'Cut Court Out Of Any Charter Rewrite': Pheu Thai Lawyer

[phiphidon]

If you were to make even some meagre attempts at objectivity and were not so apparently agenda-driven, perhaps the assessment would be better

A 3000-post one-sided monolog hardly inspires confidence in your balanced analytical and observational skills and impartiality, now does it?

it is quite rich for someone like yourself to tell others to be objective.

Everyone falls somewhere on the political spectrum.

Tomorrow morning, turn and face north. Stretch out your arms. The average TVF poster is to the right of the rising sun.

Some of us are not and people like yourselves tell us to "be objective"...

Sweet...

Nice to see great teamwork, and glad you agree. Many actually don't have an entrenched "position", and do make some effort to be objective. Others do not. Your generalization does disservice to the complexity of the membership mix. It might be summarized as dumb red-yellow thinking. In that case, an honest attempt at objectivity and balance may be a novel idea for you both.

I think I'll join Phiphidon and Tlansford (if he's talking to me yet). They admit they're in a minority on the forum (in the right of course), so i'd better make the numbers up.

Music to Phiphidon's ears, sending him to a dictionary to understand the meaning of 'objectivity' and 'balance'

Noistar, It may help you if you realise that for some people on this forum a balanced viewpoint is displayed by someone who has a chip on each shoulder.

[phiphidon]

The fact that the old constitution was replaced completely by a new constitution reflects legal niceties, but not necessarily it's contents. Dear member phiphidon even mentioned that new article 68 = old article 63.

So to clarify and make things easier, my question refers to what may be wrong with the contents of the current constitution which may be 85% or more based on the 1997 constitution, but with juridical clarifications and the junta amnesty and senate selection method, to justify a complete rewrite?

Well rubl if they went along for a "complete" "rewrite" ( but, here's the sneaky thing, not actually rewrite it but keep parts of the original) that requires a Constitution drafting assembly to be formed. Now the CDA members are not politicians but a public representative from every province in the country (76) plus another 23 "experts" be they lawyers, teachers, whatever to make up the 99 agreed in the 2nd reading of the bill. These 99 people, Thai people, not politicians, get to write the next constitution by holding meetings around the country to discuss the contents until approx 1 year later they come up with an interim constitution. This is then sent for referendum. If it passes, it passes if not, it goes back until they sort out the problem is..

The alternative is where politicians discuss and vote for individual sections in parliament. No referendum thats it.

And you know who to thank for the loss of the first choice, the more democratic choice, the one the dems, the PAD, Dr. Tul and the Nationalists and the CC made sure that the Thai citizens couldn't have...............................................

I like the sound of the CDA

Which is what I've been saying all along - and also why I went "back in the past" because this is how the junta wrote the 2007 constitution. The bases were loaded the juntas way as far as membership of the CDA was concerned (don't take my word for it, I know you won't, just do some reading) but that was to be expected. Now the CC has thrown a spanner in the works by saying that a complete charter rewrite was not allowed by amendment of Section 291 and thrown in an extra referendum before a cda can be formed.

[rubl]

Rubl, I think if you look here http://www.thailawfo...sititution.html that you will see that it was not just judicial clarifications, junta amnesty, and senate selection which where changed.

Thanks for the link Tom. Interesting article. Although there are mentions of 'current draft' for the discussion here I think it's fair to assume it doesn't differe much from the actual accepted even with minor adjustments in the last few years.

The article lists 'on one hand' and 'on the other hand'. The five one-hands seem to argue for, the other-hands listing still grey areas. I'm a bit surprised to see this as grey area

"Fourth, the mind-set towards politicians.. The new Constitutional text clearly shows a degree of mistrust towards politicians, especially those in the executive. In future, all parliamentarians will have to declare their assets and many controls are to be introduced on them. For instance, they are not allowed to have a hand in the communications industry or government concessions. The new Constitution has a key section on conflict of interests, and measures to address them, such as scrutiny by the Counter Corruption Commission and the Supreme Court. A Code of Ethics will be evolved to test the conduct of politicians. The power of the Prime Minister in controlling the cabinet ministers is to be reduced, since in future those appointed as ministers will not lose their parliamentary seats-unlike under the sixteenth Constitution whereby those who became ministers automatically lost their seats, and as a result, became more beholden unto the Prime Minister for further benefits."

Also this grey area is interesting

"Third, the judicialization process. Interestingly, the role of judges has expanded significantly because of their role in the drafting process as well as in the contents of the text; the new Constitution has thus been "judicialized". There was a large number of judges and lawyers on the thirty-five member drafting committee. It is likely that they helped to introduce the notion of the "rule of law" which now appears prominently for the first time in a Thai Constitution."

