Key issues in the draft constitution

On equality before law

Article 30: All persons shall be equal before the law and shall enjoy equal protection under it.

Females and males as well as those with other gender identities shall enjoy equal rights.

Note: The term "those with other gender identities" allows for equal protection of homosexuals, transsexuals, transvestites, and so on, but the CDA noted that it shall not lead to the recognition of these genders as a new and separate legal classification.

On personal rights and freedoms

Article 32: The term capital punishment has been omitted for the first time. While this may pave the way to eventual abolition of the death penalty, the draft charter does not abolish capital punishment, however.

Paragraph 2 of this article enables police officers to search people without court warrants - a decision condemned by human rights groups as undemocratic.

Article 38: Forced labour is prohibited, except by virtue of a law specifically made to avert imminent public calamity as a matter of emergency, or by virtue of a law which may permit such acts in times of war or armed conflict, or during a state of emergency, or when a law has been declared.

Article 40 (8): Children, minors, females, the handicapped and the permanently infirm shall be suitably protected during criminal procedure.

On freedom of expression of the individual and the mass media

Article 47: Paragraph 2 of the article states that only one independent state agency will be created to allocate frequencies and direct and regulate activities relating to radio and television transmission and telecommunications.

Note: Media reform groups such as the Campaign for Popular Media Reform (CPMR) have criticised the decision to have just one organisation overseeing the matter as not beneficial to public interest. They argue that two separate organisations are needed to competently oversee telecommunications and broadcasting. Those overseeing broadcast reform should be more attuned to guaranteeing more space for civil society within the broadcast media - a specialised job. A proposal to encourage the setting up of a media union under this chapter was rejected.

On rights to, and freedoms of, education

Article 48: A person shall have an equal right to basic education of not less than 12 years, which the state shall provide without charge.

Note: Failed attempts have been made to both reduce and increase the figure to 9 as well as 15 years. The 12-year figure is the same as in the 1997 charter.

On community rights

Article 65: Persons who together form a community shall enjoy the right to conserve or restore customs and traditions, local knowledge, arts and culture of the locality and of the nation, and to participate in managing, maintaining and deriving benefits from the natural resources and the environment in a balanced and sustainable manner.

Note: while generally acknowledged as a move in the right direction, some critics say this is too vague and will not provide any concrete results.

On rights to protect the Constitution

Article 68: A person shall have the right to peacefully resist any act committed to obtain power to rule the country by means not in accordance with the modus operandi as provided in the Constitution.

Note: the article is a near copy of the 1997 charter. Critics say this is ironic since the current draft charter is sponsored by the military junta that nullified the 1997 charter. Window dressing, they say.

On basic policy on the security of the state

Article 76: The state shall arrange adequate provision of military forces and modern weapons, ammunition, military equipment and technology necessary to protect and maintain national independence.

Note: the terms "modern", "technology" and "adequate" have been added, making an increase in the arms budget almost inevitable. No debate was held by the CDA or charter drafters, who are appointed by the junta - despite the fact that many of these people insisted that there's not enough money for education.

Article 78: The state shall provide patronage and protection to Buddhism, to which the majority of Thais profess, and to other faiths.

Note: As a compromise to rejecting Buddhism as the state religion, the CDA stated that Buddhism was the religion that the majority of Thais practised.

On basic economic policy

Article 82: The state shall promote and encourage the implementation of the philosophy of sufficiency economy.

Article 83: The state shall pursue a free-market economy.

Note: some critics say Articles 82 and 83 are contradictory.

In a last-minute vote, the CDA also granted the Lower House the authority to approve any privatisation of basic public utilities through a majority vote with the condition that they must not allow the state-held shares to fall below 50 per cent.

Note: Anti-privatisation groups see it as a step backward and the beginning of the end, where key utilities such as electricity and water will eventually fall into the hands of profit-maximising corporations.

