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06BANGKOK2088 THE 1997 CONSTITUTION – FINDING AND FIXING THE LEAKS

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“59901”,”4/10/2006 4:35″,”06BANGKOK2088″,”Embassy Bangkok”,

 

“CONFIDENTIAL”,”02BANGKOK6246|06BANGKOK1411″,

“This record is a partial extract of the original cable.

The full text of the original cable is not available.

 

“,”C O N F I D E N T I A L SECTION 01 OF 03 BANGKOK 002088

 

SIPDIS

 

SIPDIS

 

E.O. 12958: DECL: 04/08/2016

TAGS: PGOV, PREL, TH, Constitutional Changes/Amendments

SUBJECT: THE 1997 CONSTITUTION – FINDING AND FIXING THE

LEAKS

 

REF: A. BANGKOK 1411

B. 2002 BANGKOK 6246

 

Classified By: Political Counselor Susan Sutton for Reason 1.4 (B,D)

 

1. (C) SUMMARY. While much of the opposition rhetoric

fueling the current political crisis focuses on vilifying

Thaksin, the roots of the crisis lie in the Prime Minister\’s

deft exploitation of certain key weaknesses inherent in the

1997 Constitution. POLOFF recently discussed these

weaknesses and possible fixes in separate meetings with

Constitutional law expert and Thammasat University law

professor, Prinya Thewanarumitkun and Senate Advisor Dr.

Montree Rupsuwan who headed a Senate Commission charged with

suggesting Constitutional amendements in 2002. This cable

will highlight specific elements of the 1997 Constitution

that these experts view as flawed and potential amendments

designed to address these defects. Once the current

political standoff comes to an end, and the next Thai

government convenes to discuss constitutional reform, these

details will likely become the focal point of the debate.

The trick will be for reformers to avoid a tactical approach

aimed at simply preventing future Thaksin-style exploitation.

END SUMMARY.

 

CHECKS AND BALANCES – Independent Institutions

——————————————— –

 

2. (C) The 1997 Constitution aimed at strengthening the role

of the Prime Minister in order to end the cycle of weak,

short-lived and ineffective governments that had plagued

Thailand under civilian rule (see Reftel A). At the same

time, the document called for the creation of a variety of

independent institutions to serve as the checks and balances

of this increased power. However, according to Prinya and

Montree, the selection process set forth in the constitution

for members of these institutions left the door open for

political manipulation. In their view, the Constitutional

Court, the Election Commission and the National

Counter-Corruption Commission (NCCC) are particularly

vulnerable to this weakness.

 

3. (C) Article 257 sets forth the selection procedures for

members of the Constitutional Court. It calls for the

establishment a 13-person Selection Committee that nominates

a short-list of candidates to the Senate for consideration.

The Senate must then choose from this short list. To be

nominated, a potential candidate must receive the support of

three-fourths of the Selection Committee. The Selection

Committee is composed of four members selected from Law

Faculty Deans from State higher education institutions; four

members selected from Political Science Faculty Deans from

State education institutions; and four members from political

parties who hold seats in Parliament. According to both

Prinya and Montree, the problem lies in the fact that Thaksin

has used Thai Rak Thai\’s (TRT) control of Parliament to

control 3 of the 4 slots allocated to political parties while

at the same time wielding influence over the university Deans

who fall under the Ministry of Education. This has allowed

TRT to form a decisive bloc in the Selection Committee thus

enabling it to determine who is included on the short list

which is presented to the Senate.

 

4. (U) Article 297 requires that the procedures outlined in

Article 257 be followed for selection of members of the NCCC.

The only difference is in the numbers. The Selection

Committee for the NCCC contains 17 members: five from the

ranks of political parties with seats in Parliament; seven

selected from among Rectors of State higher educations

institutions; the President of the Supreme Court, the

President of the Supreme Administrative Court, and the

President of the Constitutional Court. Again, both Prinya

and Montree agree that Thaksin and TRT have managed to use

their commanding majority in the Parliament together with

their influence over the Rectors through the Ministry of

Education to take control of this Selection Committee.

 

5. (C) The selection of the five-member Election Commission

(EC) is a two-tiered system set forth in Article 138. The

first tier calls for a 10-person Selection Committee composed

of four members of political parties, the President of the

Constitutional Court, the President of the Supreme

Administrative Court and four academics from State-run

institutions of higher education. This committee submits a

short-list of five nominees to the Senate based on a vote of

at least three-fourths of its members. The second tier calls

for the Supreme Court of Justice to submit a short-list of

five nominees to the Senate. The Senate then selects the

five-member EC from these ten names. Again, TRT has used its

dominance of Parliament to control 3 of the 4 slots allocated

to political parties while using its influence over the

Ministry of Education to control the 4 slots allocated to

academics. This bloc is made potentially stronger with the

addition of the President of the Constitutional Court (see

para 3).

 

6. (C) The proposed remedy to these windows of opportunity

for political manipulation is to amend Sections 257, 297 and

138 to weaken the role of political parties in the Selective

Committees. Montree noted that in 2002, the Senate

recommended that the political parties be allocated only two

seats – one for the ruling party, and one for an opposition

party. It also suggested diluting the ability of the

academics to form a decisive bloc by increasing the total

number of positions on the committees. The proposal would

add an independent ombudsman, the Chairman of the Human

Rights Commission, the Chairman of the State Audit Commission

and the Chairman of the NCCC to the Selection Committee for

the Election Commission. With regard to the Selection

Committee for the Constitutional Court, the proposal would

add these positions plus the Chairman of the Election

Commission.

