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Declaration of the Khana Nitirat: The Draft Constitution and the Referendum

On 29 March 2016, the Constitution Drafting Committee released the new Draft Constitution of the Kingdom of Thailand, B.E.....  for the people to examine before voting in the referendum on whether or not to accept it.
 
The Khana Nitirat: Law for the People has studied the Draft Constitution in detail and has formed initial views about it. These views cover the content of the Draft Constitution, criticism about the merits of the Draft Constitution as advertised, the rules for the referendum itself and the idea of approving the Draft Constitution with the intention to go swiftly to elections and rule by a civilian government.
 
Part 1
The Content of the Draft Constitution
 
The Khana Nitirat has studied and analyzed the content of the Draft Constitution. There are several significant points to make about the temporary provisions and other aspects of the content.
 
The Temporary Provisions of the Draft Constitution

1.1.1 Absolute Power of the Head of the National Council for Peace and Order

After the Interim Constitution expires and a permanent constitution is promulgated in order to establish a new system of law, in principle, the authority of the junta must cease.  This is a general principle that applies to compiling constitutions and has always been the case in the history of constitutions in Thailand. But Article 265 in the Draft Constitution instead stipulates that the Head of the National Council for Peace and Order (NCPO) will continue to retain authority according to Article 44 of the 2014 Interim Constitution until the first Cabinet enters office. This is equivalent to the Head of the NCPO retaining the highest and most absolute authority. Enacting a constitution with this characteristic makes important measures in the Draft Constitution, particularly those which pertain to the protection of the rights and liberties of individuals, completely meaningless. This is because the Head of the NCPO is able to use the aforementioned authority to violate the rights and liberties of the people and those whose rights and liberties are violated will be unable to challenge these violations in any way. Therefore, voting to approve this Draft Constitution is equivalent to the individuals who hold rights and liberties giving consent to the Head of the NCPO to use his power under Article 44 to violate their rights and liberties without having to be held to account.  
 
1.1.2 Composition of the Senate During the First Five Years After the Promulgation of the Constitution
 
Article 269 of the Draft Constitution stipulates that some members of the Senate will be appointed by the commanders of the military and police force and some will be selected by the NCPO. According to the Draft Constitution, the role of the Senate is important as it holds the authority and function to amend the constitution, promulgate laws, grant approval to appoint individuals to fill positions on the Constitutional Court and in various independent organizations, direct the reform of the country, etc. Given the structure and composition of the Senate, and given that the NCPO will select the members, it will be difficult for the Senate to perform its duties during the first five years after the promulgation of the Draft Constitution without being dominated by the NCPO.
 
1.1.3 The Constitutional Drafting Committee and the Organic Acts
 
Article 267 of the Draft Constitution stipulates that the Constitutional Drafting Committee will continue to operate in order to draft ten Organic Acts, including an Organic Act on Elections within 240 days after the promulgation of the Constitution. 
 
This length of time is too long. It is appropriate to rush to draft the Organic Acts that are necessary for elections so that elections can be held as quickly as possible. In addition, the Draft Constitution does not stipulate any sanctions that may be placed if the Constitutional Drafting Committee does not draft the law within 240 days. A delay may result in the indefinite postponement of elections. 
 
In addition, much important content that should be included in the Constitution has instead been stipulated to be set by the Organic Acts. This includes, for example, how members of the Senate will be selected, as they will not be elected directly. This means that when people vote for or against the Draft Constitution, they may not have all of the information to make their decision. This may result in people voting in favor of the Draft Constitution because they have been misled on important points. If this content was included in the Draft Constitution rather than in the Organic Acts, the people may decide to vote against the Draft Constitution. 
 
