Key sticking issues remain in draft

More than 90 per cent of the key principles of the new constitution have been completed and agreed on by the Constitution Drafting Commission (CDC). And from today until Sunday, the drafters will be working on the final section before revealing the complete charter to the public.
While the drafters are on their retreat in Cha-am to make final touches to the draft, some major contentious issues remain as critical challenges. Whether those challenges can be resolved will decide if the country can realise its future with the completed draft, which is expected to be released on January 29.
Firstly, the new constitution will outline the newly introduced Mixed-Member Apportionment electoral system. Under the system, voters will have a single ballot on which they can select only one constituency candidate, who will represent a particular party. The total votes for each party will then be used to calculate its proportion of seats in the House of Representatives, including both constituency and party-list MPs, as well as a potential prime minister.
Its advocates, including the drafters, have said the single-ballot system is easier for voters to understand than the old party-list system in which voters had to mark two ballots. More importantly, the CDC has expressed pride in how the system makes every vote matter – even if a candidate loses in a constituency race, votes for him or her still count in terms of the party’s proportion of seats in parliament.
But opponents have said that this system does not really reflect voters’ intentions. Politicians from both the Democrat and Pheu Thai parties have said voters often choose constituency candidates from one party, while casting a party-list vote for a different party.
“Voters vote for a candidate because they want that person to represent them in parliament. But when he has lost and his votes counted for the list instead, it doesn’t really respond to their true demand … Perhaps some votes do unavoidably need to be sunk,” Democrat deputy leader Jurin Laksanawisit said.
Secondly, the charter drafters have come up with an unprecedented method to select the prime minister. Each party will have to propose a list of five prime ministerial candidates with the winning party getting to choose a prime minister once elected to government.
The drafters explained that the list would give an indication to voters about who could potentially be prime minister before they cast their ballots, and this would help prevent a figure coming “out of nowhere” to take the top government job.
But not all politicians see it that way. Many have said voters already know who the potential prime minister will be, because that candidate is usually the first person on the party’s list.
Thus, politicians have argued, the list is meaningless and would only complicate the process.
Some politicians also said the list would confuse voters. For instance, Pongthep Thepkanjana, a legal adviser for Pheu Thai Party, raised a question: “OK, so there are five people on the list. But who exactly will be the premier?”
He said he was worried for voters. They may like one person on the list but there was no way to be sure that person would become prime minister, he said, adding that “voters just had to take the chance”.
And while the CDC argues that the list could be used during times of crisis, allowing the selection of an alternative candidate on the list, Suriyasai Katasila, director of Rangsit University’s Thailand Reform Institute, said that the old system already had such a mechanism to choose a new prime minister, so the list was unnecessary.
Another controversial point in the new charter is the Senate election process. While many have voiced support for a completely elected Upper House, the CDC has announced that the Senate should not be subject to political influence, so senators should not have to run for election.
Rather, the committee proposes that senators be “indirectly elected” from within their social groups, the criteria of which have yet to be specified. This way, the drafters argue, the Senate will represent and protect the interests of their groups more responsively and effectively.
Politicians and observers have almost agreed, in principle, with that proposal on the condition that the Senate has no authority to impeach elected MPs.
However, there was a minor controversy after the CDC announced that there would not be educational requirements for senators, but seniority in their respective fields would be the necessary qualification. And, relatives of politicians would also be allowed.
As such, new questions have arisen on whether such candidates can truly be capable or free from political influence.
But the CDC has stood its ground, saying the selection process would to some extent guarantee fairness. The process will involve three levels of indirect elections, from district to national level, which drafters say will minimise the role of political popularity.
Lastly, one of the most critical points in the draft lies in the mechanism laid out for the country during times of crisis or during transition periods.
The interim charter’s Article 35 stipulates that such a mechanism is required, and the National Council for Peace and Order (NCPO) has also emphasised the necessity in its recent recommendations to the CDC.
To date, drafters have not introduced any such mechanism and have voiced strong opinions that the public was adamantly opposed to such a crisis panel recommended by the previous, now-defunct drafting commission. Instead, the CDC has indicated, existing bodies such as the Constitution Court or other independent agencies would be responsible for managing any crisis.
However, observers have said the significance is not the bodies involved, but instead the powers that are delegated to them.
Critics take the view that even if there is no “crisis panel”, if other agencies hold similar excessive powers, the same concerns remain.
Most importantly, the charter draft could face defeat in a national referendum. That, critics say, would be the equivalent of the public displaying its disaffection with the prolonged rule of the current administration.