“Conceptual Framework of the New

Constitution Drafting of the

Kingdom of Thailand”

By

Associate Professor Dr. Montree Rupsuwan

Advisor on Politics, Administration and

Management

Secretariat of the Senate

The research is supported by Konrad Adenauer Foundation

Foreword After the administrative reform on 19th September B.E. 2549, the Constitution of

the Kingdom of Thailand (B.E. 2540) has subsequently come to an end and afterwards

the Constitution of the Kingdom of Thailand (Interim) B.E. 2549 has come into place.

The researcher thinks that the framework in drafting the new constitution should be

studied and the drafting process be followed up, therefore has consulted Dr. Lars Peter

Schmidt, representative of Konrad Adenauer Foundation, who also thinks that this project

is useful for the drafting of the new Constitution of the Kingdom of Thailand. The

Foundation also is pleased to provide financial support to this research.

The researcher has undertaken the task of studying into the framework of drafting

the new constitution; and along with the course of study, the researcher has collected

quite a number of documents, research reports, seminar minutes, and academic papers of

many acknowledgeable persons, which finally has led to the completion of this research

work of drafting framework of the new constitution. This research work is translated into

English by Dr. Poom Moolsilpa from Faculty of Law, Assumption University.

The researcher hopes that the framework of constitution herein will be useful, less

if not more, to the members of the National Council, the members of the Constituent

Assembly, the members of the National Legislative Assembly, and the persons who are

concerned in drafting the new constitution. And hereby the researcher would like to

extend gratitude to the Konrad Adenauer Foundation for supporting this research project.

(Associate Professor Dr. Montree Rupsuwan)

December B.E. 2549

Table of Contents Page

Foreword Chpater 1 Process of Drafting the New Constitution (B.E. 2550)…………….7

1. Organizations in Carrying out Constitution Drafting……………..7 1.1 The National Council………………………………………….7 1.2 The Constituent Assembly…………………………………….…8

2. Process of Preparing New Constitution………………………………9 3. Prescribed Time in Drafting the New Constitution……………….11 4. The Constitutional Aspects concerning the Draft Constitution…...11

Chapter 2 Conceptual Framework in Drafting the New Constitution (B.E.2550)……………………………………………………………17

Part 1 Rights and Liberties of the People………………………………19 1. Situation of the problems in promoting and protecting

the rights and liberties of the people…………………………….19

2. Important principles that should be stipulated in the Constitution

in order to solve the abovementioned problems…………………20

Part 2 Inspection of Exercise of State Power…………………………26 1. Constitutional Court…………………………………………………27 2. Courts of Justice……………………………………………………..29 3. Administrative Court………………………………………………..32 4. Corruption Control System………………………………………..35

4.1 Declaration of Assets and Liabilities………………………….35 4.2 The National Counter Corruption Commission……………….36 4.3 Removal from Offices………………………………………….37 4.4 Criminal Proceeding Against Persons Holding Political

Positions………………………………………………………..39 5. Ombudsmen……………………………………………………….40 6. Human Rights Commission……………………………………….42 7. State Audit…………………………………………………………42

Table of Contents (Con.) Page

Part III Political Institutions and Relation among Political Institutions.…44 1. The Parliament and the process of coming to hold

political offices………………………………………….…………..45 2. Political Parties………………………………………………..…….48 3. The Council of Ministers……………………………………………60 4. The Relation between the Parliament and the Council of Ministers..63

Chapter 1

Process of Drafting the New Constitution (B.E. 2550)

Thailand has experienced an administrative reform by a group of persons who call themselves “Council for Democratic Reform” or “CDR” on 19th September 2006; and it has had a new constitution called “The Constitution of the Kingdom of Thailand (Interim) B.E. 2549 (2006)” which provides for the establishment of organizations, process and procedure of drafting a new constitution with the details as follows:

1. Organizations in Carrying out Constitution Drafting

According to the Constitution of the Kingdom of Thailand (Interim) B.E. 2549 (2006), there shall be two organizations responsible for drafting the new constitution, and they are:

1.1 The National Council having the following composition, origin and membership qualifications:

1) Consisting of not more than 2,000 members to be appointed by the King from persons selected from various groups in the public, private, social and academic sectors and from all the regions in Thailand;

2) Membership qualifications (1) Thai nationality by birth (2) Having age not less than 18 years of age;

3) In the case where there is law prohibiting a person from holding political office, such law shall not apply to the appointment of a member of the National Council;

4) The President of the National Security Council shall countersign the Royal Command appointing members of the National Council.

Powers and Duties The National Council shall have the duty to select among its members

for the purpose of preparing a list of 200 members suitable for appointment by the King as members of the Constituent Assembly within 7 days as from the date of its first sitting. Upon the completion of the selection of members of the Constituent Assembly as from the date of its first sitting, the list of selected persons shall be proposed to the National Security Council. At a sitting of the National Council, the President of the National Legislative Assembly shall act as Chairperson of the National Council and the Vice-President of the National Legislative Assembly shall act as Vice-Chairperson of the National Council with the following conditions:

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- In the case where the National Council is able to complete its duty within the prescribed time, the National Security Council shall select 100 persons from the list to be presented to the King for appointment as members of the Constituent Assembly;

- In the case where the National Council is unable to complete its duty within the prescribed time, the National Security Council shall select 100 members of the National Council to be presented to the King for appointment as members of the Constituent Assembly.

Termination of the National Council Upon the completion of the selection of members of the Constituent

Assembly or upon failure to complete the selection of members to prepare a list within 7 days, the National Council shall be dissolved.

1.2 The Constituent Assembly has its composition, origin, and prohibitions of its members as follows:

1) There are 100 members, 2) The King appoints from members of the National Council selected by the National

Security Council from a list of 200 members suitable for appointment by the King as members of the Constituent Assembly or from members of the National Council as prescribed in section 23 paragraph two,

3) The members are not persons of the following prohibitions: (1) being or having been a member of a political party or holding any position

in a political party within two years prior to the date which he or she is selected to be a member of the Constituent Assembly;

(2) holding the position of member of the National Legislative Assembly concurrently;

(3) holding the position of the Prime Minister or Minister concurrently. 4) In the case where there is law which prohibits a person from holding political office,

such law shall not apply to the appointment of a member of the Constituent Assembly, 5) The President of the National Security Council shall countersign the Royal

Command appointing members of the Constituent Assembly.

Powers and Duties 1) to complete the Draft Constitution and consideration within 180 days as from the

date of its first sitting, 2) to select the President and the Vice-Presidents of the Constituent Assembly to be

presented to the King for appointments, which the President of the National Security Council shall countersign the Royal Command appointing members of the Constituent Assembly,

3) to notify the rules and procedure of a referendum.

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Termination of the Constituent Assembly 1) upon the promulgation of the Constitution and the Constituent Assembly’s

completion of organic bills under section 30 or upon the expiration of the period prescribed in section 30 (45 days),

2) The Constituent Assembly is unable to complete the Draft Constitution within 180 days as from the date of its first sitting, or the Constituent Assembly disapproves the Draft Constitution proposed by the Constitution Drafting Commission or;

3) The people by a majority of the people voting in the referendum disapprove the Draft Constitution.

In preparing the Draft Constitution, the Constituent Assembly shall, in accordance

with the rules and procedure as prescribed by Royal Decree, appoint a Constitution Drafting Commission consisting of 25 qualified members who are or are not members of the Constituent Assembly elected by a resolution of the Assembly and 10 qualified members who are or are not members of the Constituent Assembly as recommended by the President of the National Security Council. The Constitution Drafting Commission shall complete the Draft Constitution and shall, within 45 days as from the date of completion of the Draft Constitution, prepare organic bills only as is necessary for an election for the purpose of submitting to the National Legislative Assembly for further consideration.

2 Process of Preparing New Constitution 1) The National Council shall have the duty to select among its members for the

purpose of preparing a list of 200 members suitable for appointment by the King as members of the Constituent Assembly within 7 days as from the date of its first sitting and submit to the National Security Council. At a sitting of the National Council, the President of the National Legislative Assembly shall act as Chairperson of the National Council and the Vice-President of the National Security Council shall, after receiving the list of selected persons from the National Council, select 100 persons therefrom to be presented to the King for appointment as members of the Constituent Assembly.

2) The Constituent Assembly shall appoint a Constitution Drafting Commission consisting of 35 qualified members who are or are not members of the Constituent Assembly as follows:

(1) 25 qualified members elected by a resolution of the Constituent Assembly and;

(2) 10 qualified members of the Constituent Assembly as recommended by the President of the National Security Council (The Prime Minister and Ministers shall not be members of the Constitution Drafting Assembly simultaneously).

3) After the completion of a Draft Constitution, the Constitution Drafting Commission shall prepare and submit and explanatory memorandum to clarify the differences between the Draft Constitution and the Constitution of the Kingdom of Thailand, B.E. 2540 (1997), together with reasons of amendment thereon, to the Constituent Assembly and the following organizations and persons for consideration and recommendation:

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(1) National Security Council; (2) National Legislative Assembly; (3) Council of Ministers; (4) Supreme Court; (5) Supreme Administrative Court; (6) Election Commission; (7) National Counter Corruption Commission; (8) Auditor-General of the State Audit; (9) Ombudsmen; (10) National Human Rights Commission; (11) National Economic and Social Advisory Council; (12) Higher education institutions The Constitution Drafting Commission shall disseminate the Draft

Constitution and its explanatory memorandum as information to general public and also to enhance and organize public consultation thereto.

4) After receiving the Draft Constitution and its explanatory memorandum, if a member of the Constituent Assembly desires to introduce a motion to make an amendment thereto, such motion shall be endorsed by not less than one-tenths of the existing members of the Constituent Assembly and the motion shall be introduced, together with reasons thereon, prior to the date of Constituent Assembly sitting.

A member who has introduced a motion or endorsed a motion of another member shall not introduce another motion or endorse a motion of any other member.

5) After the expiration of 30 days as from the date of submission of documents, the Constitution Drafting Commission shall consider recommendations received and motions, prepare and disseminate the report of its amendment or non-amendment, together with reasons thereon, to the public and submit the Draft Constitution to the Constituent Assembly for consideration. The consideration of the Constituent Assembly is for the purpose of approving or disapproving the entire Draft Constitution and the specific provisions stipulated in the motions introduced by members or proposed by the Constitution Drafting Commission. No member of the Constituent Assembly shall introduce a motion to make an amendment other than a motion as prescribed, unless the Constitution Drafting Commission so approves or not less than three-fifths of members of the Constituent Assembly approve such amendment.

The results of the resolution of consideration are as follows: (1) If the Constituent Assembly disapproves the Draft

Constitution or is unable to complete the Draft Constitution within 180 days, the National Security Council shall hold a joint meeting with the Council of Ministers within 30 days as from the date the Constituent Assembly is unable to complete the Draft Constitution within 180 days, or as from the date which the Constituent Assembly disapproves the Draft Constitution, or as from the date of such referendum.

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(2) If the Constituent Assembly approves the Draft Constitution, it shall be disseminated as information to the general public, and a referendum shall be held after 15 days but not more than 30 days as from the date of dissemination of the Draft Constitution. The Constitution Drafting Commission shall, within 45 days as from the date of completion of the Draft Constitution, prepare organic bills only as is necessary for an election for the purpose of submitting to the National Legislative Assembly for further consideration thereon within 45 days as from the date of receiving the bills from the Constitution Drafting Commission for further consideration in 6).

6) The people having the voting right to vote in an election, comprising a majority of people voting in the referendum on whether to approve or disapprove the entire Draft Constitution shall be held in accordance with the rules and procedure as notified by the Constituent Assembly. A referendum shall be made on the same day throughout the Kingdom. If approved, it shall further considerate in 7).

7) The President of the National Legislative Assembly shall present the Draft Constitution to the King.

8) Upon Royal signature, the Constitution shall be published in the Government Gazette for promulgation. The Constitution shall be announced in the Government Gazette and be further enforced.

3 Prescribed Time in Drafting the New Constitution According to the Interim Constitution, the Constituent Assembly shall complete

the Draft Constitution and consideration within 180 days as from the date of its first sitting.

However within each stage of the proceedings, there is time limit of each task of the concerned organizations as have been mentioned in part 2 of the process of drafting the constitution.

4 The Constitutional Aspects concerning the Draft Constitution In consideration of the provision under section 26 of the Interim Constitution, after

the completion of a Draft Constitution, the Constitution Drafting Commission shall prepare and submit an explanatory memorandum to clarify the differences between the Draft Constitution and the Constitution of the Kingdom of Thailand, B.E. 2540 (1997), together with reasons of amendment thereon, to the Constituent Assembly and various organizations and persons for consideration and recommendation.

Therefore, there is an observation in the Draft Constitution that it shall take the principles of the Constitution of the Kingdom of Thailand, B.E. 2540 (1997) as the framework for consideration and improvement of the shortcoming in practice of the past Constitution.

