Damned if you vote ‘yes’, damned if you vote ‘no’: 9 problems with Thailand’s draft charter
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Damned if you vote ‘yes’, damned if you vote ‘no’: 9 problems with Thailand’s draft charter

THIS Sunday, Thailand’s long-anticipated referendum will be held, with Thais across the country heading to polling stations to determine whether the latest draft charter will be accepted or rejected.

If it is voted in, the charter will be Thailand’s 20th since 1932.

In a final poll to gauge which way the Thai public is likely to vote, Bangkok Poll reported that 48.4 percent of nearly 3,000 surveyed said they would vote in favor of the draft charter.

As for the rest, 7.7 percent said they would vote ‘no’, 8.5 percent said they were abstaining, and 35.4 percent were still on the fence.

SEE ALSO: What you need to know about Thailand’s controversial constitution referendum

On Wednesday, the International Federation for Human Rights (FIDH), together with its member organization Union for Civil Liberty (UCL), released a report that reviews the draft charter in detail and highlights the troubling circumstances surrounding how it came about.

According to the report, if the draft is approved, the new constitution is likely to “fuel further political instability because it gives more power to politicized and undemocratic institutions while considerably weakening the power of future elected governments”.

The report’s writers pinpointed nine “major flaws” with the draft charter and its provisions:

  1. Junta decrees remain in effect
    All rulings made by the junta will remain, even if they are inconsistent with international law or the charter itself, and can only be repealed or replaced by the new Parliament.
  2. NCPO, proxies maintain grip on power
    During the five-year transition period, a 250-member Senate appointed by the NCPO will be in power. The Senate will comprise 50 members selected from a list of individuals submitted by the Election Commission (EC), 194 from a list of individuals submitted by an NCPO-appointed committee, and six seats will be reserved for top-ranking officials in the military, police, and the Ministry of Defense.
  3. Undemocratic institutions
    After the transition period, the Senate will then be made up of 200 appointed members who cannot be part of a political party. According to the report, a fully-appointed Senate is “a significant step backward” from the 1997 and 2007 constitutions, which at least included elected senators.
  4. Senators have veto power over constitutional amendments
    Any amendments to the constitution will require the approval of at least one-third of the Senate in order to pass.
  5. Prime Minister may be a person who is not an elected MP
    Usually, it is the King who will appoint the Prime Minister after he/she is elected by the House of Representatives by a majority vote of the MPs. However, during the transition period, if the House of Representatives fail to choose a Prime Minister from the list of eligible candidates, then a candidate who is not from the members of the political parties sitting in Parliament can by elected as Prime Minister by an affirmative vote of two-thirds of the total number of MPs and senators (500 of 750 votes).
  6. Prime Minister, Ministers can be removed for lack of “ethical standards” or “apparent honesty”
    Any minister in the Cabinet, including the Prime Minister, may be removed from office if a mere 10 percent of all MPs in the House of Representatives or 10 percent of all senators sign a petition calling for their impeachment due to lack of “ethical standards” or “apparent honesty”. FIDH claimed that the vague terminology and low minimum requirement leaves the system open to abuse.
  7. Stronger, unchecked ‘independent’ institutions
    FIDH warned that the draft constitution would imbue institutions such as the Constitutional Court, the National Anti-Corruption Commission (NACC), and the Elections Commission with “disproportionately broad and unchecked powers”. It added that this would increase the risk of political instability as the institutions would be able to directly scrutinize the government’s actions without any checks and balances.
  8. Toothless National Human Rights Commission
    The draft charter fails to grant the Human Rights Commission the power it needs to carry out its duties, said FIDH, citing examples such as investigating human rights violations and having a platform to raise such issues with the government.
  9. Weak protection of fundamental human rights
    FIDH also said that the draft charter was missing several crucial provisions in relation to human rights, such as the right to a fair trial; and the right to seek, receive, and impart information. Besides that, there are no safeguards against discrimination on the basis of sexual orientation, and rights related to education, natural resources, and information are now under the purview of the State.

FIDH and UCL are clearly concerned about the apparent lack of human rights protections in the draft charter, which has already been demonstrated by the military junta’s crackdown on its critics.

The organizations accused the junta, officially known as the National Council for Peace and Order (NCPO), of deliberately stifling public debate over the draft charter through the controversial Referendum Act.

Police and military personnel were said to have regularly attended and monitored public discussions on the draft constitution, while several seminars and panel discussions were cancelled on orders from the authorities.

FIDH reported that from 27 April to 24 July 2016, local authorities had detained at least 41 people for criticizing or campaigning against the draft constitution, in addition to arresting at least 38 members of the anti-establishment United Front for Democracy Against Dictatorship (UDD) for its attempts to set up referendum monitoring centers.

Besides silencing detractors, the NCPO also utilized considerable resources to promote the draft charter. FIDH said the draft charter campaign “lacked political balance” and was “marred by double standards and bias”.

FIDH president Karim Lahidji said: “The NCPO’s manipulation of the constitution drafting process is reflected in a document that legitimizes the influence of the military and unelected elites over Thailand’s political system. The NCPO’s heavy-handed actions in silencing criticism of the draft charter will result in the vote having zero credibility if the draft is approved.”

The junta has also ensured that there will be no independent observers to officially monitor the referendum, as it rejected repeated attempts by the Asian Network for Free Elections (ANFREL) to gain accreditation.

UCL chairman Jaturong Boonyarattanasoontorn commented: “The referendum is a win-win situation for the military junta. If the draft constitution is accepted, the NCPO will use it to legitimize its influence over Thai politics. If it’s rejected, the junta will have an excuse to continue its absolute rule over Thai society and further delay the return of power to a civilian, democratically-elected government.”

The NCPO appears to have pulled out all the stops to make sure that this draft charter is passed … Looks like we’ll have to wait until Sunday to see whether their efforts are proven successful.