 

7. (C) Montree also highlighted a Senate proposal to weaken

the role of the Electoral Commission in general. Currently,

the Electoral Commission has the power to set election

regulations, implement them and make determinations as to

whether candidates should be disqualified or issued

Red/Yellow cards for alleged cheating. The proposed

amendment would create an Electoral Court as a branch of the

Supreme Court of Justice. This court would assume

responsibility for determining whether candidates should be

disqualified or issued Red/Yellow cards for alleged cheating.

 

THE 90-DAY RULE

—————

 

8. (U) Article 107 contains the much debated 90-day rule.

Paragraph 4 of this section states that in order to be

eligible as a candidate in an election one must be a member

of a political party for no less than 90 days prior to

applying for candidacy. At the same time, the Prime Minister

has the authority to dissolve Parliament and call for a snap

election in 60 days.

 

9. (C) These two elements combine to effectively hold Members

of Parliament (MP) hostage to their parties. If an MP (or

group of MPs) leaves one party to join another, the Prime

Minister can call snap elections, and the renegade MPs would

be unable to compete in the elections.

 

10. (C) There is debate both outside and within political

parties as to how or whether this statue should be amended.

Some argue for doing away with paragraph 4 all together.

Others, even some who are currently disadvantaged by the

rule, see its long-term utility in terms of maintaining

cohesion. They argue that Article 107 should be left as is.

 

THE SENATE

———-

 

11. (C) The drafters of the 1997 Constitution hoped to create

a non-partisan Senate that could act as an independent

watchdog over the \”political\” House of Representatives. They

gave the Senate final control over the appointment process

for many of the independent institutions and, in Article 303,

the power to impeach Members of Parliament, the Prime

Minister, and certain members of the judiciary. In an effort

to keep the Senate non-partisan, Article 126 states that

members or officers in political parties are banned from

becoming candidates for Senators. The same article prohibits

Senators from seeking re-election. The rationale for this

article was to create a Senate comprised of individuals

without political affiliations.

 

12. (C) In practice, keeping the Senate non-partisan has

proven difficult. As early as 2002, Montree estimated that

approximately 50 percent of the Senate actively supported

either the government or the opposition (see Reftel B). It

is widely believed that TRT makes regular payments to

Senators in order to keep them on its side. Given the powers

vested in it, it is inevitable that political fights will be

played out in the Senate. Amending Article 126 to allow

candidates for the Senate to belong to political parties is

one suggested method of making the political nature of the

Senate more overt.

 

NO-CONFIDENCE AND REMOVAL FROM OFFICE

————————————-

 

13. (C) The 1997 Constitution raised the number of MPs needed

to call for a general no-confidence debate on the Prime

Minister. Article 185 says that two-fifths of the MPs are

needed to call of such a debate. According to Professor

Prinya, previous Thai Constitutions set that limit at

one-fifth. This has become an issue recently given Thai Rak

Thai\’s solid control over the Parliament. There are some in

academia and in the opposition political parties who call for

the threshold to be reduced back to one-fifth.

 

INTERNAL WORKINGS OF POLITICAL PARTIES

————————————–

 

14. (C) Another issue highlighted by Professor Prinya is the

lack of any mechanism to institute democratic principles in

the internal workings of Thai political parties. Article 47

states, \”The internal organization, management and

regulations of a political party shall be consistent with

fundamental principles of the democratic regime of

government…\”. However, there is no constitutional

mechanism put for to enforce this mandate.

 

15. (C) In practice, leaders of political parties wield

inordinate control over their parties. Professor Prinya

argues that the Constitution should provide a mechanism to

devolve power within political parties to the members of the

party. He suggest an amendment that would form Executive

Boards elected by the members of the party. These boards

would then be charged with approving candidates for

elections, and would have a strong role in developing the

party\’s platform.

 

AMENDING THE CONSTITUTION

————————-

 

16. (C) All of the potential fixes highlighted above are

contingent on Article 313 which establishes the procedures

for proposing amendments to the Constitution. Under Article

313, motions for amendments may only be proposed by the

Council of Ministers or by Members of Parliament. This

leaves no room for persons outside of the political

establishment to propose changes to the Constitution.

Professor Prinya believes that this section should be amended

to allow for persons outside political establishment to

propose amendments by collecting at least 50,000 signatures

on a petition which would then be submitted to the

Parliament. Dr. Montree agreed with this idea in theory, but

expressed the opinion that the threshold for the number of

signatures needed to petition for an amendment to the

Constitution should be significantly higher than 50,000.

 

THE \”NO HOMERS\” AMENDMENT??

—————————

 

17. (C) COMMENT: Thaksin has taken full advantage of

weaknesses in the 1997 Constitution to expand his political

power and that of his party. His opponents argue that

Thaksin and TRT have trampled on the spirit of the law by

neutering most, if not all, of the checks and balances that

the drafters put in place. Much of the discussion on

Constitutional reform centers on the need to revive and

strengthen this system of checks and balances. However,

given recent events and the prevailing political atmosphere,

there is a risk that the process will focus on drafting

measures to protect the Constitution from future Thaksin-like

exploitation. The end result could be a Constitution with so

many specific fixes to address specific loopholes that the

document becomes cumbersome and overly complicated. Clearly,

the system of checks and balances has not worked as intended

under Thaksin and needs to be strengthened. The challenge

for reformers is to move beyond Thaksin the individual, and

craft legislation that results in a viable system of checks

and balances, not simply fortified defenses for independent

institutions that remain vulnerable. End Comment.

BOYCE

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Written by thaicables

July 11, 2011 at 7:43 am

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