Actually all is interesting, good link!

Edited July 29, 2012 by rubl

[lungmi]

The fact that the old constitution was replaced completely by a new constitution reflects legal niceties, but not necessarily it's contents. Dear member phiphidon even mentioned that new article 68 = old article 63.

So to clarify and make things easier, my question refers to what may be wrong with the contents of the current constitution which may be 85% or more based on the 1997 constitution, but with juridical clarifications and the junta amnesty and senate selection method, to justify a complete rewrite?

Rubl, I think if you look here http://www.thailawfo...sititution.html that you will see that it was not just judicial clarifications, junta amnesty, and senate selection which where changed.

As for it being 85% or more based on the old charter, I do not know - not that I have seen anyone do a count. Maybe it is 85% or less based on the old charter. Or maybe is is 15% or more based on the old charter. You see the futility of the numbers argument when considering the fundamental law of the land? IMO it is an irrelevant argument. The actual changes are relevant.

And it has been mentioned before, the CDA is not meant for a "complete re-write" per se, but as a means of proposing a new charter in one shot where changes between dependent parts of the charter can be affected at one time. I would imagine that you can see how that would be practical for creating a single, coherent document.

I agree, I propose you write the new CDA, the PTP has no competent people, they need you to control their hidden agenda and protect Thailand.

[waza]

The fact that the old constitution was replaced completely by a new constitution reflects legal niceties, but not necessarily it's contents. Dear member phiphidon even mentioned that new article 68 = old article 63.

So to clarify and make things easier, my question refers to what may be wrong with the contents of the current constitution which may be 85% or more based on the 1997 constitution, but with juridical clarifications and the junta amnesty and senate selection method, to justify a complete rewrite?

Well rubl if they went along for a "complete" "rewrite" ( but, here's the sneaky thing, not actually rewrite it but keep parts of the original) that requires a Constitution drafting assembly to be formed. Now the CDA members are not politicians but a public representative from every province in the country (76) plus another 23 "experts" be they lawyers, teachers, whatever to make up the 99 agreed in the 2nd reading of the bill. These 99 people, Thai people, not politicians, get to write the next constitution by holding meetings around the country to discuss the contents until approx 1 year later they come up with an interim constitution. This is then sent for referendum. If it passes, it passes if not, it goes back until they sort out the problem is..

The alternative is where politicians discuss and vote for individual sections in parliament. No referendum thats it.

And you know who to thank for the loss of the first choice, the more democratic choice, the one the dems, the PAD, Dr. Tul and the Nationalists and the CC made sure that the Thai citizens couldn't have...............................................

I like the sound of the CDA

Which is what I've been saying all along - and also why I went "back in the past" because this is how the junta wrote the 2007 constitution. The bases were loaded the juntas way as far as membership of the CDA was concerned (don't take my word for it, I know you won't, just do some reading) but that was to be expected. Now the CC has thrown a spanner in the works by saying that a complete charter rewrite was not allowed by amendment of Section 291 and thrown in an extra referendum before a cda can be formed.

Sounds like a good democratic plan. Power to the people.

[rubl]

While blinking my eyes I got nine notifications! So, please excuse me to collect and reply in this form

Regarding the CDA, it's formation sounds more democratic than it might actually be. The setup is as follows:

"Under the bill, a CDA will be set up and comprise 99 members, 77 of whom will be elected from the country's 77 provinces. The remaining 22 will be selected by parliament and will comprise public law experts, academics in the fields of political science and public administration, and people with experience of politics, public administration or drafting constitutions.

The proposed bill assigns the Election Commission (EC) to hold an election for the CDA within 90 days of the bill becoming law."

Comments:

2012-05-04 House speaker prepares selection of 22 CDA members

http://www.nationmul...s-30181305.html

2012-02-08 Pheu Thai allies may dominate CDA, critics warn

http://www.nationmul...n-30175371.html

Reading the 'sneaky' mentioned by phiphidon, I'm reminded of Tom's part on being reasonable

"the CDA is not meant for a "complete re-write" per se, but as a means of proposing a new charter in one shot where changes between dependent parts of the charter can be affected at one time. I would imagine that you can see how that would be practical for creating a single, coherent document."

So with carefully inserted changes we can force a rewrite to make the draft constitution "coherent" again. Open, democratically, like we do back home

Edited July 29, 2012 by rubl

[Reasonableman]

And the pre-CDA referendum disappeared from the table, because what? Was it really the unaffordable cost of the referenda? Surely not, given the parlous political state of the country, that would be too absurd. The inevitably linked "reconciliation" plan, which now seems to have gone into abeyance, also probably influenced attitudes to the "package". The goverment's electoral mandate is limited, it's not free-for-all, and referenda can test the entire nation's opinion on the nation's highest law. If a referendum required a 2/3 majority to pass, the outcome could not be guaranteed. Even 50% may be risky. Do you think that's the main reason for preferring step by step amendment now?

