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Cablegate: New Constitution Would Require Parliamentary Oversight Of

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1. (SBU) Summary: Article 190 of Thailand's new Constitution
outlines procedures for negotiating and approving international
agreements, including requirements for obtaining parliamentary
approval and holding public hearings. Ministry of Commerce and
Ministry of Foreign Affairs officials have expressed concern that
Article 190's provisions could complicate negotiations and delay
passage of important agreements. An eventual U.S.-Thailand Free
Trade Agreement would likely be exempted from some of the law's
provisions as negotiations have already begun, but would be subject
to a parliamentary vote. End Summary.

2. (SBU) Thailand's Constitutional Drafting Committee expanded the
previous Constitution's provisions on negotiation of agreements to
include a requirement for parliamentary approval for international
agreements and treaties, including, and perhaps especially, trade
agreements. Article 190's provisions require the government to
submit a negotiation framework for parliamentary approval before
negotiations may begin, disclose relevant information to the public,
and hold public hearings before and after negotiations. The Article
also requires the government to undertake remedies for those
affected by implementation of such a treaty.

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3. (SBU) Dr. Somkid Lertpaitoon, professor of Economics at
Thammasat University and a leading member of the Constitution
Drafting Assembly, said the drafting committee on Article 190 was
led by a liberal group that had been frustrated that former PM
Thaksin shut the National Legislative Assembly (NLA) out of the
negotiating process for international agreements. The previous
constitution held no provision requiring parliamentary involvement
in approval of international agreements and no role in guiding
negotiations. Previous governments have been able to conclude
international treaties as executive agreements. Although Article
190 requires parliamentary involvement in a wide array of agreements
and treaties, Dr. Somkid said that foremost in the minds of
Constitutional drafters was a perceived lack of transparency in
negotiations of trade agreements during Thaksin's term, including
the U.S.-Thailand Free Trade Agreement (FTA).

4. (SBU) The Ministry of Foreign Affairs is tasked with drafting
legislation to enact Article 190's provisions, but is also competing
with a draft that the NLA has already drawn up on its own. Dr.
Surichai Wun'Gaeo, a professor at Chulalongkorn University and one
of the principal drafters of the NLA version, said the government
would likely give priority to the MFA's version. He considered the
NLA version as more of a stimulus, intended to influence the MFA in
their own drafting. Dr. Virachai Plasai, Director General of the
MFA's treaty office, said Section 303 of the Constitution requires
that the Council of Ministers complete the law to implement Article
190 within one year after the "declaration of policies to the
National Assembly," likely to take place by March 2008. However, a
Ministry of Finance official told us Nov. 14 that the MFA-drafted
version is now ready to go to the cabinet by November 20 with the
hope that it can be passed by the NLA before the elections in
December. She added that a key provision of the MFA draft will
limit the requirement for Parliamentary approval to trade-related

Key Provisions

5. (SBU) Article 190 requires parliamentary approval of any treaty
or agreement that changes Thai territory or has "extensive impacts
on the country's economic and social stability, or has significant
bindings on trade, investment, or national budget." Although the
Article does not specify how the NLA would approve a treaty, Dr.
Somkid said he presumed the NLA would consider agreements in a
strict up-or-down vote and would not have the authority to make
changes to a negotiated text. The Ministry of Finance told us that
language in both the NLA and the government-sponsored MFA versions
simply require "approval" by the NLA and presume that the NLA will
not have scope to review individual provisions of agreements. The
NLA would have only 60 days from receipt of the agreement to make
its decision.

6. (SBU) Paragraph 3 of the article requires the Cabinet to
"propose the negotiation framework to the National Assembly for
approval," prior to beginning negotiations. Ministry of Commerce
officials expressed uneasiness that the provision could require them
to publicize their negotiation strategy and bargaining positions
before talks could even begin. Mr. Winichai Chaemchaeng, Deputy DG
of the Department of Trade Negotiations, said his Department
presumes that the Article's drafters intended the Ministry to
present a broad set of goals rather than specific positions, but is
concerned about how implementation of the law will play out.

