The Constitution drafting process is gathering pace and is receiving much attention from the press as well as the public at large. In fact, not a single day has passed without someone articulating their opinion about the direction of the new Constitution. Such discussions are important in raising public awareness which is necessary for the restoration of democracy in the near future.
Yet political uncertainties remain given the continuing conflicts and concerns. The new Constitution is expected to resolve the crisis. Failure to do so would make the September 19th, 2006 coup nothing more than a costly political change for the country. Many worry that winning support for the new Constitution may not be easy especially as the Constitution will be put to a referendum for the first time in Thai politics if it is approved by the Constitution Drafting Committee.
Despite such worries, resolving our political crisis may not be all that difficult; all that is required is for all parties involved to adhere to fundamental principles, most importantly, the principles of democracy.
Thus, beginning with the Constitution drafting process, the following should be practiced.
1. Participation. This means engaging – without bias - all parties in the drafting process, including politicians. People’s participation in the Constitution drafting process is key to achieving a good Constitution in substance and in obtaining legitimacy for it.
Even though the Constitution Drafting Assembly has consciously tried to involve the public at large, the problem with the current regime – as with all those who come to power through military coups – is that they hold a prejudice against politicians and political parties. During this current drafting process, at least 25 million Thais who are members of a political party have been disqualified from being members of the drafting Assembly and committee. This is made worse by the orders issued by the Council for Democratic Reform (CDR), now known as the CNS, namely Orders No. 15, and No. 27 prohibiting political parties' activities which are still in place, effectively limiting political parties’ ability to play a formal role in critiquing the current draft.
While there are without doubt questionable politicians with questionable motives, it does not necessarily mean that all representatives and all political parties are morally corrupt. Instead of making blanket judgments about all politicians, the Constitution drafters should instead judge whether a given recommendation made by politicians is based upon personal or public interest. They should make use of politicians’ experience on a number of issues. It is simply not the case that opposition from politicians on certain provisions means that such provisions are bringing about desirable changes, as some drafters now appear to assume.
By engaging all parties in the drafting process, the drafters will help to defuse the possibility of confrontation between groups that have different beliefs about the direction of the new Constitution. Moreover, even if the final draft does not satisfy all parties, then the drafters would have at least provided a forum for the public to openly discuss issues of concern before the draft is passed which in itself will help promote acceptance.
2. Obtain legitimacy for the new Constitution through the referendum. The coup leaders are well aware that the 1997 Constitution is recognized as being democratic in its substance and drafting process. Replacing it with one after a coup makes it hard to obtain legitimacy Hence they provide for a referendum on the new charter. However, the referendum can only achieve legitimacy if the following are observed.
2.1 Complete public access to information about the draft. The referendum will be a meaningless exercise unless the participants of the referendum fully understand the issue put to them and its implications. Therefore, the current administration must endeavor to seriously educate the public about the Constitution. Given the complicated nature of the Constitution and the limited time at hand, the government would be well advised to start this process as soon as possible.
2.2 An atmosphere of freedom. The referendum process is only effective when the general public have the right to choose and participate. Therefore, both the opponents and proponents to the new Constitution must have the same freedom to express their arguments. On the contrary, if a referendum only provides the public with one-sided information with a view to achieve a “yes” or a “no” vote, then it becomes a process of using the people as a rubber stamp. My suggestion is that the National Legislative Assembly must enact into law a “referendum bill” that will ensure equal opportunity for supporters and opponents of the draft to express their views.
2.3 The referendum must be conducted in a free and fair manner. The logistics involved in conducting a referendum and organizing an election are virtually identical; meaning that the referendum is prone to the same malpractices as those during elections e.g. vote buying and abuse of government power. A “referendum bill” is needed to prevent poll fraud by stipulating penalties for poll abuses so that the will of the people will not be distorted.
Most importantly, the referendum can only achieve political legitimacy if the public are fully aware of the choices, particularly if the proposed charter is rejected. According to the interim Constitution, the CNS and the cabinet is empowered to select any previous constitution and make necessary revisions. The CNS and the cabinet must therefore make their stance clear ahead of the referendum. For example, they may say that they would choose the 1997 Constitution with specific amendments only to clauses pertaining to the independent agencies. A referendum cannot achieve political legitimacy if clear choices are deliberately withheld from the voters. On the other hand, if the public has full access to information on the choices and the process is broadly acceptable, any outcome of the vote will provide legitimacy for the new charter.
3. Above all, the new Constitution must adhere to democratic principles. Thailand can only move forward towards recovery if the new Constitution adheres to democratic principles. Even if the new and democratic Constitution is imperfect, an elected parliament can improve upon it once a true house of representatives is reconvened. On the contrary, if the new Constitution fails to represent democratic values, the threat of conflict and violence at any point in time can become real.
It is not surprising that each time the drafters have proposed incorporating non-democratic ideas into the Constitution, such as a non-elected Prime Minister or an electoral system designed to weaken parties and dilute the expression of the will of the people, their opinions have been met with outrage and tension arises.
In truth, rather than feeling the need to resort to untested and untried ideas, the drafters of the Constitution could easily avoid a political crisis by dealing specifically with the shortcomings of the 1997 Constitution, in particular, by tackling issues such as strengthening the checks and balance mechanisms and by tackling the problems of money politics.
The country took a step backwards with the Coup of September 19th. The new Constitution must move the country at least two steps forward so we can put the crisis which has kept us as a country from reaching our potential for so long behind us. The Thai people deserve no less.