[Noistar]

Well rubl if they went along for a "complete" "rewrite" ( but, here's the sneaky thing, not actually rewrite it but keep parts of the original) that requires a Constitution drafting assembly to be formed. Now the CDA members are not politicians but a public representative from every province in the country (76) plus another 23 "experts" be they lawyers, teachers, whatever to make up the 99 agreed in the 2nd reading of the bill. These 99 people, Thai people, not politicians, get to write the next constitution by holding meetings around the country to discuss the contents until approx 1 year later they come up with an interim constitution. This is then sent for referendum. If it passes, it passes if not, it goes back until they sort out the problem is..

The alternative is where politicians discuss and vote for individual sections in parliament. No referendum thats it.

And you know who to thank for the loss of the first choice, the more democratic choice, the one the dems, the PAD, Dr. Tul and the Nationalists and the CC made sure that the Thai citizens couldn't have...............................................

I like the sound of the CDA

Which is what I've been saying all along - and also why I went "back in the past" because this is how the junta wrote the 2007 constitution. The bases were loaded the juntas way as far as membership of the CDA was concerned (don't take my word for it, I know you won't, just do some reading) but that was to be expected. Now the CC has thrown a spanner in the works by saying that a complete charter rewrite was not allowed by amendment of Section 291 and thrown in an extra referendum before a cda can be formed.

Sounds like a good democratic plan. Power to the people.

My concern all along has been that the ruling party will use their majority to be judge and jury on what is likely (IMHO) to change Thailand's future.

If it's the CC or CDA, or anything not 'ruling party mk2', then that must surely be some safeguard.

After all the actual mechanism is nothing to do with us. Thailand turning into a Dictatorship does.

[Noistar]

The fact that the old constitution was replaced completely by a new constitution reflects legal niceties, but not necessarily it's contents. Dear member phiphidon even mentioned that new article 68 = old article 63.

So to clarify and make things easier, my question refers to what may be wrong with the contents of the current constitution which may be 85% or more based on the 1997 constitution, but with juridical clarifications and the junta amnesty and senate selection method, to justify a complete rewrite?

Well rubl if they went along for a "complete" "rewrite" ( but, here's the sneaky thing, not actually rewrite it but keep parts of the original) that requires a Constitution drafting assembly to be formed. Now the CDA members are not politicians but a public representative from every province in the country (76) plus another 23 "experts" be they lawyers, teachers, whatever to make up the 99 agreed in the 2nd reading of the bill. These 99 people, Thai people, not politicians, get to write the next constitution by holding meetings around the country to discuss the contents until approx 1 year later they come up with an interim constitution. This is then sent for referendum. If it passes, it passes if not, it goes back until they sort out the problem is..

The alternative is where politicians discuss and vote for individual sections in parliament. No referendum thats it.

And you know who to thank for the loss of the first choice, the more democratic choice, the one the dems, the PAD, Dr. Tul and the Nationalists and the CC made sure that the Thai citizens couldn't have...............................................

I like the sound of the CDA

Which is what I've been saying all along - and also why I went "back in the past" because this is how the junta wrote the 2007 constitution. The bases were loaded the juntas way as far as membership of the CDA was concerned (don't take my word for it, I know you won't, just do some reading) but that was to be expected. Now the CC has thrown a spanner in the works by saying that a complete charter rewrite was not allowed by amendment of Section 291 and thrown in an extra referendum before a cda can be formed.

Thanks for that

I've found some reading matter. Going to keep me out of mischief for a while.

Any reference of your own you think can be useful?

Don't worry, I'll be back - you can't keep the one and only noistar down (wonder if it's freudian that the spell checker keeps changing it to 'noisier'?)

[phiphidon]

Thanks for that

I've found some reading matter. Going to keep me out of mischief for a while.

Any reference of your own you think can be useful?

Don't worry, I'll be back - you can't keep the one and only noistar down (wonder if it's freudian that the spell checker keeps changing it to 'noisier'?)

"The Constitutional System of Thailand - An introduction and Analysis" by Andrew Harding is just that, an intro to his book but 29 pages worth of interesting reading - http://www.juridicas.unam.mx/wccl/ponencias/16/287.pdf

"Looking Back Before the Election of 2011: Thailand's Constitutional Referendum the Election of 2007" by Michael H Nelson - http://eajlg.org/article/looking-back-election-2011-thailands-constitutional-referendum-election-2007 (download pdf)

"A Different Coup D' E'tat" UKRIST PATHMANAND - google it.