The House of Representatives

Article 92: Members of the House of Representatives have been reduced to 400, with 80 members elected on the basis of proportional representation.

Note: critics say the lower number of elected MPs and the limiting of each constituency to a maximum of three seats will likely produce a weak coalition government in the future, while the bureaucracy and the military are strengthened under this draft charter.

The Senate

The senate has been reduced to 150 members, with one senator elected from each of the 76 provinces, while 74 others are selected from candidates proposed by different organisations including academia, the public sector, the private sector, occupational groups and other groups qualified to perform senatorial functions.

Note: critics say this is a backward move for democracy and that the bureaucracy, as well as the military, will wield much influence in the Senate.

Control of the administration of state affairs

Article 154: Members of the House of Representatives, of no less than one-fourth of the existing members of the House, shall have the right to call for a general debate of no-confidence in the prime minister.

Note: This will make the launching of a general debate easier than under the 1997 charter.

Article 155: Members of the House of Representatives, of not less than one-fifth of the existing members of the House, shall have the right to call a general debate of no-confidence in an individual minister.

Article 157: Members of the Senate, of not less than three-fifths of the existing members of the Senate, may propose a general debate in the Senate to demand the Cabinet give facts or explain important issues concerning the administration of state affairs without voting on a resolution.

Citizen participation

Article 159: Eligible voters, of no fewer than 20,000, shall have the right to sign a petition to the president of the Senate to cause the National Legislative Assembly to consider legislation.

Note: Critics say that though citizens could launch the motion, they are barred from participating in the drafting of the bill - leaving room for much alteration which could even be contrary to the original intention.

Article 160: Eligible voters, of no fewer than 20,000, can sign a petition to the president of the Senate to have a person removed from office.

Council of Ministers

Article 167: The King appoints the prime minister and no more than 35 ministers to constitute the Cabinet.

Note: This will make for a smaller Cabinet.

Election Commission

Article 224: The Election Commission shall consist of a chairman and four other commissioners.

Article 226: There shall be a five-member Selection Committee for the EC consisting of (1) president of the Constitution Court, (2) president of the Supreme Court of Justice, (3) president of the Supreme Administrative Court, (4) president of the House of Representatives, and (5) the Opposition leader of the House of Representatives. The Selection Committee shall select three suitable candidates and submit the list to the president of the House of Representatives. The resolution must be not less than three out of four in favour. Where the selection is not complete in number, the Selection Committee shall proceed and select election commissioners.

The Senate may disapprove but if the Selection Committee insists, the names shall be submitted to the King for royal appointment.

Note: the real power in the selection would now lie with the Selection Committee and not the Senate.

The National Human Rights Commission

Article 247: The number of National Human Rights Commissioners will be reduced to seven [from 11 at present].

Transitional provisions

Article 287: The election of the members of the House of Representatives and the selection of members of the Senate under this Constitution shall be completed within 150 days from the date that relevant organic bills for the elections come into force.

Note: The original period was set at no more than 90 days but was extended by the CDA on June 30 to 150 days. It may delay the promised election by 60 days.

Article 293 (1): A law specifying details of the promotion and protection of the exercise of rights and freedoms concerning freedom of expression by individuals and the press, concerning rights and freedom in education, concerning rights to information and complaints, and more, shall be enacted within one year from the date the constitution is promulgated.

Note: A clear deadline to pass organic laws.

Article 297: The Cabinet shall appoint, within 90 days of the date the Constitution comes into effect, a committee for law reform that can work independently.

Article 299: All that is recognised in the temporary junta-written constitution of 2006 is legitimate and constitutional; any associated act and action before or after the date the Constitution is promulgated shall be deemed constitutional.

Note: One of the most controversial, if not the most controversial article of the draft charter. Critics say it goes against the principle of the rule of law, is an embarrassment, and will help encourage a culture of impunity and more coups in the future.

The article was passed by the CDA with no debate whatsoever on the second and final readings.

Pravit Rojanaphruk

The Nation