Regular New Mandala reader, Patiwat, has provided some useful comments on the post-coup draft constitution. Here they are:
Some brief thoughts on the constitution. In short, it’ll take us back to the 1970s/1980s. I’ll save time and focus only on the bad and neutral points:
Bad
- Weakening of the political party system will produce short-sighted unstable coalition governments. A number of changes drives this: the reduction of the number of votes required for a no-confidence debate falls from 40% to 25%; the increase in MP independence, which also allows MPs to more easily whore themselves to the highest bidder; the new constituency system, which seems designed to produce a multi-party outcome.
- 2 terms/8 year term limit. When combined with the above clauses that are intended to produce short unstable coalition governments, the 2 term limit could cause some short-sighted corruption prone policies. I’d prefer just an 8 year limit. (Sec 167)
- Appointed senators is just absurd. How the heck are appointed senators supposed to be more independent than elected ones? (Sec 106)
- Regional party lists. The old system of nation-wide party lists favored national parties which could put together a strong list based on politicians with nation-wide appeal. The regional party list system means that a party can focus on regional candidates, e.g., the Democrats could put its super-stars on a southern party list and forget about the rest of the nation. To me, this somewhat defeats the original purpose of the party list, which was to balance provincial/regional interests with the national interest.
- Ethics code ambiguity. The draft mentions a code of ethics, and says that ethical violations could result in removal from office, but doesn’t give any more details. So what exactly defines an ethical violation? Will calling for an election in the face of protests from hundreds of thousands be deemed unethical (the opposition certainly claimed so last year)? (Section 270)
- Legitimizing rebellion as a means of gaining power. This will come back to haunt all of us. What happens when, not if, the unity of the junta falls apart?
Neutral
- No 5% minimum cut-off for party list candidates + Fewer party list candidates. The lack of a 5% cut-off would mean that fringe parties could easily get party-list seats. However, since there are fewer part-list seats, this might be negated. I haven’t figured out how they’ll do seat rounding (i.e., whether they’ll continue to use the d’Hondt system).
- NCCC will focus only on high-ranking politicians and civil servants. Fine, this will reduce their workload. But who is going to look after medium-level politicians and civil servants? I don’t think provincial prosecutors are the best people to do this (Sec 249).
I’ll mention one good point though: the 100,000 signature minimum to start constitutional amendment procedures. This way, constitutional crises will be less of an excuse for coups. You don’t like the rules? Just start a petition to change them. No need for coups. That wont stop the military from interfering, of course, but still…
21 responses so far ↓
1 patiwat // Apr 26, 2007 at 12:09 pm
I also think that the draft gives the judiciary way too much authority in selecting members of the Constitutional Court (now called the Constitutional Tribunal).
A Constitutional Court that is composed of Supreme Court judges and appointees will be too conservative, and will narrowly interpret the letter of the law. There are a lot of new and ambiguous clauses in the draft constitution, and the Constitutional Court needs to be somewhat liberal in order to obey the spirit of the constitution.
2 patiwat // Apr 26, 2007 at 12:45 pm
I also don’t like Sec 279, which makes all employees of local administrative organizations civil servants. Thailand needs fewer civil servants, not more!
I think the idea to make ีคณะกรรมการพิทักษ์ระบบคุณธรรมระดับท้องถิ่นด้วย (Committees for the Defense of Local Virtue) is quite scary. If some guys in khaki come knocking on my door claiming that I am lacking in virtue, I’d reach for a gun and tell them to go away.
In case any of you were wondering, Sections 18-25 (regarding royal succession) are identical to the 1997 Constitution. The Crown Prince’s status as heir apparent has not changed.
One of the most ironic things is that Section 65 (”A person shall have the right to resist peacefully any act committed for the acquisition of the power to rule the country by a means which is not in accordance with the modes provided in this Constitution.”) is still around (renumbered as Section 68). So you’re free to protest if the military rips up the new constitution. Of course, they could still arrest you and declare amnesty for themselves…
3 Srithanonchai // Apr 26, 2007 at 7:04 pm
Party lists: I don’t really think that voters looked much at the party lists when they voted for TRT or the Democrats. They probably looked at the party leaders and their policies. The regional lists merely segment the national lists. Parties still can, as Woothisarn Tanchai of the CDC pointed out, sell their party, leader, and policies. And people on these lists must have stayed in the region for at least one year, it seems. Party list votes in Germany, btw, are at the state level. But votes are for the national parties and their leaders. In fact, the 1997 Constitution already required regional equity.