[rubl]

A thanks to phiphidon for some usefull links.

The one from Andrew Harding is orderable for those who want to read a bit more:

http://www.allbookst...r/9781841139722

The link to Michael Nelson's book provides the complete PDF and this as well interestingly enough

"From a conventional Western political science perspective, the military coup of September 2006 ended Thailand’s democracy, while the constitutional referendum in August 2007 and the election in December 2007 were steps towards its re-establishment."

As for k. Ukrist P. there was an article in the Journal of Contemporary Asia

Vol. 38, No. 1, February 2008, pp. 124 – 142: Mind you it may be that some of k. Ukrist's publications are deemed to border or even cross-border towards LM

[Noistar]

Thanks for that

I've found some reading matter. Going to keep me out of mischief for a while.

Any reference of your own you think can be useful?

Don't worry, I'll be back - you can't keep the one and only noistar down (wonder if it's freudian that the spell checker keeps changing it to 'noisier'?)

"The Constitutional System of Thailand - An introduction and Analysis" by Andrew Harding is just that, an intro to his book but 29 pages worth of interesting reading - http://www.juridicas.unam.mx/wccl/ponencias/16/287.pdf

"Looking Back Before the Election of 2011: Thailand's Constitutional Referendum the Election of 2007" by Michael H Nelson - 2007'>http://eajlg.org/article/looking-back-election-2011-thailands-constitutional-referendum-election-2007 (download pdf)

"A Different Coup D' E'tat" UKRIST PATHMANAND - google it.

Thanks

[phiphidon]

Thanks for that

I've found some reading matter. Going to keep me out of mischief for a while.

Any reference of your own you think can be useful?

Don't worry, I'll be back - you can't keep the one and only noistar down (wonder if it's freudian that the spell checker keeps changing it to 'noisier'?)

"The Constitutional System of Thailand - An introduction and Analysis" by Andrew Harding is just that, an intro to his book but 29 pages worth of interesting reading - http://www.juridicas...cias/16/287.pdf

"Looking Back Before the Election of 2011: Thailand's Constitutional Referendum the Election of 2007" by Michael H Nelson - http://eajlg.org/art...m-election-2007 (download pdf)

"A Different Coup D' E'tat" UKRIST PATHMANAND - google it.

Thanks

So it's join in with the schoolboys on one thread and "thanks" here...........

[Thai at Heart]

Once more, thank you for your contribution, but unfortunately again an answer to a question not asked.

Let me try again and be more specific, maybe that helps, although I tried before and it didn't.

"why a complete rewrite of the current constitution", as in what's contentious in it's content.

I have been thinking to answer this one, but unfortunately, I don't have a complete answer because I am not a law professor, all I can do is give it as I understand it.

The CC has tried to give a decision in the "spirit of the law", which one could say is all very well and good.

Firstly, I still can't reconcile in practical terms how it is going to stand up firstly, that ANYONE can now directly petition the court directly without it going through the AG office. This sounds like a small issue, but in reality, I suppose that this means that even if a partial change is made through the parliament, anyone can still petition the CC. This creates the possibility for a huge legal log jam

Secondly, if the reality is that after the coup, the previous constitution was ripped up, replaced with a temporary one, and then a final one which was put to referendum surely this suggests, that the most practical and simple way to re-write the constitution is to get hold of enough guys with guns and simply put all your own people in place.

As I said, I am not an arguementalist, but the situation has now become completely contrarian, in that the CC is claiming they will judge every individual request on its merits and thus potentially have a merry go round of stop start government. This is not what was ever intended to happen, but it is the last resort to put some brakes on the parliament. It is the absolute antithesis of a functioning system, since someone unelected will have to continually judge the merits of every request submitted.

Which brings me to a point that I have laboured over and over again about the way that the system works here. For us to admit that there isn't a so called "amart/elite" who believe they know better than the rest is utter naivety and to believe they don't pull strings to get the outcome they believe is correct is delusional. How does the country get to a point that it is feasible for a government of the day to re-write the constitution? Maybe this has been reached by these decisions.

However, to react and claim that the last referendum on the current constitution was held in a way that didn't put any duress on the population to accept it is an utter nonsense, so as such, it is right that it should be open to being re-written.

Thailand has changed a lot in the last 15 to 20 years, and there are many issues that are bubbling under in terms of perceived injustices that are meted out by the legal system every day. We read of just a few anomalies once in a while here on TV or in the papers whereby a pauper gets 50 years for nicking 500k, but someone with Na infront of their name gets away literally with what most of us would consider murder. The words are written in black and white in the constitution, but everything appears negotiable on the day in front of the judge, and this absolutely MUST change.

