'Thaksin's ghost haunts drafters'
Thammasat University law lecturer Kittisak Prokati is a member of the Constitution Drafting Committee's subcommittee on rights and liberty.
In an exclusive interview, he discusses the controversial drafting process with The Nation's Pravit Rojanaphruk.
Are you worried about a new constitution paving the way for a non-elected prime minister? What will happen if the charter allows for that?
We must separate politics and law. The selection process for a prime minister is a political process. However, the charter may place some limitations [such as only elected members of Parliament can be a prime minister] but it cannot prevent the political process [from overriding the limitations].
It's like a charter barring coups. Coups take place in the realm of politics and not the realm of law.
Such limitations can only be imposed when the realm of politics is within the realm of law. But when a crisis occurs, and the realm of law is too rigid, then it explodes. No law during the period of absolute monarchy succeeded in preventing [a parliamentary] democracy from occurring. This is the nature of things.
The important thing is that we pay attention to the political process and make sure political fact is reined in by the people's intent.
The law itself cannot stop prime ministers coming from the military. And, the people shouldn't pay attention to how a charter is written but should consider how their will is respected.
On one hand, you have the power of the military; on the other hand there's people's power - which will be stronger?
What about the party-list controversy? You want the system continued albeit in a reformed way that protects minority voters.
I believe drafters will rely on the history of politics over the past eight to 10 years in coming up with a new charter.
They often claim the party list favours big political parties. But I think the main issue is whether they are thinking of ways to protect minority voices, or not. This should exist under a democratic system and democracy is good because it protects the voice of the minority.
We cannot say society is a democracy if the voice of the minority is not heard. Over the past eight years, the voice of the minority has been ruled out and this led to political apathy and violence and mayhem in Bangkok and the deep South.
We must find a system that addresses this issue.
What about an elected or appointed Senate? Are drafters working in fear that ousted prime minister Thaksin Shinawatra will return?
Drafting this time is based on the fear and suspicion of Thaksin's ghost, I agree. It would be better if it was based on research about the future of the country.
However, due to limited time no model has been produced and the problem [of drafting a new charter] is being sorted out in a dictatorial manner.
Not that the problem [of Thaksin] is not legitimate, but the process of drafting is more problem-based and without vision and under time limitations.
We must first debate what role a future Senate should serve before we decide how it should be chosen and how many senators there should be [the drafters did the opposite]. The expediency of the secretary [of the drafting committee] triumphed over serious thinking.
It's like you start ship-building by deciding how many ships you want to build and with what sort of wood before finding out what kind of voyage the ship will undertake.
What part of the drafting process are you most concerned about?
The weakness of the 1997 constitution was that it was a charter without any constitutional or theoretical foundation.
It was like constructing a [hot-air] balloon or a ship's mast; you must determine how durable they are and what force of wind can they can stand. But [its drafters] didn't know these things and merely patched things up from pieces of cloth they saw as beautiful.
Its weaknesses were never discussed beforehand and so the past charter left loopholes for a businessman to exploit. It was a pro-business charter.
This time, the same thing is happening but on the opposite pole. It will become an anti-political, anti-business constitution but will recall [traditional] autocrats. Most drafters come from the ranks of the elite and the high-level bureaucracy. Whether it will solve [national] problems is debatable.
But, we need more [constitutional] theoretical debate.
Otherwise there are bound to be loopholes and it will meet the same fate [as the 1997 charter] but from the opposite extreme.
You're an expert on community rights and a proponent of them. In a nutshell, how important are they?
Community rights are a global trend. People want greater self determination to manage their natural resources and environment.
The only way to ensure cultural and environmental sustainability is to have stakeholders.
Power has been transferred from an absolute monarch to bureaucrats, then to the military and to business-political groups and to local administrative bodies, so far.
The real challenge is whether local communities are conscious of the power within them.
Elitist and undemocratic remarks and even opinions against the poor and uneducated were voiced by a few drafters, although the committee claims to be listening to the voice of the people.
They should not be punished for what they say, but the public has the right to criticise them.
Is your role in helping the junta-sponsored charter doing more harm than good? Your presence indirectly or directly supports the coup, encouraging future coups and nullification of future charters.
I still regard a coup as an act of treason. And its only justification is that if it's not done it will put [the country] in more harm and that such a claim can be proven. I'm still waiting for the Council for National Security to prove its claim.
If a country is in crisis we must all help. I still think staging a coup is wrong but helping doesn't mean I agree with their actions.
Doctors must treat the ill and, as a lawyer, I'm like a doctor. I must help both [parties].
Those who refuse to help [the junta] have the right to do so.
And, if there is to be yet another coup, it is the duty of the Council for National Security to oppose it because it has taken an oath before His Majesty the King and the tricolour [national flag].
Dismantling a house or burning it down is wrong. But, if needed, we must build a new house and we must help. It's better than becoming homeless.