1.1.4 The Constitutional and Legal Legitimacy of the Announcements, Orders and the Actions of the National Council for Peace and Order
 
Article 279 of the Draft Constitution stipulates that the Announcements, Orders, and actions of the National Council for Peace and Order (NCPO) and the Head of the NCPO are constitutional and legal, including all related actions, whether they took place before or after the day that the Constitution comes into force. This results in the entirety of actions of the NCPO being constitutional, legal, and beyond contestation, even though they are logically neither constitutional nor legal. The impact of such a constitutional measure is to destroy the status of the constitution as the highest law. Further, this is the first time in Thai constitutional history in which a constitution includes a measure that acknowledges the special powers exercised by the junta to be constitutional and allows the exercise of such special powers under a constitution that is meant to be permanent. Usually, a constitution that is promulgated with the intention to be permanent accepts the principle of the separation of powers and the decentralization of power to various state organs. But under the Draft Constitution, the Head of the NCPO retains and remains able to exercise absolute and decisive power until the first Cabinet takes office. This is incorrect and there are various reasons why it cannot be accepted. 
 
1.2 Content of Other Sections of the Draft Constitution 
 
1.2.1 Method of Electing Members of Parliament
 
Article 83 of the Draft Constitution stipulates that there will be 500 Members of Parliament (MPs). This number is divided into 350 MPs who will be elected by district and 150 MPs who will come from political party lists. Voters have the right to one vote and one ballot. The will result in the elections by district and the political party lists taking place simultaneously. 
 
Setting the system of elections in this fashion deprives voters of the opportunity to directly elect political party list candidates. Instead, the number of votes cast for those in each district will be used to calculate the number of MP seats for each political party. This method of calculation may cause the true intentions of voters to be distorted as they are able to vote for one candidate in their district but are not able to vote for a political party. In a case in which a voter wishes to vote for a given candidate in his/her district, but does not want to vote for the political party, district-based voting may force voters to select candidates on the basis of political party. On the other hand, in cases in which a voter wishes to vote for the party list of one political party, since there is no corresponding ballot, the voter must select a candidate in his/her district who belongs to that party even if s/he does not want to vote for that candidate, so that his/her vote will count in the calculation for the political party list seats. 
 
Within this kind of electoral system, if there is an incident that affects the results of the district elections within the first year, such as if an elected candidate is stripped of his/her right to contest an election, is deemed unqualified, or dies, the allocation of the number of political party list MPs may be affected. This may result in political party list MPs being removed from Parliament and therefore makes their position insecure and uncertain. 
 
The view of the Khana Nitirat is that in order to create an electoral system that reflects the true will of the people and includes both district-based candidates and political party list candidates, then the right of the voters to cast two votes must be stipulated. They must be able to cast a vote for a person running for election in the district and for one political party list, rather than a system in which one ballot and one vote is cast across the district-based candidates and political party lists. 
         
1.2.2 The Composition of the Senate 
 
Article 107 of the Draft Constitution stipulates that members of the Senate will be selected by those who apply to be members. This method of composition of the Senate is not in line with the principles of elections congruent with the standards of a liberal democratic state. This method is further devoid of any link with the people, to whom sovereignty belongs in such a state, as they do not have the right to vote for members of the Senate either directly or indirectly. Lacking the right to elect members of the Senate directly means that the people do not have the right to cast a vote to contribute to the election without an individual or group of individuals serving as an intermediary between the voters and the selected person. Lacking the right to elect members of the Senate indirectly means that the voters are unable to cast a vote to select the group of people who will select the Senators.
 
Upon examination of the authority and functions of the Senate in the Draft Constitution, it is apparent that the constitution drafters assigned many important functions to the Senate. This includes approving individuals to fill positions in the Constitutional Court and various independent organizations and counterbalancing the power of the Parliament in the law promulgation process. The Senate is a joint organization that exercises authority with Parliament in promulgating Organic Acts and amendments to the Constitution. In instances in which the Parliament term is up, Parliament is dissolved or Parliament does not exist, the Senate will take over the performance of key duties. The method of composition of the Senate, by which the Senate is selected with no link to the people, results in the Senate lacking democratic legitimacy in performing its important functions.
 