It starts with the constitution, and it ends with Thailand becoming a legally equitable society, where money and influence doesn't buy you out of your wrongdoing, and even the merest farmer can hold someone to account for ripping him off. I don't believe that the current government is absolutely the right bunch of people to sort it out, but if we can't see that what has actually happened to Thaksin is largely political, because there are people guilty of exactly the same type of white collar crime who are untouched everyday, I at least wish that the entire legal system would become more equitable.

So in answer to your question, we don't even know what the current government exactly wishes to propose yet, and the CC has intervened, maybe rightly or wrongly, but their advice has been heeded by the government. So what is contentious? Courts set up under the military, retrospectively judging issues is not a practical way to run a legal system. This endless re-setting of the system to meet the will of a very narrow part of society because they can't get their ducks in a row and write tight and concise laws that cannot be negotiated on the day is the biggest issue.

However, now they have opened an enormous can of worms under the guise of being democratic, which they could have avoided if they had stood back and let the government run its course in changing the constitution and judging finally whether or not the changes were within the current constitution or not. I for one, actually like the idea of things like an appointed senate, but it isn't for me to decide, and it isn't as though we have anyone in any of the main protagonists who doesn't have an awful lot to lose by doing the right thing by the country.

Edited July 30, 2012 by Thai at Heart

[rubl]

^ #134 Thai at Heart

With by now both tlansford and phiphidon having provided useful links I feel a bit surprised you reply to my post. I think you should read the info in the links provided before further commenting. IMHO

(Excuses to reply like this, Still in opera browser, lots of things (like reply) don't work now. I even have to do without smileys, imagine)

[Thai at Heart]

^ #134 Thai at Heart

With by now both tlansford and phiphidon having provided useful links I feel a bit surprised you reply to my post. I think you should read the info in the links provided before further commenting. IMHO

(Excuses to reply like this, Still in opera browser, lots of things (like reply) don't work now. I even have to do without smileys, imagine)

I don't pretend to be a complete expert on any of this, because, it can change at the drop of a hat anyway. Thanks for the heads up, I will try to find time to read, but, busy as I am, all I try to relate is the contradictions in the system, and the pitfalls that the "system" keeps falling into trying desperately to cage one man, instead of building a robust and reliable system that can last the test of time and negate the need for coups.

But then we would be brought down to such heavyweight issues as the right to a fair trial, and habeus corpus, and that wouldn't be half as much as sad and frustrating as watching the Thai system slowly rip itself to pieces trying to make it up as they went along.

The basics are all there, but holding single answer referendums and claiming them democratic is insulting to millions of people in Thailand, and they don't forget, and they will wait, until the "system" changes.

Edited July 30, 2012 by Thai at Heart

[rubl]

^ #136 Thai at Heart

I think especially the link provided by tlansford points to a very interesting article. Mind you, similarly to what you say, neither I am a legal expert and certainly not on Thai laws, unlike some here it seems.

http://www.thailawfo...sititution.html

[Thai at Heart]

^ #136 Thai at Heart

I think especially the link provided by tlansford points to a very interesting article. Mind you, similarly to what you say, neither I am a legal expert and certainly not on Thai laws, unlike some here it seems.

http://www.thailawfo...sititution.html

I have been here a while and read a lot, but occasionally get thrown a complete curve ball about many issues.

Well, of course, this article is a precis of the whole thing, but the very specific nature of the issues raised, shows the complete paranoia surrounding one man. The limit on time in office is of course, a good thing, but why only telecoms and media? didn't they bother to notice that most other countries have a distinct limit? Why not gold trading or agriculture, surely two industries where someone could write laws specifically in one's own interest. How about every public servant declaring his assets? How about making all tax records a matter of public record. I notice that Norway makes this public knowledge, and they are massively respected for their clean governance.

The system has become so paranoid it is chasing its own tail, and yet not not doing anything but treading water.

Edited July 30, 2012 by Thai at Heart

[Thai at Heart]

Looking at the referenced article 212 to petition the CC, it (through translation) reads as follows

"A person who's rights or liberties as guaranteed through this constitution are violated has right to submit a petition to the Constitutional Court for its decision over whether the provision of a particular law is inconsistent with or in contradiction with the Constitution. The right under paragraph one must be exercised in the case where such a person cannot exercise his or her right through any other means as provided by the organic law on procedure of the Constitutional Court".

I am not going to get myself into trouble, but which law specifically was proposed to be changed?