Constituent Assembly by the Constitution of the Kingdom of Thailand (interim) B.E. 2549

National Council

Completed within deadline

The Council for National Security selects 100 persons from the list

Duties & Powers Composition, Acquisition

and Qualifications of members

• Not more than 2,000 persons • Royally appointed by the King from a pool of candidates

coming from the governmental sector, the private sector, the social sector, the academic sector and the different regions of Thailand

• With qualifications as follows 1. Thai nationality by birth 2. Having age not lower 18 years

• In the case where there is law prohibiting a person from holding political office, such law shall not apply to the appointment of a member of the National Council

• The Chairman of the Council for National Security shall countersign the Royal Command appointing the members

When the selection of the members of the Constituent Assembly has been

mpleted, or when the time limit of 7 days has been reached but the preparation of name list of eligible persons to be the members of the Constituent Assembly has not been completed

co

The Council for National Security presents a list of 100 persons to the King for further appointment

Not completed within deadline

The Council for National Security selects 100 persons among the members of the National Council

Selecting eligible persons from its own members and prepare a list of the names for the royal appointment of members of the 200-membered Constituent Assembly; and the selection shall be completed within 7 days starting from the date of the first sitting of the National Council. At a sitting, the President of the National Legislative Council shall act as the President of the National Council and the Vice-President of the National Legislative Council shall act as the Vice-President of the National Council

Termination of the National Council

Constituent Assembly

Termination of ConstituentAssembly

• 100 persons in number • The King appoints from the members of the National Legislative Assembly whom the Council for National Security selects from the list, or selects from among the members of the National Legislative Assembly as the case may be • A person under of the following prohibitions is disfranchised from being the members : 1. Being or having been members of a political party or having hold positions in a political party within 2 years prior to the date of his or her selection 2. Concurrently holding positions as members of the National Legislative Assembly 3. Being a Prime Minister or Minister • In cases where there exists any law prohibiting persons form holding political positions, such law shall not be applicable to the appointment of the Constituent Assembly members • The President of the Council for National Security countersigning the Royal Command appointing members

Composition, acquisition, prohibitions of members

Duties & Powers

• draft the Constitution and complete the consideration of the Draft Constitution within 180 days from the date on which the first sitting of the Constituent Assembly is held • select the Assembly’s President and Vice -President(s) to be appointed by the King with the Chairman of the Council for National Security countersigning the Royal Command • announce the rules and procedure related to a referendum after having completed drafting Constitution

• Upon promulgation of the Constitution and the Constituent Assembly has finished drafting the organic laws in accordance with Section 30, or timeframe stipulated under Section 30 (45 days) has elapsed • the Constituent Assembly does not complete the Draft Constitution within the prescribed period of 180 days from the date as from the date the first sitting of the Constituent Assembly is held, or the Constituent Assembly does not approve the Draft Constitution submitted by the Constitution Drafting Commission for consideration • the people voting in the referendum reject, by majority vote, the promulgation of the new constitution

Drafting Process of New Constitution (B.E. 2550) ting Process of New Constitution (B.E. 2550)

Constituent Assembly Published in the Government Gazette and come into force

Constitution Drafting Commission members of 35 persons as follows:

1. 25 persons elected by resolution of Constituent Assembly, and 2. 10 persons on the advice of the Chairman of the Council for National Security Remarks The Prime Minister and ministers shall not be holding the committee position at the same time

The King affixes signature

The Prime Minister

presents to the King Preparing Constitution Draft and explanatory memorandums

The President of National

Legislative Assembly shall present to the King Disseminate to the

public & hear public opinion

Members of Constituent Assembly

1. Council for National Security 2. National Legislative Assembly 3. Council of Ministers 4. Supreme Court 5. Supreme Administrative Court 6. Election Commission 7. National Counter Corruption

Commission 8. Auditor-General 9. Ombudsmen 10. National Human Rights Commission 11. National Economic and Social

Advisory Council 12. Higher Education Institutions

Submit motion of additional amendment

Approve Disapprove

Referendum by majority votes of the people with voting right Constitution Drafting

Commission shall draft the organic acts necessary for the election and shall complete the draft within 45 days, starting from the date of completing the draft of the constitution, in order to propose to the National Legislative Assembly for further actions. The National Legislative Assembly shall complete the consideration within 45 days starting from the date of receiving the constitution draft from the Constitution Drafting Commission

Disseminate to make known to

the public Disseminate to the public and hold referendum not earlier than 15 days and not later than 30 days as from its dissemination

Approve

Consider & opinionate

Constitution Drafting Commission to consider the motion of amendment and opinions

Prepare reports of the amendment or no amendment with rationale

Constitution Drafting Commission shall propose the draft of the constitution to the Constituent Assembly for further consideration, which is the consideration of whether to accept or not to accept the whole Draft Constitution and the specific sections which the members have proposed to amend or which the Constitution Drafting Commission have proposed. The members of the Constituent Assembly shall not have additional amendment beyond those stipulated, except that the Constitution Drafting Commission agrees on that or the members of the Constituent Assembly of no less than 3 in 5 of the number agree of the said further additional amendment

Disapprove or could not complete constitution drafting and considering within 180 days

The Council for National Security together with the Council of Ministers shall consider to select any one of the constitutions that have been used before to amend and to complete the amendment within 30 days starting from the date the Constituent Assembly could not complete the constitution drafting within 180 days, or starting from the date the Constituent Assembly did not approve the draft of the constitution, or starting from the date of the referendum.

Within 180 days

Schedule of the Constituent Assembly’s Tasks as according to Constitution of the Kingdom of Thailand (interim) B.E. 2549

30 60 90 120 150 180 210 240 270

Steps

Tasks 30 30 30 30 30 15 15 15 15 15 15 30

1. The sitting of the Constituent Assembly 2. To complete preparation of the Draft Constitution and explanation memorandums 3. To submit the Draft Constitution and explanation memorandums to the members of the

Constituent Assembly for further debate and consideration, and amendment.

4. To submit the Draft Constitution and explanation memorandums to Council for National Security, National Legislative Assembly, Council of Ministers, Supreme Court, Supreme Administrative Court, Election Commission, National Counter Corruption Commission, Auditor-General, Ombudsmen, National Human Rights Commission, National Economic and Social Advisory Council, high education institutions, and general people, for considering and opinionating

5. After the prescribed time of 30 days has elapsed, starting from the date of submitting the Draft Constitution and explanation memorandums as according to steps 3 and 4; the Constitution Drafting Commission shall consider the opinions of the various organizations and the people, and also the debate of the members of the Constituent Assembly; then the Constitution Drafting Commission shall prepare report of the amendments or of no amendment with rationale to be submitted to the Constituent Assembly.

6. The Constitution Drafting Commission shall propose the Draft Constitution to the Constituent

Days

(2) 30 60 90 120 150 180 210 240 270

Steps

Tasks 30 30 30 30 30 15 15 15 15 15 15 30

Assembly for further considering and opinionating to either approve or disapprove the Draft as a whole, and the specific sections on which the members of the Constituent Assembly have petitioned debate motions or which the Constitution Drafting Commission has proposed. The Constitution Drafting Commission shall then disseminate the above outcomes to the public.

7. In the case the Constituent Assembly approves the Draft 7.1 the Draft Constitution shall be disseminated to the public 7.2 to hold a referendum, which must be held after 15 days but not more than 30 days starting

from the date of dissemination as in the step 7.1 (if the majority of the people with voting right have voted to approve the Draft, the President of

the National Legislative Assembly shall present the Draft to the King so as to affix His Royal signature and then to further promulgate it)

7.3 The Constitution Drafting Commission will complete drafting the only organic bills which are necessary for the election within 45 days, starting from the date of completing Constitution drafting and the Draft having been approved by the Constituent Assembly, for subsequently proposing to the National Legislative Assembly for further action.

7.4 The National Legislative Assembly must complete considering the organic bills necessary for the election as in the step 7.3 within 45 days starting from the date of receiving the Draft from the Constitution Drafting Commission

Days

(3) Remarks (1) The Constituent Assembly must complete drafting the Constitution and considering the Draft within 180 days starting from the date of the first sitting of the

Constituent Assembly.

(2) The Constitution Drafting Commission must complete drafting the only organic bills which are necessary for the election within 45 days, starting from the date of completing Constitution drafting and the Draft having been approved by the Constituent Assembly, for subsequently proposing to the National Legislative Assembly for further action.

Legal Office Office of Secretariat of the Senate

Chapter 2

Conceptual Framework in Drafting the New Constitution (B.E.2550)

The situation of political and administrative problems in the parts which relate to the Constitution has been analyzed and summarized by the Constituent Assembly in drafting the Constitution of the Kingdom of Thailand (B.E. 2540); and it is illustrated in the spirit of Constitution in the preamble of the Constitution of the Kingdom of Thailand (B.E. 2540) (despite its being repealed, the spirit lives on), which aims to solve the following administrative and political problems in Thailand.

First issue: Thai Constitutions do not fully promote and protect the rights and liberties. Therefore it is necessary to improve the Constitutional provisions so the Constitution fully promotes and protects the people’s rights and liberties.

Second issue: Thai Constitutions do not truly allow the people to participate in the administration and inspection of the exercise of state power. Therefore, it is necessary to improve the Constitutional provisions so the Constitution truly allows the people to participate in the administration and inspection of the exercise of state power.

Third issue: Thai Constitutions do not provide for a political structure which is adequately stable and efficient. Therefore, the Constitutional provisions should be improved so the Constitution provides for a political structure which is stable and efficient adequately.

The above three issues regarding the situation of Thailand’s political and administrative problems which relate to the Constitution have led to improvement and amendment in the provisions of the Constitution of the Kingdom of Thailand (B.E. 2540) so as to solve these three fundamental problems.

Nevertheless, after the Constitution of the Kingdom of Thailand (B.E. 2540) has been used for almost nine years, it is found that the equilibrium in solving the above three fundamental problems has not been achieved; the weakest part is the inspection of the exercise of state power due to the fact that the system for inspection of the exercise of state power stipulated by the Constitution of the Kingdom of Thailand (B.E. 2540) does not work efficiently.

As a result, in drafting the Constitution of the Kingdom of Thailand (B.E. 2550), it is required to stipulate various important provisions in solving the above three fundamental problems in politics and administration of Thailand through learning lesson from the experience of the almost nine years of using the Constitution of the Kingdom of Thailand (B.E. 2540) and the reality of Thai politics and administration, so that the Constitution drafting will be done expeditiously and circumspectly.

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However, there are several points needing to be considered preliminarily; the Constitution is not an all-cure drug which can solve all the political and administrative problems; but the Constitution is a law that guarantees and protects the rights and liberties of the people, and it designates the country’s structure of politics and administration. Therefore, the Constitution should not have too long the provisions; instead it should designate only the main provisions, while leaving the details to the organic laws and other derivative laws.

The conceptual framework in drafting the new Constitution is prepared with the purpose to achieve profound understanding of the measures in solving the political and administrative problems in Thailand, and to establish equilibrium in solving the fundamental political and administrative problems in Thailand, by relying on the Constitution of the Kingdom of Thailand (B.E. 2540) as basis in establishing the conceptual framework of the new Constitution. The conceptual framework in drafting the new Constitution is determined by inspecting the situation of the problems at hand and the main principles that are required to be integrated into the Constitution in order to solve the concerned problems.

In addition, this conceptual framework in drafting the new Constitution is being prepared as a proposal to the Thai people in their opinionating in both supporting and opposing, amending and appending the Constitution, in a way to confirm the spirit of Constitution in Thai society.

The framework in drafting the new Constitution (B.E. 2540) may be divided into 3 parts, each of which analyzes each issue of the problems both before and during the using of the Constitution (B.E. 2540) in order to deliver recommendation in solving the problems. The three parts are,

Part I: Rights and liberties of the people Part II: Inspection of the exercise of state power Part III: Political institutions and relationship among political institutions

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Part I

Rights and Liberties of the People

1. Situation of the problems in promoting and protecting the rights and liberties of the people

(1) Before the promulgation of the Constitution of the Kingdom of Thailand (B.E.

2540), the state was the only body that had power by law over the people in the society; and the exercise of powers by the state agencies and state officials had direct effect on the people, especially the abuse of power. The Constitution of the Kingdom of Thailand (B.E. 2540) therefore prioritizes guaranteeing and protecting the rights and liberties of the people in regarding the exercise of state power. There are many provisions in guaranteeing and protecting the rights and liberties, and there is a redistribution of power between the state and the people so a better balance of power can be achieved.

(2) However along the almost-9-year period of using the Constitution of the Kingdom of Thailand (B.E. 2540), despite the fact that the rights and liberties of the people are provided better guarantee and protection than during the previous Constitutions; it is not yet in its full scale, since the rights and liberties that are guaranteed in the Constitution are controlled by the phrase “as provided by law”, or the rights and liberties are subjected to the conditions of the law. This situation in the Constitution has led many law interpreting organizations to interpret the provisions in the direction that as long as there is no law being enacted to provide for the rights and liberties of the people, the rights and liberties can never be referred to in the court.

The Supreme Court ruling number 8022/2543 judges that in demanding compensation for confinement as according to the Constitution of the Kingdom of Thailand (B.E. 2540) Section 264 which provides that the personal right to demand compensation shall be in accordance with the condition and methods designated by the provisions of law; and as long as the concerned law has not been enacted to provide for that, the questions of what law that concerned right of the defendant shall be subjected to and what methods of proceedings shall be applied shall be answered by no one until a legal provision comes to provide for that; in addition, the concerned case is not a civil case, it shall not be applicable to use another law as the most approximate law in applying on it.

The Constitutional Court ruling number 25/2547 judges that, as long as there is no law being issued to provide for the right of the persons who associate as a local indigenous community for the purpose of preserving or reviving the local wisdom of rice flour fermentation as according to Section 46, it cannot be considered that the Liquor Act contravenes the above Section.

Therefore, the rights and liberties should be provided for in the Constitution without the clause “as provided by law”, and without the designation that the rights and liberties shall be subjected to the condition and method stipulated by the provisions of law, in order

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that the law interpreting organizations can enable direct enforcement of the rights and liberties that are guaranteed in the Constitution onto the people.

