Hemaraj Land And Development Public Company Limited announced its operating and financial results for Quarter 3, 2009 and year to date as summarized below.
Quarter 3’2009 and 9 months of 2009 Net Income
For Quarter 3’2009, Hemaraj reported Total Net Income of Baht 75.6 million, or a decrease of 81% compared with the same period last year. Earnings per-share was 0.008 Baht per share, representing a decrease of 81% from the same period of last year.
For the first 9 months of 2009, Hemaraj reported Total Net Income of Baht 422.9 million, or a decrease of Baht 842.7 million or 67% compared with the same period of 2008. The decrease of Net Income from Operating Business for Quarter 3’2009 and the first 9 months of 2009 was mainly due to lower industrial land sales and no property sales compared to the same period of the prior year. Earnings per-share was 0.045 Baht per share, representing a decrease of 67% from the same period of last year.
David Nardone, President and CEO of Hemaraj Land And Development Public Company Limited had the following comments on the company’s performance.
“Total Revenue of Baht 1,723 million for the first 9 months of 2009 represents a decrease of 59% from last year. Hemaraj Total Net Income was Baht 423 million for the same period.
All things considered, the first nine months of 2009 has shown reasonable performance in coping with the severe international and local conditions while benefiting from increasing broad recurring revenue. We continued to be profitable with a strong balance sheet for future positioning.
As noted at year-end 2008 and the first half of 2009, global economic conditions led to a dramatic collapse in durable goods consumption. Subsequent reductions in production levels to reduce inventory reflecting lower demand have now stabilized. Thailand is starting to return to more normal run rate levels of production particularly for petrochemicals with increases in purchasing and other durable goods leading indicators.
The investment in Hemaraj’s business model will remain attractive. Thailand has in the past provided an improving investment climate and predictable rules of law enforcement. However, there are current environmental concerns where investors have complied with the rules and laws in place and are seeking the government resolve for the protection of their rights and investment.
The opportunity remains for Thailand to benefit from the investment relocation and expansion of production to strategic locations based on cost currency and market access. Industrial cluster opportunities will continue for automotive, petrochemical, and other industrial sectors long term, particularly at Hemaraj’s “Detroit of the East” automotive cluster in the Eastern Seaboard and Hemaraj’s petrochemical cluster in MapTaPhut, Rayong.
Hemaraj has 77% lower revenue from industrial estate sales for the first nine months of 2009. Encouragingly we have seen a 26% growth in Utilities revenue and an 11% growth in Rental
Property revenue year to date. Our broadened recurring revenue strategy and a strong balance sheet shielded market disruption while recovering to a normal level continues.
We further continued our investment in the Gheco-One IPP power project, being on schedule.
The Hemaraj business and financial plans reflect current conditions as well as opportunities in order to optimize predictable returns to shareholders. We are cautious of economic political and market risks and appreciate the appropriate responsibility entrusted to us.”
Revenue and Results of Operations for 9 Months of 2009
For the first 9 months of 2009, Hemaraj’s Total Revenue was Baht 1,723.0 million compared with Baht 4,181.9 million for the same period of 2008, representing a 59% decrease. Total Operating Revenue from core businesses was Baht 1,738.0 million, a 56% decrease from the same period of 2008. Industrial Estate Land Sales for the first 9 months of 2009 including Profit from Associated Industrial Estate were Baht 563.6 million, or a 77% decrease. There is an additional Baht 762 million in deferred revenue from Industrial Estate Land Sales not recognized to date, based on the percent completion method from 3 industrial estate new phase developments and representing sales that will be recognized primarily over the next 3 to 18 months.
Total Utilities Revenue including industrial estate utilities, profit dividend from power utilities associates, and other utilities and services fees increased to Baht 809.4 million, an increase of 26%. Total Rental Revenue including SME factory rental, pipe-rack rental, and commercial office rental increased to Baht 391.2 million, an increase of 11%. There was no Sale of Property including SME factory sales, residential sales and other land/property for 2009 to date.
The Gross Profit was Baht 755.5 million, a 54% decrease from the same period of last year. Earning Before Interest Tax Depreciation and Amortization (EBITDA) were Baht 446.0 million, a decrease of 66%. The Gross Profit Margin and EBITDA Margin were 46% and 26%, respectively, the latter reflecting lower operating leverage.
Significant Activities for the first 9 months of 2009
- Industrial Estate Sales were net 74 rai with 13 contracts, 10 new customers and 3 project expansions from existing customers. Total industrial customers are now 404 distinct new customers with 597 contracts and 135 automotive customers.
- Hemaraj jointly invested with Glow in Houay Ho Power, (Hemaraj’s effective shareholding 12.75%, USD 7.74 million) a company operating a 152 Megawatt Hydro Power Plant in Laos selling electricity to EGAT.
Balance Sheet Highlights at 30th September 2009
At 30th September 2009 Hemaraj reported Total Assets of Baht 13,445 million, Total Liabilities of Baht 5,144 million and Total Shareholders Equity of Baht 8,301 million. The Net Debt to Equity ratio remained low at 0.54 to 1. Cash on Hand was Baht 667 million and Cash Deposit for Power Project was Baht 2,060 million.
For information concerning Hemaraj Land And Development, please visit our website at www.hemaraj.com.
Saturday, November 21, 2009
Wednesday, November 11, 2009
HK TIGHTENS REGULATIONS ON SALES OF DERIVATIVES
Officials in Hong Kong said yesterday regulations on the sale of complicated investment products have been tightened after thousands of local retail investors were burned by Lehman Brothers-backed derivatives last year.
But lawmakers said the new measures fall short and urged the government to prosecute banks that misled investors and to ban some risky products outright.
Under the new regulations, banks must issue risk warnings for complex products and record conversations between their sales staff and clients to prevent deception, KC Chan, Secretary for Financial Services and the Treasury, said at a legislative hearing yesterday. The government is also considering setting up an investor education body and a financial services ombudsman, he said.
The measures come after 30,000 Hong Kong small investors who bought US$1.8 billion (Bt60.2 billion) in Lehman-linked derivatives were left in limbo after the US investment bank collapsed September last year. They weren't fully aware of the risk their investments carried, many of the complex derivatives were innocuously labelled "mini-bonds", angry investors took to the streets.
Hong Kong regulators announced a settlement with 16 local banks in July that returned up to 70 per cent of principal to the buyers, or up to $6.3 billion Hong Kong dollars (B27.2 billion).
Opposition lawmaker Ronny Tong criticised the government for not focusing on legal action. "I think it's strange that there is not a single case of prosecution after investigating for more than a year," Tong said.
Another lawmaker, Albert Ho, asked Chan why the government didn't consider banning certain risky products altogether, as do a number of other developed markets when it comes to selling to retail investors.
"Your approach is still disclosure-based. As long as you disclose the risks, if the disclosure is fair and comprehensive, you can cell anything. But shouldn't the government exercise discretion and ban certain products that are very complicated, very risky or whose terms are unfair to investors?" Ho said.
Chan argued disclosure-based regulation is the international norm, adding that the new measures require bank staff to explan their products in layman's terms and assess their clients' appetite for risk.
But lawmakers said the new measures fall short and urged the government to prosecute banks that misled investors and to ban some risky products outright.
Under the new regulations, banks must issue risk warnings for complex products and record conversations between their sales staff and clients to prevent deception, KC Chan, Secretary for Financial Services and the Treasury, said at a legislative hearing yesterday. The government is also considering setting up an investor education body and a financial services ombudsman, he said.
The measures come after 30,000 Hong Kong small investors who bought US$1.8 billion (Bt60.2 billion) in Lehman-linked derivatives were left in limbo after the US investment bank collapsed September last year. They weren't fully aware of the risk their investments carried, many of the complex derivatives were innocuously labelled "mini-bonds", angry investors took to the streets.
Hong Kong regulators announced a settlement with 16 local banks in July that returned up to 70 per cent of principal to the buyers, or up to $6.3 billion Hong Kong dollars (B27.2 billion).
Opposition lawmaker Ronny Tong criticised the government for not focusing on legal action. "I think it's strange that there is not a single case of prosecution after investigating for more than a year," Tong said.
Another lawmaker, Albert Ho, asked Chan why the government didn't consider banning certain risky products altogether, as do a number of other developed markets when it comes to selling to retail investors.
"Your approach is still disclosure-based. As long as you disclose the risks, if the disclosure is fair and comprehensive, you can cell anything. But shouldn't the government exercise discretion and ban certain products that are very complicated, very risky or whose terms are unfair to investors?" Ho said.
Chan argued disclosure-based regulation is the international norm, adding that the new measures require bank staff to explan their products in layman's terms and assess their clients' appetite for risk.
OWNING A HOTEL OR GUEST HOUSE IN THAILAND
We've reached the end of our series on opening a hotel in Thailand. We have, however, received a number of questions from readers about this issue. Here are synopses of some of the questions that were frequently asked, and how we answered.
What licensing is required to open restaurants located in hotels?
Every restaurant must have:
- A commercial registration certificate for the sale of goods;
- a certificate or permit to keep and sell food;
- a permit to operate a business dangerous to health for activities such as baking and mixing beverages, if required by local legislation;
- permits to sell liquor and cigarettes from the nearest excise office.
We wrote a three-part series on opening a restaurant in this column late last year. This covers a lot of the basics we don't have space for here. You can take a look at it by visiting our website (address below). Also, you should know that restaurants in hotels can't be open past midnight without a permit.
ILLUSTRATION: NATTAYA SRISAWANG
If I'm an investor in a hotel, do I need a work permit to participate in the management of it?
If you are a foreigner and you are working in Thailand you will need a work permit. This includes part-time supervision of employees at a hotel, even if you are an owner of it and/or live there.
A few important issues about getting a work permit:
- To get a work permit you have to get a non-immigrant B visa from a Thai embassy outside of Thailand, even if you are already in Thailand on another visa;
- the company that owns the hotel must have paid-in capital of two million baht for each work permit it gets. Also, there should be four Thai employees for each work permit the company receives;
- to get a work permit you must bring some expertise to the table, ideally something in short supply in Thailand.
I run a development in which each house is owned by a separate person or couple, many of whom are outside of Thailand most of the time. Can I have a rental pool for these houses and run it as a hotel?
The idea of a rental pool is that some or all of the owners in a development or apartment building allow their units to be used as hotel suites while they are away. For this the owners are paid part of what the hotel guests pay, and a manager, who runs the hotel part of the operation, is paid the rest.
The rule in Thailand is that if the rental pool rents units out for 30 or more days at a time, this is fine. If you are running the rental pool as a hotel, in which guests can come and stay for as little as a single night, the rental pool will have to have a hotel licence. In this case, all of the rules about getting a hotel licence, including the environmental regulations we discussed last week, will be applicable.
If you apply for the environmental approvals after building the resort, government officers may condition approvals on changes in what has already been built. Thus you should strongly consider applying for environmental approvals before building.
Can I set up a condotel in Thailand?
A condotel is where the developer finances the construction by making each unit a condo and selling these to individual investors. The units are then run as a hotel with the profits divided between the developer, the hotel operator and the investors who own the condos.
The way the environmental licenses now work, however, is that applications for them must be different for condominiums and for hotels. Also, separate environmental licenses cannot be approved for both a condo and a hotel for the same building. Thus it's no longer possible without violating the law to develop a condominium that also has a hotel licence.
James Finch of Chavalit Finch and Partners (finch@chavalitfinchlaw.com) and Nilobon Tangprasit of
Siam City Law Offices Ltd
For more information visit
http://www.chavalitfinchlaw.com.
What licensing is required to open restaurants located in hotels?
