Decoding latest constitutional draft

 
Meechai Ruchuphan, a veteran Thai political figure, was appointed by the NCPO in October 2015 to chair the 21-member Constitution Drafting Committee (CDC).  Meechai’s latest draft constitution has a lot of issues for us to examine: an outsider PM, increasing the power of independent state organizations, unelected senators, a Constitution that can’t be amended, extending the duration of the National Reform Steering Assembly (NRSA), a trick to dispose of PMs and Cabinet members, infinite amnesty for National Council for Peace and Order (NCPO) members, and continued use of Article 44.
 
In computer games, most games are created with built-in techniques so that the players can increase their enjoyment when playing the games. One way to do this is through cheat codes, which make the players feel like they are the ones in control of the game, not the other way around. Whether it’s an adventure game, combat game, or real-time strategy game, programmers will often build in cheating options for gamers.
 
Now, let’s apply what we know about computer games...to the constitution draft. The situations are actually not so different. Clauses in Meechai’s draft constitution are in fact complex “cheat codes.” But unlike computer games, even persistent study of these codes won’t lead to sure-fire victory, but instead to increased loss and suppression. The “codes” are built-in to make the “players” lose and prevent them from having any sort of control.
 
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1. Reincarnation Ritual

 
The first “special move” we see in this draft constitution is allowing an unelected PM. Even though it is not explicitly stated that “the PM does not have to be an MP,” from reading the draft, this is what is commonly understood.
 
The draft just states that, each political party may submit the names of no more than three nominees to be PM to the Election Commission of Thailand before an election. Political parties may abstain from submitting names.
 
After the general election, the House of Representatives will vote for a PM from among the nominees. Nominees must be approved by at least 10% of the members of the House of Representatives, and must get at least half of the votes from the House. 
 
If we look at the voting system, the most likely scenario is that a single-party government will be difficult, if not impossible. The alternative – a coalition government - may lead to a crisis of legitimacy and a political vacuum, paving the way for the Constitutional Court to appoint a “neutral PM” under the draft’s Article 207. Article 207 is developed from the notorious Article 7 of the 1997 and 2007 Constitutions. Calls for a “neutral PM,” directly appointed by HM King, by the pro-establishment yellow-shirt People’s Alliance for Democracy in 2006 and the whistle-blowing supporters of the People’s Democratic Reform Committee in 2014 paved the way for the coups that came in those years. 
 
Therefore, the draft’s push for a coalition government and allowing an unelected PM can lead to a crisis of legitimacy (among other crises) which will destabilize any administration that comes to power. Allowing an outsider to become PM, glamorized as a “neutral PM,” is an intentional loophole in this draft.
 

2. With our powers combined…!

 
Special watchdog powers will be redirected into the hands of various independent organizations. For example: 
 
The Constitutional Court has more powers than in the 2007 Constitution. In this draft, they will be granted special powers in editing the Constitution as well as being able to interpret Article 207 mentioned above, which states:
 
“Judgements of the Constitutional Court should follow the text or aims of the provisions of the Constitution. If there is no provision of the Constitution that can be used to deal with any situation, the judgement should follow the customs of a democratic administration under a constitutional monarchy.”
 
The terms of Election Commissioners of Thailand will be for seven years instead of five as previously. They also have the additional power of setting and postponing the date of elections, according to Article 99:
 
“In the case of an inevitable event that prevents an election from being held on a date set by the Election Commission under Article 97 or Article 98, the Election Commission may set a new election date which must be within 30 days after the end of the aforementioned event.” 
 
The draft also installs mechanisms to take action against any government acts or projects, whether current or completed, that are judged to be detrimental to the nation. Three organizations are given this power: the Office of the Auditor General of Thailand, the National Anti-Corruption Commission, and the Election Commission. These three organizations may convene if they judge government actions to be detrimental, and jointly submit a resolution to the Cabinet and Parliament to halt or give warning to halt such actions before damage is done. If the government persists with the actions in spite of the warnings, creating damage, then the government must take responsibility.
 
The important thing to note about this part of the draft is the determination to control the administrative power of the government and the legislative power of Parliament by the Constitutional Court and independent state organizations. 
 

3. Attack of the Clones

 
Regarding how Senators are selected, the draft states in Article 102 that the 200 senators will be elected from among persons in 20 professional groups, who have knowledge, expertise, professional experience, and public spiritedness or have worked in various fields. Details of how the selection process works will be in the organic law.
 