1.2.3 Governance by the Cabinet
 
Section 16 of the Draft Constitution stipulates there will be various reforms of the country according to the laws on the plan and steps of carrying out the reform of the country. In this case, even though the Prime Minister will be selected by the MPs, who are representatives of the Thai people, and the Cabinet must govern following the wishes of the people, this section of the Constitution stipulates that the Cabinet does not have true authority or independence in setting policy. This section sets out policy in various arenas and forces the Cabinet to carry out duties of the state according to this policy. Therefore, in the Draft Constitution being decided upon by the referendum, the Cabinet is not a true organization with the authority to set public policy according to the needs of the people, but is only an organization of people with the duty to regularly work according to the plan to reform the country set by the junta and the Constitutional Drafting Committee.
 
1.2.4 Authority of the Judicial Organs and Independent Organizations
 
The Draft Constitution stipulates that the judicial organs and the independent organizations have the authority to broadly monitor the executive and legislative branches in a manner that lacks balance. 
 
For example, Article 219 stipulates that the Constitutional Court and the independent organizations hold shared authority to set moral standards which apply to members of their organizations as well as to MPs, Senators, and the Cabinet. If the National Anti-Corruption Commission sees any political officeholder who violates or severely deviates from the moral standards set by the Constitutional Court and the independent organizations, they may hold an inquiry and propose the matter to be ruled on by the Supreme Court. This is the case even though according to Article 235 (1), the Supreme Court may rule that the individual be stripped of his/her political office and stripped of the right to run for elected office for the rest of his/her life. The Supreme Court can further strip the individual of his/her right to vote for up to ten years. 
 
Taken together, Articles 82, 160, and 170 stipulate that if ten percent of the total number of MPs or Senators choose to do so, they may petition the president of the assembly to which they belong to send a petition to the Constitutional Court to remove a minister from office because s/he does not possess “apparent honesty and uprightness.” The Electoral Commission is also able to send such a petition to the Constitutional Court. The meaning of the words “apparent honesty and uprightness” is not clearly defined. The interpretation of the meaning is therefore the subjective interpretation of the Constitutional Court. This makes it easy for the prime minister or another minister to be easily removed from office simply because the Constitutional Court views that the person is not apparently honest and upright or is perhaps honest and upright but the Constitutional Court does not see the evidence of this, even if a reasonable person would see the apparent honesty and uprightness of the person. 
 
With regards to Article 144 on the matter of the examination of the Draft Annual Budget Act, the Constitutional Court is given an important role in ruling on the removal of the entire Cabinet from office and being prevented from carrying out their duties even if a new Cabinet has not entered office. This is in cases in which it is the view of the Constitutional Court that the Cabinet performed an action that directly or indirectly involved the incorrect use of budget funds, allowed such an action, or knew about such an action but did not order its suppression, and it impacted MPs, Senators, or any of the commissions. This measure sets out this out in a manner that is insufficiently clear to determine when and to what aims it is meant to be used. This results in granting the Constitutional Court the power to interpret it widely and it may cause the Cabinet to be easily removed from office. In addition, the punishment for the Cabinet is unreasonable and disproportionate with the actions in question.  The punishment is not in line with the principle of proportionality because the members of Cabinet will be stripped of their lifetime right to run for election and may have to repay the funds in question with interest.
 
The view of the Khana Nitirat is that although it is necessary for the judicial organs and independent organizations to have the authority to monitor the executive and legislative branches, this does not need to be to the degree that these organizations have the authority to easily decide to remove members of the executive or legislative branch from office on the basis of discretion and the interpretation of an unclear phrase.  If so, this would be closer to one of the aforementioned monitoring organizations expressing a political intention rather than analyzing and ruling on a problem of law. In addition, when a constitution provides the judicial organs and the independent organizations with the authority to monitor the executive and legislative organs, which have democratic legitimacy, the judicial organs and independent organizations must also possess democratic legitimacy. This is not the case in the Draft Constitution. 
 