Every restaurant must have:
- A commercial registration certificate for the sale of goods;
- a certificate or permit to keep and sell food;
- a permit to operate a business dangerous to health for activities such as baking and mixing beverages, if required by local legislation;
- permits to sell liquor and cigarettes from the nearest excise office.
We wrote a three-part series on opening a restaurant in this column late last year. This covers a lot of the basics we don't have space for here. You can take a look at it by visiting our website (address below). Also, you should know that restaurants in hotels can't be open past midnight without a permit.
ILLUSTRATION: NATTAYA SRISAWANG
If I'm an investor in a hotel, do I need a work permit to participate in the management of it?
If you are a foreigner and you are working in Thailand you will need a work permit. This includes part-time supervision of employees at a hotel, even if you are an owner of it and/or live there.
A few important issues about getting a work permit:
- To get a work permit you have to get a non-immigrant B visa from a Thai embassy outside of Thailand, even if you are already in Thailand on another visa;
- the company that owns the hotel must have paid-in capital of two million baht for each work permit it gets. Also, there should be four Thai employees for each work permit the company receives;
- to get a work permit you must bring some expertise to the table, ideally something in short supply in Thailand.
I run a development in which each house is owned by a separate person or couple, many of whom are outside of Thailand most of the time. Can I have a rental pool for these houses and run it as a hotel?
The idea of a rental pool is that some or all of the owners in a development or apartment building allow their units to be used as hotel suites while they are away. For this the owners are paid part of what the hotel guests pay, and a manager, who runs the hotel part of the operation, is paid the rest.
The rule in Thailand is that if the rental pool rents units out for 30 or more days at a time, this is fine. If you are running the rental pool as a hotel, in which guests can come and stay for as little as a single night, the rental pool will have to have a hotel licence. In this case, all of the rules about getting a hotel licence, including the environmental regulations we discussed last week, will be applicable.
If you apply for the environmental approvals after building the resort, government officers may condition approvals on changes in what has already been built. Thus you should strongly consider applying for environmental approvals before building.
Can I set up a condotel in Thailand?
A condotel is where the developer finances the construction by making each unit a condo and selling these to individual investors. The units are then run as a hotel with the profits divided between the developer, the hotel operator and the investors who own the condos.
The way the environmental licenses now work, however, is that applications for them must be different for condominiums and for hotels. Also, separate environmental licenses cannot be approved for both a condo and a hotel for the same building. Thus it's no longer possible without violating the law to develop a condominium that also has a hotel licence.
James Finch of Chavalit Finch and Partners (finch@chavalitfinchlaw.com) and Nilobon Tangprasit of
Siam City Law Offices Ltd
For more information visit
http://www.chavalitfinchlaw.com.
Clampdown on booze sales
Chechen President Ramzan Kadyrov signed a decree last week restricting alcohol sales in the predominantly Muslim Russian republic to two hours per day. "The fight against alcoholism is as pressing an issue as the fight against illegal armed groups," said Kadyrov, 32, a former rebel fighter.
The decree bans all sales of alcohol over 15 per cent proof except between 8 and 10am, Kadyrov said. Islamic leaders in the republic have been calling for a total alcohol ban.
The decree bans all sales of alcohol over 15 per cent proof except between 8 and 10am, Kadyrov said. Islamic leaders in the republic have been calling for a total alcohol ban.
Saturday, October 31, 2009
Child custody and support
If the parents divorce in Thailand, what happens to the children? Well, if it's a divorce by mutual consent, the parents can agree in writing about who has custody, and can agree to have joint custody.
If the parents don't agree, the judge in the divorce case can decide who gets custody.
A court can also, at the time of divorce or later, take away custody if a parent is incompetent, has abused his or her parental power or is guilty of what the judge considers gross misconduct.
Custody, both at the time of divorce and later, can be given to a third party such as a grandparent under these circumstances. And it's not just a parent that can request of a court that a non-parent have custody. The public prosecutor can, too.
The rights of custody, called "parental power" in the Thai Civil and Commercial Code, are as follows, and apply whether the parents are divorced or not. If they're not divorced, both parents have the right to exercise these powers:
To determine where the child lives;
to discipline the child reasonably;
to require the child to work, consistent with his or her abilities and status;
to demand the return of the child from someone else, including another parent without custody, who unlawfully detains the child.
Custody can be changed by the court at any time on application of a parent or the public prosecutor on the child's behalf. Even if a parent doesn't have custody, he or she is entitled to visitation of the child. In the case of divorce by mutual consent, the parents can agree on how visitation is to work. With divorce by court judgment, this will be covered in the court's decision.
A parent with custody may manage the property of a child, such as that inherited or received from the other parent as part of a divorce settlement. This management must be exercised with the care of someone with "ordinary prudence", however, or the parent may be liable to the child.
As to a minor child's property, there are a number of transactions that require court approval if a parent wants them, such as:
Deals, including sale and mortgaging of property;
loans;
guarantees.
The situation we see as lawyers all the time is that a foreign person has a Thai spouse and a child with a Thai citizenship. The foreign parent consults with us about putting land (which foreigners can't own in Thailand) in the child's name.
We respond that this is possible, at the discretion of the land office authorities, but if the parent will want to sell it while the child is a minor, a court order will be required. Practically speaking this will require expense and the consent of the Thai spouse.
When a child reaches majority, at the age of 20 in Thailand, the parent or parents managing the child's property must turn it over to him or her and give an accounting as to how it's been managed.
If a child has income, for example child support payments from another parent, the parent with custody must use it for the maintenance and education of the child. If the parent with custody, however, does not have other income sufficient to support him or herself, the child's income may be used for this purpose unless the source of the income was subject to a condition that the parent with custody not use it for his or her own support. You should understand, therefore, that if your spouse has custody of your child or children, that if you don't want to support your ex-spouse, too, you must condition the support on your ex-spouse not using the money to support him or herself.
What about child support? Whether the marriage is still in force or has been ended, parents have a duty to support and educate their minor children. Parents have a duty to support an adult child, too, if that child is sick and unable to earn a living. Parents can enforce these obligations against each other in court, as with custody issues, and the public prosecutor has a right to bring an action against a parent for child support in court, as well.
If the parents don't agree, the judge in the divorce case can decide who gets custody.
A court can also, at the time of divorce or later, take away custody if a parent is incompetent, has abused his or her parental power or is guilty of what the judge considers gross misconduct.
Custody, both at the time of divorce and later, can be given to a third party such as a grandparent under these circumstances. And it's not just a parent that can request of a court that a non-parent have custody. The public prosecutor can, too.
The rights of custody, called "parental power" in the Thai Civil and Commercial Code, are as follows, and apply whether the parents are divorced or not. If they're not divorced, both parents have the right to exercise these powers:
To determine where the child lives;
to discipline the child reasonably;
to require the child to work, consistent with his or her abilities and status;
to demand the return of the child from someone else, including another parent without custody, who unlawfully detains the child.
Custody can be changed by the court at any time on application of a parent or the public prosecutor on the child's behalf. Even if a parent doesn't have custody, he or she is entitled to visitation of the child. In the case of divorce by mutual consent, the parents can agree on how visitation is to work. With divorce by court judgment, this will be covered in the court's decision.
A parent with custody may manage the property of a child, such as that inherited or received from the other parent as part of a divorce settlement. This management must be exercised with the care of someone with "ordinary prudence", however, or the parent may be liable to the child.
As to a minor child's property, there are a number of transactions that require court approval if a parent wants them, such as:
Deals, including sale and mortgaging of property;
loans;
guarantees.
The situation we see as lawyers all the time is that a foreign person has a Thai spouse and a child with a Thai citizenship. The foreign parent consults with us about putting land (which foreigners can't own in Thailand) in the child's name.
We respond that this is possible, at the discretion of the land office authorities, but if the parent will want to sell it while the child is a minor, a court order will be required. Practically speaking this will require expense and the consent of the Thai spouse.
When a child reaches majority, at the age of 20 in Thailand, the parent or parents managing the child's property must turn it over to him or her and give an accounting as to how it's been managed.
If a child has income, for example child support payments from another parent, the parent with custody must use it for the maintenance and education of the child. If the parent with custody, however, does not have other income sufficient to support him or herself, the child's income may be used for this purpose unless the source of the income was subject to a condition that the parent with custody not use it for his or her own support. You should understand, therefore, that if your spouse has custody of your child or children, that if you don't want to support your ex-spouse, too, you must condition the support on your ex-spouse not using the money to support him or herself.
What about child support? Whether the marriage is still in force or has been ended, parents have a duty to support and educate their minor children. Parents have a duty to support an adult child, too, if that child is sick and unable to earn a living. Parents can enforce these obligations against each other in court, as with custody issues, and the public prosecutor has a right to bring an action against a parent for child support in court, as well.
Wednesday, October 21, 2009
Experts criticise Copyright Act
Law experts object to the idea of penalising buyers of illegal copyright products to solve piracy, pointing out that no other country has a similar law. Meanwhile, the commerce ministry will find ways to fill loopholes in the Copyright Act after the cabinet added the specific clause for landlord liability earlier this month.
Dhiraphol Suwanprateep, a partner at Baker & Mckenzie Global Services,strongly disagrees with the government's proposed Copyright Act which will set a fine for buyers and processors of counterfeit goods, including computer software, music and movies, because it may open opportunities for abuse of power as well as create problems in enforcing the law.
Dhiraphol said that no countries have such a law. Even France and Italy have laws for consumers who use illegal trademarked products but these are covered by customs legislation. Furthermore, Thai customs law already has authority to enforce the import or export of illegal copyrighted and trademarked products.
Landlord-liability will help to solve the piracy problem because under the rental contract the owners have the right to revoke contracts if the rental merchant sells illegal products. But there still lots of illegal copyright products sold in many areas.
Paiboon Amonpinyokeat, managing partner at P & P Law Firm and Special Lecturer of Internet Law at Chulalongkorn University, also observed that there are rarely any such laws which penalise buyers of illegal products - even in EU states and the US which dominate in IT, or in Asian nations like Japan,Korea and China which are strong in entertainment.
If there is buyer penalty it will conflict with fair use in copyright law that allows individual use by private users without affecting the copyright holders. Fair use is one way to allow users to make reverse engineering or apply creativity.If the law is too strict it will lead to a monopoly.
The data traffic provider liability in the draft is also too broad because it means every piece of data that is sent by using illegal software will come under this law but in reality the data is sent by the computer or other device.
"I think the government intends to tackle Internet service providers or web hosting that has Bittorrent or other file sharing program so the government should apply the Circumvention of Copyright Protection Systems that cover using technological measures that effectively protects the right of a copyright owner," Paiboon said.
Pajchima Tanasanti, deputy director general of the Department of Intellectual Property under the commerce ministry, said after cabinet rejected the draft Trademark Act and Copyright Act which sets out the liability and penalty for buyers and landlords related to illegal products, the minister will add ministerial regulations aligned with the draft amendment of the Copyright Act to specified targeted zones like Pantip Plaza or computer centres.
This will help to solve concerns in the draft legislation that commercialbuilding owners and landlords would face fines ranging from 30,000 baht to 300,000 baht which was criticised because it may affect government agencies liability which is open for small individuals to rent space in the open market and they may sell illegal copyrighted products.
Moreover, in the part that mentions data traffic provider which should have liability and be penalised if they know or acknowledge any violation of copyright or duplicate original copyright under their services.
"We intend to cover Internet service providers but we have to consider data traffic which is too broad," said Pajchima.