However, the above approach implies that voters will still have two separate votes–one (two, three) for the constituency candidates and one for the party list. Hardliner Charan Phakdithanakun has exactly tried to prevent this from the very beginning. He wanted to prevent any future prime minister from being able to refer to the direct support of the voters in justification of his actions ever again.
The conflicts surrounding the election system might have prevented it from being included in the constitution. Vital institutional decisions have thus been transferred to a CDC sub-committee to include these things in the election law instead.
It is thus difficult to get a clear picture, because all you ever see are some interview remarks in the Thai-language press. Sometimes they don’t make sense, sometimes they are ambigious. For example, one person stated that they wanted to employ the German system, where there is only one “bai” (here meaning ballot paper, but also implying only one vote). In fact, Germany has only one ballot paper, but you have two votes on it, one for the constituency candidates, and one for the parties. This is not feasible in Thailand, because you have so many political parties that they require a separate ballot paper. Moreover, MP seats in Germany are calculated on the basis of the proportional vote, which makes it impossible for the German parliament to have a fixed number of MPs. After all, a party might received more constituency MPs than it could claim according to the party list vote. In Thailand, however, the number of MPs is fixed.
4 AFREETHAI // Apr 28, 2007 at 7:44 pm
Maybe we in Thailand have to bear ‘bitter’ way to ‘democracy’ in every levels of society.
In fact since we have elected board in local level, we have esperienced bloody fighting among local politicians…really it’s bloody…
politics in village is in influential locals firmly, not much different from old days.
Poor Thailand, academics usually follow western model naively without understanding much Thai cultural background.
5 Jon Fernquest // Apr 28, 2007 at 9:38 pm
“In fact since we have elected board in local level, we have esperienced bloody fighting among local politicians…really it’s bloody…politics in village is in influential locals firmly, not much different from old days.”
Does the contesting of local leadership positions and power in local elections ever lead to increases in violence? (This is something that could proven or disproven, but the information is not in the library. It is in the field. Buried in Nelson’s study of Democracy in Chachoengso is the murder of a campaign worker working on the opposite side from the candidate with more local chao paw like connections)
Even if an act of violence is reported in the newspaper, the significance of that act of violence, the motives behind the violence, is not usually reported, and even if there is speculation in this regard, the case is usually not solved conclusively in the end.
“Poor Thailand, academics usually follow western model naively without understanding much Thai cultural background.”
IMHO the problem is not models or theories, it’s not digging deep enough for info. The discussion of decentralisation fits this bill. I always hear it discussed in the abstract without examples. Other countries face similar problems as Thailand in decentralisation of education for instance, Mexico is one example I was struck by similarities when Brad DeLong mentioned it in his NAFTA speech. Across the world, there are many possibilities for comparison and spotting similarities.
6 Srithanonchai // Apr 28, 2007 at 10:49 pm
The most recent case of local political violence was the double murder of the former major and deputy major of tambon municipality Thamuang in amphoe Thamuang, Kanchanaburi province. This happened in the context of the run-up to the new election after the term of the council/mayors had come to an end (as reported in Matichon, April 4, 2007, p. 8).
Not all cases are seemingly as clear-cut as this one, since one cannot always easily decide whether at the bottom of things is a business or a political conflict. After all, most local politicians have business interests. Moreover, in rural areas, killing one’s business rival is not an unsual method of “solving” a conflict, even if no politics are involved at all.
7 Srithanonchai // Apr 30, 2007 at 2:23 pm
Constitution: Here is an accurate observation by Chang Noi (The Nation, April 30) on the draft’s section on “Fundamental priciples of state policy.”
“In short, this is an attempt by a handful of charter drafters to dictate policy. A fundamental principle of parliamentary democracy is that policy-making is the duty of elected representatives who are in some way responsible to their constituency. The 1997 Constitution began this practice of trying to dictate policy to future governments. This draft charter has taken the practice to another, absurd level. This chapter betrays the drafters’ total contempt for the principle of parliamentary democracy.”
I couln’t agree more.
Full text at http://www.nationmultimedia.com/2007/04/30/opinion/opinion_30033003.php
8 Srithanonchai // Apr 30, 2007 at 2:40 pm
P.S.: In the CDC’s summary of important points as printed in Post Today (April 18) the section on fundamental state policies is headlined:
1.4) Making the fundamental state policies clear and comprehensive and more binding to the state than before
That says it all.