1.2.5 The Tradition of Rule of a Democratic Regime in which the King is Head of State
 
Article 5 of the Draft Constitution stipulates that when a constitutional measure does not exist for a given situation, the action or ruling should follow “the tradition of rule of a democratic regime in which the king is head of state in Thailand.” This should determined by the President of the Constitutional Court holding a Joint Meeting to deliberate and make a decision attended by the President of Parliament, the Parliamentary opposition leader, the President of the Senate, the Prime Minister, the President of the Supreme Court, the President of the Supreme Administrative Court, and the chairs of the independent organizations. 
 
The aforementioned article does not set out which organization or individual is the petitioner who can call for such a Joint Meeting. But it can be interpreted from the measure that the President of the Constitutional Court is the figure with the power to decide when a situation arises for which there is not a constitutional provision and a Joint Meeting should be called. This is case even though such an aforementioned case may instead fall within the arena of power of one of the other constitutional organs which may hold a conflicting interpretation and maintain that the case in one in which an existing constitutional provision applies. In such cases, the President of the Constitutional Court is the dominant figure who decides when there is and when there is not a relevant constitutional provision. Such a decision may violate the authority of the other organizations. 
 
As far as determining the meaning of the phrase, “the tradition of rule of a democratic regime in which the king is head of state in Thailand,” Article 5 of the Draft Constitution sets the interpretation of this to be determined by the Joint Meeting. The rulings of the Joint Meeting are further stipulated as final and binding upon the Parliament, Cabinet, Courts, Independent Organizations, and State Agencies. This provision opens the opportunity for the Joint Meeting to be the dominant figure in setting the meaning of “the tradition of rule of a democratic regime in which the king is head of state in Thailand.” This meaning will then be able to be used in any given situation pertaining to any given topic. 
 
The truth is that in a constitutional legal system, the constitutional organs have the authority to interpret the constitution in their own arena of authority and function. The interpretation of the constitution by various organizations will impact the division of authority and function in a balanced fashion. But when Article 5 of the Draft Constitution gives the interpretive authority noted above to the President of the Constitutional Court and the Joint Meeting, this causes them to hold authority over other organizations. This is even more the case upon examination of the composition of the Joint Meeting, which is comprised of a greater proportion of unelected than elected organizations. This is a significant point as it means that the Draft Constitution stipulates that organizations which lack democratic legitimacy have a greater authority than organizations which possess democratic legitimacy in deciding matters of utmost importance about the use of the constitution.
 
In addition, the context of Thai political history illustrates that there have been attempts to interpret the meaning of the phrase, “the tradition of rule of a democratic regime with the king as head of state,” to be used as a channel to cease enforcing some articles of the constitution or to call for a royally-appointed prime minister. Therefore, if further political conflict arises in the future, there is the possibility that the claim that it is a situation not constitutionally-provided for will arise in order to create an opening for the President of the Constitutional Court and the Joint Meeting to rule in a manner that will create impacts in one way or another that are in conflict with the intention of the majority of the people and will be binding upon all state organizations. This will cause those who wish to seek political power to use this shortcut to obtain it rather than seeking out support from the people. 
         
1.2.6 Amending the Constitution
 
The regulations about amendment appear in Section 15 of the Draft Constitution. Upon consideration, it is evident that the Constitution Drafting Committee has set out a process that makes it very difficult to amend the Constitution. That is to say, in the first reading, which is the stage of accepting a draft law in principle, no fewer than half of the total number of all MPs and Senators must approve the amendment. At least one-third of all Senators also must approve the amendment. This means that even if the majority or all MPs approve an amendment to the Constitution, if less than one-third of Senators agrees with the amendment, the draft amendment will not pass the first reading. If the draft amendment passes the first and second reading, in the third reading, in addition to needing the support of more than one half of the total number of MPs and Senators, the constitution drafters further stipulated that within the total number of MPs who approve the draft amendment, there must be approval by at least 20% of the MPs from each political party that does not hold any Cabinet seats or the positions of President or Vice President of Parliament. No less than one-third of all Senators must approve the amendment as well. Further, the constitution drafters stipulated that the Constitutional Court may also control and examine amendments to the Constitution. This can occur when a specified number of MPs or Senators petition the Constitutional Court to examine whether or not the amendment is inconsistent with the limitations on amendment. This results in making the Constitutional Court the organization that holds binding power to set the meaning of the limitations on amendment to the constitution. Even though it is stipulated that referendums must be held on constitutional amendments in some cases, the referendum does not reflect that the people hold the sovereign power as the Constitutional Court holds the aforementioned power to set limitations on amendment. 
 