2. Important principles that should be stipulated in the Constitution in order to solve the abovementioned problems

Based on the abovementioned situation of the problems, the principles regarding

provisions of rights and liberties in the Constitution of the Kingdom of Thailand (B.E. 2540) that should be retained and amended are as follows:

2.1 The retained rights and liberties, and the added equality in the

Constitution are as follows:

In the Constitution (B.E. 2534), there were only 30 sections that guaranteed the rights and liberties, but in the Constitution of the Kingdom of Thailand (B.E. 2540), the Sections concerning rights and liberties have been extended to 53 sections; thus the added rights and liberties should be retained as follows:

(1) Rights as a human being or human rights 1) The guarantee of human dignity means to prohibit treating human being

as animal or slave. 2) The rights and liberties in life and body are extended by prohibiting

torture, brutal act, or punishment by a cruel or inhumane means, prohibiting arrest without court warrant; the arrested person shall be brought to the court within 48 hours, and illegal arrest and detention of person shall be prohibited.

3) The rights to family and privacy shall be guaranteed; the state is designated to be responsible for protecting persons in the family from violence, and for promoting and developing unity of family as the most important group unit of the society.

4) The liberties in conscience and religion are guaranteed by guaranteeing the freedom to practice as according to one’s religious provision; the state should be designated to provide protection and patronage to Buddhism and other religions, and to build harmony among each religion, and to use the religious principles in developing virtue and quality of life.

5) The rights of witness in criminal case should be guaranteed; the injured persons should be entitled to the state protection and to compensation; and damaged persons in criminal cases should be entitled to state’s compensation for the damage.

6) The right of suspect to presence of lawyer during interrogation, and the right of the detained defendant who is later found finally not guilty to demand compensation from the state

7) The right of general people to petition to the court to release detainees who have been arrested and detained unlawfully

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(2) Rights as a citizen of a state

1) The freedom in expressing opinions and the freedom of the mass media business by prohibiting closure of pressing houses, radio and television stations for reason of expressing opinion and presenting news; the radio frequencies shall be designated to be national resources for public interest and shall be under the administration of an independent agency; all categories of public media officer, public or private, shall have the liberty in freely presenting news and expressing opinion under professional ethics; the state shall be stipulated to provide information infrastructure evenly to every part of the country so the people can access news and information without interference

2) To prioritize liberty in academics and education by stipulating the state to provide the free fundamental education for the duration of not less than 12 years; and the state must provide law regarding education and development of teachers and teaching profession; the local governments shall provide education and professional training that are appropriate for the local demand.

3) The right to receive public health services, especially the right of the indigents to receive free medical treatment

4) The right of children and youth to the state’s protection from violence and unfair treatment; and in cases where the children have no guardians, the state shall provide parenthood and education to them.

5) The right of a person who is over sixty years of age and has insufficient income to receive aids from the State.

6) The right of the disabled or handicapped to receive public conveniences and other aids from the State, including revoking the restriction of the deaf and the dumb from election.

7) The right of consumers to have independent organization which consist of representatives from general consumers to help checking the private producers and sellers in addition to the Consumer Right Protection Commission.

8) The right of the traditional community to conserve or restore their customs, local knowledge, arts or good culture; and the right to participate in the management and maintenance natural resources and the environment with the local governments, the state and the independent entities that give opinion regarding impact on the environment.

9) The personal right to give to the State and communities participation in the preservation and exploitation of natural resources and biological diversity of the good environment; and the right to indict the concerned organizations to make them perform their duty in protecting the natural resource and the environment.

10) The right to demand the state officials and state employees to preserve law and public interest, to provide convenience and service to the people, and to stay neutral in politics.

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(3) Guarantee of personal equality

1) The Constitution provides equal protection, without unjust discrimination against a person on the grounds of difference in origin, race, language, sex, age, physical or health condition, personal status, economic or social standing, religious belief, education or Constitutionally political view..

2) Men and women shall have equal rights. 3) The state is stipulated to discriminate in a way that is virtuous to the

disadvantaged and the deprived in order to realize their equality as with other persons; in considering the law concerning these persons, there shall be one third of the participants being representatives from the related private organizations.

4) There shall be equality for voters all across the country in exercising voting right by selecting one candidate in one constituency and one party from the party-list regardless of whether or not they are outside the constituency where they have registered houses.

5) Concurrently holding 2 offices by any one person shall be prohibited. Like a state official or state employee shall not be also a member of the House of Representatives or a Senator, and he or she shall not also hold an office in a local government concurrently; likewise, a Minister shall be prohibited from being a member of the House of Representative or a Senator.

2.2 The retention of the measures that makes possible the true realization of the

rights and freedoms in practice

Before the use of the Constitution (B.E. 2540), it was held as principle that the rights and liberties of a person were only those directly stipulated in the Constitution; the Constitution (B.E. 2540) has changed this principle to the principle that the rights and liberties of person are the rights and liberties that a person has regardless of whether they are the rights and liberties stipulated directly in the Constitution, and the law enforcement agencies can always incorporate the rights and liberties that a person naturally has in consideration of a case. The latter principle of personal rights and liberties should be retained; and the result is that adhering to personal rights and liberties is the norm, while restriction of personal rights and liberties is exception.

(1) The requirement that the state agencies shall respect the rights and

provide the right to indictment in the case of right infringement 1) The rights and liberties which are stipulated and guaranteed by the

Constitution directly or implicitly, or those resulted from decisions of the Constitutional Court, shall bind the National Assembly, the Council of Ministers, and the Courts in making laws, enforcing laws and interpreting laws. In exercise of state powers; humanity, the rights and liberties shall be considered.

2) Restriction of the rights and liberties shall be done by virtue of provisions of the law enacted by the state, and be done in the part that the Constitution allows to do so and be done only as necessary, without affecting the essential substances of the rights and liberties.

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Also in restricting the rights and liberties, the concerned provision in a section of the Constitution that authorizes the restriction of the rights and liberties shall be referred to, so that the person bestowed with state power can scrutinize their exercise of state power to see whether it exceeds the threshold provided by the Constitution or not.

3) The persons who are infringed of their humanity, rights and liberties shall be given with the right to bring lawsuit to the court or to use the infringement as an argument point in court; however, in general such lawsuit usually is brought to the Court of Justice or Administrative Court, but not directly to the Constitutional Court.

4) The right to sue a State agency to ensure that they perform their duties in protecting the balance of the environment.

5) The right to make a complaint to the Ombudsmen, the National Human Rights Commission; the right to petition the Court of Justice or the Administrative Court to refer a case to the Constitutional Court for considering whether a law contravenes the Constitution or not; the right to bring legal action before the Administrative Court in the case where the official’s action is against the Constitution or law

(2) The designation of the right to know and to give opinion 1) The right to get access to public information in possession of a

State agency. 2) The right to receive information, explanation and reason from a

State enterprise before permission is given for the operation of any project or activity which may affect the quality of the environment, health and sanitary conditions or any other material interest concerning him or her and the right to express his or her opinions on such matters in accordance with the public hearing procedure.

3) The right to participate in knowing or objecting, or to appeal against official’s exercise of state power that has or may have effect on one person.

(3) The liberty in assembly and to make presence through people’s organizations 1) There shall be liberty to assemble in different forms especially the

liberty to associate in form of juristic person or other associations, the liberty to associate in assembling traditional communities, the liberty to assemble in forming political parties; and the state shall be designated to promote assembly of farmers and cooperatives.

2) It shall be designated that the people’s organizations play more roles in political system; especially the independent entities which are composed of representatives from the private sector regarding the environment so they can appraise the impact on quality of the environment of a project, the independent entities that are representatives of consumers, the National Economic and Social Advisory Council, the private organizations that assist in controlling election; the participation of private organizations’ representatives in the National Human Rights Commission in considering drafting laws concerning children, women, the disabled, and the aged.

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2.3 The retention of the principle of increasing state’s responsibility and expanding people’s participation in every level of politics and administration (1) It shall be retained of the principle of increasing state’s duties;

like the responsibility in national security; the responsibility to protect and patronize Buddhism and other religions; the responsibility to promote participation of the people; the responsibility to decentralize powers to localities, the responsibility to protect farmers, cooperatives, laborers; the responsibility to encourage a free economic system which has fair competition.

(2) The participation of the people in national politics 1) 50,000 persons with voting right shall be able to submit a

jointly signed petition to propose law regarding rights, liberties and the directive principles of fundamental state policies.

2) 50,000 persons with voting right shall be able to submit a jointly signed petition to remove the Prime Minister, Minister, member of the House of Representatives, senator, President of different courts or a senior state official who is under the circumstance of unusual wealthiness or indicative of the commission of corruption.

3) To vote in a referendum (3) It is designated that local administration by the local people

shall be truly delivered without violating the unity of the Kingdom. 1) The members of local councils shall come from election. 2) The local administrators may come from direct election,

with the consent of the local council; however state officials or state employees shall not be put into any office unless in the case where the local council is dissolved.

3) In the provinces, which are ready, local administration may be provided according to designation of the government and the National Assembly.

4) It is devised the mechanism which truly delivers freedom in local administration, in the aspects of power and duty, finance and taxation, employees and officers.

5) It is designated that the local people can remove the local administrators or members of the local council.

6) It is designated that half of the local people can submit jointly signed petition to propose a local provision

7) It is designated that the local administration shall play active role in preserving arts and culture, custom and tradition, local knowledge, education, and the natural resources and the environment.

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2.4 The cancellation of the ending clauses in the provisions regarding rights and liberties “as provided by law” and “the rights and liberties shall be in accordance with the provisions of law”

In order to solve the problem that the people cannot refer directly to

the rights and liberties in the Constitution, several principles in the Constitution of the Kingdom of Thailand shall be amended; such as the cancellation of the ending clauses in the provisions regarding rights and liberties “as provided by law” and “the rights and liberties shall be in accordance with the provisions of law”

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Part II

Inspection of Exercise of State Power (1) Before the Constitution of the Kingdom of Thailand (B.E. 2540) comes into

existence, the state had immense power over the people; in addition the state powers might be used by the state officials or politicians in seeking unlawful interest, since there was no comprehensive system of inspection in inspecting such exercise of state powers, and also the original inspection and control mechanism was not efficient enough to truly control the exercise of state powers. In the situation where the state power was huge while the control of exercise of state powers was incomplete and inefficient, there was high competition in coming to the office to exercise the state powers; and after coming to the office, the person may exercise the power in seeking unlawful interest. The Constitution of the Kingdom of Thailand (B.E. 2540) therefore prioritizes the inspection of exercise of state powers by improving the existing inspection system and adding new inspection system. The Constitution (B.E. 2540) designates the organizations and mechanism in inspecting exercise of state powers as follows:

1) Constitutional Court 2) Courts of Justice 3) Administrative Court 4) Corruption control system

a. Declaration of assets and liabilities b. National Counter Corruption Commission c. Removal d. Criminal proceedings against the persons holding political positions

5) Ombudsmen 6) National Human Rights Commission 7) State Audit

(2) However during the almost-9-year period while the Constitution (B.E. 2540)

was in use, the organization and system of checking and controlling could not manifest its efficiency in inspecting exercise of state powers. A big problem is the independence of the organizations which inspect exercise of state powers, and that has given rise to wide spread suspicion that they are overshadowed by the political sector.

Therefore, these problems should be solved to enable the inspection and controlling system to work efficiently; and what are presented here in the framework are the improvements, amendments, and appending on the principles already existing in the Constitution (B.E. 2540).

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1. Constitutional Court

1.1 Situation of the main problems (1) Since the year B.E. 2489 up until the time before the promulgation of the

Constitution of the Kingdom of Thailand (B.E. 2540), the Constitution drafters did not have the idea of establishing an organization for assuming the responsibility of protecting the regulations in the Constitution in a way like the “Constitutional Court”; though there was provision for establishing “Constitutional Tribunal”, it was rather a political entity than a court. In working, the Committee of Constitutional Judges had nature of an arbitrator; for instant, in closed-door consideration, political factors might have influence over the decisions on certain matters, while certain decisions were not disclosed.

Therefore, the Constitution (B.E. 2540) provides that “Constitutional Court” shall be established in form of a “court” instead of “tribunal”, and the court shall consist of the President of the Constitutional Court and 14 other judges of the Constitutional Court, who appointed by the King upon advice of the Senate. The persons eligible to be Constitutional judges are as follows,

1) Five judges of the Supreme Court of Justice holding a position of not lower than Judge of the Supreme Court of Justice and elected at a general meeting of the Supreme Court of Justice by secret ballot;

2) Two judges of the Supreme Administrative Court elected at a general meeting of the Supreme Administrative Court by secret ballot;

3) Five qualified persons in law elected by Selective Committee; 4) Three qualified persons in political science elected by Selective Committee. The Selective Committee in selecting Constitutional judges as in 3) and 4) consists

of the President of the Supreme Court of Justice, Deans of the Faculty of law, or the equivalent, of all State higher education institutions being elected among themselves to be four in number, Deans of the Faculty of Political Science, or the equivalent, of all State higher education institutions being elected among themselves to be four in number, and representatives of all political parties having a member who is a member of the House of Representatives provided that each party shall have one representative and all such representative shall elect among themselves to be four in number as members.

The main duties and powers of the Constitutional Court are to consider and control as to whether a law is inconsistent with the Constitution before and after the laws are promulgated; and other duties and powers that are stipulated in the Constitution, like the power in deciding whether the decisions or rules of political parties conflict with the Constitution, deciding the loss of membership of members of the Houses, deciding the departure from office of the Election Commissioners, deciding whether a royal enactment conflicts with the Constitution, deciding on the matters of powers and duties of various organizations as stipulated in the Constitution, and deciding on the cases where the persons holding political offices do not declare their assets and liabilities.