9 Srithanonchai // Apr 30, 2007 at 6:00 pm
On Prachatai of April 30, Rangsan Thanapornphan is quoted with a view that mirrors that of Chang Noi:
“พูดมาหลายครั้งเป็นเวลาหลายปี ทั้งที่เป็นจารีตที่ลงตัวแล้ว แต่ทุกครั้งที่ร่างรัฐธรรมนูญใหม่ผู้ร่างรัฐธรรมนูญไม่เคยกังขาว่าควรมีหมวดนี้หรือไม่ มีแต่จะเอาใส่นโยบายใหม่ใส่เข้าไปในหมวดนี้ ทั้งที่ ในข้อเท็จจริงในสังคมประชาธิปไตย รัฐบาลควรมีเสรีภาพในการเสนอเมนูนโยบายให้ประชาชนเลือก ประชาชนควรมีเสรีภาพที่จะเลือกเมนูนโยบายต่างๆที่พรรคการเมืองเสนอให้ แต่กลายเป็นรัฐธรรมนูญบังคับว่า รัฐบาลต้องเลือกเมนูนโยบายที่กำหนดโดยสมาชิกสภาร่างรัฐธรรมนูญ (ส.ส.ร.)ประชาชนต้องเลือกเมนูนโยบายที่กำหนดโดย ส.ส.ร. คิดว่ามันขัดต่อจิตวิญญาณประชาธิปไตย” ศ.รังสรรค์ กล่าว
The headline says that the Thai government will be turned into a mere “palat prathet” (permanent secretary of the country). Indeed, the draft constitution contains both a strong element of de-politicization and bureaucratization of the government.
10 nganadeeleg // Apr 30, 2007 at 6:52 pm
Srithanonchai : Which of the following do you find so offensive?
- revise the tax system to be more equitable;
- create a system to provide for the aged;
- amend laws on monopoly in order to provide for free and fair competition.
- distributing income more fairly;
- increasing opportunity;
- promoting the exploitation of local wisdom and Thai wisdom in the creation of products and services;
- delivering the highest returns to agriculture;
- ensuring the basic needs of consumers are not obstructed by monopoly business;
- controlling female and child labour;
- devising an equitable social security system.
11 Srithanonchai // Apr 30, 2007 at 8:18 pm
nganadeeleg: A constitution is a means to determine the political order of a country, including the rights of the people vis-a-vis the state, not a policy-shopping list. You can push for whatever you find desirable policy-wise in the public political discourse, or member of a political party. The constitution is devised to guarantee this space of policy contestation.
Personally, I would participate in that space concerning the second point, “create a system to provide for the aged,” because I will soon need it.
12 nganadeeleg // Apr 30, 2007 at 8:22 pm
Some drafters are proposing something like the German electoral system:
http://www.nationmultimedia.com/2007/04/30/politics/politics_30033008.php
Sounds like an improvement to me – I would be interested in Srithanonchai’s opinion as he is familiar with the German system.
13 Srithanonchai // May 1, 2007 at 1:22 am
nganadeeleg: The point of the German system is not that there is an equal number of constituency and party-list MPs, but that only the votes a party receives on the party list are used to determine that party’s total number of seats (except for the case that a party receives more constituency MPs than it could claim based on the proportional votes; it can keep those excess MPs–but the number must be kept small, otherwise the proportional priciple is undermined).
In the 2005 elections, the distribution of seats according to the Thai system was TRT 377, DEM 96; Chart Thai 25, and Mahachon 2.
If the German system of calculating seats based on the proportional votes had been used, the result would have been as follows (roughly): TRT 336, DEM 128, Chart Thai 36. Mahachon would have remained at 2 MPs, because they did not overcome the 5% hurdle and neither received at least 3 constituency MPs. In the latter case, Mahachon’s 4.34 % on the PL would also have counted for calculating the distribution of MPs.
In short, based on the Thai system, TRT prevailed by 377 to 123 for the opposition altogether, while the German system would have led to 336 to 166, i.e. 502 MPs instead of 500.
The German system encourages the political parties to present themselves to the voters, be it in terms of their policies or their leaders. Under normal circumstances (non-Thaksin), such an electoral arrangement leads to coalition governments. As with all proportional systems, it most adequately translates the voters’ party preferences into seats. Since the voters have two votes–constituency and party list–they can split them, as was the case in Thailand in 2001 and 2005, among a local constituency candidate who belonged to one party and a differrnt political party on the party list ballot. That allows the voters more choice than merely one vote.
Finally, the German system uses single-member constituencies, like in the 2001 and 2005 Thai system, but unlike the proposed multi-member system in Thailand. This is because, among other things, the German constitution stipulates that elections must be equal. That is, all voters must have an equal opportunity to contribute with their vote to the composition of parliament.
14 nganadeeleg // May 3, 2007 at 8:36 pm
Thanks, Srithanonchai – Somehow I missed your reply until now.
“As with all proportional systems, it most adequately translates the voters’ party preferences into seats”
That sounds good to me.
