Charter drafters seeking to create loopholes for the elite

The fundamental principle for every democratic constitution is to guarantee that “sovereign power belongs to the people”. Representatives of the people — meaning individuals who are elected — obtain a mandate from the election and can exercise such power through the National Assembly (Parliament), Council of ministers (government and Cabinet) and the Judicial branch (the court).

Traditionally, Thailand has been run by a parliamentary system of politics and administration. Members of Parliament who are voted in via elections were divided into parts to exercise sovereign power in accordance with an electoral mandate and laws. One lot, those who win a majority in the election, run the government, while the others work as lawmakers in the Parliament. Ideally, the chief of the Supreme Court should also be elected, but Thailand has never functioned this way.

The problem over past decades is that the Thai elite and their chosen ones have rarely won an election. The remaining people of the country, mostly poor and less educated, always vote for their representatives to divert national wealth and budget to their provinces and rural communities.

In recent years, the elite have tried to find special methods to get their representatives into power. They mostly used street protests to provoke social unrest, giving an excuse for the military to intervene in political affairs.

A military coup d’etat is undemocratic and internationally unacceptable. There is no legitimacy in exercising a coup to bring elitist leaders to power.

And the coup in 2006 was one that failed to bring the elite’s choice into office. Previous elections under the 2007 Constitution — sponsored by the 2006 coup-makers — ended with politicians from Thaksin Shinawatra’s camp winning government. The elitist Democrat Party was too weak and unpopular to win a majority.

The previous constitution provided room for the elite to manipulate politics only through independent organisations and half of the Senate. Only the Senate, the courts and other independent organisations, can suspend Yingluck Shinawatra and her Cabinet.

The previous constitution did not provide any special way to carry elitists into power. Last year, street protesters supporting the Democrat-backed People’s Democratic Reform Committee called for Articles 3 and 7 in the previous constitution to be exercised – to replace Yingluck and get their choice into power. But there was no legal legitimacy to do this.

The 2007 Constitution is, in fact, less democratic than the 1997 charter. It authorised the elite in the judicial branches to nominate half the Senate – to balance the elected MPs and government, but this was not enough to block their political enemies.

The junta-sponsored constitution drafters are now creating an outline for a new charter to seal all legal loopholes and open channels for the elite to intervene in politics – as well as pick their choice for power constitutionally.

What the elite has done so far is to reserve its right to pick senators who are more powerful; and boost the chances for an “unelected person” to sit in the top position in the government.

The next step, debated last Monday, was how to include clauses that would allow a special power to exercise its constitutional authority to interfere in the political process.

Article 7 of the 1997 and 2007 charters said the same thing: that whenever there’s no constitutional provision applicable to any case, it should be decided in accordance with constitutional practice in a democratic regime of government with the King as the head of state. But these phrases were regarded as useless in bringing anybody to power.

Many drafters suggested modifying Article 7 from the previous charters to allow the Constitution Court to widely interpret this problematic clause as it wishes.

In this way, the Constitution Court will become a special force to ensure the elite can get a nominee into power without having to go through an election, and for such a process to be constitutionally legitimate.