(2) In any way, during the almost 9 years of enforcement the Constitution of the Kingdom of Thailand (B.E. 2540), the Constitutional Court has been criticized in the compositional disproportion of the judges of the Constitutional Court that make up the Constitutional Court; the process of selecting judges of the Constitutional Court being overshadowed by the political sector; that the scope of exercise of power of the

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Constitutional Court is too broad; that the methods, procedure and details of deciding cases of the Constitutional Court are not designated to the extent adequate to render the operation of the Constitutional Court truly efficient.

1.2 Important principles that the Constitution should provide in order to

solve the above problems From the above situation of the problems, the principles regarding the

Constitutional Court in the Constitution (B.E. 2540) should be retained and amended with details as follows.

(1) The Constitutional Court consists of the President of the Constitutional Court and fourteen judges of the Constitutional Court to make a total of 15 persons.

(2) The source of the judges of the Constitutional Court is that the King will appoint them upon advice of the National Assembly from the following persons:

1) Three judges of the Supreme Court of Justice holding a position of not lower than Judge of the Supreme Court of Justice and elected at a general meeting of the Supreme Court of Justice by secret ballot;

2) Two judges of the Supreme Administrative Court elected at a general meeting of the Supreme Administrative Court by secret ballot;

3) Six qualified persons in law elected by the Selective Committee; 4) Three qualified person in political science elected by the Selective

Committee. (3) The Constitutional Judges Selective Committee as in 2), 3), and 4)

consists of : 1) Supreme Court President; 2) Deans of the Faculty of Law or the equivalent, of all State higher

education institutions being elected among themselves to be four in number; 3) Deans of the Faculty of Political Science, or the equivalent, of all

State higher education institutions being elected among themselves to be four in number; 4) A member of the House of Representatives from the political

parties with partisans holding offices of minister being elected among themselves to be one in number

5) A member of the House of Representatives from the political parties whose partisans do not hold any office of minister being selected from among themselves to be one in number

6) Two Senators who are elected from the senators by the Senate (4) The judges of the Constitutional Court shall hold their offices for a term

of nine years; however they must depart from their offices before the term ends upon reaching the full age of 70 years; and they shall hold the offices only once for ensuring their independence.

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In any way, the National Assembly may remove the judges of the Constitutional Court from office by a decision of 3 out of 5 of the votes of the National Assembly members, if the judges are found unusually wealthy, to have indication of the commission of corruption, to have sign of breaking the rule as a state official, to have sign of breaking rule as justice upholder, or to have sign of intentional exercising of power contrary to the provisions of the law.

(5) The Constitutional Court has the main duty and power in controlling the laws as to whether a law is inconsistent with the Constitution both before and after their promulgation along with other duties and powers as stipulated in the Constitution, like to judge the Constitutionality of decisions or regulations of political parties, to judge the loss of membership of the House of Representatives, to judge the departure from offices of Election Commissioners, to judge the Constitutionality of Royal Decree enactment, to judge the duties and powers of various organization as stipulated in the Constitution, to judge cases of political office holders not declaring assets and liabilities, for instances.

(6) Regarding the power and duty in judging about the duties and powers of the organizations stipulated in the Constitution, cases may be filed to the Constitutional Court upon the concerned organizations not exercising duties and powers as stipulated in the Constitution, or the said organizations having disputes in conflicting with one another; however of the above cases, the disputes among or between persons in the said organizations shall not be brought to the judgment of the Constitutional Court.

(7) The jurisdictions of the Constitutional Court are only those stipulated in the Constitution; no other laws shall designate any matter that needs to be brought to judgment of the Constitutional Court, as there is only one Constitutional Court, if the Constitutional Court’s jurisdictions may be increased by other laws, the Court will be rendered too busy to be able to perform efficiently the function as stipulated in the Constitution.

(8) It is designated that the method of adjudicating case of the Constitutional Court shall be stipulated in the organic laws so that there will be details in carrying out efficient adjudication of case. 2. Courts of Justice

2.1 Situation of main problems

(1) Before the use of the Constitution of the Kingdom of Thailand (B.E. 2540), there were problems as follows.

1) incomplete independence of the judges, both the independence in performing duty and incomplete independence in being one’s self of the judges

2) during hearing facts of case, the sitting judges do not form a quorum as required, and the hearing is intermittent, resulting in incomplete information from the hearing and thus the judgment thereon may be incorrect.

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3) The judges in higher courts judge cases without personally hearing the fact but relying on the files of the cases.

4) In considering criminal cases, the court may neglect to seek or care less in seeking the truth of the cases.

5) Provisions and enforcement regarding violation of the court jurisdiction cover too wide a scope.

6) The structure of the organization in charge of personnel management of the judges lacks a check and balance besides being a closed system.

7) The inspection of exercise of power of the judges and the courts is not complete.

In order to solve the above problems, the Constitution (B.E. 2540) has thus stipulated the following principles.

1) the principle in solving the problem of incomplete independence of judges - regarding the independence in performing duty of the judges, it provides

that Judges are independent in the trial and adjudication of cases in accordance with the Constitution and the law; trial and adjudication of cases shall not be subjected to hierarchical supervision; the distribution of case files to judges shall be in accordance with the rules prescribed by law; recall or transfer of case files shall not be permitted except in the case where justice in the trial and adjudication of the case shall otherwise be affected; the Court of Justice shall have an independent secretariat, with the Secretary-General of the Office of the Courts of Justice as the superior responsible directly to the President of the Supreme Court of Justice.

- Regarding the problem of independence of individual justices, it provides that transfer of a justice without his or her prior consent shall not be permitted except in the case of termly transfer as provided by law, promotion to a higher position, being under a disciplinary action or becoming a defendant in a criminal case.

2) regarding the principle in solving the problem of absence of judge quorum during court hearing and solving the problem of intermittence in court hearing of criminal cases, it provides that there shall be a quorum of judges during court trial and adjudication, and the judges who have missed the court hearing shall not make decision on a case, except that there are some other reasons beyond expectation or some inevitability, which however shall be subject to provision of law.

3) Regarding the principle in solving the problem of structure of organization in charge of personnel management of the judges, it provides that the Judicial Commission of the Courts of Justice shall be composed of 2 qualified persons who do not serve, or have not served before, as a judicial officer, and who have been selected by the Senate.

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(2) At any rate, despite the fact that the Constitution (B.E. 2540) has provisions in solving the problems of the Courts of Justice, it does not have the provisions that solve all the problems; the unsolved problems are as follows. 1) Judging about the fact in higher courts where the judges do not hear from

witness in person but rely only on case files 2) The court’s negligence or lack of pro-activeness in searching for the truth of

cases 3) Provisions and enforcement regarding violation of the court jurisdiction cover

too wider a scope than necessary 4) The inspection of the exercise of power of the judges and the courts is

incomplete 2.2 The main principles that should be contained in the Constitution in solving the above problems From the above situation of the problems, the principles in the Constitution of the Kingdom of Thailand (B.E.2540) should be retained and improved as follows. The principles of the Constitution (B.E. 2540) that should be retained are: (1) The designation that there shall be independence in the trial and adjudication of

cases according to the Constitution and the law: trial and adjudication of cases by the judges shall not be subject to hierarchical supervision; the distribution of case files to judges shall be in accordance with the rules prescribed by law; the recall or transfer of case files shall not be permitted except in the case where justice in the trial and adjudication of the case shall otherwise be affected; the Court of Justice shall have an independent secretariat, with the Secretary-General of the Office of the Courts of Justice as the superior responsible directly to the President of the Supreme Court of Justice.

(2) The transfer of a judge without his or her prior consent shall not be permitted except in the case of termly transfer as provided by law, promotion to a higher position, being under a disciplinary action or becoming a defendant in a criminal case.

(3) The hearing of a case requires a full quorum of judges. Any judge not sitting at the hearing of a case shall not give judgment or decision of such case, except for the case of force majeure or any other unavoidable necessity as provided by law.

(4) The designation that the Judicial Commission of the Courts of Justice shall be composed of 2 qualified persons who do not serve, or have not served before, as a judicial officer, and who have been selected by the National Assembly

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The main principles that should be contained in the Constitution in solving the Courts of Justice problems (5) The principle in solving the problem that in judging about the fact in higher courts the

judges do not hear from the witness in person but rely only on case files is that it be designated that the Supreme Court shall adjudicate only the issues of law.

(6) The principle in solving the problem that in adjudicating criminal cases the court does not have pro-active role in seeking the truth of cases is that it be designated that the courts of first instance shall be the truth seeker or shall interrogate the witness by themselves in a criminal case.

(7) The principle in solving the problem of violation of the court jurisdiction, 1) The concerned provision and its enforcement shall be restricted to only the cases of

peace and order maintenance in court. 2) The right to criticize court rulings or court orders can be designated, since the contempt of

court or libel of court is in fact against the Penal Code. (8) The principle in solving the problem in incomplete inspection of the exercise of power of

the judges and the courts is that it be designated that a final court decision may be referred to the Constitutional Court upon the dispute of Constitutionality of the concerned court’s final decision.

3. Administrative Court 3.1 Situation of Problems (1) Before the use of the Constitution of the Kingdom of Thailand (B.E.2540), establishing Administrative Court was a principle stipulated in many Constitutions of the Kingdom of Thailand; but the establishment of Administrative Court was delayed and could not be realized. In addition, putting administrative cases under the jurisdiction of the Court of Justice while relying on the adjudication method of the civil law had encountered many limitations due to difference in method of adjudication (administrative case needs its own adjudication method). Especially, the plaintiff of an administrative case was to lead to realization of unlawfulness of administrative action while most of the evidences were under the possession of the administration. Most of the cases would be dismissed for the reason that the court decided that the plaintiff was not authorized to bring lawsuit since his right was not directly disputed. The Constitution (B.E. 2540) therefore stipulates principles in preliminarily solving the problem as follows.

1) The stipulation that Administrative Court shall be established with a certain time schedule of enacting supportive laws, which finally has succeeded in establishing the Administrative Court

2) It is stipulated that there shall be guarantee of independence of adjudication of the Administrative Court in the Constitution, which provides that the Administrative Court shall not be under any of the state agencies and shall have its own administrative unit independent from political entity.

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3) The Administrative Court have the powers to try and adjudicate cases of dispute between a State agency, State enterprise, local government organization, or State official under the superintendence or supervision of the Government on one part and a private individual on the other part, or between a State agency, State enterprise, local government organization, or State official under the superintendence or supervision of the Government on one part and another such agency, enterprise, organization or official on the other part, which is the dispute as a consequence of the act or omission of the act that must be, according to the law, performed by such State agency, State enterprise, local government organization, or State official, or as a consequence of the act or omission of the act under the responsibility of such State agency, State enterprise, local government organization or State official in the performance of duties under the law, as provided by law.

(2) At any rate during the almost 9 years of enforcement of the Constitution (B.E. 2540), it is

found that the Act on Establishment of Administrative Courts and Administrative Court Procedure was enacted in B.E. 2542(1999); and the Administrative Court started its operation in B.E. 2544(2001). Since then the Administrative Court has become an organization that inspects the exercise of power of the administration. However, there is problem in exercising power of the Constitution-defined independent organizations; such as the Election Commission, the said problem is whether or not the exercise of power of Constitution-defined independent organizations is an exercise of administrative power which shall be under the scrutiny of the Administrative Court.

Regarding this problem, the Constitutional Court has made a decision in the Constitutional Court ruling number 52/2546 that, according to the petition, the performing duty of the Election Commission stationed in the constituency number 30 of Bangkok by ordering to appoint a vote counting committee in people’s representatives election is a performance of duty for the purpose of having a vote counting committee to perform the duty of counting the votes in the place of vote counting of each of the constituencies in order to bring about adjudication on problems or disputes occurring as being provided for in Section 144 paragraph 2; especially in the organic law regarding elections of the House of Representatives members and the Senators, which provides for the investigation by the Election Commission as according to the Constitution Section 145 paragraph 1 (3), and for the Election Commission to announce the results of elections according to Constitution Section 145 paragraph 1(5). It is therefore an exercise of power of the Election Commission as stated in the Constitution Section 145 paragraph 1(3); and it is not an exercise of managerial or administrative power in any way. Therefore the exercise of power of the Election Commission regarding investigation for seeking the truth and adjudicating the problems or disputes arising as stated in the law article 144 paragraph 2 shall be final according to the Constitution Section 145 paragraph 1 (3) (i.e. no litigation shall be brought to the court).

Furthermore, after the Constitutional Court has made the decision in the Constitutional Court ruling number 52/2546, the Administrative Court is bound by this decision and therefore shall deny the lawsuit if it is about the Election Commission’s exercise of power according to the Constitution as in the following cases.

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Supreme Court Order number 895/2547 on the Election Commission’s exercise of power as according to Section 145 paragraph 1(3) of the Constitution in considering and adjudicating the problems or disputes arising from conducting election as according to Section 144 paragraph 2 is that the concerned judgments of the Election Commission are regarded as absolute and shall bind the Administration Court as according to Section 268. This court order is consistent with the ruling number 52/2546 of the Constitutional Court; therefore the first accused in the case (Election Commission) deciding to deny the appeal filed by the plaintiff who appeals against the third accused (Election Commission stationed in Karnjanaburi Province) revoking the plaintiff’s right to be a candidate in Tambol mayor election is regarded as an issues of dispute as according to Section 144 paragraph 2 and therefore is regarded absolute as according to intention of the abovementioned Constitutional Court.