Meanwhile Varunee Ratchatapattanakul Consultant, Thailand Committee at Business Software Allaiance (BSA),said that the BSA appreciates the government's attempts to amend the present copyright act to expand the scope of copyright protection and their efforts to ensure that the copyright act, as amended, will be practically and effectively enforced to result in justice for every party concerned.
It is also important to note that the copyright act, as amended, would have the potential to enhance consumer protection from the sales of fraudulent products.
Rebecca Ho, Microsoft spokesperson for intellectual property enforcement in Thailand, said as a company at the forefront of ICT innovation and one of the world's largest investors in innovation, Microsoft supported the continued reform and enforcement of intellectual property laws.
"Piracy is not just an issue for foreign innovators and creators but also for the burgeoning Thai film and software industries," Ho said
"We are encouraged by the continued enforcement of existing laws and the reform of legislation for stronger penalties against violators. These efforts will help the country's drive to develop a 'creative economy'."
Wisanu Wangwisut, managing director of the IT computer centre at Thippatana Arcade which operates Pantip Plaza computer centre, said if the government specifically restrict zones or special zone in landlordliability this way will not result in fair treatment.
Dhiraphol Suwanprateep, a partner at Baker & Mckenzie Global Services,strongly disagrees with the government's proposed Copyright Act which will set a fine for buyers and processors of counterfeit goods, including computer software, music and movies, because it may open opportunities for abuse of power as well as create problems in enforcing the law.
Dhiraphol said that no countries have such a law. Even France and Italy have laws for consumers who use illegal trademarked products but these are covered by customs legislation. Furthermore, Thai customs law already has authority to enforce the import or export of illegal copyrighted and trademarked products.
Landlord-liability will help to solve the piracy problem because under the rental contract the owners have the right to revoke contracts if the rental merchant sells illegal products. But there still lots of illegal copyright products sold in many areas.
Paiboon Amonpinyokeat, managing partner at P & P Law Firm and Special Lecturer of Internet Law at Chulalongkorn University, also observed that there are rarely any such laws which penalise buyers of illegal products - even in EU states and the US which dominate in IT, or in Asian nations like Japan,Korea and China which are strong in entertainment.
If there is buyer penalty it will conflict with fair use in copyright law that allows individual use by private users without affecting the copyright holders. Fair use is one way to allow users to make reverse engineering or apply creativity.If the law is too strict it will lead to a monopoly.
The data traffic provider liability in the draft is also too broad because it means every piece of data that is sent by using illegal software will come under this law but in reality the data is sent by the computer or other device.
"I think the government intends to tackle Internet service providers or web hosting that has Bittorrent or other file sharing program so the government should apply the Circumvention of Copyright Protection Systems that cover using technological measures that effectively protects the right of a copyright owner," Paiboon said.
Pajchima Tanasanti, deputy director general of the Department of Intellectual Property under the commerce ministry, said after cabinet rejected the draft Trademark Act and Copyright Act which sets out the liability and penalty for buyers and landlords related to illegal products, the minister will add ministerial regulations aligned with the draft amendment of the Copyright Act to specified targeted zones like Pantip Plaza or computer centres.
This will help to solve concerns in the draft legislation that commercialbuilding owners and landlords would face fines ranging from 30,000 baht to 300,000 baht which was criticised because it may affect government agencies liability which is open for small individuals to rent space in the open market and they may sell illegal copyrighted products.
Moreover, in the part that mentions data traffic provider which should have liability and be penalised if they know or acknowledge any violation of copyright or duplicate original copyright under their services.
"We intend to cover Internet service providers but we have to consider data traffic which is too broad," said Pajchima.
Meanwhile Varunee Ratchatapattanakul Consultant, Thailand Committee at Business Software Allaiance (BSA),said that the BSA appreciates the government's attempts to amend the present copyright act to expand the scope of copyright protection and their efforts to ensure that the copyright act, as amended, will be practically and effectively enforced to result in justice for every party concerned.
It is also important to note that the copyright act, as amended, would have the potential to enhance consumer protection from the sales of fraudulent products.
Rebecca Ho, Microsoft spokesperson for intellectual property enforcement in Thailand, said as a company at the forefront of ICT innovation and one of the world's largest investors in innovation, Microsoft supported the continued reform and enforcement of intellectual property laws.
"Piracy is not just an issue for foreign innovators and creators but also for the burgeoning Thai film and software industries," Ho said
"We are encouraged by the continued enforcement of existing laws and the reform of legislation for stronger penalties against violators. These efforts will help the country's drive to develop a 'creative economy'."
Wisanu Wangwisut, managing director of the IT computer centre at Thippatana Arcade which operates Pantip Plaza computer centre, said if the government specifically restrict zones or special zone in landlordliability this way will not result in fair treatment.
Saturday, October 17, 2009
Transparency needed in resource deals
Abill introduced in the United States Senate could have major repercussions in the way multinational energy and mining corporations do business in the developing world. The bill would simply require companies registered with the US Securities and Exchange Commission (SEC) to make public howmuch they pay to foreign governments for oil, gas and minerals. If it goes into effect, the bi-partisan Energy Security through Transparency Act of 2009 would affect not only US companies,but virtually all multinational companies which extract these resources because they are registered with the SEC.
The bill's sponsors hope that the greater transparency will lead to more corporate responsibility in the disbursement of these huge amounts of money, and also serve to inform the citizens of developing countries of the prices paid for the natural resources which in theory belong to them.
It is well known that because of corrupt and nonrepresentative governments,all too often the people in developing countries never see any benefit from the fortunes paid for their countries' natural resources.
What's even worse, this natural bounty in many cases is directly implicated
The bill's sponsors hope that the greater transparency will lead to more corporate responsibility in where these huge amounts of money are disbursed, and also serve to inform the citizens of developing countries of the prices paid for the natural resources which in theory belong to them
in increasing the suffering in the general population since it props up dictators, finances wars, etc.
According to Publish What You Pay (PWYP), a global civil society coalition,natural resource revenues are an important source of income for governments of more than 50 developing countries. As noted on the organisation's website, when properly managed these revenues should serve as a basis for poverty reduction, economic growth and development, rather than exacerbating corruption, conflict and social divisiveness.
It can only be hoped that the members of the US Congress will do the right thing and not bend to pressure, which is sure to come from companies which would rather keep their dealings in these countries out of the public eye.
Food security is first priority
Statistics released by the United Nations Food and Agriculture Organisation (FAO) in a new report said that worldwide a record one billion people are now going hungry. According to the UN food agency,30 countries now require emergency aid, including 20 in Africa.
Jacques Diouf, director-general of the FAO, said:"In the fight against hunger the focus should be on increasing food production. It's common sense ... that agriculture would be given the priority, but the opposite has happened." Mr Diouf was speaking of the situation in countries which have been hard hit by food shortages, where the trend since the mid-1980s has been reduced foreign aid and private investments earmarked for agriculture.But his words deserve attention even in countries where food security is taken for granted, like Thailand. We should not forget how important a thriving agricultural sector is to the well-being of the country, more so even than a thriving property sector, whose problems get much more newsprint.
To maintain a thriving agricultural sector it is necessary to assure farmers they will be able to get a fair and sufficient price for their produce. Toward that end it is encouraging that Deputy Prime Minister Korbsak Sabhavasu pledged last week to quickly finish work he has begun in the agricultural sector before he is transferred to a new post in the PM's Office. This work includes guidelines for crop insurance and other supplementary measures to help shore up crop prices in case market prices fall.
Mr Korbsak said the supplementary measures might include traditional price intervention or a pledging scheme for particular areas or provinces.This is a good start, but unlike in the past, these schemes must be kept totally transparent.
Another area that needs careful attention is how to protect farmers from the adverse effects of trade liberalisation, such as that which will take effect among Asean member countries on Jan 1,2010.
Many farmers are barely getting by as it is and the nation cannot afford to leave them to the mercy of market mechanisms.
The bill's sponsors hope that the greater transparency will lead to more corporate responsibility in the disbursement of these huge amounts of money, and also serve to inform the citizens of developing countries of the prices paid for the natural resources which in theory belong to them.
It is well known that because of corrupt and nonrepresentative governments,all too often the people in developing countries never see any benefit from the fortunes paid for their countries' natural resources.
What's even worse, this natural bounty in many cases is directly implicated
The bill's sponsors hope that the greater transparency will lead to more corporate responsibility in where these huge amounts of money are disbursed, and also serve to inform the citizens of developing countries of the prices paid for the natural resources which in theory belong to them
in increasing the suffering in the general population since it props up dictators, finances wars, etc.
According to Publish What You Pay (PWYP), a global civil society coalition,natural resource revenues are an important source of income for governments of more than 50 developing countries. As noted on the organisation's website, when properly managed these revenues should serve as a basis for poverty reduction, economic growth and development, rather than exacerbating corruption, conflict and social divisiveness.
It can only be hoped that the members of the US Congress will do the right thing and not bend to pressure, which is sure to come from companies which would rather keep their dealings in these countries out of the public eye.
Food security is first priority
Statistics released by the United Nations Food and Agriculture Organisation (FAO) in a new report said that worldwide a record one billion people are now going hungry. According to the UN food agency,30 countries now require emergency aid, including 20 in Africa.
Jacques Diouf, director-general of the FAO, said:"In the fight against hunger the focus should be on increasing food production. It's common sense ... that agriculture would be given the priority, but the opposite has happened." Mr Diouf was speaking of the situation in countries which have been hard hit by food shortages, where the trend since the mid-1980s has been reduced foreign aid and private investments earmarked for agriculture.But his words deserve attention even in countries where food security is taken for granted, like Thailand. We should not forget how important a thriving agricultural sector is to the well-being of the country, more so even than a thriving property sector, whose problems get much more newsprint.
To maintain a thriving agricultural sector it is necessary to assure farmers they will be able to get a fair and sufficient price for their produce. Toward that end it is encouraging that Deputy Prime Minister Korbsak Sabhavasu pledged last week to quickly finish work he has begun in the agricultural sector before he is transferred to a new post in the PM's Office. This work includes guidelines for crop insurance and other supplementary measures to help shore up crop prices in case market prices fall.
Mr Korbsak said the supplementary measures might include traditional price intervention or a pledging scheme for particular areas or provinces.This is a good start, but unlike in the past, these schemes must be kept totally transparent.
Another area that needs careful attention is how to protect farmers from the adverse effects of trade liberalisation, such as that which will take effect among Asean member countries on Jan 1,2010.
Many farmers are barely getting by as it is and the nation cannot afford to leave them to the mercy of market mechanisms.
Tuesday, October 13, 2009
British MPs back ban on cigarette vendors
Cigarette vending machines could be banned after MPs supported an amendment to a planned new law that will also stop shops from displaying tobacco.
Former Labour minister Ian McCartney, who proposed the vending machine ban, said the new law would make it harder for children to buy cigarettes.
The proposal forms part of a Health Bill that must now go back to the House of Lords for approval before becoming law in England, Wales and Northern Ireland.
"We don't allow alcohol, fireworks,knives or other age-restricted products to be sold from vending machines," Mr McCartney said on his website."These are only sold where there is a face-toface transaction over the counter. We need to tackle this anomaly which allows children to get hold of cigarettes."
The House of Commons approved the vending machine amendment late on Monday without it going to a vote.
Health campaigners welcomed the amendment and said it would help to stop children from becoming addicted to tobacco."Consigning vending machines to the scrapheap will cut off an easy supply of cigarettes to children,"said the British Heart Foundation, which has campaigned for a ban.
Anti-tobacco pressure group ASH,Action on Smoking and Health, said the new law would be the most significant public health measure since the 2007 smoking ban.
Meanwhile, Conservative backbenchers argued that the proposals would harm shopkeepers and do little to improve the public's health. The government said it would not oppose Mr McCartney's amendment in the House of Lords.