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7. (SBU) Paragraph 3 also requires the Cabinet to conduct public
hearings before concluding a treaty, and after its signing, to
"provide access to the details of the treaty to the public."
Professor Surichai said the intention of the language was not to
slow approval of trade agreements though it would likely have that
effect. He conceded that groups would attempt to take advantage of
the public hearing process to block approval, but said they would be
less likely to be successful if the deliberation process were truly
open. He compared the proposed approval process favorably to the
U.S. system for approving trade agreements and said Thailand needs
to learn more about the U.S. system.

8. (SBU) Paragraph 4 requires that if the public or small- and
medium-sized businesses are affected by an agreement, that the
government "shall take steps in rectifying or remedying the impacts
suffered by aggrieved persons..." Deputy DG Winichai said the
provision did not refer to making changes to a signed agreement to
protect affected parties, but rather a requirement to institute a
form of assistance not unlike the U.S.'s Trade Adjustment Assistance
program. Thailand already has a limited program in place, with a
focus on assisting impacted industries by funding research and
development, rather than assisting specific companies or

9. (SBU) Deputy DG Winichai chafed at the Constitution's new
requirements, saying that obtaining Cabinet approval for trade
agreements is already a difficult challenge, and his Department now
would have to satisfy the NLA and feisty non-governmental
organizations as well. Dr. Virachai at the MFA said his office's
task was to draft legislative language that was "reasonably
detailed" to give civil society a voice in the negotiation process,
but flexible enough to allow the government to credibly handle
negotiations. Another academic observer who spoke to Econoff
sniffed at the MFA's concerns, saying the Ministry is unconcerned
about transparency and democratic procedure and suspected that they
simply wants to avoid the extra workload that public hearings and
NLA approval would entail.

U.S.-Thailand FTA Affected

10. (SBU) Dr. Virachai said that the Constitutional provisions
would apply to any continuation of negotiations on a U.S.-Thailand
Free Trade Agreement, but would not affect the work done to date
("What's done is done."). Section 305 of the Constitution states
that the provisions of paragraph 3 of Article 190 will not apply to
work done prior to the promulgation of the Constitution, but "shall
apply to acts which remain incomplete and require further action."
A completed U.S.-Thailand FTA would, therefore, be subject to
parliamentary approval.

11. (U) Full text of Article 190 follows:

Section 190. The King has the prerogative to conclude a peace
treaty, armistice and other treaties with other countries or
international organizations.

A treaty which provides for a change in the Thai territories or
extraterritorial areas over which Thailand has sovereign rights or
has jurisdiction in accordance therewith or in accordance with
international law or requires the enactment of an Act for the
implementation thereof or has extensive impacts on national economic
or social security or generates material commitments in trade,
investment or budgets of the country, must be approved by the
National Assembly. For this purpose, the National Assembly shall
complete its consideration within sixty days as from the receipt of
such matter.

Prior to taking steps in concluding a treaty with other countries
or international organizations under paragraph two, the Council of
Ministers shall provide information and cause to be conducted public
hearings and shall give the National Assembly explanations on such
treaty. For this purpose, the Council of Ministers shall submit to
the National Assembly a framework for negotiations for approval.

When the treaty under paragraph two has been signed, the Council of
Ministers shall, prior to the declaration of intention to be bound
thereby, make details thereof publicly accessible and, in the case
where the implementation of such treaty has impacts on the public or
operators of small- or medium-sized enterprises, the Council of
Ministers shall take steps in rectifying or remedying the impacts
suffered by aggrieved persons in an expeditious, appropriate and
fair manner.

There shall be the law on the determination of procedures and

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methods for the conclusion of treaties having extensive impacts on
national economic or social security or generating material
commitments in trade or investment and the rectification and
remedying of impacts suffered by persons in consequence of the
implementation of such treaties, having regard to justice to persons
benefited and persons aggrieved by the implementation thereof as
well as to general members of the public.

In the case where there arises a problematic issue under paragraph
two, the power to make the determination thereon shall be vested in
the Constitutional Court and, for this purpose, the provisions of
section 154 (1) shall apply mutatis mutandis to the referral of the
matter to the Constitutional Court.

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