[Tlc] T-politics/opinion

Tue Jun 2 23:49:58 PDT 2009

Forwarded from Dr. Charnvit Kasetsiri.
Thanks,
justin

http://www.bangkokpost.com/opinion/opinion/17745/our-unconstitutional-constitution

GUEST COLUMN
Our unconstitutional Constitution

    By: Songkran Grachangnetara 
    Published: 2/06/2009 at 12:00 AM 
    Newspaper section: News

Our Constitution is supposed to be the supreme law of the land and since 1932, after the change from absolute monarchy to a constitutional one, as a nation we have drafted, used and gone through 17 constitutions in total, (the current one being the 18th) which in my view reflects Thailand's high level of political instability, evident in the high frequency of military coups.
We have had constitutions which have stipulated a unicameral and bicameral parliamentary system, appointed and elected upper houses, prime ministers chosen from a member of Parliament and those appointed from outside, as well as everything else in between.
The problem, however, is that what Thailand in the most part has had, are not constitutions at all, but temporary instruments used for governing, promulgated after military coups d'etat.
It is high time that the highest law of the land be drafted by the people and for the people without having it tainted by the agenda or vested interests of those who find themselves governing over every single one of us.
The people of Siam should speak up and let their voices be heard and demand that their political representatives start acting responsibly and take us out of this vicious cycle, which usually results in what we have today - an unconstitutional Constitution!
I realise that the constitution of each nation is different - each one reflects the various differences of each society. Still, a good constitution is one that endures the test of time and thus must not only define the rules and principles for a system of governing, but it must also embody timeless principles of freedom and justice, reflecting the hopes and dreams of its people.
Sadly but not surprisingly, our present Constitution has failed on all these counts.
One of the most important tasks for our Prime Minister is how to remove ourselves out of this quagmire because how pathetic it would be if, after another couple of years, we ended up with another military coup followed by another uninspiring, unworthy and unwanted constitution?
There are two things which the PM is required to address if Thailand is to once again chart a course towards a true, meaningful and lasting democracy.
First, begin the process of promulgating a constitution by allowing for the full and uninhibited participation of the people. Second, to once and for all eliminate the moral hazard regarding the military coups d'etat.
The people have so far been completely mistreated and kept out of the constitutional review process.
PM Abhisit seems to favour a committee-based approach, consisting of a small group of politicians and intellectuals for amending the constitution and once a final draft has been completed, to subject that draft to a referendum.
I sincerely hope the Prime Minister drastically alters the direction in which we are heading because, at best, this process denies the people their inherent rights, and at worst, it will be seen as illegitimate.
Amending the present Constitution to arrive at a new one amounts to short-changing the people of Thailand. Thailand deserves a new charter and not one that is recycled, regurgitated and will most likely be rewritten in a few years' time. I have golf clubs that last longer than the average Thai constitution!
Therefore the process, procedure and perception is vital if this new charter is to stand any hope of being accepted and indeed immortalised as the firm foundation on which Thailand's political system is built.
A referendum seems to be on the cards and is viewed as a legitimisation mechanism allowing politicians to claim that the people's acceptance for the new charter had been sought and duly given.
To reduce such an important document that binds us as one people and one nation, a document that sets out to define the social contract between the government and the governed, to a yes-or-no, kindergarten multiple choice questionnaire, is simply offensive.
I believe the Prime Minister is a true democrat, and thus should be encouraged to lead us out of the woods towards greener political pastures. In my view, the path towards true reconciliation lies in the promulgation of a constitution that is perceived to be, and actually is, written for and by the people.
The only way to achieve that is to repeat the process of the 1997 charter. The reason is simple, the 1997 Constitution was widely hailed as a landmark in democratic political reform. Promulgated on Oct 11, 1997, it was the first constitution to be drafted by an elected assembly, and hence was popularly and affectionately called the "People's Constitution."
I hope the Prime Minister employs all his skills and puts to good use his abundant political and social capital to allow the people of Thailand to breathe the air of democracy and with both arms to once again embrace tightly and, hopefully this time, permanently another "People's Constitution."
The moral hazard regarding coups d'etat is the mother of all political moral hazards in this country. Even if we were able to draft a constitution that is perfect in the eyes of God and accepted by all, the effort would be futile if we were not able to prevent another military coup from happening. If we all want to live in a democracy and believe that military coups - even when encouraged or welcomed by segments of the public - are always a cure far worse than the disease, then this administration should address this very obvious moral hazard before we start the arduous process of promulgating another new constitution.
So what is the moral hazard regarding military coups? Well, it is very simple. Military coup leaders are subsequently completely unaccountable for their actions because new laws can be written in place of old ones to deem all their past actions lawful; a clear example would be Article 37 of the Interim Constitution of 2006, which grants amnesty for the military junta. To use an analogy, financial bail-outs of lending institutions by governments, central banks or other institutions can encourage risky lending, if those that take the risks come to believe that they will not have to carry the full burden of losses. In a similar vein, military coup leaders are indirectly encouraged to initiate coups, as clauses such as Article 37 - which is recognised by Article 309 of the present Constitution - guarantee the military junta full amnesty and total protection from the due process of law.
I realise this particular moral hazard is difficult to resolve, but the PM could begin by dishing out a portion of accountability to the most recent coup leaders, namely General Sonthi Boonyaratkalin and his cohorts and arraign them before a parliamentary committee so that explanations may be given concerning the true reasons for the coup and, more importantly, who was involved in its planning.
If politicians can face political bans, political parties can be disbanded and ordinary citizens can be brought to justice, I see no reason why the military coup leaders should be exempt from being asked tough questions under oath and subjected to the same standards of accountability expected from other branches of government or ordinary citizens. Only under the bright lights of transparency and accountability will this moral hazard make its long walk out of the wilderness.
I conclude by lending moral support to PM Abhisit because he has a monumental task ahead of him. People admire charisma and respect intellect, but at the end of the day, people follow leaders who demonstrate courage.
I believe the Prime Minister need only demonstrate some courage in tackling the two issues mentioned, and I will not be surprised if Mr Abhisit gains more followers and supporters by the droves. I am confident and certainly hope the Prime Minister is equal to the task and I, as a citizen of Thailand, will be cheering him on.
Sir Winston Churchill once said: "Courage is rightly esteemed the first of human qualities... because it is the quality which guarantees all others."
PM Abhisit will require the courage to be honest, the courage to be just and, most of all, he will require every single ounce of courage he possesses to do not just what is lawful, but also what is right.

    * Songkran Grangchangnetara is an entrepreneur. He graduated from The London School of Economics and Columbia University.

______________
Dr. Justin McDaniel
Dept. of Religious Studies
3046 INTN
University of California, Riverside
Riverside, CA 92521
951-827-4530
justinm at ucr.edu