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Chang Noi has another excellent opinion piece in yesterday’s The Nation. This time on the new Constitution:

While the last charter was dubbed the People’s Constitution, this one deserves the title of the Judges’ Constitution.

Under this draft, the three very important persons are not the prime minister, president of parliament, or even commander-in-chief of the Army, but the heads of the Supreme, Administrative, and Constitutional courts.

The importance of these courts will increase. People gain the right to present cases directly to the Constitutional Court over infringement of rights, and to the Administrative Court over disputes with official agencies. The Supreme Court takes over some of the most important powers in the control of elections. These courts will consequently have a bigger role in major decisions that affect politics and administration. On top, the heads of these three courts are among the handful of gods who have the power to appoint the members of the Senate, and the members of some independent bodies intended to act as checks and balances on the executive and parliament.

The procedures for appointing two members of this judicial triumvirate are already in place and are internal to the judiciary. The procedure for the Constitutional Court has had to be newly devised. The details offer a glimpse into the clubby kind of politics we have in store.

The nine members of the Court will include three high court judges and two Administrative Court judges, again chosen by the internal processes of the judiciary. The others are two legal experts, and two experts in political science, social science, or religious studies. These four are nominated by a committee consisting of the presidents of the Supreme and Administrative courts, the president of the Assembly, and opposition leader, and the head of the independent organisations. The Senate has to approve this committee’s nominations, but has no leeway to make any choice. If it refuses, it can eventually be overridden, again by a cabal of judges.

“Elections are evil,” said one drafter last week. He used to be a judge.

COMMENT: See my own post on the “Elections are evil” judge the first time around and my other post on “Who guards the guardians?”

That same judge is at it again, this time attacking his critics.

Critics of the new constitution should heed public sentiment before attacking provisions that give the judiciary a greater role in the selection of office holders for independent organisations, charter drafter Wicha Mahakhun said yesterday.

“The call for a greater involvement of the judiciary has been attributed to public despair at existing political institutions and people then pinning their hopes on the courts,” he said.

Wicha said the first draft of the new constitution had factored in public opinion on ways to overcome last year’s leadership crisis. According to the opinions submitted, people wanted the courts to intervene and end political tampering in the system of checks and balances, he said.

Draft provisions were designed to assign the courts as a last resort to dispense justice in electoral and political disputes, and to pre-empt political interference in independent organisations, he said.

Critics have no justification to attempt to mislead the public into believing that the judiciary will become mired in the political rivalry and become a politicised institution.”

Rebutting criticism of the provision for an appointed Senate, he said past events had proved that an elected Senate could not stay free from partisanship. “The vast majority of elected senators opted to serve as a power base for the ruling party.”

The upper chamber was supposed to act as a political rudder but turned out to be the puppet of the House.

“Proponents of the elected Senate should review their stand because the selection system is not ‘evil’ in comparison to the electoral process,” he said, arguing that appointments based on merit had made many positive contributions to the country.

He said critics of the draft should offer alternative ideas instead of trying to reject the whole document.

Somkid Lertpaitoon, another charter drafter, said public opinions on the first draft would be reviewed for inclusion in the new constitution.

“I can confirm that no charter drafter has any preconceived ideas about the final draft and that everyone is willing to revise the draft to best serve the country,” he said.

Drafting Assembly member Chirmsak Pinthong viewed the draft as an improvement on flawed mechanisms in the 1997 Constitution. The planned switch to an appointed Senate reflected the lesson learnt from the elected version failing to meet public expectations. He also voiced support for the provision allowing a panel of 11 concerned parties to resolve national political crises, rather than risk a power seizure. He only thought the Om-budsman could play a bigger role.

COMMENT: Should one be surprised about Chirmsak? Probably not. Ok, back to CNS puppet Wicha. On the judiciary not becoming politicised, well I would disagree. Thankfully, former Premier of NSW (1995-2005) has an editorial on the politicization of the judiciary in the SMH:

A charter of rights gets enshrined in the statutes. A new respect for rights irradiates all our lives. Judges hand down decision after decision that expands the realm of rights in ways never dreamt of.

The one killer fact about a charter of rights is this: it shunts decision-making from the Parliament to courts. A charter expresses certain rights. From that moment anything a government does or does not do is appealable with respect to that document. More policies than before end up being resolved by litigation.

It is pure fantasy for Labor people to imagine this process must advance the progressive side. It may – until the political cycle turns and there is a conservative majority in the parliament.

In other words a charter of rights can easily be rendered a conservative instrument, restricting the agenda of a reformist government. That leads to my next indictment: if judges are going to be making more policy decisions then a cabinet will, not unreasonably, fret over the party affiliation of a judge before they appoint him or her to the bench. In 10 years as premier I never recall the party politics of an appointee being discussed when cabinet ticked off an appointment – competency, yes, or reputation. But his or her party affiliation, never.

Institute a charter and that changes. The alternative, after all, is to see more of your government’s agenda carved up by hostile court decisions. That may lead over time to another development. In Canada the Supreme Court has been exercising this sort of power since 1982. Polls now show a majority of Canadians want elected judges. If the courts have more power vis-a-vis parliament then judges will get assessed on their politics and people will start to ask why judges can’t be elected.

Idealists who argue for a charter of rights imagine its gilded lettering stands for all time as an elegant statement of absolutes. Rights change over time and quickly date. The US Bill of Rights guarantees “the right of the people to keep and bear Arms”. A bill of rights in Australia in 1901 would have entrenched the rights of white Australians. One drafted as late as 1960 would not have touched gender equality.

Rights conflict with one another. None is absolute. The right of freedom of speech will conflict with the right to equality (for example racial vilification legislation) and the right to equality will conflict with the right to freely exercise one’s religion (for example freedom to maintain an all-male priesthood).

It’s my argument that reaching the right balance is an issue for the realm of parliament, shaped by the give-and-take of elections and freedom of the press, not for a realm of judicial policy-making.

Alexis de Tocqueville, the great observer of American politics, taught that democracy arises from the ethos of a people. In Australia that ethos encompasses the parliament, the common law tradition and a free press. Wrenching more decisions out of this realm and planting them with a non-elected judiciary is no advance.

COMMENT: Personally, I find it bad enough that there will be a Bill of Rights in the New Constitution,* but the draft Constitution gives judges so much power that I really can’t fathom how they won’t be politicised. Whenever such an institution possesses so much power, it will be politicised. It is just amount of how open this politicization is and who has the power, bureaucrats or politicians.

*I will go into detail on this in another post, but read anything written by Jeremy Waldron and you will get an idea on what I am on about.

UPDATE: TJTS has a post on Chang Noi’s article. Read his post and the full article, then have a read of the English translation of the draft constitution (PDF).