Moreover, as the NCPO will have a significant role in selecting Senators during the first five years after the promulgation of the Draft Constitution, amendment will be even more difficult during this period. The reason is that it is nearly impossible that one-third or more of the Senators selected by the NCPO will approve an amendment. If the Senators do not approve an amendment, even if all of the MPs are in accord about it, the proposed amendment can simply fall away during the first reading by Parliament.
 
 Making it this difficult to pass an amendment is inconsistent with striking a balance between the difficulty of amendment necessary in order to preserve the security of the Constitution and the ease of amendment in order to be in line with changes in the country and political dynamics. The view of the Khana Nitirat is that setting the process of amendment as such will greatly reduce the opportunities to amend the Constitution in such a fashion that it will be acceptable to civilized nations. Setting the process in this manner may also result in attempts to change the Constitution via violent means, without anyone being able to take responsibility for any violence that may arise.
 
 
Part 2
Criticism About the Advertised Merits of the Draft Constitution
 
The Constitution Drafting Committee and various related organizations have raised the merits of the Draft Constitution as selling points to campaign for people to vote in favor of it. The Khana Nitirat has examined the advertisements and public relations campaigns and offers the below views. 
 
2.1 The Draft Constitution Will “Suppress Corruption” 
 
The constitution drafters claim that the Draft Constitution has an intention to strictly and decisively protect, audit, and wipe out corruption and dishonest behavior. They further say that the Draft Constitution is a “corruption-suppressing draft constitution.”
 
The Khana Nitirat does not have any objections to state policies that aim to protect, audit, and wipe out corruption, if this is not carried out in a selective manner, is built on the basis of reason, done in a reasonable fashion, and is in line with the judicial process under the rule of law.  However, constitutions, by content, are fundamentally laws that establish political institutions, set the relationships among political institutions, and guarantee the rights and liberties of individuals. Most importantly, constitutions must set the fundamental shared value of all people in society so that the people can live peacefully together. Examining constitutional law in detail, it is clear that constitutions are not laws with the purpose to protect against and suppress corruption. Even if a constitution is written in order to protect against and suppress corruption, it will be unable to do so. If protection against and suppression of corruption could be done by simply writing a constitution, then all of the civilized countries would perhaps write constitutions in order to do so and corruption would cease to exist. But no such instance can be found because protection against and suppression of corruption has many essential elements, especially a democratic political culture and a balanced system of monitoring. 
 
Moreover, upon circumspect and detailed examination of the Draft Constitution, the provisions that are cited as and believed to be mechanisms of preventing and suppressing corruption are in fact mechanisms that only intend to monitor organizations whose membership is elected by the people. All of the unelected organizations, such as the independent organizations and the various judicial organs, especially the Supreme Court and the Constitutional Court, are not monitored. This is not a balanced monitoring system in which the unelected organizations are counterbalanced by the elected political organizations, even though those organizations also exercise state power just like the elected ones. Further, some parts of the Draft Constitution which have been claimed to have been written to protect against and suppress corruption, are not about corruption or dishonest behavior, but instead are political measures. 
 
The Khana Nitirat therefore views the claim that the Draft Constitution aims to protect against and suppress corruption to be in conflict with the truth. The Draft Constitution is inclined to selectively monitor some groups that exercise state power and the view of the Khana Nitirat is that it does not establish a system of monitoring between organizations in a balanced way.  
 