The senate’s powers remain almost unchanged; it can consider and veto laws, make appointments to independent organizations, and hold debates on the government without a vote. However, senators will not have powers of dismissal, such as was in the draft by Worasak.
 

4. Permanent headlock. Banning changes to the Constitution

 
It seems like this draft constitution is also attempting to fix the problem of disputes which occurred before the coup, such as the controversy about whether and to what extent the Constitutional Court has the authority to oversee amendments to the Constitution. Ultimately, the Constitutional Court has the authority to decide what can be amended, and what cannot.
 
The issue is not so much the clause about amending the Constitution, but the clause that prevents amendments.
 
The Constitution states that motions to amend must be submitted as a draft constitution to Parliament for consideration in three readings. 
 
The first reading, which is to accept or not accept the principle of the amendment, must get more than half of the votes of the current number of members in both Houses. The votes must also include Senate votes, which must number at least one in three of all current Senate members.
 
In the second reading, which is to consider the amendment line by line, the majority wins.
 
The third reading will achieve success when over half of the current members of both Houses vote in favour. This number must include MPs from every single political party with over 10 MPs and at least 10 per cent of MPs of each party.
 
Additionally, political parties with less than 10 MPs will be combined, and no less than 10 per cent of this combined group must favour the amendment.
 
That means amending the Constitution is very easily blocked, and by only a few MPs. Let’s say Party A has 10 House of Representative members. If no one in the party agrees with their amendment, then it can easily veto the amendment. 
 
What’s more, this third reading also requires the approval of at least one in three of all current Senators.
 
Another thing to keep in mind is that this draft constitution was designed so that the Parliament is composed of 500 MPs and 200 unelected Senators. Therefore, for any act to pass it needs a yes from at least 350 members. 
 
After the amendment has passed the third reading, then there must be a 15-day waiting period before the amendment is presented to HM the King for endorsement. Before this happens, however, members of the House of Representatives or Senators, or both, combining to at least 10 per cent of all total members of each House, can refer the amendment to the House Speaker if they deem that the amendment violates Article 252, or that it tries to change the system of constitutional monarchy or the state system in any other way. The petition is then submitted to the Constitutional Court for consideration.
 
If the amendment is filed on grounds that it tries to change the state system, such as amendments to Chapter 1 (General Provisions), Chapter 2 (the Monarchy), Chapter 15 (Constitutional Amendments), issues relating to the power of the courts or independent agencies, or issues that prevent the courts or independent agencies from exercising their duties or powers, then there must be a referendum first. 
 
As you can see, the steps required to amend the Constitution are like the stages in a deadlocked level in a computer game. Meanwhile, the Constitutional Court has the jurisdiction to edit the Constitution.
 

5. Mind Control

 
Mind Control: the National Reform Steering Assembly (NRSA) will continue to work for another year (laying down the foundations for reform before elections)
 
If this draft constitution passes the referendum, then after it is promulgated there will most likely be many practices passed down from the temporary 2014 constitution. One of these relics is prolonging the term of the National Reform Steering Assembly (NRSA) for one year after the constitution is in force, allowing the NRSA to draft laws to present to the Cabinet.
 
If we look at the big picture of this draft constitution, there are many parts that show persistence in finding ways to control the administration, especially through the powers of three independent organizations: the Office of the Auditor General of Thailand, the National Anti-Corruption Commission, and the EC. These three are able to convene and determine whether the government’s policies will damage the country. If they pass a joint resolution against a policy, then they can submit it to the Cabinet and Parliament to warn it or even prevent it. If the government continues with the policy in case of a warning, then by law they must be responsible for the damaging effects. 
 
An elected government will be watched at every move. The only thing that can be done easily is to follow the reform plans laid out by the National Reform Council and executed by the NRSA.
 
In the year-long period given to the NRSA to continue its current duties, if any laws are issued for reform, approval during that period must come from the National Legislative Assembly (NLA). 
 
Nevertheless, the draft constitution does not have any measures that relate to the responsibility or checks on the power of those who are laying the foundations for reform, in the cases where these reforms cause damage.
 

6. Witch Hunt

 
One of the deadliest tricks up the draft constitution’s sleeve is the ability to oust the PM and the entire cabinet. Article 162 details the causes for removing the entire cabinet, with subsection 4 stating that the Constitutional Court has the jurisdiction for this, in accordance with Article 139.
 
Article 139 largely talks about the drafting of annual budget bills, supplementary budget bills, and budget transfer bills.  It specifies that the House of Representatives cannot amend items, or the amounts of items. 
 
