Constitutional wrangling: same same but different

opinion July 04, 2012 00:00

By Tulsathit Taptim

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Stark differences can look subtle.

At least that is seemingly the case between the current campaign for charter reform and the one preceding the 1997 "People's Constitution". On the surface, the situations appear similar: we have a country’s coup fatigue amplified by the need for democracy to have a greater reach, and boiling dissatisfaction with the political status quo. To add to that, the highest laws of the land both now and then reek of military influences, and there are clauses that many people want removed in order to “purify” the constitutions.

That is a lot in common. Or is it, really? Zoom in and we will see that the driving factors in both campaigns are not just plain different but “ironically” different. First and foremost the 1990s push for constitutional overhaul was also strongly motivated by disdain for corruption, which many believed was as responsible as military opportunism for Thailand’s endless political predicament.
Writers of the 1997 charter conjured up anti-corruption measures that would later come to wreak havoc on the prevailing state of affairs. Vested business interests were strictly prohibited and an unprecedented punishment of a five-year political ban was prescribed for offenders. Independent organisations were set up to give more teeth to the anti-corruption mechanism, which in the past had been too connected with the powers-that-be to do anything. The concept of an independent TV station that could break free from state control was introduced.
What is steering the current charter reform crusade? Not concern over vested business interests in politics, of course. And not the need to bolster the independence of anti-corruption agencies either. What about the idea of having a truly free TV station not under the influence of any political group? If such an idea still carries any weight at all, it’s obviously not high on the agenda of those wanting this present charter scrapped and a new one written.
All in all, the ends will justify the means. One may argue that the yet-to-be-formed Constitution Drafting Assembly should not be pre-judged. It’s true that the CDA may still hold dear the values of separating businesses from politics, of keeping the likes of the Constitution Court, Election Commission, National Counter Corruption Commission, Administrative Court and the political section of the Supreme Court out of politicians’ reach. The CDA may also seek to continue shielding the only TV station independent of state control from political control. Such an argument, purportedly in defence of the CDA, can actually be used against the assembly itself. If the CDA will maintain all the said fundamentals, why is there any need to write a brand-new Constitution to begin with?
This question is at the heart of the ongoing controversy involving the constitutionality of the charter amendment bill. Doubters challenge advocates of the bill to explain why selective amendments to the present charter do not suffice. Apart from one article that legally backs what the Assets Examination Committee did to Thaksin Shinawatra after the 2006 coup, the 2007 Constitution has inherited all the key values of the much-loved 1997 charter. Wouldn’t it be better to just try to remove or amend that article through conventional means instead of going through the trouble of electing a CDA and having it write a new charter that would be more or less the same as the existing one?
A related question is: “Who are you changing this existing Constitution for?” In other words: “For whom are you writing the new charter?” If the aim is to get rid of Article 309, which legalises the graft probe against Thaksin, who else will benefit from that article’s removal? Apart from that, what will the removal do to corruption, which the 1997 Constitution clearly identified as Thailand’s top scourge?
The 1997 charter was born out of a mixture of dismay against military intervention in politics and exasperation over how corruption kept feeding the generals with coup pretexts. It was believed, at the time, that independent constitutional bodies would ensure that Thailand’s democratic system could by itself handle crooks bred by parliamentary elections. Looking closely at the present drive to write a new charter, we can only see dismay against military opportunism. Not a single word has been said by those favouring a charter overhaul on how to tackle “the other evil”.
If a main reason for writing a new charter is “reconciliation”, that proclaimed objective is being mocked by the daily threats of new violence. The countdown to the Constitution Court’s verdict on the charter amendment bill will begin soon. If a green light is given and the plan to set up the CDA can go ahead, half of the country will celebrate while the other half will hold its breath. And that will be another stark contrast between now and the 1990s. At that time, with the exception of a few people in the status quo, everyone was looking for a new dawn in politics. What are Thais feeling today? Just check the opinion polls.