A chance encounter with two top charter writers

Their experiences in drawing up new charters offer invaluable lessons for posterity. But we don’t seem to learn from history. Which is why we keep repeating the same old mistakes.
There is no such thing as a “perfect constitution” anywhere in the world, of course. But Noranit insisted that every group of Thai charter writers had been intent on “making things better” when they set about writing provisions to form the highest law of the land.
“But with differing political conditions, the emphasis was naturally different for every constitution,” he said.
Borwornsak was secretary to Anand Panyarachun, chairman of the drafting committee that produced the 1997 constitution.
Noranit led the committee that came up with the 2007 charter, the first in Thai history to be endorsed by a referendum.
Borwornsak also headed efforts to write a new charter after the May, 2014 coup, though that draft was eventually rejected by the National Reform Council in a major political twist. It’s now known as the aborted charter of 2015.
Now, Meechai Ruchupan is heading the commission that has come up with the latest draft, which will through another referendum sometime in the middle of this year. Things remain fluid. Several controversial provisions are being debated and the fate of this draft is the focus of wild speculation.
“I sympathise with Ajarn Meechai. It’s natural that charter writers face pressure from several directions,” Noranit told me.
Noranit is 75 this year but still bright and robust. He chairs Thammasat University’s Council and serves as a member of the National Legislative Assembly.
“The 1997 charter that Ajarn Borwornsak helped draw up was probably the most democratic of all [Thai charters]. Then the 2007 constitution came along, the one I was involved in. The core of that charter was to ensure that the people were empowered to keep checks on the government,” Noranit explained.
I asked Bawornsak what had been the main objective of his 2015 draft. He replied: “The people’s rights and freedom as well as the public’s active participation in the political process.”
Of course, new chief drafter Meechai has made it clear that the focus of the latest document is to prevent corrupt politicians from gaining power. Hence the strict clauses on the qualifications necessary to enter politics.
Noranit was keen to emphasise that politicians should realise they were only exercising political power, and that the power belonged to the people, not to those who volunteered for public office.
“There is a huge difference between the two lines of thinking. Politicians used to assume that they ‘owned’ political power while in fact they are allowed only to ‘exercise power’ on behalf of the people. That’s what we wanted to make clear in the 1997 constitution, which contained many clauses that allowed the people to keep a constant check on politicians,” he said.
Obviously, politicians felt that the 1997 charter would weaken the ruling government with its stipulation that any group of 20,000 citizens could demand a no-confidence debate against a Cabinet member.
But the charter drafters weren’t writing a constitution to empower politicians. They were drawing up a new set of rules that would make checks and balances the top priority in governance.
Borwornsak said the stillborn 2015 draft, in empowering “the citizenry” instead of politicians, was also an attempt to lay the groundwork for grass-roots democratisation. “We have faith in the common people,” he said.
Of course, the issue of whether the next prime minister must necessarily be an elected MP has galvanised the debate all along. Another hot topic is whether senators should be elected or appointed – or something in between.
Although Noranit noted that his 2007 draft stipulated the PM must be chosen from among elected MPs, he added, “we can’t say that people who believe the PM can also be picked from among non-MPs are against democratic principles, because the both systems exist in developed [democracies] all over the world. It’s a matter for the people of each country to decide.”
The current charter drafters under Meechai came under pressure from the powers-that-be to stipulate the Senate be handpicked by the current authorities – and include a provisional clause handing power to a body close to the ruling group for five years after fresh elections.
The two charter gurus declined to answer my question directly but they hinted that the pressure on Meechai’s team was greater than anything they themselves had experienced.
I suggested to Borwornsak that he write his memoirs and reveal all the juicy details behind the long and winding saga of Thai charter writing.
He smiled. “I will write them, but the memoirs won’t be published and distributed until my funeral,” he declared, rather more emphatically than I had anticipated.