Former Labour minister Ian McCartney, who proposed the vending machine ban, said the new law would make it harder for children to buy cigarettes.
The proposal forms part of a Health Bill that must now go back to the House of Lords for approval before becoming law in England, Wales and Northern Ireland.
"We don't allow alcohol, fireworks,knives or other age-restricted products to be sold from vending machines," Mr McCartney said on his website."These are only sold where there is a face-toface transaction over the counter. We need to tackle this anomaly which allows children to get hold of cigarettes."
The House of Commons approved the vending machine amendment late on Monday without it going to a vote.
Health campaigners welcomed the amendment and said it would help to stop children from becoming addicted to tobacco."Consigning vending machines to the scrapheap will cut off an easy supply of cigarettes to children,"said the British Heart Foundation, which has campaigned for a ban.
Anti-tobacco pressure group ASH,Action on Smoking and Health, said the new law would be the most significant public health measure since the 2007 smoking ban.
Meanwhile, Conservative backbenchers argued that the proposals would harm shopkeepers and do little to improve the public's health. The government said it would not oppose Mr McCartney's amendment in the House of Lords.
Monday, October 12, 2009
STRANDED COMPANIES CALL FOR PERMISSION TO PROCEED WITH STALLED MAP TA PHUT PROJECTS
NGO plans to take more actions to ensure that the government complies with environmental laws
Manufacturers with operations in Map Ta Phut pleaded last week to be allowed to proceed with 76 suspended industrial projects, vowing to abide by any additional environmental regulations drawn up by the government.
At a roundtable hosted by The Nation last Friday, Chainoi Puankosoom, president and CEO of PTT Aromatics and Refining, said the industrial sector is not opposed to Article 67 of the Constitution - which requires projects to undergo a health-impact assessment (HIA) and receive public consent and approval from the yet-to-be established independent environment body - and is willing to conduct environmental impact assessments (EIAs) and HIAs. However, he added, the government has yet to draw up laws pertaining to HIAs.
"As such, the ongoing projects should be allowed to proceed, as we are ready to honour all rules and regulations to come, including conducting public hearings. If we're not doing enough, we will invest more to fix the problems.
"We can't live without the community's support, but stopping these projects won't reduce pollution. It's time to find ways to support peaceful coexistence," he said.
He said that while the suit filed by the Anti-Global Warming Association and 43 Rayong villagers that led to the injunction was taken against eight government agencies, the injunction punished private companies that have strictly followed established rules and a pollution-reduction plan launched in 2007. Under the plan, existing plants must reduce toxic emissions by 20 per cent and new plants are only approved when they demonstrate that their emissions level is at 80 per cent of those of existing plants.
Chainoi noted that the suspension of the 76 projects threatened new investment in the country, as similar actions could take place nationwide. Along with foreign direct investment, financial institutions would suffer, he said, as half of the more than Bt400 billion invested in the 76 projects is borrowed.
At present, some exporters based in Map Ta Phut are facing difficulties stemming from buyers' concerns over environmental issues, he said.
Chainoi urged the creation of a neutral academic centre tasked with the collection and dissemination of balanced information from the government and non-profit organisations, which he said would serve the independent environmental body's operations. Then, if damages are apparent, new rules could be established and if they are too strict, investors can move elsewhere.
"The government must take care of this issue. It can issue rules that would make all communities welcome industrial plants," he said.
Cholanat Yanaranop, president of Siam Cement Group (SCG)'s chemicals business, said that the injunction is causing concern for foreign partners like Dow Chemical, which are no longer sure about whether to proceed with their joint investments. He noted that due to the financial crisis, Dow Chemical cancelled investments in many places but maintained its investment in Thailand thanks to the trust it had developed in SCG, and what he described as the firms' shared philosophy of operating under a legal framework, demonstrating care for the environment and local communities. "We don't know how to explain this [to Dow], as we have followed the law, but the project was halted," Cholanat said, adding that partners are more important than interest rates. "I will fly to the US to meet Dow Chemical executives and explain the actual situation at Map Ta Phut."
The group's suspended projects worth Bt170 billion were scheduled to begin operations in the next three to 12 months, involving more than 100,000 workers. Cholanat admitted that the government had been slow to take action on some environmental concerns, but said that could have been a result of the frequent government changes last year.
He insisted that SCG is doing more than it is required to do. Every month, he said, members of local communities are invited to visit the firm's plants, which he said had met with EIA and HIA standards set jointly with Burapha University in the absence of government HIA guidelines. Cholanat urged the government to take action as soon as possible. Thailand's petrochemical industry enjoys high competitiveness, operating in a cluster with upstream to downstream industries. If the legal battle was prolonged, he warned, it could prove to be a turning point for Thai industry. He stressed that lessons learned by the Japanese showed that heavy industry and local communities could live together if public participation and transparent operations were assured.
Verapong Chaiperm, deputy governor of the Industrial Estate Authority of Thailand, which oversees Map Ta Phut Industrial estate and four more nearby, said that regulations should become clearer soon. The local community will submit its conditions to the National Environment Board on October 18, as a result of the Rayong Administrative Court's order in March. Then, the guidelines on HIAs as well as for the independent environment body will be in place.
"It's a systemic problem, with a lack of collaboration between politicians and civil servants and a lack of trust in the communities. The resumed operation of the Eastern Seaboard Committee, after an eight-year absence, should promote problem solving and unity," he said.
Srisuwan Chanya, president of the Anti-Global Warming Association, noted that the court case is not meant to tackle environmental problems only at Map Ta Phut but elsewhere in the country as well. He said the case was mainly aimed at politicians and civil servants who fail to comply with the law and ignore public concerns. The association and Rayong villagers filed the lawsuit, he said, after being ignored for a long time. The last straw, he said, was when the Industry Ministry was slow to release its list of industrial activities that had serious environmental effects, which, as of September 2008, covered 19 activities, according to a series of public hearings in 2008.
"The aim of the lawsuit is to force government agencies to issue regulations or laws pursuant to the Constitution. [The government] could have issued a regulation under the PM's Office or had the National Environment Office issue the announcement. They took too long," Srisuwan said.
He said that next week he would take legal action against the government's appeal against the injunction. He said the government had failed to seek a dialogue with the group, and the appeal further demonstrated the government's lack of concern about villagers' problems.
In the next three weeks, Srisuwan said, he also plans to file a petition against the Industry Ministry, which on September 14 unveiled a list of only eight industrial projects deemed to be "most dangerous".
The group also plans to challenge the rules that allow the natural resources and environment minister to punish the independent environment body, as that violated its independence, he said.
"The Map Ta Phut case is just the tip of the iceberg. So far, over 500 projects have won EIAs and we will check out which are causing environmental problems," he said.
At the roundtable, participants agreed that government action and a commitment from the private sector to abide by all environmental and health requirements were needed to end the dispute.
Arthid Nanthawithaya, Siam Commercial Bank (SCB) senior executive vice president for corporate banking, said at the roundtable that the issue would only be resolved if all parties - the government, private companies and local communities - open a dialogue in good faith.
"The injunction affects the [industrial sector's] long supply chain, and there should be dialogue to prevent damage to ongoing projects. While the government takes care of its part and the private sector operates with good governance, this should be solved for the sake of the nation," he said.
Manufacturers with operations in Map Ta Phut pleaded last week to be allowed to proceed with 76 suspended industrial projects, vowing to abide by any additional environmental regulations drawn up by the government.
At a roundtable hosted by The Nation last Friday, Chainoi Puankosoom, president and CEO of PTT Aromatics and Refining, said the industrial sector is not opposed to Article 67 of the Constitution - which requires projects to undergo a health-impact assessment (HIA) and receive public consent and approval from the yet-to-be established independent environment body - and is willing to conduct environmental impact assessments (EIAs) and HIAs. However, he added, the government has yet to draw up laws pertaining to HIAs.
"As such, the ongoing projects should be allowed to proceed, as we are ready to honour all rules and regulations to come, including conducting public hearings. If we're not doing enough, we will invest more to fix the problems.
"We can't live without the community's support, but stopping these projects won't reduce pollution. It's time to find ways to support peaceful coexistence," he said.
He said that while the suit filed by the Anti-Global Warming Association and 43 Rayong villagers that led to the injunction was taken against eight government agencies, the injunction punished private companies that have strictly followed established rules and a pollution-reduction plan launched in 2007. Under the plan, existing plants must reduce toxic emissions by 20 per cent and new plants are only approved when they demonstrate that their emissions level is at 80 per cent of those of existing plants.
Chainoi noted that the suspension of the 76 projects threatened new investment in the country, as similar actions could take place nationwide. Along with foreign direct investment, financial institutions would suffer, he said, as half of the more than Bt400 billion invested in the 76 projects is borrowed.
At present, some exporters based in Map Ta Phut are facing difficulties stemming from buyers' concerns over environmental issues, he said.
Chainoi urged the creation of a neutral academic centre tasked with the collection and dissemination of balanced information from the government and non-profit organisations, which he said would serve the independent environmental body's operations. Then, if damages are apparent, new rules could be established and if they are too strict, investors can move elsewhere.
"The government must take care of this issue. It can issue rules that would make all communities welcome industrial plants," he said.
Cholanat Yanaranop, president of Siam Cement Group (SCG)'s chemicals business, said that the injunction is causing concern for foreign partners like Dow Chemical, which are no longer sure about whether to proceed with their joint investments. He noted that due to the financial crisis, Dow Chemical cancelled investments in many places but maintained its investment in Thailand thanks to the trust it had developed in SCG, and what he described as the firms' shared philosophy of operating under a legal framework, demonstrating care for the environment and local communities. "We don't know how to explain this [to Dow], as we have followed the law, but the project was halted," Cholanat said, adding that partners are more important than interest rates. "I will fly to the US to meet Dow Chemical executives and explain the actual situation at Map Ta Phut."
The group's suspended projects worth Bt170 billion were scheduled to begin operations in the next three to 12 months, involving more than 100,000 workers. Cholanat admitted that the government had been slow to take action on some environmental concerns, but said that could have been a result of the frequent government changes last year.
He insisted that SCG is doing more than it is required to do. Every month, he said, members of local communities are invited to visit the firm's plants, which he said had met with EIA and HIA standards set jointly with Burapha University in the absence of government HIA guidelines. Cholanat urged the government to take action as soon as possible. Thailand's petrochemical industry enjoys high competitiveness, operating in a cluster with upstream to downstream industries. If the legal battle was prolonged, he warned, it could prove to be a turning point for Thai industry. He stressed that lessons learned by the Japanese showed that heavy industry and local communities could live together if public participation and transparent operations were assured.
Verapong Chaiperm, deputy governor of the Industrial Estate Authority of Thailand, which oversees Map Ta Phut Industrial estate and four more nearby, said that regulations should become clearer soon. The local community will submit its conditions to the National Environment Board on October 18, as a result of the Rayong Administrative Court's order in March. Then, the guidelines on HIAs as well as for the independent environment body will be in place.
"It's a systemic problem, with a lack of collaboration between politicians and civil servants and a lack of trust in the communities. The resumed operation of the Eastern Seaboard Committee, after an eight-year absence, should promote problem solving and unity," he said.
Srisuwan Chanya, president of the Anti-Global Warming Association, noted that the court case is not meant to tackle environmental problems only at Map Ta Phut but elsewhere in the country as well. He said the case was mainly aimed at politicians and civil servants who fail to comply with the law and ignore public concerns. The association and Rayong villagers filed the lawsuit, he said, after being ignored for a long time. The last straw, he said, was when the Industry Ministry was slow to release its list of industrial activities that had serious environmental effects, which, as of September 2008, covered 19 activities, according to a series of public hearings in 2008.