Supreme Court Ruling number 34/2548 on the matter that it is the power of the Election Commission in arranging the constituencies in election of Tambol Assembly members as according to Section 145 paragraph 1(1) of the Constitution and also to Section 13 paragraph 1(3) of the Election of Local Council Members or Local Administrators Act B.E. 2545; regarding the case of arrangement of constituency in election of Tambol Assembly members of Tambol Dankhuntod as in the complaint statements, it is a matter of exercising power of the Election Commission by the Constitution, and it is not an exercise of administrative power; this is to say, according to the Constitutional Court ruling number 52/2546, the case is therefore not under the jurisdiction of the Administrative Court.

The consequence is that the Election Commission’s exercise of power as according to the Constitution, which in nature is an exercise of administrative power, cannot be inspected by the Administrative Court.

3.2 Important principles that should be stipulated in the Constitution in solving the above problems From the above situation of the problems, there should be retention and amendment

of the principles in the Constitution of the Kingdom of Thailand (B.E. 2540) which are the stipulations about the Administrative Court as the jurisdiction of the Administrative Court shall be defined clearly that it shall extend to cover the exercise of administrative power of all entities regardless of whether they are state entities or not, regardless of whether they are independent entities as according to the Constitution or legislative entities or private entities that exercise state powers; since exercise of power without check and balance may lead to the power exercisers exercising the powers in wrongful way.

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4. Corruption Control System

4.1 Declaration of Assets and Liabilities 4.1.1 Situation of Main Problems (1) Before the use of the Constitution of the Kingdom of Thailand (B.E. 2540), the

designation of declaring assets and liabilities of political position holders and other state officials was not strict and could not really result in true fact discovery; the Constitution (B.E. 2550) therefore has the designations regarding the declaration of assets and liabilities of the political position holders and state officials, which are more strict and more effective as follows.

1) Upon taking of office, upon vacation of office, and upon vacation of office for one year; holders of all political positions shall declare their assets and liabilities, their spouses and children who have not yet become sui juris, to the National Counter Corruption Commission.

2) Any person holding a political office who intentionally fails to submit the account showing assets and liabilities and the supporting documents or intentionally submits the same with false statements or conceals the facts which should be revealed shall vacate office as from the date of the expiration of the time limit for the submission or as from the date such act is discovered, as the case may be, and such person shall be prohibited from holding any political office for five years from the date of the vacation of office.

3) The National Counter Corruption Commission shall inspect the accuracy, actual existence of the assets and liabilities; if found untrue, the National Counter Corruption Commission shall file the case to be judged by the Constitutional Court.

4) The statements of assets and liabilities, together with the supporting documents, of the Prime Minister and ministers shall be open to the public.

5) In the case where the submission of the account is made by reason of the vacation of office or death of any person holding a political position, the National Counter Corruption Commission shall inspect the change of assets and liabilities of such person and prepare a report of the inspection. Such report shall be published in the Government Gazette.

6) In the case where it appears that the assets of the person holding a political position has unusually increased, the President of the National Counter Corruption Commission shall send all documents together with the inspection report to the Prosecutor General to institute an action in the Supreme Court of Justice’s Criminal Division for Person Holding Political Positions so that the unusually increasing assets shall vest in the State.

(2) during the almost 9 years of using the Constitution (B.E. 2540), the measure of declaration of assets and liabilities had been deployed more frequently, and many political office holders were found to be compelled by this measure; at any rate, there is un-clarity in determining the period in the case of intentionally not submitting statements of assets and liabilities or submitting false statements of assets and liabilities; and there is the problem that what date shall be counted as the starting date.

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4.1.2 Important principles that should be stipulated in the Constitution in order to solve the problems For solving the problem regarding clarity of declaring assets and liabilities

which occurred before the use of the Constitution (B.E. 2540), the principle of declaring assets and liabilities should be retained. However the matter regarding counting of 5-year period should be amended to achieve better clarity; it is that the office holders who intentionally do not submit statement of assets and liabilities or submit false statements of assets and liabilities shall depart from their offices upon the expiration of the time limit for the submission the statements of assets and liabilities or, in the case of submitting false statements, upon the first date when the National Counter Corruption Commission finds the statements false. And the above applies only within a period of 5 years starting from the date the wrong doers have submitted their statements.

4.2 The National Counter Corruption Commission 4.2.1 Situation of main problems (1) Before the use of the Constitution of the Kingdom of Thailand (B.E. 2540),

the Commission of Prevention and Suppression of Corruption and Wrongful Acts of Officials was short of independence; the Constitution (B.E. 2540) therefore has established the National Counter Corruption Commission which is independent from the executive, the legislature and the judiciary, and is composed of 9 persons coming from appointment by the Senate and having a term of 9 years and serving only one term and subject to removal by the Senate.

The Selective Committee for members of the National Counter Corruption Commission shall consist of fifteen members, viz, the President of the Supreme Court of Justice, the President of the Constitutional Court, the President of the Supreme Administrative Court, the president of the National Human Rights Commission, the Ombudsmen who elect among themselves to be one in number, the representatives of all political parties who have the member in the Cabinet select among themselves to be one in number, the representatives of all political parties who have not the member in the Cabinet select among themselves to one in number, Rectors of all state higher education institutions which are juristic persons being elected among themselves to be six in number.

The National Counter Corruption Commission has the following powers and duties.

1) to inquire into facts, summarize the case and prepare opinion to be submitted to the Senate;

2) to inquire into facts, summarize the case and prepare opinions to be submitted to the Supreme Court of Justice’s Criminal Division for Person Holding Political Position;

3) to inquire and decide whether a State official has become unusually wealthy or has committed an offence of corruption, malfeasance in office or malfeasance in judicial office in order to take further action in accordance with the organic law on counter corruption;

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4) to inspect the accuracy, actual existence as well as change of assets and liabilities of the persons holding position as stated in the account and supporting documents submitted;

5) to submit an inspect report and a report on the performance of duties together with remarks to the Council of Ministers, the House of Representatives and the Senate annually and publish that report for dissemination;

6) to carry on other acts as provided by law. Furthermore, the National Counter Corruption Commission has its own

independent unit of administration headed by the secretariat who reports directly to the President of the National Counter Corruption Commission.

(2) At any rate, the National Counter Corruption Commission has a lot of duties and powers covering the inspection of political office holders and state officials, and as a result of such situation it cannot work efficiently due to over workload.

4.2.2 The important principles that should be stipulated in the Constitution in order to solve the above problems In order to solve the problems regarding the corruption control organizations

that persisted in the past and those occurring during the enforcement of the Constitution (B.E. 2540), it is decided that the principles regarding the National Counter Corruption Commission should be retained and revised as follows.

(1) The powers of the National Counter Corruption Commission shall be stipulated in the Constitution by empowering it to inspect only political position holders; as for inspection of state officials, an agency may be set up to perform this duty in a manner like the original “Commission of Prevention and Suppression of Corruption and Wrongful Acts of State Officials”.

(2) The powers and duties of the National Counter Corruption Commission are only those stipulated in the Constitution while other laws shall not designate the powers and duties of the National Counter Corruption Commission, in order to prevent the increase of duties to the National Counter Corruption Commission to the extent that it is too much for it to efficiently perform the main duty in inspecting exercise of powers of political office holders.

4.3 Removal from Offices

4.3.1 Situation of main problems (1) Before using the Constitution of the Kingdom of Thailand (B.E. 2540), the

control of exercise of political powers was still confusing among control of policy, corruption-suggesting acts, and corruption in position, the control processes of which jumbled with one another resulting in lower-than-expectation efficiency in performing duty.

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The Constitution (B.E. 2540) therefore separates distinct the control system of controlling corruption-suggesting acts and that of controlling corruption in position by designating clear the agency and the process of inspection of exercise of such powers. The efficiency is thereby significantly increased by segregating the process of inspection into the following levels.

Level 1. Regarding inspection and control in policy, if there is no-confidence debate on corruption-suggesting behaviors or suspicion of being abnormally rich, the process in the level 2 shall be carried out, too.

Level 2. Regarding control of invitation of corruption or being abnormally rich, it is designated that one-fourth of the members of the House of Representatives or voters of not less than 50,000 shall be able to petition the Senate to remove a political position holder and a state official, or a person holding a position in a Constitution-defined independent entity. Upon receiving the petition, the President of the Senate shall refer the case to the National Counter Corruption Commission for inspecting the fact and collecting evidences and information. If there is no clue of wrong doing the case shall be closed; if there is clue, the concerned position holder shall be suspended from duty until the Senate comes to a verdict. If the National Counter Corruption Commission finds clue of wrong doing, the case shall be referred to the Attorney-General for further prosecution at the Supreme Court of Justice Division for Persons Holding Political Positions, at the same time the National Counter Corruption Commission shall also refer the case to the Senate for further removal from office.

Level 3. It is adjudicated that a political position holder is criminally guilty of corruption in performing duty, the case of which the National Counter Corruption Commission has referred to the Attorney-General to file lawsuit with the Supreme Court of Justice Division for Persons Holding Political Positions; the Court’s ruling shall be final.

(2) At any rate, for almost 9 years of using the Constitution (B.E. 2540), it is a shame that the measure of removing political office holders has not succeeded in even one case.

4.3.2 Important principles that should be stipulated in the Constitution

in order to solve the above problems For controlling corruption-prone acts and corruption in duty separately and

clearly, it is designated the agency and process of control of the concerned exercise of power shall be separated distinct from each other in order to achieve significant efficiency by dividing the inspection into various levels. It is decided that the removal measures stipulated in the Constitution (B.E. 2540) should remain as it originally is; only that Parliament shall be the authorized entity to remove persons from offices. The important principles are as follows,

(1) For political office holders, ministers, members of House of Representatives, Senators, the President of the Supreme Court, the President of the Constitutional Court, the President of the Supreme Administrative Court, or the Attorney-General, any of whom is under the circumstance of unusual wealthiness indicative of the

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commission of corruption, malfeasance in office, malfeasance in judicial office or an intentional exercise of power contrary to the provisions of the law, may be removed from office by the National Assembly.

(2) it is designated that one-fourth of the members of the House of Representatives or voters of not less than 50,000 with a co-signed petition shall be entitled to petition the President of the House of Representatives for removing a political office holder from office.

(3) Upon receipt of the request, the President of the House of Representatives shall refer the matter to the National Counter Corruption Commission for investigation without delay.

(4) If the National Counter Corruption Commission passes a resolution that the accusation has a prima facie case, the holder of the position against whom the accusation has been made shall not, as from the date of such resolution, perform his or her duties until the National Assembly has passed its resolution; furthermore, the President of the National Counter Corruption Commission shall submit the report and existing documents to the President of the House of Representatives for further removal and, at the same time, to Attorney-General for further legal actions at the Supreme Court of Justice Division for Persons Holding Political Positions. But if the National Counter Corruption Commission is of the opinion that the accusation has no prima facie case, such accusation shall lapse.

(5) The National Assembly members shall have autonomy in casting a vote, which must be by secret ballot. A resolution for the removal of any person from office shall be passed by votes of not less than three-fifths of the existing members of the National Assembly.

(6) A person who is removed from office shall vacate office or be released from government service as from the date of the resolution of the Senate. Such person shall be deprived of the right to hold any political position or to serve in the government service for five years.

(7) The resolution of the National Assembly shall be final and no request for the removal of such person from office shall be made on the same ground, without, however, prejudice to the trial of the Supreme Court of Justice Division for Persons Holding Political Positions.

4.4 Criminal Proceeding Against Persons Holding Political Positions

4.4.1 Situation of the Main Problems (1) Normally the criminal justice proceedings cannot effectively find criminal

guilt in political office holders; the Constitution (B.E.2540) therefore separates distinct the control system of corruption-suggesting actions and that of corruption in duty by designating the concerned agencies and process of inspection of exercise of the powers clearly to prevent confusion and thereby to significantly increase efficiency. The inspection is divided into 3 levels as mentioned in 4.3.1; in the 3 levels, the Supreme Court of Justice Division for Persons Holding Political Positions is established for purpose that it will be a court with the jurisdiction of trying criminal cases where the Prime Minister, Ministers, members of House

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of Representatives, Senators, or other political state officials, are accused of being unusually wealthy or of the commission of malfeasance in office according to the Penal Code, or a dishonest act in the performance of duties or corruption according to other laws.

(2) During almost 9 years of using the Constitution (B.E. 2540), the Supreme Court of Justice Division for Persons Holding Political Positions had chances in trying many cases, even including cases involving ministers as the accused who was eventually sentenced to imprisonment; however, due to the fact that adjudicating criminal cases of the Supreme Court of Justice Division for Persons Holding Political Positions is one-tier court system with the verdict as final, resulting in that there is no inspecting agency in case of erroneous legal proceeding.

4.4.2 The Important Principles that should be put in the Constitution for

solving the above Problem

For controlling corruption-suggesting actions and corruption in duty, the control of the two matters are separated distinct from each other, the agency and process of inspection of exercise of such powers should be separated to prevent confusion. It is decided that the measure of criminal proceeding against persons holding political positions contained in the Constitution (B.E. 2540) should be retained; however some revision is needed, namely there shall be right to appeal against the verdict of the Supreme Court of Justice Division for Persons Holding Political Positions in Supreme Court’s major convention with the appeal issue being limited to only legal issue while the issue of facts shall terminate upon the decision of the Supreme Court of Justice Division for Persons Holding Political Positions since the Court directly interrogates the witness.