2.2 The Draft Constitution and the Protection of Individual Rights and Liberties
 
The constitution drafters claim that this Draft Constitution intends to acknowledge, safeguard, and protect the rights and liberties of all Thai people. 
The view of the Khana Nitirat is that the provisions which acknowledge the rights and liberties may not be enforced simply because the constitution drafters only stipulated that they be acknowledged in the Draft Constitution. Mechanisms which have the capacity to protect rights and liberties must be set, including regulations that guarantee that the limitation of rights and liberties acknowledged by the Draft Constitution will only be as far as permitted by the Draft Constitution and the limitations on rights and liberties will not affect the important core or essence of those rights.  
 
Even though this Draft Constitution contains the acknowledgment of rights and liberties, like earlier constitutions, restrictions have been added via unclear and uncertain wording and with the use of general terms. These terms include, for example, “public order,” “good morals of the people,” “national security,” “safety of the state,” and even the phrase, “another reason as stipulated by law.” This causes the state to be able to broadly violate the rights and liberties of the people. At the same time, the provisions which would place limitations on the drafting of additional laws which restrict rights and liberties only as necessary and without impacting the important core and essence of rights and liberties, which were included in the 1997 and 2007 Constitutions and are very important provisions, are not included in this Draft Constitution. This is the case even though the aforementioned provisions were significant for guaranteeing that the rights and liberties of the people as defined in the relevant constitutions would not be violated by state power. By not legislating limitations on the drafting of laws which would restrict rights and liberties, it becomes possible for the state to draft laws that will impact core rights and liberties by citing vague and broad terms. The impact of this will be to make the acknowledgment of rights and liberties in the Draft Constitution meaningless.  
 
In addition, if an individual wants to contest an Announcement or Order of the Head of the NCPO or the NCPO or a related action or an Order of the Head of the NCPO relying on authority from the 2014 Interim Constitution, on the basis that it violates the rights and liberties acknowledged by the Draft Constitution and is inconsistent with it, the individual may be unable to do so. This is because Article 37 and Article 44 of the Interim Constitution and Article 279 of the Draft Constitution acknowledge that these actions are constitutional and legal. This is equivalent to setting the actions of one group as those that cannot be challenged as being a violation or rights and liberties under the Constitution. This makes those actions of the state, even though they violate the rights and liberties, unable to be monitored as long as they are acknowledged as unchallengeable by the Constitution. 
 
For these reasons, the claim that the Draft Constitution is one that intends to acknowledge, protect, and safeguard the rights and liberties of individuals is therefore not in accord with the provisions that appear in the Draft Constitution itself.
 
2.3 The Draft Constitution as a Constitution for Reform and to Create Reconciliation
 
The constitution drafters claim that the Draft Constitution intends to reform the country and create reconciliation. 
 
The view of the Khana Nitirat is that for true reform and reconciliation to occur, there must be wide participation of people from every perspective who argue and debate until acceptable consensus arises. Every side must respect the principle of the fundamental value of argument and debate. If the method of reform and reconciliation is set solely by the NCPO, the government that was created by the coup, the National Legislative Assembly, the National Reform Steering Assembly, and the Constitution Drafting Committee, reform and reconciliation will be difficult to achieve. The case may be that in truth, it may not be possible to say that the Draft Constitution has the intention to reform the country and create reconciliation. This is because it is not built on the basis of every side participating in the process in line with democratic principles. 
 
Part 3
Rules of Voting in the Referendum on the Draft Constitution
 
It is generally accepted that a referendum is held in order to give the people the right to decide directly on political matters, constitution drafts, law drafts, or important state policies. In order for a referendum to be a mechanism that reflects the true intention of the people, it must take place within a democratic atmosphere and without direct or indirect or implicit or explicit pressure or influence from those who hold power. In addition, there must not be any destruction of the credibility of any side with unreasoned accusations. This also includes opening channels for both those who agree and those who disagree with the Draft Constitution to have the opportunity to campaign in order to reach their legitimate goal using democratic means. State mechanisms must not be used in order to afford preference to one or another side. It seems as though this kind of atmosphere may not occur in the case of this referendum. This may impact the acceptance of the result of this referendum in the future as well.
 