"The aim of the lawsuit is to force government agencies to issue regulations or laws pursuant to the Constitution. [The government] could have issued a regulation under the PM's Office or had the National Environment Office issue the announcement. They took too long," Srisuwan said.
He said that next week he would take legal action against the government's appeal against the injunction. He said the government had failed to seek a dialogue with the group, and the appeal further demonstrated the government's lack of concern about villagers' problems.
In the next three weeks, Srisuwan said, he also plans to file a petition against the Industry Ministry, which on September 14 unveiled a list of only eight industrial projects deemed to be "most dangerous".
The group also plans to challenge the rules that allow the natural resources and environment minister to punish the independent environment body, as that violated its independence, he said.
"The Map Ta Phut case is just the tip of the iceberg. So far, over 500 projects have won EIAs and we will check out which are causing environmental problems," he said.
At the roundtable, participants agreed that government action and a commitment from the private sector to abide by all environmental and health requirements were needed to end the dispute.
Arthid Nanthawithaya, Siam Commercial Bank (SCB) senior executive vice president for corporate banking, said at the roundtable that the issue would only be resolved if all parties - the government, private companies and local communities - open a dialogue in good faith.
"The injunction affects the [industrial sector's] long supply chain, and there should be dialogue to prevent damage to ongoing projects. While the government takes care of its part and the private sector operates with good governance, this should be solved for the sake of the nation," he said.
Sunday, October 11, 2009
Why don't we get a Bit Radical with the constitution?
Since 1932, we have had 17 constitutions, and one would think that's 16 too many. One would think we should have it right by now, although we seem to keep getting it wrong over and over again. We get it wrong because we keep forgetting (or ignoring) the actual purpose of having a charter.
Bickering over the constitution is a never-ending squabble between politicians, the military and other powerful factions. This is for one reason and one reason only: Each side wants the charter to serve their purpose over the others'. Each side wants a charter that is exploitable by them and them only. Each side wants a charter that would put their political opponents at a disadvantage.
As such, the different factions conspire to influence the content and purpose of the charter. As such, the charter is always changing, depending on who's in power. As such, the charter gets more rewrites than a Hollywood script.
Is this a fair assessment? I could be wrong. You, dear readers, may decide for yourself.
Here's a humble and wholly unoriginal concept: The purpose of a charter is to serve the rights, liberties and benefits of the people, the citizenry. That might sound a bit radical, I know. But it's almost deadline time, and I've only started writing this column, so let's get a little crazy.
Recently I reread the 1997 Constitution, Chapter 3 (Sections 26-65): The rights and liberties of the Thai people - because this is what I do for fun in my spare time.
Section 30: All persons are equal before the law and shall enjoy equal protection under the law.
Section 31: A person shall enjoy the rights and liberty in his or her life and person.
Section 39. A person shall enjoy the liberty to express his or her opinion, make speeches, write, print, publicise and make expressions by other means.
Pretty cool stuff, eh? Then I also thought wait a second. Just about every government has broken the codes of the charter ever since it has been written, haven't they?
Is this a correct assessment? I could be wrong. You, dear readers, may decide for yourself.
The Abhisit government's only "legitimate" reason for not dissolving the parliament and calling for a general election is that it has tasked itself to oversee the changes for a new charter. That's fair enough. The opposition Puea Thai party is bickering and backing out of the charter changes. That's fair enough too.
The reason I'm saying all is fair enough, is because it isn't hard to imagine that right now both camps - and several other influential camps - are bickering over how to politically exploit and take advantage of the rewriting of the constitution. And who wants to be put at a disadvantage? They are only doing what they have to do.
Get your priorities straight, is all I'm saying. The reason for all the squabbling since 1932 and through the 17 charters and counting is because the priorities are all out of whack!
Is this a fair assessment? I could be wrong. You, dear readers, may decide for yourself.
Here are three questions I've been pondering:
1) How many Thais know that we actually have rights under the constitution?
2) Why do we have a charter if governments (and the military) aren't willing to uphold it and are more than happy to change it whenever and into whatever, to serve their agendas?
3) If all the other aspects of the charter (the executive, judicial, administrative and all the other good stuff) are written with the ultimate purpose of serving the rights, liberties and benefits of the citizenry, then there wouldn't be so much squabbling, would there?
For the process of writing the new charter, may I humbly suggest all the draftees refer to the "Universal Declaration of Human Rights" and make sure to include all its contents? That's a bit bold and radical, I know.
But the layout designer is already calling for my column, and I'm not even close to getting finished writing, so let's get a bit crazy, shall we?
The 30 articles of the declaration are quite short and breezy, so it should be no difficult task to make them the key features of the charter.
In fact, dear readers, I believe everyone should carry around a copy of the "Declaration" with them. (Try reading the article on "equal rights under the law" to a policeman during a traffic stop - the look on his face is pure comedy and worth it in and of itself, even if it doesn't achieve anything else.)
So there you have it. Write for the people, not for factions. Write for the true purpose of a charter.
May I also humbly suggest that the government task itself to plaster the charter's content all over the internet? Do whatever it has to do to give easy access to the 65 million Thais who the charter concerns. Especially since the shortage of libraries in Thailand is shorter than the skirts of the ladies at RCA.
The United States' democracy isn't perfect. But even the most ignorant of its population will give you the rundown of his or her rights as a person and a citizen. That says something - something good.
Thailand's democracy is far from perfect. Because even the most educated Thai doesn't even know what rights he or she has as a person and a citizen. That says a lot of things, lots of unfortunate things.
What's the point of having rights if we don't even know we have them?
And since I'm being so humble in this column, let's throw in another request: If you wear a uniform and/or receive your salaries from taxes, do uphold the content of the constitution, please.
In fact, there should be an article in the charter about severe punishment for those who receive salaries from tax money, but do not uphold the charter. And by "severe punishment" I don't mean a transfer to another department or a ban from office - because really, that's just ridiculous.
It's past deadline and a couple of elderly Anglo-Saxon gentlemen are waiting to edit my piece, so they can hit the pubs sooner than later. Therefore, I'll keep my conclusion short: Let's get crazy, let's go nuts. Write the constitution to serve the rights, liberties and benefits of the people - and actually uphold the constitution!
Bickering over the constitution is a never-ending squabble between politicians, the military and other powerful factions. This is for one reason and one reason only: Each side wants the charter to serve their purpose over the others'. Each side wants a charter that is exploitable by them and them only. Each side wants a charter that would put their political opponents at a disadvantage.
As such, the different factions conspire to influence the content and purpose of the charter. As such, the charter is always changing, depending on who's in power. As such, the charter gets more rewrites than a Hollywood script.
Is this a fair assessment? I could be wrong. You, dear readers, may decide for yourself.
Here's a humble and wholly unoriginal concept: The purpose of a charter is to serve the rights, liberties and benefits of the people, the citizenry. That might sound a bit radical, I know. But it's almost deadline time, and I've only started writing this column, so let's get a little crazy.
Recently I reread the 1997 Constitution, Chapter 3 (Sections 26-65): The rights and liberties of the Thai people - because this is what I do for fun in my spare time.
Section 30: All persons are equal before the law and shall enjoy equal protection under the law.
Section 31: A person shall enjoy the rights and liberty in his or her life and person.
Section 39. A person shall enjoy the liberty to express his or her opinion, make speeches, write, print, publicise and make expressions by other means.
Pretty cool stuff, eh? Then I also thought wait a second. Just about every government has broken the codes of the charter ever since it has been written, haven't they?
Is this a correct assessment? I could be wrong. You, dear readers, may decide for yourself.
The Abhisit government's only "legitimate" reason for not dissolving the parliament and calling for a general election is that it has tasked itself to oversee the changes for a new charter. That's fair enough. The opposition Puea Thai party is bickering and backing out of the charter changes. That's fair enough too.
The reason I'm saying all is fair enough, is because it isn't hard to imagine that right now both camps - and several other influential camps - are bickering over how to politically exploit and take advantage of the rewriting of the constitution. And who wants to be put at a disadvantage? They are only doing what they have to do.
Get your priorities straight, is all I'm saying. The reason for all the squabbling since 1932 and through the 17 charters and counting is because the priorities are all out of whack!
Is this a fair assessment? I could be wrong. You, dear readers, may decide for yourself.
Here are three questions I've been pondering:
1) How many Thais know that we actually have rights under the constitution?
2) Why do we have a charter if governments (and the military) aren't willing to uphold it and are more than happy to change it whenever and into whatever, to serve their agendas?
3) If all the other aspects of the charter (the executive, judicial, administrative and all the other good stuff) are written with the ultimate purpose of serving the rights, liberties and benefits of the citizenry, then there wouldn't be so much squabbling, would there?
For the process of writing the new charter, may I humbly suggest all the draftees refer to the "Universal Declaration of Human Rights" and make sure to include all its contents? That's a bit bold and radical, I know.
But the layout designer is already calling for my column, and I'm not even close to getting finished writing, so let's get a bit crazy, shall we?
The 30 articles of the declaration are quite short and breezy, so it should be no difficult task to make them the key features of the charter.
In fact, dear readers, I believe everyone should carry around a copy of the "Declaration" with them. (Try reading the article on "equal rights under the law" to a policeman during a traffic stop - the look on his face is pure comedy and worth it in and of itself, even if it doesn't achieve anything else.)
So there you have it. Write for the people, not for factions. Write for the true purpose of a charter.
May I also humbly suggest that the government task itself to plaster the charter's content all over the internet? Do whatever it has to do to give easy access to the 65 million Thais who the charter concerns. Especially since the shortage of libraries in Thailand is shorter than the skirts of the ladies at RCA.
The United States' democracy isn't perfect. But even the most ignorant of its population will give you the rundown of his or her rights as a person and a citizen. That says something - something good.
Thailand's democracy is far from perfect. Because even the most educated Thai doesn't even know what rights he or she has as a person and a citizen. That says a lot of things, lots of unfortunate things.
What's the point of having rights if we don't even know we have them?
And since I'm being so humble in this column, let's throw in another request: If you wear a uniform and/or receive your salaries from taxes, do uphold the content of the constitution, please.
In fact, there should be an article in the charter about severe punishment for those who receive salaries from tax money, but do not uphold the charter. And by "severe punishment" I don't mean a transfer to another department or a ban from office - because really, that's just ridiculous.
It's past deadline and a couple of elderly Anglo-Saxon gentlemen are waiting to edit my piece, so they can hit the pubs sooner than later. Therefore, I'll keep my conclusion short: Let's get crazy, let's go nuts. Write the constitution to serve the rights, liberties and benefits of the people - and actually uphold the constitution!
Thursday, October 8, 2009
CABINET TO MULL PROPOSAL ON ENVIRONMENT WATCHDOG
The Cabinet on Tuesday will consider a proposal to issue laws pursuant to Article 62 of the Constitution that will pave the way for the establishment of the independent environmental body to ease conflicts in the Map Ta Phut area.
A meeting chaired by Prime Minister Abhisit Vejjajiva and attended by eight government units charged with having violated the Constitution also agreed the National Environment Board should issue guidelines on environmental-impact assessments (EIAs) in line with Article 62.
With clear guidelines, investors will know how to obtain operating licences legally.
Abhisit said the draft laws should reach Parliament by the end of the month, while the guidelines should be completed within three weeks for the National Environmental Board's consideration.
He also told reporters that the private sector had proposed a Bt100-billion contingency fund for project owners, in view of potential lawsuits from contractors resulting from the suspension of 76 industrial projects in the Map Ta Phut area.
