The draft
constitution should be ‘principled’
Prof.
Dr. Kriengsak Chareonwongsak
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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