The case for a new, untainted constitution

The most fundamental issue of our generation was the highlight of 2012.

That issue was the question of whether the people of Thailand will again be able to live under a constitution drafted for the people by the people or whether we will sit back and accept a constitution that has been manipulatively drafted for the establishment by the military.

I am vehemently against amending this constitution section by section. The best course of action for a constitution that is an abomination to anyone who considers themselves a democrat, is to exterminate it, abolish it, expunge it, get rid of it! And at the same time, let's return power to the people in order to let them decide through a constitutional drafting assembly what the law of the land should be.

This is the only way true reconciliation can be achieved because as long as the origins and legitimacy of the constitution are in question there can be no end to our political quagmire.

A new constitution drafted by an assembly representing the people in line with the 1997 constitution, once completed, will be subject to public scrutiny and debate, but at least its legitimacy will be beyond reproach and that is paramount in any constitution that wishes to stand the test of time. And if the drafting of a new constitution through a democratically elected assembly is rejected by the Democrat Party and others on grounds that electoral processes can't be trusted because of vote buying and undue influence, then why bother with elections in all their forms in the first place?

No doubt my detractors will attempt to claim a flimsy legitimacy for the present constitution by referring to the farcical referendum held under military rule, which in effect, forced a favourable vote down the people's throat. I will be the first to admit ousted prime minister Thaksin Shinawatra will probably benefit from a new constitution. But that doesn't mean we shouldn't have one, because that's like holding the whole country at ransom in order to catch one man. It's like trying to cure a headache by chopping off your head.

The Democrat Party has consistently been in the forefront of resisting any change to the constitution and as a result are now the party of "no". "No" to reconciliation, "no" to a people's constitution, "no" to the electoral process and ultimately "no" to new ideas to move this country forward.

Democrat party leader Abhisit Vejjajiva's refusal to amend any section of this constitution _ especially Section 309 which legitimises and endorses all actions during the military junta _ is the ultimate insult to democracy. Why does Mr Abhisit call himself a democrat when he's staunchly supportive of a constitution drafted by military cronies?

Why is the Democrat Party so surprised that Thaksin wants to exonerate himself by seeking constitutional changes to Section 309 when the leaders of the coup were able to do exactly that in granting themselves total immunity from prosecution in the interim constitution under Section 37? And lastly, if the coup itself as many Democrats and the People's Alliance for Democracy (PAD) claim was indeed a just and legitimate act to rid Thailand of a malevolent manifestation in Thaksin, why would a clause granting immunity from prosecution be necessary anyway?

The answer to these questions is politics. Politics and politicians in both the Democrat and the Pheu Thai Party camps have been the thorns in the side of the country.

If they gave out an award for "messing things up for everybody", Thai politicians would receive the ultimate acclaim _ the Lifetime Achievement Award.

Last year also included the acquiescence of the army to the executive branch, but the mantle of resisting change and the role of defender of the establishment seems to have passed on to the judiciary. This is an extremely disturbing development because it means a constitutional crisis of biblical proportions is looming as dark angry clouds gather on the horizon for 2013.

At the centre of this is the Constitution Court ordering the cessation of proposed constitutional amendments through the parliamentary process by accepting five petitions spearheaded by the Democrat Party under Section 68. Section 68 prohibits actions deemed "to overthrow democratic rule with the King as the Head of State".

Although I am an avid opponent of piecemeal constitutional amendments, I equally reject judicial activism and intervention in a parliamentary process protected even under this constitution. Moreover, there is absolutely no prima facie evidence that these amendments aim to overthrow the monarchy. As a matter of fact, the amendments specifically prohibit such actions.

So does that mean that even when there is no evidence to overthrow the monarchy the courts can intervene under Section 68 because of something they think might happen in the future?

Well, if that's the case then let's forget the fact that Pheu Thai overwhelmingly won an electoral mandate by promising constitutional amendments, and let's change the wording of Section 68 for what it really is _ namely to make illegal all actions "to overthrow Democrat Party rule with the King as the Head of State".

Promoting a free and just society is without doubt consistent with what His Majesty the King ceaselessly calls for. Not all public servants serve the public. Not all who wear military uniforms deserve to be called soldiers. And those who scream loudest professing their love for the King, but end up politicising the monarchy for their own sinister political gains, should be called out for bringing this beloved institution into the putrid realm of gutter politics.

Songkran Grachangnetara is an entrepreneur. He graduated from The London School of Economics and Columbia University. He can be reached at Twitter: @SongkranTalk

About the author

Writer: Songkran Grachangnetara
Position: Entrepreneur