Sunday, April 22, 2007

Deconstructing Nopakhun: New Constitution Closes Loopholes of 1997 Charter


Draft charter closes loopholes for graft, conflict of interes

Nophakhun Limsamarnphun

The Nation

Dr Sombat Thamrongthanya-wong, a member of the National Legislative Assembly and president of the National Institute of Development Administration (NIDA), told me the other day that the just-released first draft of the new constitution appears to be better than the 1997 version on at least two key points.

According to Dr Komson Potikong, one of the 35 charter-writers, five articles of the first draft of the new 2007 charter - from Article 256 to Article 260 - are devoted to plugging the loopholes previously exploited by public-office holders. In short, the charter will explicitly state that the prime minister, Cabinet members, MPs and senators are required to transfer their assets to trustees as designated by law prior to taking office, so that their private interests are clearly separate from those of the public.

I think this is a good proposal, but it would depend on how these trusts are organized. Before the elections will there be a mad rush to the lawyer's office in order to make billionaires out of
maids, drivers and obscure cousins of politicians? Before they all slap each other on the back and congratulate each other, where is the fine print? Also, they should have a clause concerning "honest mistakes."

On the appointment of members of key independent bodies such as the Constitution Court and the Election Commission, both of which were embroiled in controversy during the last days of the Thaksin regime, Sombat said the new charter would give the judiciary the lead role in nominating candidates to sit on such bodies.

According to the first draft of the 2007 charter, all Supreme Court judges (whose total number is less than 100) will convene to select three of their judges to be candidates for the Constitution Court, while Supreme Administrative Court judges will also convene to select two of their number as candidates for the same court.

Then the Supreme Court and Supreme Administrative Court will each nominate another two candidates, making a total of nine candidates to sit on the Constitution Court.

The list of all nine candidates will then go to the Senate for final approval. The Senate can only accept or reject the entire list of candidates. Under the 1997 charter, the 200-member Senate was more powerful, as it was empowered to hand-pick candidates, resulting in widespread lobbying and alleged corruption.

This is an interesting proposal. It isn't very democratic in the sense that the people(or their elected representatives) have much as say over the picking of judges, but that is normal in most countries.

What I like about this is that it forces consensus by many judges on who should serve on the highest court in the land, and the Senate must confirm the list.

The judges who do get picked will have to have a lot of respect from their peers. And I doubt any judge will have enough money to bribe themselves into the top job. Personally, if it were me, I don't even know if I would want the hassle of campaigning for a spot on the Supreme Court. It seems like a thankless job and it will have added responsibilities under this new constitution. I hope these guys are getting decent pay raises.

With all that being said, I don't have much faith in the judiciary. Many of the problems that we had during the Thaksin era happened because the judiciary was weak and probably corrupt.

They didn't do much as a check against the executive in the past, so I don't have much faith they will be much better in the future.

Lastly, considering that the judiciary is taking on so many executive responsibilities, it is only fair that judges should be held to public scrutiny and be allowed to be criticized, and they should have to declare their assets also.

1 comment:

anon said...

The second point is total nonsense. For the full story, see here. The bureaucracy and the courts wanted to pick their own people to pack the most powerful court in the land, while the legislature (at the time controlled by the Chuan government) wanted some popular accountability. The legislature won. This time, the courts want their power back.