วันจันทร์ที่ 7 พฤศจิกายน พ.ศ. 2559

The draft constitution should be ‘principled’


The draft constitution should be ‘principled’
Prof. Dr. Kriengsak Chareonwongsak
Senior Fellow Harvard University's Center for Business and Government

The Constitution Drafting Committee commendably promotes public participation through “Thinking together, building together and joining together in order to draft the Constitution.” However, with no foundation grounded on appropriate principles, this work may lack in consistency and fail to produce good results. The Constitution’s conceptual framework should then engage such principles as the following:

The principle of ‘sovereignty’ ultimately belonging to the people
The people have ultimate authority and sovereign rights, by democratic processes of representative election, or by direct democracy, collectively proposing legislative bills, impeaching politicians in office, or voicing opinions on important matters.  Thus, keeping this principle will necessitate constitutional consistency.
The principle of social contract
For the Constitution to function as a social contract where all in society agree on rules for their collective government, every section of the Constitution must receive a ‘consensus’ vote of total acceptance by all social parties who will respect the Constitution without dispute.
Compliance with this principle will make public participation, direct or indirect, of utmost importance. In particular, no sector should reflect unequal treatment, one group favored over another. Nor should the Constitution imply the violations of rights or liberties for certain groups. Otherwise, strong public opposition will result, with possible demands for its abolition.
The principle of ‘power separation’
Power separation is another principle widely recognized in democratic governance where the Constitution is the highest law designating the establishment of governing bodies and powers separated into the legislative, the executive, and the judiciary. Such power separation should create the effective designation of assigned functions and a counterbalance of power for monitoring purposes.
The principle of power separation is likely to continue, though balance is necessary when adhering to it. Past experiences must not be allowed to destroy the principle, while mechanisms should ensure that no single power dominates, for example, not letting the court monopolize the selection or appointment of members of independent institutions, but having a clear selection process based on counter-balance and oversight.


The principle of constitutional amendments
Since the Constitution is the highest law, constitutional amendments are not easily made and are subject to complicated processes leading to much delay; the involvement of politicians with vested interests also complicating the process. Thus, flexibility in constitutional amendments is another topic worthy of serious consideration. Channels must be made available for such modifications by appropriate bodies.

The principle of ‘effective enforcement in real practice’
One major problem of the 1997 Constitution, prompting widespread criticism, is its lack of enforceability due to several provisions stipulating the necessary presence of organic law before these provisions can be enforced. Thus, the rights and liberties of people are not protected as the Constitution guarantees.

If we want to enforce fundamental civil rights and liberties in real practice, as more than lofty, sacred-sounding provisions, we must ensure conditions to guarantee their enforceability, for example, their backing by specific legislation. The Constitution must be consistent and ‘permanent,’ or at least long-term in order to avoid future abolishment. 

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