Constitution Drafting Committee member Jade Donavanik suggested members of the National Anti-Corruption Commission (NACC) and the Constitutional Court judges resign to avert potential credibility problems after the Constitutional Court last week affirmed the constitutionality of making exceptions to NACC member qualifications.
The court on March 9 ruled that the provision in the law on the NACC excusing some of its members from qualification rules set down in the charter was not in fact against the charter.
Critics have voiced their concern that the court's ruling will set a bad precedent for allowing the law to override the constitution which is the supreme law. The critics also said it would bode ill for the credibility of the anti-graft commissioners who probe others, when their own qualifications are in public doubt.
Meanwhile, Mr Jade pointed out the people indicted by NACC members might defy the commissioners' decision claiming they have doubts about the qualifications of the commissioners. Similar cases might occur with the court and both agencies might find problems in their work. One way to prevent such problems is for the NACC commissioners and charter court judges to resign and open the way for new selections. "If [the NACC commissioners and the judges] resign to prevent problems in the future, they will be heroes," he said.
The organic laws on independent agencies, including the court, have a provision that allows current court judges, who took the positions before the promulgation of the 2017 charter on April 6 last year, to stay in their posts and complete their term regardless of the change in qualifications under the new laws. Court judges whose term had already ended were also allowed to stay until new judges were sought and selected.
In contrast to the organic laws on the NACC and the charter court, the organic laws on the Election Commission and the National Human Rights Commission require new selections of their commissions.
The provisions were passed by the National Legislative Assembly which asserted their right to make exemptions under the organic laws because these are intended to spell out the detail intended by the broader charter.
Charter drafter and former Constitutional Court judge Suphot Khaimuk said, however, an organic law in principle must not overrule the charter, which means it should not have allowed the exceptions.
Mr Suphot said an interpretation that the NLA can amend laws in any way would be problematic. The amendment must be in line with the charter.
He said members could also seek the court's ruling on controversies in the organic laws on MP elections and senator selections, which passed the NLA last week, where these problems could also occur. He said while the court's decision is final, he sees no way to change the consequences. "Those who come into power through selection and appointment, not elections, should bear in mind that they must keep their standards high and leave the public in no doubt," Mr Suphot said.
According to the new qualifications requirement of the charter, NACC members cannot have served in political posts for 10 years before taking up a job as commissioner. Some current commissioners, including the NACC president Watcharapol Prasarnrajkit, would be prohibited on this ground. After the 2014 coup, Pol Gen Watcharapol was appointed secretary-general handling political affairs for Deputy Prime Minister Gen Prawit Wongsuwon. The appointment is considered a political post.
However, the organic bill on the NACC scrutinised by the NLA made an exception that effectively relaxed the prohibition, allowing the NACC members subject to the ban to keep their jobs. The exception raised queries as it was criticised as contradicting the constitution, prompting the NLA minority to submit the organic bill to the court for a ruling.
Former NACC member Vicha Mahakhun said people might lose trust in the NACC when some commissioners who are deemed unfit by the charter deliberate graft cases. "Trust is an important issue here since the NACC investigates the powers-that-be and combat graft that riddles the system," he said.
Democrat Party leader Abhisit Vejjajiva said the organic bill on the NACC paid lip service to the principle of having qualified people to run the commission. It appears to specifically serve individual commissioners. The bill looks certain to create practical problems for the NACC, he said.
Election commissioner Somchai Srisutthiyakorn expressed concerns about how far such agencies can retain their independence when the organic law overrides the constitution.
