The Nation | 16 August 2007
Fine-tooth comb needed for clauses
The devil is in the detail and it needs an expert to read between the lines
The problem for ordinary citizens in trying to weigh the pros and cons of the junta-sponsored draft constitution is that provisions provided for in the charter require an expert’s examination to reveal the hidden details and possible loopholes.
The issues of how the charter stipulates free-trade agreements (FTA) and the privatisation of key public utilities are a case in point. Article 190 deals with six paragraphs on FTAs. On the surface, they appear to be a triumph for anti-FTA groups such as FTA Watch, who have campaigned hard to make any future agreements transparent, accountable and determined by Parliament.
Paragraph two of the article states that future FTAs must receive approval from Parliament.
There’s a catch, however, because the same paragraph also states that only those agreements which are deemed by the Cabinet to have a "wide ranging" impact on the economy or society, or which "significantly" bind the state’s trading, investment and budget would need to be approved by Parliament.
Jacques Chomthongdi, a leading member of FTA Watch group, believed that, in reality, there may be room for governments to avoid having to get parliamentary approval for future FTA agreements.
In the event that a future government tries to do this, and not put an FTA through Parliament, paragraph 6 of the charter requires at least 10 per cent - or 63 members of both the Upper and Lower Houses - to petition the Constitution Court for a ruling on whether a particular trade deal is likely to have a "wide-ranging impact" or will "significantly bind" the state or not.
Jacques believe it would be easy to get the 63 signatures required, so there would be room to evade parliamentary approval of trade deals. "The intent is to not allow the legislative branch have too much of a role. If interpreted as not having a wide-ranging impact, the FTA would not need to go through Parliament."
The devil is in the details, and Jacques said the public would have to watch out for the passing of organic laws that could make positive aspects in the article redundant.
On the issue of privatisation of public utilities, paragraph 11 of Article 84 says that the state "cannot hold less than 51 per cent ownership of key public utilities" - such as water and electricity.
This may sound agreeable to many because the state would remain the major shareholder, but not to Sirichai Mai-ngam, general-secretary of State Enterprises Workers Relations Confederation, who expressed disappointment.
"The state should hold 100 per cent," he said. "But now they can start selling it. We could not lobby for it at the Constitution Drafting Assembly (CDA). It’s like a snake eating its prey, once the snake starts eating it, we’ll eventually be swallowed up."
Asked why he’s so against having slightly less than half of state enterprise shares held by private investors, he replied: "National interest should be protected. Billions of baht in profits from privatised firms such as the Petroleum Authority of Thailand simply went into shareholders’ pockets, instead of the state’s coffer. It need not be that way. Those who wrote the Article are very keen to crack open state enterprises and they will have to be responsible for it."
Jacques agreed that huge sums of money that would go to the state would be lost, while shareholders benefit from the unique capacity of an enterprise that would still enjoy the state’s power to repatriate land and exploit natural resources.
He also said that Article 84 would not solve any conflict over whether key public utilities should be privatised or not. "There’s no guarantee that the public will benefit most from it ... what can or cannot be privatised should have been stated clearly."
But both agreed the draft charter should be looked at "in its totality" and not by any single Article.
Sirichai said that when considering the chapter on human rights and checks and balances on elected politicians, he decided to endorse the draft charter.
"Some of the issues may not be how I would have wished for, but I can accept it," said Sirichai, adding that he would campaign to have Article 84 amended if the charter was approved.
Jacques looked at the whole picture too - but his conclusion was different.
"I cannot accept this referendum. People don’t have a choice to choose between draft charter A or B. As a whole, the draft is problematic. MPs, political institutions, so-called independent organisations, you name it, everyone must look at the big picture.
"I won’t be taking part in the referendum on Sunday," he said.