Proponents of Article 68 believe it is needed to help break possible future political deadlocks similar to the one that precipitated the September 19 coup. The council would comprise the prime minister, the opposition leader, the speakers of the Senate and House of Representatives, presidents of the Supreme Court and Supreme Administration Court and heads of independent organisations to be set up under the new constitution. Their argument is that, in the event of a crisis, there must be a channel through which leaders of all important institutions can put their heads together to find a solution. They claim to have drawn a lesson from the political crisis that gripped the country for months last year when the then prime minister Thaksin Shinawatra stubbornly faced a civil revolt. The 1997 constitution had no mechanism that could provide a political circuit breaker and thus made a military coup the only option left.

But its detractors see a hidden agenda. They believe that the constitution drafters are so obsessed with fears of a return of Thaksin-like political leaders that they will do anything to clip their wings. With the proposed council, the elected head of the executive branch would see his power to solve a crisis greatly reduced. It would also open the way for political interference from forces opposed to the government of the day.

From the very beginning, the definition of the term "crisis" has been a problem. While those campaigning for Thaksin's ouster last year (over charges of corruption and abuse of power) were concerned that the country was teetering on the edge of a bloody confrontation, the beleaguered prime minister didn't give the impression that he felt his government was facing a crisis. So even if such constitutional provision had been in place at the time, it would have been hard to imagine how Thaksin could have been convinced to see things otherwise. Given that the drafters of the new constitution sincerely want the proposed crisis council to function as a political safety valve that would help the country head off a crisis in the event of a political stalemate, they still have difficulty defining the scope of constitutional power that the body should have. How the council members can enforce their decision - if they can agree to one in the first place - is also a big question mark.

Of course, Thaksin's unprecedented power should serve as a reminder that there needs to be a proper system of checks and balances for Thailand's democracy to function. But that doesn't mean the contents of the constitution have to be based on fear of Thaksin's political ghost. 

A political crisis presents itself only when normal constitutional mechanisms become dysfunctional.  There are enough lessons to be learned from Thailand's experiments with democracy since the May 1992 uprising (which marked the country's political turning point) to ensure there is effective constitutional means to resolve political problems before they develop into a crisis.

It's understandable why the judiciary has rejected the proposed crisis council outright. As far as judges are concerned, being dragged into making political decisions - even in a time of crisis - would do more harm than good to their credibility and independence. What they fear most is the same kind of political interference that effectively compromised most of the independent bodies during the five years of Thaksin. The judges have made it abundantly clear that they want no part in the new mechanism, which is essentially a political body.

Not only has the judiciary drawn a line in the sand, it has also questioned the rationale behind the proposed crisis council. It sees it as an anachronism that may raise questions about the motives of the charter drafters, amid charges that some of them are acting at the beck and call of the generals in the Council for National Security. The charter drafters are taking a big political gamble by trying to enlist the judiciary to play what is ostensibly a prominent political role under the new constitution, hoping that it could provide a counterbalance to politicians. The judges, fearing their independence and credibility would be compromised, are also crying foul over the drafters' insistence that they participate in the selection of senators and members of new independent bodies. Now that the judges are taking a stand, the charter drafters certainly need to have second thoughts. And don't expect any kind words or sympathy for leaders of political parties during their session with PM Surayud today.

There are already enough reasons for those opposed to the military takeover and the constitution-drafting process to reject the new charter. There is no need for the drafters to undermine whatever support there is for the draft constitution with dubious clauses. If the constitution drafters are confident that the legal document is the "best ever" for Thailand, it should already be good enough to have mechanisms necessary to avert a national crisis before it happens.

Thepchai Yong