When considering a decision to hold a referendum, the state needs to allow the people, who hold sovereignty, to have a clear choice so that they can express their true will. This referendum has had problems with availability of only incomplete information from the beginning. For those who will vote in favor of the Draft Constitution, they know that they are voting to accept the enforcement of its content from the day it is promulgated. But those who do not agree with the content of the Draft Constitution and decide to vote against it do not know what will come next. This kind of regulation is one that reflects a problem with respect to justice for the voters and may also impact the acceptance of the result of the referendum in the future as well. This is a result of the lack of clarity of what will happen next if the Draft Constitution is not passed.  One portion of the people may think that this referendum is actually non-binding. 
 
Part 4
Agreeing to this Draft Constitution May Not Lead to Swift Elections and Rule by a Civilian Government
 
In holding a referendum on the Draft Constitution, a portion of the people may understand that if the referendum passes, elections will soon be held. The Khana Nitirat has examined the provisions in the Draft Constitution in detail and this is not the case. This is because if the Draft Constitution passes the referendum and is promulgated, there will then be a period of 450 days or 15 months for the Constitution Drafting Committee to propose the various Organic Acts and in order to prepare to hold elections. This is a very long period of time. In addition, Article 268 of the Draft Constitution stipulates that elections are to be held within 150 days after the four Organic Acts necessary to validate the results of the elections are passed. This means that elections may be held more quickly than 15 months. But it is not clear how quickly the Constitution Drafting Committee must draft the Organic Acts that are necessary to validate the results of the elections. Simultaneously, even though the length of time is stipulated in the Draft Constitution as noted above, what will happen if these matters are not carried out within the specified time is not stipulated. In addition, Article 265 of the Draft Constitution stipulates that the Head of the NCPO retains absolute and decisive power as before. This absolute and decisive power means that he can use the aforementioned power to take any action he deems appropriate and necessary. Such actions may impact the holding of elections in line with the time set by the Draft Constitution. 
 
As regards the return to civilian rule, a portion of voters may decide to support the Draft Constitution because they see it as a way to end the power of the NCPO and return to civilian rule. The Khana Nitirat has analyzed the provisions on this matter and it is our view that after a new constitution comes into force, the NCPO will retain authority as usual until a Cabinet is established. If examined from the principles of law about the continuity of the state and governance, the current Cabinet must continue to carry out its duties until a new Cabinet comes into office. However, remaining in office and carrying out duties must apply only to the Cabinet and not be extended to the organizations allotted special powers by the coup. Therefore, in the case that the Interim Constitution is no longer in force and a permanent Constitution is promulgated in order to create a new constitutional system, the organizations which have had special powers in the time of the coup under the Interim Constitution, namely the NCPO, must cease to exist. If the special organizations from the coup remain in power following a Constitution which is intended to be permanent, this will impact the new constitutional system and may prevent it from becoming fully formed. It can perhaps be said that if the Draft Constitution passes the referendum, the absolute, decisive power of the Head of the NCPO will not cease but will become one part of the power structure in the new constitutional system. This will be the case at the very least until the new Cabinet enters power.
 
For all of these reasons, the Khana Nitirat cannot support the Draft Constitution to be the highest law in the land and would likely to publicly express that we do not accept the Draft Constitution of the Kingdom of Thailand, B.E. ... If the Draft Constitution does not pass the referendum, the view of the Khana Nitirat is that it is appropriate for those who hold power to halt the constitution drafting process and return the power to the people to decide upon a Constitution.
                                                                      
                      
Khana Nitirat: Law for the People                                                                                                                                     7 April 2016
                                                                                     
 

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