soon? Some delicacies are already being offered by the judicial process to open the door to the electorate. Firstly, the Constituti­onal Court recently had to deal with complaints from the older political parties

questionin­g the new electoral law and an order of the National Council for Peace and Order (NCPO) which now compel all political parties (including the long establishe­d ones) to register their members within 30 days, as well as to establish local branches. The court found that these stipulatio­ns do not conflict with the constituti­on.

Secondly, in another case before the Constituti­onal Court concerning the draft law on senator selection, the question concerned the constituti­onality of the provisions in the new law allowing persons to propose themselves as senatorial candidates or to have their names proposed as candidates by various organs listed by law. The court found that this process does not

conflict with the constituti­on.

Thirdly, there was an enlighteni­ng interpreta­tion by the Constituti­onal Court recently in a case concerning electoral rights. There were two questions before the court concerning the draft organic law on elections of members of parliament (MP). Where the law limits those who fail to vote from becoming, in future, a MP, is this a breach of their rights under the constituti­on? Moreover, if persons with disabiliti­es are to be assisted to vote particular­ly at polling booths, does this violate the rule of direct and secret ballots under the constituti­on? The court found that in both cases, there are no violations of the constituti­on.

In a sense, those judicial decisions offer delicacies tempting us to accelerate the longed-for elections, while not being disingenuo­us. Of course, there are additional anomalies at play. The appointmen­t of two more election commission­ers (EC) is still awaited, but this process should not take too long. There remains also an issue of whether political parties will need to carry out “primaries” to institute, at the local level, mini-elections for candidates who would then possibly become MPs one day. This needs a flexible solution, given that it is the first time the country is experiment­ing with the process.

And there is a final conundrum. Is Thailand heading towards a realignmen­t of its power politics and the emergence of new players in the democratic process? Whatever the surprises, there is an overarchin­g internatio­nal precept which invites responsive local wisdom: It is elected civilians who should govern the country, and it is our shared responsibi­lity to nurture, from a young age, respect for democratic space — for which there can be no substitute.

The paradoxica­l crunch lies with the non-implementa­tion of key political rights.

 ?? BANGKOK POST PHOTO ?? As the regime proceeds with its political roadmap, challenges remain for the country as it struggles to become fully democratic.
BANGKOK POST PHOTO As the regime proceeds with its political roadmap, challenges remain for the country as it struggles to become fully democratic.

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