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constitution making in Thailand

Historical discourse for CDA Assembly

The constitution of a country lays down the basic structure and principles of an accepted political system under which the people of that particular country are to be governed.

Professor A V Dicey, an exponent of constitutional law, states, ''The form or structure of the government of a society becomes its constitution. The constitution determines the distribution of the sovereign power within the political society or state."

Therefore, a constitution may be defined as ''a system or body of fundamental principles according to which a nation, state, or a body politic is constituted and governed".

In earlier times, the Greeks invented politics: an idea or notion of running collective concerns by discussion of possible choices in a public setting. The words ''politics" and ''political" are derived from the Greek word for ''city", polis.

The polis, or to be precise, the city-state, was a community of men, conscious of shared interests and common goals. The political city-state in Greece emerged as a ''democracy", taken from two Greek words: demos, meaning the people, and kratos, meaning government or rule.

Therefore, democracy meant government by the people against tyranny or dictatorship the autocratic rule of one person.

In a democratic society, the sovereignty or the supreme power, which in practice is a number of rights (any one of which can be abstracted), lies with the people of that respective country. The people have the inalienable right to govern themselves or to be governed in the way they like, by the people they choose and in the form they prefer. In a direct democratic state, the people are their own masters.

Centuries ago, the Greeks resisted changes in their political institutions and they often took the most conservative approach to day-to-day problems: social discipline. A very early consequence was the fossilising of the social structure.

One of the city-states was Sparta. It was very tradition-bound and one of its legendary law-givers, Lycurgus, had even forbidden the writing of the laws of the city-state. Instead, they were driven into the minds of Spartans by rigorous training that every citizen underwent during his youth.

Due to the growth of the complexities of administration and the size of modern nation-states, the direct democracy of Athens, Sparta and the other Greek city-states is no longer feasible.

In the modern era, people can however, through representative democracy, exercise their inalienable right to self-determination by deciding how and by whom they wish to be governed.

People in modern democracies generally exercise their sovereignty by giving themselves a constitution that outlines the ground rules under which certain powers are transferred to different organs of the state. And these state organs then exercise the powers vested in them towards the well-being of the people in the country.

It needs to be stressed that the constitution is not just a document. Rather, it is a living organism that maintains the sovereignty of the people and of the functioning institutions. It must constantly grow and evolve.

The constitution becomes meaningful only when it represents the aspirations of the people. Also, it must evolve through interpretations by the courts of the land and with the conventions and practices that grow around it in the actual working process.

Constitutions of the majority of independent countries in the world are all written documents, except, rather ironically, the British constitution. But, the unwritten British constitution forms the model for many countries in the world.

It took more than a thousand years for a constitution to evolve in Britain. Rather surprisingly, the unwritten British constitution has lasted longer than most written ones.

The British constitution comprises the laws, customs and conventions which have evolved into a much vaunted system of government.

The sources of the British constitution are found in documents such as:

lStatutes which are printed and published;

lLegal cases as recorded in the Law Reports;

lPolitical conventions which are described in books and journals;

lOpinions of constitutional lawyers, political thinkers and historians that are contained in treatises describing constitutional rights, duties and practices.

The best example of a written constitution in the modern world is that of the United States of America, which was formed in 1787. With its preamble extracted from the Declaration of Independence of 1776, it is a document of some 12 pages and is freely available for anyone to read and study. Most countries in the world have written constitutions.

These include India, Malaysia, Singapore, the Philippines, Australia, Belgium, France, Germany, South Africa, Kenya, Senegal, Mexico, Brazil and Argentina.

Constitutions may be rigid or flexible, depending on the amending procedures enshrined in the documents themselves.

Normally, framers of constitutions who possess vision and farsightedness employ rigid amending procedures, in order to preserve the very heart and soul of the document and to withstand the vicissitudes of future political turmoil that may be in store for the country.

However, this does not mean that it should be impossible to amend a rigid constitution. Any amendments that are found to be necessary may only be made by means of a special amending process provided by the constitution for that purpose.

While framing a rigid constitution, the drafters should always consider the very nature of things, the nature of the lives of the country's citizens, and the fast changing world beyond their borders.

Any change found to be necessary and desirable must follow certain safeguards, such as the following:

lConstitutional changes should occur only after due deliberation in the legislative organs; and,

lThe people of the country should be given an opportunity to express their opinions in the form of a referendum.

There might be several entrenched provisions in a country's constitution to safeguard the rights and freedoms of the citizenry. Those entrenched provisions may also serve as deterrents against armed coups and against those bent on bringing down the democratically elected government by force or violence.

Normally, those articles or entrenched clauses cannot be amended.

The entrenched articles are the safeguards provided to the people for delegating their sovereign power to a representative form of government and serve as the nexus of the social contract between the government and the governed, as well as the binding legal link of the people to their birthright of self-determination.

Finally, I wish to touch on the concept of constitutionalism as it has evolved over the years.

Constitutionalism is both the actual practice of governing a body according to its constitution and the belief in adhering to it. Constitutionalism is bound to define and limit the powers and functions of various organs of the state.

A government under a written constitution is limited to a democratic form of government. The spirit of constitutionalism should provide guarantees and safeguards to every citizen of a country, with their welfare and economic well-being given uppermost priority. Those guarantees should be enforceable if, under any circumstances, they are violated by any state entities.

Penultimately, the framers of the constitution should adhere to a separation of powers amongst the three state organs legislative, executive and judiciary. This is absolutely necessary in order to impose checks on one another.

Montesquie, in his book L'Espirit des Lois, wrote, ''When legislative and executive powers are united in the same person or in the same body ... there can be no liberty. Again there is no liberty if the judicial power is not separated from the legislature and executive."

The framers of the constitution may consider and address their minds to the constitutional suggestions given in this article, namely to provide a people's charter, with the view of taking the country and the people into the next millennium.

A word of caution, however, is very apt in concluding this opinion. The adoption of a constitution is not the end of the journey.

It is only the beginning of the people's journey, taking into account the hazardous distance ahead of them.

If the people who are elected to represent the country are capable ones, with integrity and character, then they would be able to make the best even out of a defective constitution. On the other hand, if those same leaders are lacking in quality, wisdom, character and integrity, then the constitution, no matter how perfect, cannot help Thailand's onward march towards the next millennium.

K T Rajasingham is a independent business consultant for regional governments. He contributed this comment to The Nation
The Nation - Thailand 28/03/1977