5. Ombudsmen

5.1 Situation of Main Problems (1) Before using the Constitution of the Kingdom of Thailand (B.E. 2540), the

Constitution (B.E. 2534) had provided to appoint Ombudsmen however without enacting law in any way to provide for the qualifications, criteria, method of appointment, removal, and duties and responsibilities of the Ombudsmen. In addition, the duties and responsibilities of the Ombudsmen were not stipulated in the Constitution; it was not known of the duties and responsibilities of the Ombudsmen, and it risked duty redundancy with other inspecting entities. The Constitution (B.E. 2540) therefore provides for the containment of the establishment, duties and responsibilities of the Ombudsmen in the Constitution with the details as follows.

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1) The Ombudsmen shall not be more than three in number, who shall be appointed, by the King with the advice of the Senate, from the persons recognized and respected by the public, with knowledge and experience in the administration of the State affairs, enterprise or activities of common interest of the public and with apparent integrity;

2) The Ombudsmen have the duty to consider and inquire into the complaint for fact finding in failure to perform in compliance with the law or performance beyond powers and duties as provided by the law of a Government official, and official or employee of a State agency, State enterprise or local government organization, which unjustly causes injuries to the complainant or the public whether such act is lawful or not;.

3) The Ombudsmen have the duty to submit the case and the opinion to the Constitutional Court or Administrative Court for decision in the case where the Ombudsman is of the opinion that the provision of the law, rules, regulations or any act of any person begs the question of the Constitutionality.

(2) During the almost 9 years of using the Constitution of the Kingdom of Thailand (B.E.2540), the Ombudsmen received many petitions from the people; however the Ombudsmen could not take a proactive stance in taking care of the well-being of the people by investigating into matters of which petitions had not been filed to them, since they were only authorized to investigate the matters filed to them in the petitions. The Ombudsmen therefore could not work to their full efficiency.

5.2 The Important Principles that should be put in the Constitution for solving the above Problem From the abovementioned problem, the principle regarding the Ombudsmen should

be retained, however there should be improvement regarding the duties and powers of the Ombudsmen to enable them to investigate into matters of which petitions had not been filed to them; also the authorized entity in legitimating the persons to be Ombudsmen shall be the Parliament.

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6. Human Rights Commission

6.1 Situation of the Main Problems (1) Before using the Constitution of the Kingdom of Thailand (B.E. 2540), there was

no any entity to directly take care of matters of human rights despite the fact that Thailand had been bound by international obligations regarding human rights. The Constitution (B.E. 2540) therefore has established the National Human Rights Commission, which is an independent organization consisting of one President and other 10 commissioners being selected by the Senate from the candidates who are acknowledgeable or experienced convincingly in protecting the rights and freedoms of the people, the service term being 6 years and one-time-only service.

The National Human Rights Commission has the important duties and responsibilities to inspect and report the commission or omission of acts which violate human rights or which do not comply with obligations under international treaties to which Thailand is a party, and propose appropriate remedial measures to the person or agency committing or omitting such acts for taking action. In case where it appears that no action has been taken as proposed, the Commission shall report to the National Assembly for further proceeding.

(2) During the almost 9 years of using the Constitution of the Kingdom of Thailand (B.E.2540), the Human Right Commission did the job well in taking care of human rights.

6.2 The Important Principles that should be put in the Constitution for solving

the above Problem From the above situation of the problem, the principle in the Constitution (B.E. 2540)

regarding human rights should be retained, however with an amendment that the Parliament shall be the entity to legitimize in taking office of the human right commissioners.

7. State Audit

7.1 Situation of the Main Problems (1) Before using the Constitution of the Kingdom of Thailand (B.E. 2540), the Office

of Auditor-General was not independent, and the inspection and auditing did not cover all features of using money. The Constitution (B.E. 2540) therefore stipulates that the State Audit Commission shall be independent consisting of one Chairman and nine other members who are appointed by the King with the advice of the Senate, from persons with expertise and experience in state audit, accounting, internal audit,

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finance and other fields; also it is designated by the Constitution that there shall be Auditor-General who is appointed by the King with the advice of the Senate from persons with expertise with experience in state audit, accounting, internal audit, finance or other fields; and the State Audit Commission shall have an independent secretariat.

(2) During the almost 9 years of using the Constitution of the Kingdom of Thailand (B.E.2540), the state finance auditing was going well; but only that there was problem regarding the selection of the Auditor-General, which has resulted in sometimes absence of Auditor-General who can work truly efficiently

7.2 The Important Principles that should be put in the Constitution for solving

the above Problem From the above situation of the problem, the principle in the Constitution (B.E. 2540)

regarding state finance auditing should be retained, however with an amendment that the Parliament shall be the entity to legitimize in becoming state audit commissioners and taking office of the Auditor-General.

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Part III

Political Institutions and Relation among Political Institutions

Before using the Constitution of the Kingdom of Thailand (B.E. 2540), the political system did not receive confidence among the general public since the system of selecting the people into the politics was a system dominated by money in both election and political parties. “Business politics” of this type would never provided chances for honest and able persons to be elected into political offices unless they agreed to be a part of the business politics that overshadowed the political institutions.

Worse than that, the governments that had been set up after elections were characterized by coalition with many parties and the members of the House of Representatives always competed for ministerial offices, and quota system and intra-party alliances were common. These were the reasons why the governments then were short of stability; and the Prime Ministers were in a position under pressure of their own party and the coalition parties, the Prime Ministers could not realize their leadership in administering the country and solving the problems of the country. This situation led to frequent change of government, none of which could stay long enough to solve the country’s problems. Even with new election, the politic personnel rarely changed; and the new government could not stay long; the efficiency in administering the country, as a result, could not happen.

The situation of the problem that the political system and the political institutions lack credibility in their honesty and are of a nature of business politics, of course, would lead to problem of legitimacy in administering the country. Also the fact that the government lacks stability and efficiency, as it is coalition government which is very fragile and unstable; the Prime Minister as a result cannot exercise his leadership; thus it further worsens the problem of legitimacy and exacerbates the confidence crisis.

The Constitution (B.E. 2540) therefore has corrected the election system and the political party system to decrease or eliminate the nature of business politics to open more chances for the honest able people to enter the politics, to increase stability of the government and the leadership of the Prime Minister for the sake efficiency in administering the country.

At any rate, during almost 9 years of using the Constitution (B.E. 2540), the Constitution has succeeded in certain aspects in solving the problems of political institutions and relation among the political institutions, for instant, the government is more stable and the Prime Minister has better leadership than before. However, the problems regarding the election system and political party system that has a nature of business politics have not been solved; while the equilibrium among stability, leadership of the Prime Minister, and political power checking and balancing system, has been ruined. The public can see that the political sector overshadows the political power checking and balancing entities so much that the people become suspicious of the state administration that show signs of corruption and misbehavior in large scale.

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1. The Parliament and the process of coming to hold political offices

1.1 Situation of the Main Problems Before using the Constitution of the Kingdom of Thailand (B.E. 2540), there were major problems of the Parliament and the process of coming to hold political offices as follows.

(1) Part of the Parliament reflected interest of business politics groups and local influences, and showed signs of not representing the right public interest, thus resulting in problem of political legitimacy.

(2) The election was not transparent and opened little chances of good able people to enter politics; instead it was a channel utilized by business politics groups and local influences in coming to control state powers and for seeking interest for the sake of protecting businesses of the groups and accumulating funds for the next election.

(3) Some of the state officialdom used different channels as provided by their own positions to facilitate the business politics groups and local influences in election in exchange of their own subsequent benefit and position hike; some had no choice but to omit to perform their due duty in preventing and suppressing corruption for their own survival.

(4) The existing system of election made the voting right holders elect unequal number of the House of Representatives.

(5) The method of selecting the Senators depended on the Prime Ministers solely, the result was that the Senate lacked group diversity of the society and the Senators were under the influence of political party or the government.

The Constitution (B.E. 2540) therefore established various principles in solving the problems, as follows.

(1) the National Assembly consists of the House of Representatives and the Senate with the former being the linchpin of the legislative branch and the latter being the entity to double-check the law drafts and to counter-balance the power of political parties on certain issues, especially the issue of power in inspection and removal.

(2) The House of Representatives consists of five hundred members, one hundred of whom are from the election on a party-list basis and four hundred of whom are from the election on a constituency basis. The House’s members’ duty is to vote for nominating the Prime Minister and to control the government by questioning motions, no-confidence debate, budget control and law consideration.

(3) The Senate which comes from direct vote performs the duty of double-checking the laws; approving the office holders of the Constitution-defined independent entities; removing political office holders, the office holders of the Constitution-defined independent entities, and state officials; and general debate on national issues without a resolution to be passed.

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(4) In acquiring the members of the House of Representatives and of the Senate, the role of business politics and vote buying must be reduced, while the societal group diversity must be increased.

Based on the above principles, the Constitution (B.E. 2540) therefore has the following improvements in electing members of the House of Representatives and of the Senate.

A. Election of members of the House of Representatives In order to reduce the problems of business politics groups and local influences and

the behaviors which show signs of not representing the right public interest, which in turn leads to problem of political legitimacy, additional measures regarding election are designated as follows.

1st Measure: Expansion of Suffrage Exercise (1) Increasing the number of electorates so as to reduce the influence of vote

buying by stipulating that it is the duty of a citizen to go voting and those who failed to vote without reasonable excuse shall lose the rights that are stipulated by law

(2) Convenience facilities by the state in order to encourage people to vote, like increasing polling stations

(3) Allowing those who are outside their home regions and do not intend to go voting in their home regions to vote at the polling stations outside their home regions, with the condition that these people shall register for in-advance voting

2nd Measure: Electoral system is changed to a combination system The electoral system is a combination of party-list proportional representation

system which produces 100 members and relative majority system which produces 400 members. The party-list proportional representation system uses the whole Thailand as one constituency. One person with voting right can give two votes in two vote tickets respectively; the first of the votes is for electing any one account proposed by the political parties, while the second is for electing one candidate of members of the House of Representatives in the constituency.

In counting the votes of the party-list, votes of the territory of Thailand is counted in proportions which shall determine that the proportion of the votes for a party is the proportion of the seats in the House that that party shall hold. As for those parties that cannot amass the minimum 5% votes of the voters are not entitled to have their representatives in party-list.

The vote counting in the constituencies for electing members of the House of Representatives use the majoritarian system of First Past the Post (FPP).

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3rd Measure: Speeding up Election Schedule and Restriction of Care-takers’ Exercise of Power

The next general election shall be held within 45 days after the House of Representatives has come to the end of its term, and 60 days after the House of Representatives is dissolved. The rationale is to bind the representatives to their constituencies all the time and to shorten the time of spending money. And it is prohibited that during the care-taking period the care-taking Prime Minister and care-taking ministers appoint or reassign state officials who have stationary salaries and offices, or officers of state agencies or state enterprises, or that these people be removed from office except under consent of the Election Commission.

4th Measure: The Designation that the Election Commission shall organize the

Election The Election Commission consists of not more than five commissioner appointed by

the King with the advice of the Senate, from persons of apparent political impartiality and integrity, having seven years term and one-term service.

The Election Commission has the following duties and powers. (1) to issue Notifications determining all activities necessary for the execution of the

laws; (2) to give orders instructing Government officials, officials or employees of a State

agency, State enterprise or local government organization or other State officials to perform all necessary acts in election;

(3) to conduct investigations and inquiries for fact finding and decision on arising problems or disputes that arise as stipulated in the election law; to order to have re-election or to revote in any one or all the polling stations once there is convincing evidence showing that the election or voting in the concerned polling stations is not transparent and not fair;

(4) to announce the result of an election and the voting in a referendum. 5th Measure: Designating the state to provide some types of votes soliciting campaign to political parties and candidates In order to mitigate and lower expenditure in voting soliciting; the state has the duty

to provide posters of vote soliciting for political parties and candidates, to allot radio and television airtime to the political parties and candidates equally.

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B. Election of Senators Since the Senate has the duty to double-check and screen laws, to consider

removal of political office holders and state officials, and to debate on general national issues without coming to a resolution; the process of selecting senators needs to be made transparent and the senators have legitimate origin by the following measures.

(1) the Senators come from direct election through public votes (2) the number of Senators in each province shall be proportional to the population

of the province out of the total 200 Senators (3) the persons who can apply to be Senator candidates shall being of not less than

forty years of age, having graduated with not lower than a Bachelor’s degree or its equivalent, being a member of or holder of other position of a political party, and being not state officials or other state employees

(4) the term of the Senate is six years Nevertheless, the provisions regarding the Parliament and the process of coming to

political offices designated in the Constitution (B.E. 2540) cannot solve the problems; especially that during the almost 9 years of using the Constitution (B.E. 2540), there were big problems regarding the Senate. The Senators, with designation to be a checking council, are directly elected, resulting in difficulty in escaping influence of the political sector.

1.2 Important principles that should be stipulated in the Constitution in solving the above problems

With the problems persisting in matters of the Parliament and the coming to political offices and the problems that have occurred during using the Constitution (B.E. 2540), it is decided that the principles in the Constitution should be retained and revised in certain as follows.

A. House of Representatives The original principles regarding the House of Representatives should be

retained, but there shall be amendment in the following matters. (1) to revise to be that the election is a right, not a duty (2) to revise to be that those who are outside their house registers and do

not intend to go voting in their house registers are allowed to vote at the polling stations outside their home regions only for the vote in party-list proportional representation, with the condition that these people shall register for in-advance voting

(3) to revise to be that the public opinion poll shall be prohibited during the two-week period before the election in order to obtain equality among political parties and candidates

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(4) to revise to be that in case of termination of the membership of the House of Representatives that comes from party-list proportional representation, there shall be no re-election and the Parliament shall be composed of the remaining members

B. Senate In regarding the part concerning the origin and duties and powers of the

Senate, there are 2 options that should be consider as follows. Option 1 The duties and powers of the Senate as a screening and checking council

shall be retained, however the method of obtaining the Senators will be revised. The new method is that the Senators will be elected indirectly through a selective commission instead of being elected directly as before.