15 Srithanonchai // May 3, 2007 at 8:55 pm
nganadeeleg: You are welcome. BTW, in Krungthep Thurakit, May 2, p. 19, there was a long article on the election system, mainly trying to explain what impact the proportional system would have had. However, the seat calculations given seem to be incorrect.
In that article, it is assumed that the votes cast for Mahachon would have counted — after all, you do not need to apply a 5% threshold or a minimum of 3 constituency MPs.
Under this condition, TRT’s majority would have been reduced to about 321-179 (from the initial 377-123, or 336-166 without Mahachon).
16 Srithanonchai // May 5, 2007 at 6:24 pm
nganadeeleg: Matichon (May 6, p. 11) has another article on proportional representation in Germany.
In fact, this piece is mostly a summary of a paper prepared on the German system by Ajarn Prinya of Thammasat University, also one of its vice rectors. He graduated in law from Germany.
Unfortunately, his presentation is not correct and rather confusing, which is why he says at the end that the bad point of the German system is that it is complicated. Not so.
For example, he says that the calculation is done based on the state level, i.e. in Germany’s 16 states. That’s wrong. The first step of calculation is to allot all the seats in the national House to the political parties, based on a) the number of total MPs in the House, b) the total number of party-list votes (after having subtracted all those parties that did not make the 5% threshold or gained at least 3 constituency MPs), and c) the party-list votes every party above 5% and at least 3 seats has received at the national level.
Only the second step concerns the state level. And the distribution of seats is just as simple as in the first step. This time, one will need a) the number of MPs a party was allotted in the first step, b) the number of party-list votes a party got in the respective state, and c) the total number of party-list votes of that party at the national level.
In both cases, the method employed is Hare/Niemeyer. After the party-list MPs of a party in one state have been calculated, the constituency MPs it won in that state are subtracted. If the number is higher, it can keep the seat(s), and won’t get any additional party-list MPs in that state. If the number is lower, the number of MPs is filled up by candidates from the party list.
If Thailand, the procedure would be even simpler, because you could use the national level and, perhaps, only four “regions.”
By starting with the state level, Prinya muddles everything up, and his examples confuse even more.
17 nganadeeleg // May 5, 2007 at 7:19 pm
Thanks again, Srithanonchai.
This was in todays The Nation:
Meanwhile, Constitution Drafting Assembly member Pichian Amnartworaprasert yesterday met Withayakorn Chiangkoon and his government-appointed charter panel.
He said the panel was in favour of a national religion, but wanted the draft reworded to ensure minority faiths in the country were not discriminated against.
The Withayakorn panel proposes the Senate be either elected or a mix of elected and appointed members, Pichian said, adding that a fully appointed upper house would be a “step back for democracy”.
The government panel is against adopting German-style elections for the lower house, whereby half the members are elected and the other half are selected from party lists via proportional representation. This is confusing, the panel told Pichian.
The panel proposes maintaining the party-list system, having only one member elected per constituency and not giving judges additional political roles.
You might be interested in this summary of various electoral systems: http://www.aph.gov.au/library/pubs/RB/2005-06/06rb10.htm#isthere
Personally, I do not like the ‘first past the post’ system and prefer the number of seats each party gets to closely approximate the percentage of votes they received – that just seems fairer to me.
18 Srithanonchai // May 5, 2007 at 8:50 pm
nganadeeleg: Thanks for the link. As you noticed, the panel has also problems comprehending the German system, although it really is fairly simple, both concerning the underlying principle of representation and the calculation of seats.
19 Srithanonchai // May 6, 2007 at 2:17 am
nganadeeleg: Parinya’s article is on Prachatai at
http://www.prachatai.com/05web/th/home/page2.php?mod=mod_ptcms&ContentID=7965&SystemModuleKey=HilightNews&System_Session_Language=Thai
Still, his recalculation of the 2005 result according to the German model seems to be incorrect, meaning that his absolute figures for the votes each party received on the party list is correct, but not the percentages. Since he obviously used them for the calculation of seats, they turn out to be too low, even if one considers that he had counted all parties, not merely including Mahachon. His percentage for all others seem to be 8.44, when in fact it was only 4.63%.
This is a first impression. I will have to read his piece more en detail.
20 anonymous // May 6, 2007 at 10:24 am
Prinya Thewanaruemitkul has no business talking about German constitutional law.
He should stick to his specialization: figuring out whether his students wear underwear or not, and if not, punishing them in public.
21 Srithanonchai // May 6, 2007 at 3:07 pm
Yes, Prinya likes to present a progressive political image, but his social outlook remains very conservative.
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