The size of any legal damages will be known after the ruling on the government's appeal against the court's injunction, as well as after the issuance of health impact assessment (HIA) guidelines under Article 62, he said.
He also said the local communities would be informed that some projects were intended to reduce pollution and that these should proceed as planned.
Santi Vilassakdanont, chairman of the Federation of Thai Industries, said the contingencyfund proposal had been agreed by the FTI, the Board of Trade and the Thai Bankers' Association.
"The court's injunction [on Map Ta Phut projects] poses uncertainties over damages if the project delays continue. This fund will help those projects for which the owners have struck deals with contractors. If the construction is delayed due to the court order, contractors may file sutis," he said.
He also said the cases would be more complicated if commercial banks were to stop their credit lines, while private operators would be scrambling to find ways to finance debts if their investment were delayed or stopped altogether.
Some operators that issued bonds to finance the investments could also face rating downgrades and bond sell-offs.
It is not known whether the government would in those circumstances buy into the dumped bonds, he said.
The FTI chief said the owners of the 76 products affected by the Central Administrative Court's injunction concerning the Map Ta Phut area did not expect their plans to lead to any environmental damage and added that whether the proposed fund was disbursed depended on the court's final verdict.
Santi suggested the incorporation of HIAs into the EIAs process in order to shorten the filing period.
However, if the government wants to separate the two requirements, it should take into account the need for convenience on the part of private companies.
The University of the Thai Chamber of Commerce said the prolonged conflict over investment in Map Ta Phut could slow economic growth in the current quarter and next year.
Economic growth could be slashed by 0.5 percentage point in the current quarter, due to the disappearance of industrial investment worth between Bt10 billion and Bt20 billion.
If the injunction were in place for another six to 12 months, growth next year could drop by 0.5-1 percentage point, from a target of 2-3 per cent, the university said.
Chatree Charoensiri. deputy secretary of the National Health Commission Office of Thailand, yesterday said after the fifth and final public hearing on HIA guidelines that it was agreed all industrial projects with intense environmental impacts should strictly comply with the Constitution.
That is, they must complete the EIA and HIA process and win consent from local communities and the independent environmental body.
The HIA guidelines should also allow local communities to ask for a health-impact evaluation.
Attending yesterday's hearing were hundreds of representatives from the government sector, local communities and private companies.
A meeting chaired by Prime Minister Abhisit Vejjajiva and attended by eight government units charged with having violated the Constitution also agreed the National Environment Board should issue guidelines on environmental-impact assessments (EIAs) in line with Article 62.
With clear guidelines, investors will know how to obtain operating licences legally.
Abhisit said the draft laws should reach Parliament by the end of the month, while the guidelines should be completed within three weeks for the National Environmental Board's consideration.
He also told reporters that the private sector had proposed a Bt100-billion contingency fund for project owners, in view of potential lawsuits from contractors resulting from the suspension of 76 industrial projects in the Map Ta Phut area.
The size of any legal damages will be known after the ruling on the government's appeal against the court's injunction, as well as after the issuance of health impact assessment (HIA) guidelines under Article 62, he said.
He also said the local communities would be informed that some projects were intended to reduce pollution and that these should proceed as planned.
Santi Vilassakdanont, chairman of the Federation of Thai Industries, said the contingencyfund proposal had been agreed by the FTI, the Board of Trade and the Thai Bankers' Association.
"The court's injunction [on Map Ta Phut projects] poses uncertainties over damages if the project delays continue. This fund will help those projects for which the owners have struck deals with contractors. If the construction is delayed due to the court order, contractors may file sutis," he said.
He also said the cases would be more complicated if commercial banks were to stop their credit lines, while private operators would be scrambling to find ways to finance debts if their investment were delayed or stopped altogether.
Some operators that issued bonds to finance the investments could also face rating downgrades and bond sell-offs.
It is not known whether the government would in those circumstances buy into the dumped bonds, he said.
The FTI chief said the owners of the 76 products affected by the Central Administrative Court's injunction concerning the Map Ta Phut area did not expect their plans to lead to any environmental damage and added that whether the proposed fund was disbursed depended on the court's final verdict.
Santi suggested the incorporation of HIAs into the EIAs process in order to shorten the filing period.
However, if the government wants to separate the two requirements, it should take into account the need for convenience on the part of private companies.
The University of the Thai Chamber of Commerce said the prolonged conflict over investment in Map Ta Phut could slow economic growth in the current quarter and next year.
Economic growth could be slashed by 0.5 percentage point in the current quarter, due to the disappearance of industrial investment worth between Bt10 billion and Bt20 billion.
If the injunction were in place for another six to 12 months, growth next year could drop by 0.5-1 percentage point, from a target of 2-3 per cent, the university said.
Chatree Charoensiri. deputy secretary of the National Health Commission Office of Thailand, yesterday said after the fifth and final public hearing on HIA guidelines that it was agreed all industrial projects with intense environmental impacts should strictly comply with the Constitution.
That is, they must complete the EIA and HIA process and win consent from local communities and the independent environmental body.
The HIA guidelines should also allow local communities to ask for a health-impact evaluation.
Attending yesterday's hearing were hundreds of representatives from the government sector, local communities and private companies.
Sunday, October 4, 2009
Reform put on the table
The Democrat Party and its coalition partners agree that proposed changes to the constitution should pass a first reading in parliament before going before the public in a referendum.
Prime Minister Abhisit Vejjajiva and the nominal and de facto leaders of the coalition parties met at Ban Phitsanulok yesterday to hold talks on reaching a common position on the charter amendments.
The de facto leaders included Suwat Liptapanlop,Newin Chidchob,Banharn Silpa-archa and Somsak Thepsuthin.
Mr Newin, of the Bhumjaithai Party,said they had all agreed the amendment draft should be proposed to parliament.He said a House committee would be set up to draft a referendum for the public to decide which of the six proposed charter amendments should be amended.
The proposed amendments deal with: the selection of MPs, the selection of senators, a requirement for parliament to approve international contracts, the dissolution of political parties,the demand for MPs to be able to serve as advisers or secretaries to cabinet ministers, and the demand for MPs and senators to have a say in government budgetary affairs.
The amendments were proposed by a joint committee on national reconciliation and constitutional amendments.
The committee, which was chaired by Senator Direk Thuengfung, was formed following the Songkran riots this year to study political reforms for the sake of national reconciliation.
A source at the meeting said the leaders of the coalition parties had pledged support for the Democrat-led coalition government to stay in office and complete its four-year term without having to reshuffle the cabinet.
The leaders of the coalition parties also agreed there was no need to set a specific time frame to amend the charter, the source said.
Earlier, Mr Abhisit and leaders of coalition parties were at odds over the referendum issue as he wanted a referendum to be held first to approve proposed amendments to the constitution.
The Bhumjaithai Party insisted at least two of the six proposed charter amendments should go ahead without the need for a referendum, while the other coalition parties wanted the six proposals to pass the first reading in parliament before a referendum was held.
Mr Abhisit said opponents and proponents of the proposed charter amendments would be allowed to explain the pros and cons of the charter rewrite for use by the public as a basis to make a decision in the referendum.
People's Alliance for Democracy coordinator Suriyasai Katasila has opposed the idea of holding a referendum to approve changes to the charter, saying it was a waste of money.
A referendum costs more than 2 billion baht, he said.
He said the issue of charter amendments had now become a ploy by politicians to seek advantage and the referendum process would be exploited to turn into a process to approve or disapprove the government.
Mr Suriyasai suggested a public hearing be held for members of the public to discuss charter amendments.
The Campaign for Popular Democracy yesterday also called for a referendum to be held first for the public to decide whether the charter should be amended.
It said the constitution was not the source of the problems besetting the country and the political crisis had resulted from politicians' disregard for the constitution and their failure to act in line with the law and their refusal to put themselves under scrutiny by public and judicial procedures.
Senate Speaker Prasopsuk Boondej said public input should be included in the charter rewrite process and a referendum should be held for the public to decide which points in the charter should be amended before the proposed charter amendments are put forward to parliament.
However, Senator Ruengkrai Leekitwattana said the charter rewrite bid and the proposal to hold a referendum to approve changes to the charter were only attempts by the government to buy time to stay longer in office.
Prime Minister Abhisit Vejjajiva and the nominal and de facto leaders of the coalition parties met at Ban Phitsanulok yesterday to hold talks on reaching a common position on the charter amendments.
The de facto leaders included Suwat Liptapanlop,Newin Chidchob,Banharn Silpa-archa and Somsak Thepsuthin.
Mr Newin, of the Bhumjaithai Party,said they had all agreed the amendment draft should be proposed to parliament.He said a House committee would be set up to draft a referendum for the public to decide which of the six proposed charter amendments should be amended.
The proposed amendments deal with: the selection of MPs, the selection of senators, a requirement for parliament to approve international contracts, the dissolution of political parties,the demand for MPs to be able to serve as advisers or secretaries to cabinet ministers, and the demand for MPs and senators to have a say in government budgetary affairs.
The amendments were proposed by a joint committee on national reconciliation and constitutional amendments.
The committee, which was chaired by Senator Direk Thuengfung, was formed following the Songkran riots this year to study political reforms for the sake of national reconciliation.
A source at the meeting said the leaders of the coalition parties had pledged support for the Democrat-led coalition government to stay in office and complete its four-year term without having to reshuffle the cabinet.
The leaders of the coalition parties also agreed there was no need to set a specific time frame to amend the charter, the source said.
Earlier, Mr Abhisit and leaders of coalition parties were at odds over the referendum issue as he wanted a referendum to be held first to approve proposed amendments to the constitution.
The Bhumjaithai Party insisted at least two of the six proposed charter amendments should go ahead without the need for a referendum, while the other coalition parties wanted the six proposals to pass the first reading in parliament before a referendum was held.
Mr Abhisit said opponents and proponents of the proposed charter amendments would be allowed to explain the pros and cons of the charter rewrite for use by the public as a basis to make a decision in the referendum.
People's Alliance for Democracy coordinator Suriyasai Katasila has opposed the idea of holding a referendum to approve changes to the charter, saying it was a waste of money.
A referendum costs more than 2 billion baht, he said.
He said the issue of charter amendments had now become a ploy by politicians to seek advantage and the referendum process would be exploited to turn into a process to approve or disapprove the government.
Mr Suriyasai suggested a public hearing be held for members of the public to discuss charter amendments.
The Campaign for Popular Democracy yesterday also called for a referendum to be held first for the public to decide whether the charter should be amended.
It said the constitution was not the source of the problems besetting the country and the political crisis had resulted from politicians' disregard for the constitution and their failure to act in line with the law and their refusal to put themselves under scrutiny by public and judicial procedures.
Senate Speaker Prasopsuk Boondej said public input should be included in the charter rewrite process and a referendum should be held for the public to decide which points in the charter should be amended before the proposed charter amendments are put forward to parliament.
However, Senator Ruengkrai Leekitwattana said the charter rewrite bid and the proposal to hold a referendum to approve changes to the charter were only attempts by the government to buy time to stay longer in office.
The constitution cannot be bent
The past fortnight has seen landmark rulings that cleaned up controversies involving politicians in a number of cases. I hope they will serve as a wake-up call for politicians in the future.Criminal Division for Holders of Political Positions found all defendants in the rubber sapling graft case not guilty. The court ruled the terms of reference for the project were valid and there were no irregularities in the spending of the funds allocated to the project.
The case involves the Agriculture Department's plan to procure 90 million rubber saplings for distribution to rubber growers.
The 44 defendants in the case were cabinet ministers and state officials during the Thaksin government.