Subsection 2 specifies that if MPs, Senators or Committees propose amendments or any issue that affects the involvement, direct or indirect, of MPs, Senators or Committees in using budget expenses, this cannot be done.
 
MPs and Senators may report on such wrong doings by convening at least 10 per cent of Parliament, or at least 70 MPs and Senators, and submit their opinion to the nine members in the Constitutional Court for their adjudication, which will be given within seven days after receiving the submission.
 
If the Constitutional Court rules that there was wrongdoing in proposing the amendment, then those responsible are removed from their position, and their rights to run in future elections are revoked. In the case that a cabinet member proposed or approved the amendment, or was aware of the amendment but did not prevent it, then all of the cabinet members are removed and their rights to run in future elections are revoked.
 
What we have to consider here is what is meant by direct or indirect involvement in using budget. For example, if an MP requests regular payments to their local province for development, is that Member involved in using the budget? The key word here is “indirectly”. If the development in that province increases the MP’s popularity, can they be accused of indirectly using the budget? All of this is within the jurisdiction of the Constitutional Court.
 
The next issue is the cabinet submitting three versions of a bill to Parliament for amendment. Any steps after submission are considered to be beyond their authority. In the draft, much care was taken to put powers into separate hands, making it more complex to work together. 
 
Another trick card up this draft’s sleeve is the establishment of Standards of Morality. Article 215 states that the Constitutional Court and the independent organizations will work together to set Standards of Morality to apply to themselves as well as the Auditor General and the heads of administration of the Constitutional Court and the independent organizations. The Royal Gazette will also announce the enforcement of these Standards of Morality, which must preserve the dignity and interests of the nation, and must clearly specify what makes a breach of these Standards serious.
 
Creating the Standards of Morality will require input from the House of Representatives, the Senate, and the Cabinet, and when gazetted will come into force for MPs, Senators and Cabinet members. 
 
Additionally, Article 230 also states the main powers of the Office of the National Anti-Corruption Commission (NACC) are to investigate and give opinions on cases where the suspect holds a political position and is abnormally wealthy, is corrupt, deliberately uses their powers in a way that conflicts with the Constitution or laws, or commits serious breaches of the Standards of Morality, without anyone filing a complaint. 
 
The main point of Article 231 is that if more than half of the National Anti-Corruption Commissioners decide that there has been a serious breach of the Standards of Morality, then they can present the case to the Constitutional Court for consideration.
 
And when we look at Article 265, it states that the Constitutional Court and independent organizations in a specific situation, should work to implement the Standards of Morality as stipulated in Article 215 within one year of the promulgation of this constitution. If this is not complete within one year, then the Judges of the Constitutional Court and the directors of the independent organizations will be removed from their positions. 
 
This means that the Standards of Morality must be completed and implemented before there is a House of Representatives and cabinet of a civilian government. In the simplest terms, this is an important iron rule integral to this draft constitution that enables the ousting of political position holders without any recourse to the representatives of the people.

7. Infinite Time Amnesty

 
The lowest blow comes from Article 270, which states that NCPO members are granted unlimited amnesty: in the past, present, and future. No matter how pretty the rest of the draft constitution is, how many human rights it protects, all of that ends with this single Article. Every single action and order by the NCPO enforced before the implementation of the draft constitution will continue to be enforced after it, according to Article 257.
 

8. Invisibility Cloak

 
To be clear, Article 257 is a way of embedding the 2014 Interim Constitution’s notorious Article 44 into this Constitution. Basically, the NCPO will continue to exist even after the implementation of the Constitution (if this passes the referendum) until a new cabinet is elected. This time period will last at least 15 months. During this time, laws are being drafted, parties are campaigning, and a new government is being set up, and the NCPO will be active throughout, with Article 44 in their hands.
 
The NCPO will still have absolute power in issuing orders and announcements, all supported by the Constitution in accordance with Article 270. 
 
It is possible that even after the Constitution is implemented, Article 44 will continue to be used in order to change or amend the Constitution, such as by inserting the National Reform Council (NRC) into the Constitution, extending the time needed propose an act, or even another coup d’état.
 
Being cautious and examining the “game” played by the draft constitution may seem to be pessimistic. But before 19 September 2006, no one thought there would be another coup. And before 22 May 2014, Gen Prayut said that he would not overthrow the ruling government.
 
This is the Thai political scene. Anything can happen. 
 
This news story was first published in Thai here and translated into English by Asaree Thaitrakulpanich.