The new method of obtaining the Senators who will be authorized similarly as the Senators of the Constitution (B.E. 2540) however needs to be connected with the people who are the real owners of the sovereignty. And such connection will designate the method of obtaining the Senators as follows.

(1) Composition of the Senate The Senate is composed of 100 members being obtained through election by

the people with predetermined method. (2) Qualifications and undesirable characters of the Senators

The eligible Senator must have the following qualifications and must not have undesirable characters as follows.

(1) Being of Thai nationality by birth; (2) Being of not less than forty years of age; (3) Not being a member, officer, or consultant of any political party (4) Not being a member of any local council or an administer of a locality

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(3) The Selective Committee for selecting qualified Senators The Selective committee is composed of the former Presidents of the House

of Representatives and former Presidents of the Senate who do not hold any political office during the time when Senator Election is needed. In any case of absence of the abovementioned persons or the abovementioned persons cannot or will not perform the duty as the Selective commissioners, the former Vice-Presidents of the House of Representatives or former Presidents or the Vice-Presidents of the Senate who do not hold any political office during the time when Senator Election is needed shall perform the duty as the Selective commissioners. In addition, in case of need of electing the Senators, it is the duty of President of the Parliament (the President of House of Representatives) to pronounce the names of the Selective commissioners who are the persons with the abovementioned qualifications to the public.

Observations: The method of obtaining the Senators through the Selective committee is a type of preliminary screen to ensure that the candidates are qualified persons.

As for the method of selection, the Selective Committee shall select 200 qualified candidates and prepare a list of their name accounts in alphabetical order.

(4) Method of electing the Senators (1) It is designated that the persons with the right to elect members of the

House of Representatives shall be the persons having the right to elect the Senators. (2) The list of the accounts of names of the 200 suitable Senator candidates

which is arranged in alphabetical order shall be delivered to the voters. (3) The election shall have the territory of Thailand to be the constituency (in

the same manner as the election of members of the House of Representatives in the system of party-list proportional representation).

(4) Voting shall use the make-shift polling stations for the election of members of the House of Representatives.

(5) A person with voting right has the right to vote to elect one account number of the eligible Senator candidates.

(6) The first 100 suitable Senator candidates with the highest votes being arranged in descending order of the number of votes will be the Senators.

(5) Support from the state in Senator Election In order that the Senator Election will be carried out honestly and fairly, the

state shall provide the following supports in Senate Election. (1) to provide places and spot for placards and posters of the election

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(2) to print and deliver documents of the election to the voting right holders (3) to provide places for vote solicitation for the candidates (4) to allot airtime in radio and television for the candidates (5) other tasks that the Election Commission designates through its

pronouncement The preliminary criteria, conditions, and method of proceeding shall be

subject to provisions of organic law regarding elections of members of the House of Representatives and the Senators who shall be provided equal chances.

In addition, the candidates, political parties, and other persons beside the state, shall not provide supports to the above Senators Election.

(6) Service term of the Senators The term of the Senate is six years as from the election day. (7) Prohibitions of the Senators The Senators must (1) not receive monopoly from the state, government agencies, state

agencies, or state enterprises; or remain to hold the monopoly; or be a contracting party with the state, government agencies, or state agencies in a status of monopoly holder directly or indirectly

(2) receive funds or any interest from the government agencies, state agencies or state enterprises, which are beyond the normal treatment that the government agencies, state agencies or state enterprises normally provide to other parties in normal course of business

(8) Termination of Senator membership The Senator membership terminates upon: (1) Expiration of the term of the Senate; (2) Death; (3) Resignation; (4) Loss of Thai Nationality; (5) Becoming a member, officer, or consultant of any one political party; (6) Becoming a member of a local council or an administrator of a local

authority;

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(7) Acting in contravention of any of the prohibitions; (8) The Senate passing a resolution removing him or her from office; (9) Having been absent from all the meeting sessions which are

designated to be not less than 120 days without permission the President of the Senate; (10) Having been imprisoned by a final judgment to a term of imprisonment

except for an offence committed through negligence or a petty offence.

(10) Cases of vacancy of offices of the Senators Within three years starting from the date of the Senator Election, if an office

of Senator is vacant due to other reasons rather than completion of service term, the next suitable Senator candidates with the highest votes shall fill the vacant offices, who however, shall have the service term equal to the remaining time period of term of the replaced Senators.

(11) Termination of Senator membership within the first 3 years During the first three years starting from the very first Senator Election, half

of the total Senators shall terminate their Senator memberships by means of lucky draw and such termination shall be regarded as completion of service term; then there shall be another preparation of name accounts list of the eligible Senator candidates for electing new Senators to fill up the vacant offices. The former Senators who have been terminated by lucky draw may be re-elected to the Senate.

Observation: the above designation will ensure continuity of the Senate, there is no need to start from zero again like the case of terminating all the Senators at the same time.

(12) Duties and Powers of the Senate The Senate has the duties and powers as follows: (1) to be a law screening council; (2) to control state administration by having the right to submit a motion for a

general debate to question the Ministers regarding their work in duty;

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(3) to approve qualified persons to fill the offices in Constitution-defined independent entities, since this form of Senate comes from election it should be authorized to approve qualified persons to fill the offices in Constitution-defined independent entities;

(4) to remove office holders, since this form of Senate comes from election it should be authorized to remove persons from offices.

Observation: if the Senate of the form that comes from election through a selective committee is adopted, the problem which is the cause of partiality in the system of checking exercise of power can be solved. Since if the Senate which is an upstream body in the checking system is independent and free from overshadow, the fact that the Senate approves persons to fill the offices in Constitution-defined independent entities which will inspect exercise of state powers will lessen the problem of being overshadowed. This will enhance the system of checking exercise of state powers, to make it truly stronger and more efficient.

If the system of checking exercise of state power is truly efficient, it will constitute an important factor in preventing coup d’etat; since the causes of coup d’etat that have happened are always the matters of corruption of the political office holders and ineffective checking and balancing system, the coup d’etat leaders always “must or have no choice but to” initiate coup d’etat as the last option. In other words, if the system of checking exercise of state power is truly efficient, coup d’etat’s rationale regarding corruption will have less weight; there will be no more reason for initiating coup d’etat.

Furthermore, if the Senate is truly impartial, worry concerning the process of selecting persons to fill offices in different organizations which are experiencing problems will have the problems mitigated; since the Senate as an approving body would be able to control to ensure that the selection process is honest and fair.

Option 2 The second option of the form of the Senate is that of a combination between

appointment and election of the Senators, having the detail as follows. (1) Composition of Senate The Senate is composed of members as the following categories (1) 76 elected members each representing a province (2) 76 members being appointed by the King from qualified persons

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(2) Qualifications, prohibitions of the Senators that come from appointment of persons having experiences in state administration, academics, and various professions

(1) Being of Thai nationality by birth; (2) Being of not less than forty years of age on the election day; (3) Having been a judicial officer in the position of chief judge in the

Supreme Court or equivalent or above; having been a state official holding the position of deputy Attorney-General or equivalent or above; having been a civilian or military state official in the position of Director-General or equivalent or above; or having held the position of President of the Administrative Court, Rector of a state higher education institutes, or the President of the Lawyer Association;

(4) Not being a member, officer, or consultant of any one political party; (5) Not being a government officer who has stationary position and salary; (6) Not being a member of a local council or a local administrator; (7) Not being an employee or officer of government agency or state

enterprise, or local authority; (8) Not being an Election Commissioner, an Ombudsman, a National Human

Rights Commissioner, a judge of the Constitutional Court, a National Counter Corruption Commissioner, State Audit Commissioner.

(3) Selective Committee Selecting Senators The Senator Selective Committee is composed of the former Presidents of

the House of Representatives and former Presidents of the Senate who do not hold any political position during the time when Senator Election is needed. In any case of absence of the abovementioned persons or the abovementioned persons cannot or will not perform the duty as the Selective commissioners, the former Vice-President of the House of Representatives or former Vice-Presidents of the Senate who do not hold any political position during the time when Senator Election is needed shall perform the duty as the Selective committees. In addition, in case of need of electing the Senators, it is the duty of the President of the Parliament to pronounce the names of the Selective commissioners who are persons with the abovementioned qualifications to the public.

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(4) Process of Selecting qualified persons to be Senators The selection of the Senators shall be carried out as follows. (1) In selecting the Senators from the persons with experiences in state

administration, academics, or legal professions, the Selective Committee will nominate the names to the President of the Parliament, who then will propose the names to the King for royal appointments and will also then sign to receive the royal command.

(2) In selecting the Senators from persons with experiences in other fields rather than those in (1) above, the Selective Committee will proceed as follows.

1) To designate the 100 names of various private bodies to have the right to nominate senator candidates; the private bodies must be established by law or supported by law, and must have the purpose of seeking profit or income for further division. These bodies are then notified of their being selected.

2) The bodies as in 1) will consider nominating 2 qualified persons who are without prohibitions to the Selective Committee, however, within 15 days starting from the date the bodies are notified of their being selected.

3) After receiving the names as in 2), the Selective Committee will select the persons from the name list to propose to the President of the Parliament, who then will propose the names to the King for royal appointments and will then sign to receive the royal command.

(5) Senator Election In any one province with Senator Election to elect not more than 1 senator,

the whole of that province shall be regarded as one constituency; in any one province with Senator Election to elect more than 1 senator, that province shall be divided into several constituencies in each of which not more than one Senator shall be elected.

In the provinces that have more than one constituency, the constituencies shall be connected with one another, and the number of people in each in constituency shall be more or less the same.

In each of those constituencies, the persons with voting right shall vote for only one senator candidate in that constituency, and the means of voting is a direct and secret ballot.

As for the qualifications and prohibitions of the Senator candidates, they shall be the same as those of the candidates of the members of the House of Representatives.

The criteria and means of electing Senators shall be subject to the organic law regarding election of the members of the House of Representatives and the Senators

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(6) Qualifications and persons who are prohibited from exercising the right to be Senator candidates

Persons with the following qualifications are the persons with the right to apply to be Senator candidates:

(1) Being of Thai nationality by birth; (2) Being of not less than forty years of age on the election day; (3) Having graduated with not lower than a Bachelor’s degree or its

equivalent. Persons with the following qualifications are the persons without the right to be

Senator candidates: (1) Being a member, officer, or consultant of any one political party; (2) Being a member of the House of Representatives. (7) Prohibitions of Senators A Senator must: (1) Not hold any position or have any duty in state agency, government

agency, or state enterprise, or position in a local council, or an administrator or officer of a local authority

(2) Not receive monopoly from the state, government agencies, state agencies, or state enterprises; or remain to hold the monopoly; or be a contracting party with the state, government agencies, or state agencies in a status of monopoly holder directly or indirectly

(3) Receive funds or any interest from the government agencies, state agencies or state enterprises, which are beyond the normal treatment that the government agencies, state agencies or state enterprises normally provide to other parties in normal course of business.

The prohibitions (1) to (3) above do not apply on the cases where the members of the House of Representatives are receiving pensions, or yearly salaries for members of the royal family, or money of the similar nature; and also do not apply on the cases where the Senators are receiving or holding offices as commissioners of the Parliament, the House of Representatives or the Senate, or the commissioners who have been appointed as a qualified persons as according to the provisions of law.

(4) the Senators shall not do any thing by using the status or position of Senator to intervene or interfere office filling, appointment, reassignment, transfer, rank promotion, salary increase of the state officialdom who have stationary offices and salaries, officers or employees of state agencies, state enterprises, or state officials in local authorities, except political state officials.

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(8) Senators Election Supports by the State In order that the Senators election can be carried out honestly and fairly, the

state shall provide the following supports to the Senators election, (1) to provide places and spot for placards and posters of the election (2) to print and deliver documents of the election to the voting right holders (3) to provide places for vote solicitation for the candidates (4) to allot airtime in radio and television for the candidates (5) other tasks that the Election Commission designates through its

pronouncement The preliminary criteria, conditions, and method of proceeding shall be

subject to provisions of organic law regarding elections of members of the House of Representatives and the Senators who shall be provided equal chances. In addition, the candidates, political parties, and other persons beside the state, shall not provide supports to the above Senators Election.

(9) Service Term of the Senators The term of the Senate is six years as from the Senate is fully filled. (10) Termination of membership of the Senators Membership of the Senate terminates upon: (1) Expiration of the term of the Senate; (2) Death; (3) Resignation; (4) Being disqualified; (5) Being under any of the prohibitions; (6) Acting in contravention of any of the prohibitions; (7) Having been appointed to be Ministers or other political state positions; (8) The National Assembly passing a resolution removing him or her from

office, or the Constitutional Court having a decision terminating his or her membership; (9) Having been absent from convention during all the meeting sessions

which are stipulated to be not less than 120 days without permission the President of the Senate;

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(10) Having been imprisoned by final judgment (despite court’s postpone of punishment) except for an offence committed through negligence or a petty offence.