On Sept 28, the same court found former natural resources and environment minister Yongyuth Tiyapairat, one of former prime minister Thaksin Shin-awatra's right-hand men, guilty of filing a false declaration of assets, and banned him from politics for five years.
Two days later, the same court handed down a two-year suspended jail term on three of the 46 defendants in the two- and three-digit lottery case.
There are in fact 47 defendants in the case, including the former prime minister.Since Thaksin is now in self-imposed exile, the court decided to temporarily exclude him from the list of defendants,and make its judgement on him once he returns to the country.
The court ruled that the Thaksin cabinet and the Government Lottery Office (GLO) board violated the GLO Act and section 157 of the Criminal Code by introducing the two- and three-digit lottery, and by exempting tax on income from the lottery operation and misappropriating funds.
The National Anti-Corruption Commission also said on Sept 29 that former prime minister Samak Sundaravej and former foreign minister Noppadon Pattama were to be held responsible for a cabinet resolution on June 17 last year that allowed Mr Noppadon to sign a joint communique backing Cambodia's bid to register Preah Vihear as a World Heritage Site without receiving prior approval from Parliament, as required by section 190 of the constitution. The communique was signed on June 18. The two were also found to have violated section 157 of the Criminal Code.
Prior to this, politicians of the different incarnations of Thaksin's party were banned from politics on two different occasions.
If one were to ask the convicted politicians, few would admit that they had done anything wrong. They would blame the laws, the constitution and the courts for their misfortunes.
Famous cartoonist Chai Ratchavat summed up the picture of Thai politics today pretty well in two of his cartoons published in Thai Rath daily last week.In one, he depicted one the characters as saying:"England, Japan and the US are asking to study Thai politics." In the next frame, the character continued:"They are impressed that our politics have progressed beyond any other country on this planet."
The other character asked:"In which areas are we so advanced?"
The main character answered:"We have no bad politicians. Only the constitution is bad."
Thailand changed its rule to a constitutional monarchy 77 years ago, and there have been 18 charters since. Yet our politicians are not happy, and they are seeking to amend the present one,especially the sections they find inconvenient or which could backfire on them,such as sections 190,237,265,266, etc.
Mr Chai also made a mockery of politicians on Oct 1 in the Thai-language daily.
Character 1:"Politicians in other countries are rich. But our politicians are filthy rich.
"They are so rich they don't know how rich they are."
Character 2:"What's your proof?"Character 1:"They regularly make mistakes in declaring their assets."
Election law bans vote-buying and stipulates that political party executives must ensure there is no violation of this by their party. Yet votes were bought in recent elections and when the Election Commission prosecuted the wrongdoers and banned their parties, they cried foul,saying the law was unjust and should be amended.
The charter stipulates that entering into a contract with another country which could result in changes to Thailand's territorial area must be approved by Parliament first. Yet some politicians violated this clause. When they were punished, they blamed it on the constitution and sought to amend it to suit themselves.
Actually, the laws are simple and easy to comply with. What's so hard about abiding by them? Does the constitutional provision that:"A person has the duty to comply with the law" apply only to ordinary people?
The case involves the Agriculture Department's plan to procure 90 million rubber saplings for distribution to rubber growers.
The 44 defendants in the case were cabinet ministers and state officials during the Thaksin government.
On Sept 28, the same court found former natural resources and environment minister Yongyuth Tiyapairat, one of former prime minister Thaksin Shin-awatra's right-hand men, guilty of filing a false declaration of assets, and banned him from politics for five years.
Two days later, the same court handed down a two-year suspended jail term on three of the 46 defendants in the two- and three-digit lottery case.
There are in fact 47 defendants in the case, including the former prime minister.Since Thaksin is now in self-imposed exile, the court decided to temporarily exclude him from the list of defendants,and make its judgement on him once he returns to the country.
The court ruled that the Thaksin cabinet and the Government Lottery Office (GLO) board violated the GLO Act and section 157 of the Criminal Code by introducing the two- and three-digit lottery, and by exempting tax on income from the lottery operation and misappropriating funds.
The National Anti-Corruption Commission also said on Sept 29 that former prime minister Samak Sundaravej and former foreign minister Noppadon Pattama were to be held responsible for a cabinet resolution on June 17 last year that allowed Mr Noppadon to sign a joint communique backing Cambodia's bid to register Preah Vihear as a World Heritage Site without receiving prior approval from Parliament, as required by section 190 of the constitution. The communique was signed on June 18. The two were also found to have violated section 157 of the Criminal Code.
Prior to this, politicians of the different incarnations of Thaksin's party were banned from politics on two different occasions.
If one were to ask the convicted politicians, few would admit that they had done anything wrong. They would blame the laws, the constitution and the courts for their misfortunes.
Famous cartoonist Chai Ratchavat summed up the picture of Thai politics today pretty well in two of his cartoons published in Thai Rath daily last week.In one, he depicted one the characters as saying:"England, Japan and the US are asking to study Thai politics." In the next frame, the character continued:"They are impressed that our politics have progressed beyond any other country on this planet."
The other character asked:"In which areas are we so advanced?"
The main character answered:"We have no bad politicians. Only the constitution is bad."
Thailand changed its rule to a constitutional monarchy 77 years ago, and there have been 18 charters since. Yet our politicians are not happy, and they are seeking to amend the present one,especially the sections they find inconvenient or which could backfire on them,such as sections 190,237,265,266, etc.
Mr Chai also made a mockery of politicians on Oct 1 in the Thai-language daily.
Character 1:"Politicians in other countries are rich. But our politicians are filthy rich.
"They are so rich they don't know how rich they are."
Character 2:"What's your proof?"Character 1:"They regularly make mistakes in declaring their assets."
Election law bans vote-buying and stipulates that political party executives must ensure there is no violation of this by their party. Yet votes were bought in recent elections and when the Election Commission prosecuted the wrongdoers and banned their parties, they cried foul,saying the law was unjust and should be amended.
The charter stipulates that entering into a contract with another country which could result in changes to Thailand's territorial area must be approved by Parliament first. Yet some politicians violated this clause. When they were punished, they blamed it on the constitution and sought to amend it to suit themselves.
Actually, the laws are simple and easy to comply with. What's so hard about abiding by them? Does the constitutional provision that:"A person has the duty to comply with the law" apply only to ordinary people?
Two charter drafts better than one
The government, opposition and senate whips will ask the two houses' legal affairs offices to draft two versions of the planned changes to the constitution to accommodate their differences.
One version, supported by the opposition, would include all six suggested amendments in the one draft. The other would separate them into six separate proposals, as backed by the ruling Democrat Party.
A special meeting of the whips yesterday agreed to have the legal affairs offices of the lower house and Senate write the two versions.
The legal offices had acted as the secretary to the joint committee on national reconciliation and constitutional amendments, which proposed the six changes.
The changes cover the selection of MPs, the selection of senators, a requirement for parliament to approve international contracts, the dissolution of political parties, the demand for MPs to be allowed to act as advisers or secretaries to cabinet ministers, and the demand for MPs and senators to have a say in government budgetary affairs.
"The drafting should be finished in two weeks," government chief whip Chinavorn Boonyakiat said after the meeting."Then, the three [groups of] whips will meet again to choose one."
Mr Chinavorn preferred a separate draft for each proposed amendment so,when they are put to a referendum, people could choose to change only the areas they wanted. If all the amendments were included in a single draft, approval of one amendment would mean they voted for them all.
The Abhisit Vejjajiva government is going ahead with the amendments,reasoning they are needed for the sake of national reconciliation. This is despite the opposition of 40 senators who believe the constitution should only be amended after it has been in effect for five years,
The move also honours a promise made by the Democrat Party to the Newin Chidchob faction which dominates the coalition Bhumjaithai Party in return for its support in forming the present government.
The whips will meet Mr Abhisit today to discuss the holding of a referendum on the future of the 2007 constitution.
Mr Abhisit insists a referendum is needed on the planned amendments.
One version, supported by the opposition, would include all six suggested amendments in the one draft. The other would separate them into six separate proposals, as backed by the ruling Democrat Party.
A special meeting of the whips yesterday agreed to have the legal affairs offices of the lower house and Senate write the two versions.
The legal offices had acted as the secretary to the joint committee on national reconciliation and constitutional amendments, which proposed the six changes.
The changes cover the selection of MPs, the selection of senators, a requirement for parliament to approve international contracts, the dissolution of political parties, the demand for MPs to be allowed to act as advisers or secretaries to cabinet ministers, and the demand for MPs and senators to have a say in government budgetary affairs.
"The drafting should be finished in two weeks," government chief whip Chinavorn Boonyakiat said after the meeting."Then, the three [groups of] whips will meet again to choose one."
Mr Chinavorn preferred a separate draft for each proposed amendment so,when they are put to a referendum, people could choose to change only the areas they wanted. If all the amendments were included in a single draft, approval of one amendment would mean they voted for them all.
The Abhisit Vejjajiva government is going ahead with the amendments,reasoning they are needed for the sake of national reconciliation. This is despite the opposition of 40 senators who believe the constitution should only be amended after it has been in effect for five years,
The move also honours a promise made by the Democrat Party to the Newin Chidchob faction which dominates the coalition Bhumjaithai Party in return for its support in forming the present government.
The whips will meet Mr Abhisit today to discuss the holding of a referendum on the future of the 2007 constitution.
Mr Abhisit insists a referendum is needed on the planned amendments.
Pipe bomb fails to go off at old court
A one-kilogramme bomb has been found in front of the Constitution Court's old premises, but it failed to explode and was defused before it could do any harm.
The device was discovered yesterday two hours after it was supposed to detonate, based on its timer. Police say a technical problem prevented it from going off.
A security guard at the Constitution Court found the bomb at noon placed behind a telephone exchange cabinet near the gate of the court on Chakkraphet Road in Phra Nakhon district. The bomb squad disabled the device with water jets.
Police said the explosive was made up of a plastic pipe,30 centimetres long and 10cm wide, packed with a kilogramme of ammonium nitrate and gunpowder.
It also contained nails and bolts, which would turn into shrapnel when the device exploded.
The bomb was wired to an alarm clock and set to go off at 9.50am.
Constitution Court judges have moved to the court's new building on Chang Wattana Road.
Only some administrative staff remain at the old building.
A bomb squad officer said the bomb circuit was complete and the device could have gone off, but a technical problem prevented it from exploding.
Deputy Bangkok police chief Amnuay Nimmano said the bomber might have intended to scare people rather than cause harm.
A source said the bomb might have been left there for political reasons. Cases before the court include a bid to disqualify 16 senators and 28 MPs for holding shares in breach of the law.
Meanwhile, the Constitution Court reached a unanimous decision yesterday to reject a request by the opposition to declare the 2010 Budget Act unconstitutional.
MPs including Puea Thai Party MP for Chiang Mai Surapong Towijakchaikul filed a complaint with the court early last month saying the Budget Act might be unconstitutional because it did not provide detail on how the money would be spent, which affected the budget scrutiny process in parliament.
The device was discovered yesterday two hours after it was supposed to detonate, based on its timer. Police say a technical problem prevented it from going off.
A security guard at the Constitution Court found the bomb at noon placed behind a telephone exchange cabinet near the gate of the court on Chakkraphet Road in Phra Nakhon district. The bomb squad disabled the device with water jets.
Police said the explosive was made up of a plastic pipe,30 centimetres long and 10cm wide, packed with a kilogramme of ammonium nitrate and gunpowder.
It also contained nails and bolts, which would turn into shrapnel when the device exploded.
The bomb was wired to an alarm clock and set to go off at 9.50am.
Constitution Court judges have moved to the court's new building on Chang Wattana Road.