(11) Powers and Duties of the Senate The Senate has the major powers and duties as follows, (1) being a law screening council; (2) controlling state administration by having right to submit a motion to

question the ministers regarding their duties. Observation: from observing the original powers and duties of the Senators

as according to the Constitution (B.E. 2540) as an election council, the mixed form of the Senate should not have the following powers;

(1) The duty and power in approving persons to hold offices in the Constitution-defined independent entities, since this form of Senate comes from appointment, therefore with the Senate alone it should not have the stipulated power in approving persons to hold offices in the Constitution-defined independent entities. Instead the power to give approval to the persons to hold offices in the Constitution-defined independent entities should be a power of the Parliament (House of Representatives and the Senate). The Senate therefore takes part in approving the persons to hold offices in the Constitution-defined independent entities in a status as a part of the Parliament.

(2) Regarding the power to remove persons from office, for the reason that this is a combination form of Senate, thus it should not have the power to remove position holders, but it may take part in co-signing a petition to propose the National Assembly to remove a person from office (with the power of removal belong to the Parliament).

After considering the 2 options of the origin of the Senators and their duties and powers, it is considered the 2nd option is more suitable to the situation of Thailand for the following reasons.

First: the part of the Senate that comes from appointment is the part that consists of qualified persons who are able to perform duty in screening the law and provide advices to the House of Representatives.

Second: the Senate of the part that comes from election is a representation of the people in the Upper House who can exchange opinion with the qualified persons well. 2. Political Parties

2.1 Situation of the main problems Before using the Constitution of the Kingdom of Thailand (B.E. 2540), there were

important problems regarding political parties as follows.

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(1) The system of political parties still did not have a stable structure, and did not represent the real interest of the people, thus opening a loophole for the business politics to overshadow the political parties easily.

(2) The system for checking and controlling money donation to political party and political party’s use of the money was not right. Also the system for disclosing the fact regarding the donation, and also the system for disclosing the result of such checking and controlling was still not sufficient and not implemented seriously.

(3) Political parties fell under the influence of the interest of big capitalists who were important financers of the political parties. Those who did not obtain the support of big capitalists, despite their having strong political ideology, would not be able to associate with one another to form a political party. This is a restriction of political alternatives of the people.

Based upon the above problems, the Constitution (B.E. 2540) therefore has the following measures to solve the problems:

(1) to relax the condition of forming political party to make it easier and less costly to form one, in order to open chances to people to more broadly associate to form political parties; and not to compel a political party to send a fixed amount of candidates in an election

(2) to fortify the system of political parties by forcing the election applicants to be a member of political party for at least 90 days

(3) to designate that the administration of political parties and their rules shall be democratic, being judged by the Constitutional Court, like, main decisions must be made in a party convention, a political party must have branches, holding a office in a political party must be subject to service term, appeal of expelling a party member may be filed to the Constitutional Court, in order to prevent the political parties from falling under the influence of a few political capitalists

(4) to designate that the state allot budgets to subsidize the political parties depending on their seats in the House of Representatives

(5) to control the private donation to make it transparent by reporting of this to the Election Commission who then would inspect it

(6) the Election Commission shall limit the amount of fund that a political party can use for each election

(7) the political parties must prepare accounts of revenues, expenses, donators, and publish them to the public

Nevertheless, during the almost 9 years of using the Constitution (B.E. 2540), problems regarding political parties still persist as follows.

(1) Political parties do not represent the real interest of the people, business politics prevails over political parties.

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(2) The Constitution (B.E. 2540) has the provisions to make it easier to form a political party; however the organic law in contrary makes it difficult to form a political party but easy to disestablish one.

(3) Controlling political party is easily done. 2.2 Important principles that should be stipulated in the Constitution for

solving the problems In the part relating to political party, the principles in the Constitution (B.E. 2540)

that should retained and those needed to solve the problems are as follows. (1) It is retained that election applicants shall be a member of political party and that

the state shall subsidize political parties. (2) The donation of funds to political party by persons shall be controlled, by limiting

the amount of donation per person per year, prohibiting juristic persons (like Corporations, partnerships etc) from donating funds to political parties, since activity of a political party is personal activity not activity of a juristic person, in order to prevent a person or a juristic person to overshadow a political party to enhance political parties to be truly people’s parties.

(3) There should be provision regarding forming a political party to provide that the criteria in forming a political party shall not be too easy.

(4) There should be rules regarding merging political parties to control them from merging too easily. 3. The Council of Ministers

3.1 Situation of the main problems Before using the Constitution of the Kingdom of Thailand (B.E. 2540), there were

important problems regarding the Council of Ministers as follows. (1) The governments were coalition governments, weak and unstable; no one party

could by itself form policy; the coalition governments were in constant conflict with one another, which was a source of seeking wrongful interest.

(2) The Prime Minister had power by law, but he could not realize his leadership in administering the country since he too fell under overshadow and bargaining of his own party and the coalition parties, resulting in low efficiency in administering the country.

(3) Some of the member of the House of Representatives competed with one another to hold ministerial offices, resulting in low quality of some ministers.

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(4) The Prime Minister’s appointment of ministers was under pressure from people in his party and those in coalition parties and the financers of the political parties, resulting in unacceptable ministers.

(5) Ministers came out to criticize the government without respecting the principle of co-responsibility.

(6) The Council of Ministers were too big in size since they were composed of ministers and assistant ministers, the result is that it was short of efficiency and unity in making decision on major issues of the country; consequently, there was confusion in the state administration, opening channel for people to seek wrongful interest easily.

The Constitution (B.E. 2540) therefore designates the following measures to solve the problems.

(1) the size of the Council of Ministers is scaled down to be of not more than 36 persons, consisting of the Prime Minister, deputy Prime Ministers, ministers, and ministers of the Office of Prime Minister, who are seen fit by the Prime Minister.

(2) It is designated that appointment of the Prime Minister shall be completed in the meeting of the House of Representatives within 30 days starting from the first call for meeting. The decision must be on more than half of the votes of all the members of the House of Representatives by means of open ballot.

(3) The Prime Minister shall be appointed from among the members of the House of Representatives, while the ministers may be appointed from other people not the members of the House of Representatives; however, the ministers who are appointed from among the members of the House of Representatives shall depart from the office as a member of the House of Representatives.

(4) No-confidence debate of the government has the following features. 1) In submission for a motion of debate of no confidence in the Prime

Minister, two-fifths of the total number of the existing members of the House of Representatives shall co-sign the petition with also the name of a new Prime Minister being proposed; also with the above procedure followed, during the no-confidence debate the Prime Minister is prohibited from dissolving the House.

2) In submission for a motion of debate of no-confidence in individual Minister, one-fifth of the total number of the existing members of the House of Representatives shall co-sign the petition.

3) In submission for a motion of debate of no confidence in the Prime Minister or the ministers, if it is an issue of the Prime Minister or the Ministers being unusually wealthy, or having committed an offence of corruption, malfeasance in official duties, intentionally breaking the provisions of the Constitution or laws, there shall be petition of removal being filed as well.

(5) It is designated that establishments, transfers, and disestablishments of ministries, bureaus, departments, shall be done through royal decree in order that there will be efficiency in administering the country and solving the problems of the country quickly and promptly.

Nevertheless, during the almost 9 years of using the Constitution (B.E. 2540), problems regarding the Council of Ministers still persist as follows.

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(1) In performing duties of the Prime Minister, there is still conflict between the state interest and personal interest.

(2) In the stipulation of the Constitution that prohibits the ministers from holding shares, there are important weak points, namely, prohibition applies on the ministers only but does not apply on their spouses, children or other close persons; as a result, the ministers can probably choose to transfer shares that they hold to these persons so they “hold the shares on half”, which is an action contrary to the intention of the Constitution that needs to prevent the ministers from retaining the power in managing their personal businesses during their holding political offices.

(3) The designation that two-fifth of the total number of the existing members of the House of Representatives shall co-sign the petition before being entitled to have debate of no-confidence in the Prime Minister results in difficulty in bring motion of debate of no confidence in the Prime Minister. The resulting situation is that when there is problem concerning the administration of the Prime Minister, there is no political channel to check and balance.

(4) The binding condition, that submission a motion for debate of no confidence in the Prime Minister or the ministers for the issues of the Prime Minister or the ministers being abnormally rich, or showing sign of corruption in performing official duties, or intentionally breaking the provisions of the Constitution or laws, and that there shall also be petition of removal being filed, makes the no-confidence debate unnecessarily difficult.

3.2 Important principles that should be stipulated in the Constitution in solving the above problems

The parts regarding the Council of Ministers in the Constitution (B.E. 2540) shall be retained, however, with the following corrections in certain issues.

(1) It should be stipulated as an important principle in the Constitution that there shall enactment of Conflict of Interest Act to regard the ministers. Such act will require the ministers to report of conflict of interest in performing duty to make known in the meeting; like, in the case where there is consideration of policy in the Council of Ministers regarding promoting an industry, the decision to grant or not to grant subsidy to the industry in the country will have direct effect on the businesses owned by the relatives of the ministers.

(2) To prevent the problems of the conflict between personal business interest and the public interest and the loophole in law which the ministers utilize by transferring their shares to their close persons rather than transferring them to a juristic person that provides service of asset management for other people, thus it should be stipulated that the prohibition on the ministers from holding shares or stakes in corporations or partnerships and from remaining as a shareholder or partners should apply on the ministers’ spouses and children who are minors.

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(3) It should be decreased in the number of the members of the House of Representatives in co-signing petition for no-confidence debate in order to make it easier to have no-confidence debate. It is that in the case of petitioning no-confidence debate in the Prime Minister not less than one-fifth of the members of the House of Representatives shall be required; and that in the case of petitioning no-confidence debate in individual ministers, the requirement of co-signing number of the members of the House of Representatives is the same as before, i.e. one-fifth of the members.

(4) The principle that it is necessary to file also petition of removing the Prime Minister or a Minister when it is needed to file petition of no-confidence debate regarding the Prime Minister or a minister being unusually wealthy or having committed an offence of corruption, malfeasance in office or intentionally breaking the provisions of the Constitution or the laws. 4. The Relation between the Parliament and the Council of Ministers

1.1 Situation of the main problems Before using the Constitution of the Kingdom of Thailand (B.E. 2540), there were

important problems regarding relation between the Parliament and the Council of Ministers as follows.

(1) The National Assembly members were bound to follow the party resolutions or other enforcements, despite the fact that sometimes it was their independent discretion.

(2) The inspection was done by the National Assembly, especially when the question and the committee were still short of efficiency.

(3) The members of the House of Representatives and the Budget Committee could propose to cut the budget and set up budget for provincial development; this allowed the legislative branch to be able to use the budget and thus to have advantage over new candidates, who were not members of the House of Representatives.

(4) The process of considering laws was slow and the people’s representatives were concerned more of the political matters than legal ones, which resulted in slow legislature and not being able to legislate to respond to the changing world.

(5) The political system was short of suitable financial subsidies to the Parliament members and the ministers who had departed from office.

The Constitution (B.E. 2540) therefore designates the following measures to solve the problems.

(1) To designate that decision on certain issues, especially in approving persons to offices in various checking organizations and in deciding to remove an office holder, should be independent; and the Parliament members shall not be subject to the party resolution or any other enforcement.

(2) To designate that proposal of interpellate concerning issues of public concern or of importance to the country shall be possible by notifying of the proposal in the morning and answering in the afternoon without needing to make known of the questions before hand.

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(3) To prohibit the National Assembly members and the committees from participating directly or indirectly in using budgets and in revoking provincial development budgets.

(4) To designate that there shall be one meeting session being dedicated to consideration of laws and answering questions, except that the Parliament has resolution to consider other matter with more than half of the votes.

It is designated that the Bills that are in backlog of consideration due to dissolution of the House shall be continued the consideration by petition of the new Council of Ministers within 60 days starting from the first day of meeting after the general election with approval by the House resolution.

(5) In the case where the government is a minority, there shall be measure to prevent the people’s representatives from obstructing the process of legislature of the government. It is that once the government has announced the policy, and in which the government has stated any one or several acts are necessary for the state administration; if the drafts of act do not pass the House of Representatives, the government may bring the drafts to the joint meeting of the houses for consideration, and if the joint meeting approves, the consideration shall be continued.

Nevertheless, during the almost 9 years of using the Constitution (B.E. 2540), some problems still persist and there are other problems as well as follows.

(1) The political system is still short of suitable financial subsidies to the Parliament members and the ministers who have departed from office.

(2) The operation of the committee is short of enforcement in exercise of power in duty.

1.2 Important principles that should be stipulated in the Constitution in solving the above problems

In the part concerning the relation between the Parliament and the Council of Ministers, the principles stipulated in the Constitution (B.E. 2540) should be retained; however with some amendments that the structure of salary and compensation for the political office holders should be stipulated to be enough during the time in office, and after going out of office there should be suitable financial compensation, to prevent them from seeking wrongful interest while in office.

About the Researcher and the Co-researchers

1. Associate Professor Dr. Montree Rupsuwan

- former member of the Constituent Assembly

- former Secretariat of the Senate

- Advisor on Politics, Administration and Management, level 11;

Secretariat of the Senate

2. Associate Professor Manit Jumpa

- Director of Graduate Study, Faculty of Law, Chulalongkorn

University

3. Miss Supangjitta Traitheppisai

- Chief of the Legal Group 1, Office of Law, Office of Secretariat

of the Senate

4. Mr. Surat Wangtolaap

- Chief of Operation Group of Special Committee 2, Office of

Committee 2, Office of Secretariat of the Senate

5. Mr. Boonsong Lakham Legal Officer, Office of Secretariat of the Senate

6. Miss Kanokthip Wacharalekhakun Lecturer, Office of Secretariat of the

Senate