Only some administrative staff remain at the old building.
A bomb squad officer said the bomb circuit was complete and the device could have gone off, but a technical problem prevented it from exploding.
Deputy Bangkok police chief Amnuay Nimmano said the bomber might have intended to scare people rather than cause harm.
A source said the bomb might have been left there for political reasons. Cases before the court include a bid to disqualify 16 senators and 28 MPs for holding shares in breach of the law.
Meanwhile, the Constitution Court reached a unanimous decision yesterday to reject a request by the opposition to declare the 2010 Budget Act unconstitutional.
MPs including Puea Thai Party MP for Chiang Mai Surapong Towijakchaikul filed a complaint with the court early last month saying the Budget Act might be unconstitutional because it did not provide detail on how the money would be spent, which affected the budget scrutiny process in parliament.
GOVT AWAITING ADVICE FROM COUNCIL OF STATE ON CHARTER CHANGES
Prime Minister Abhisit Vejjajiva said yesterday he was waiting for clear advice from the Council of State on laws relating to procedures for amending the Constitution.
Abhisit said the government, opposition and Senate whips would meet today and he might get together with them either tomorrow or next week.
While the Bhum Jai Thai Party proposed a national referendum after the Parliament's first reading of the amended charter, Abhisit said some procedures might be against the law unless a Constitution Article was amended, which could delay the process.
He was waiting for advice from the Council of State before considering whether to hold a national referendum before the drafting of changes, or while it was considered by a parliamentary committee after the first reading.
Abhisit explained that people would not be asked whether they agreed with all changes proposed for the charter by the parliamentary committee.
But the referendum, which would cost about Bt2 billion, would ask for the public whether they supported changes on six issues in one questionnaire - rather than having six votes on separate charter changes.
In a related development, senators from the Group of 40 Senators continued campaigning against the charter amendment saying only politicians would benefit from the change.
Bangkok Senator Rosana Tositrakul cited a survey by the Asia Foundation in September that two-thirds of Thai citizens wanted the Constitution to be amended, or a new constitution drafted, through a participatory process that involves ordinary citizens
Meanwhile, only 10 per cent of respondents thought it appropriate for Parliament to take the lead in changes to the Constitution. More - 16 per cent - thought the changes should be made by a committee of experts.
The survey was conducted via interviews with 1,500 people in Bangkok and 26 other provinces between June 3 and July 5.
Rosana also claimed the survey result said 84 per cent of respondents wanted a national amendment held before drafting of the change.
About 60 per cent wanted to keep Article 237, which requires parties to be dissolves and executives losing their voting rights for five years as penalties for electoral fraud by a party executive. But, 31 per cent wanted that punishment scrapped.
Rosana said the survey showed a majority of people wanted the government to stay until the end of its term. Therefore, politicians should not rush to change laws against the public's will.
Appointed Senator Somchai Sawangkarn pointed out that the Bhum Jai Thai Party had changed its stance by turning to support the holding of a national referendum, as suggested by the Prime Minister, just when its NGV bus leasing project was approved by the Cabinet.
Meanwhile, Tourism and Sports Minister Chumpol Silapa-archa said his Chart Thai Pattana Party did not see a referendum as necessary. But it did not oppose one being staged on whether to amend the six proposed issues.
He said it was not necessary to dissolve parliament after the Constitution was amended.
Abhisit said the government, opposition and Senate whips would meet today and he might get together with them either tomorrow or next week.
While the Bhum Jai Thai Party proposed a national referendum after the Parliament's first reading of the amended charter, Abhisit said some procedures might be against the law unless a Constitution Article was amended, which could delay the process.
He was waiting for advice from the Council of State before considering whether to hold a national referendum before the drafting of changes, or while it was considered by a parliamentary committee after the first reading.
Abhisit explained that people would not be asked whether they agreed with all changes proposed for the charter by the parliamentary committee.
But the referendum, which would cost about Bt2 billion, would ask for the public whether they supported changes on six issues in one questionnaire - rather than having six votes on separate charter changes.
In a related development, senators from the Group of 40 Senators continued campaigning against the charter amendment saying only politicians would benefit from the change.
Bangkok Senator Rosana Tositrakul cited a survey by the Asia Foundation in September that two-thirds of Thai citizens wanted the Constitution to be amended, or a new constitution drafted, through a participatory process that involves ordinary citizens
Meanwhile, only 10 per cent of respondents thought it appropriate for Parliament to take the lead in changes to the Constitution. More - 16 per cent - thought the changes should be made by a committee of experts.
The survey was conducted via interviews with 1,500 people in Bangkok and 26 other provinces between June 3 and July 5.
Rosana also claimed the survey result said 84 per cent of respondents wanted a national amendment held before drafting of the change.
About 60 per cent wanted to keep Article 237, which requires parties to be dissolves and executives losing their voting rights for five years as penalties for electoral fraud by a party executive. But, 31 per cent wanted that punishment scrapped.
Rosana said the survey showed a majority of people wanted the government to stay until the end of its term. Therefore, politicians should not rush to change laws against the public's will.
Appointed Senator Somchai Sawangkarn pointed out that the Bhum Jai Thai Party had changed its stance by turning to support the holding of a national referendum, as suggested by the Prime Minister, just when its NGV bus leasing project was approved by the Cabinet.
Meanwhile, Tourism and Sports Minister Chumpol Silapa-archa said his Chart Thai Pattana Party did not see a referendum as necessary. But it did not oppose one being staged on whether to amend the six proposed issues.
He said it was not necessary to dissolve parliament after the Constitution was amended.
Tuesday, September 22, 2009
Scenario precarious for women migrants
As clandestine migrant labour is an enormous issue in Thailand, a key challenge is how to address the issue effectively and humanely.
Globalisation implies a greater integration of the international system from the angle of faster communications and information, and greater liberalisation of trade in goods, services, capital and investment flows.
However, a recurrent question is to what extent globalisation enables migration to take place in an orderly and balanced manner, with due regard to the rights of migrant workers, especially women who now constitute a large part of the work force?
Currently, the answer is somewhat ambiguous in that today's global system seems more ready to liberalise the flows of goods, services, capital and investment,rather than migration itself which is often seen as a challenge to national sovereignty and ethnic sensibility. The rules and agreements which have been evolved under the World Trade Organisation (WTO), an organisation closely linked with globalisation, have confirmed that trend.
In this context, it is necessary to see the migration issue from three angles:white collar workers (skilled labour), blue collar workers (unskilled labour) and "no collar workers," namely those who cross borders clandestinely and who often land up in exploitative situations.
White collar workers can cross borders to work in other countries quite easily,and under the WTO, this often takes place under the umbrella of opening up markets to services, thus enabling women executives and skilled workers to provide services in other countries.
With regard to blue collar workers,there are large numbers working outside their country of origin, such as maids.The arrangements are at times bilateral,at times regional. Multilaterally, while a comprehensive agreement is lacking on the liberalisation of migration flows, there are some international standards in the form of treaties which offer protection to those on the move by safeguarding their rights; these have been propelled particularly by the United Nations, in particular through the International Labour Organisation (ILO) as a specialised agency.
Yet the scenario facing women migrants is precarious for a number of reasons. First, increasingly it is evident there is a feminisation of thelabour flows,with women landing up in many jobs which exemplify the 3 D's of work dirty, dangerous and degrading. The Progress of the World's Women Report 2008-09 observes that over the last decade, more than 200 million women have joined the global labour force, and they often land up in labour-intensive and low-paying activities such as subsistence agriculture, domestic work and the clothing industry. Employers see women workers as free from the "fixed costs" of an organised labour force, such as basic minimum wages - particularly equal pay for equal work and social security guarantees. Women are thus more susceptible to discrimination and exploitation.
Second, many countries have shied away from becoming parties to international treaties for the protection of migrant labour, thus preferring to retain their discretion in dealing with migration issues without international scrutiny.In particular, there have been few accessions to the 1990 UN Convention on the Rights of Migrant Workers and their families. This treaty guarantees the basic rights of all migrant workers whether they are documented or undocumented.While documented workers are guaranteed more rights than undocumented workers, the latter still enjoy key rights under the treaty such as the right to life and humane treatment and their right to seek redress, such as payment for their work even if they are part of the illegal migrant labour. The lack of accessions to this treaty testifies to the lack of political will globally to liberalise migration flows with safeguards for migrant welfare, even though many countries are short of workers and have to import foreign labour.
Third, in the debate concerning whether to open up to migration, the environment behind the migration should not be overlooked. Often it is the lack of choice in their homesteads lack of opportunities, lack of income,lack of access to jobs and other productive activities which push people to leave and to seek opportunities elsewhere.This is particularly poignant for women who, more often than not, trail behind men in the availability of choices and accessibility to livelihood.
Fourth, regionally many Free Trade Areas (FTAs) have come into existence,opening up markets to trade in goods,services and capital. While white collar workers have benefited from this, blue collar and no collar workers are in a more tenuous situation.
Several export processing zones (EPZ)have grown which offer the benefits of easier trade, but without concurrent guarantees of labour rights. This has meant the lowering of labour standards on minimum wages for work and respect for worker rights, particularly women. More-over, there has been little assessment of how FTAs impact on women in the localities in general and women migrant workers in particular. In one Caribbean country noted by the Progress of the World's Women Report, it has been shown that job losses outweighed the benefits from the FTA, with women losing out in the process.
Fifth, Thailand has faced the migration issue particularly by opting for the registration of foreign migrant labour and concluding bilateral a Memorandum of Understanding (MOU) with all of its immediate neighbours. These MOUs are based on the premise that migrants can enter Thailand to work if there is a labour shortage in relation to relevant sectors and there is an official channel for them to come into the country through official channels in neighbouring countries. If they enter legally and pay the relevant contributions, they have access to medical and other benefits as part of the social security programme offered by the destination country. However, as clandestine migrant labour is an enormous issue in the country, a key challenge is how to address the issue effectively and humanely.
In addition to the prescription of registration of migrant labour introduced by Thailand several years ago, there is now a new law on the employment of alien workers. In 2008, this new law came into effect, with the innovation that unlike previous national laws which listed various types of work in which foreign labour could not be engaged, the new law will list the types of activities open to foreign labour. Employers and foreign employees must also make contributions into a fund which will be used to assist foreign migrant workers to return to their country of origin. However, one anomaly is that law enforcers will be able to arrest foreign migrant workers without a court warrant.
On another front, it should be noted that the Labour Protection Act which was updated also in 2008, does not discriminate between Thais and foreigners in terms of labour rights protection. They all have a right to equal wages. Women and adolescent workers are protected from various types of harmful work. The minimum age of employment is set at 15, while there is protection of those under 18 years of age from certain kinds of dangerous work.
To counter the exploitation and abuse which may affect workers, there are also special laws and policies, such as the law against human trafficking which came into force last year, and the antiprostitution law. The country's new National Health Act also opens the door to covering migrant workers in relation to healthcare access. Yet, in spite of these legislative changes, implementation often leaves much to be desired and there is a considerable gap between law and practice, legislation and enforcement.
For the future, various orientations deserve to be highlighted with particular emphasis on the protection of women migrant workers. At the multilateral level,the WTO should be encouraged to promote a sense of responsiveness to labour standards. This can be done, in part, by requesting states which send in their reports under the Trade Policy Review mechanism to include information on labour rights.
Countries should also sign up to the 1990 Migrant Workers' Convention as well as ILO Conventions, while ensuring that EPZs do not lower labour standards.Various anti-crime treaties such as the Palermo Protocol against human trafficking also voice the need for more global cooperation against transnational crimes.
At the regional level, the Association of Southeast Asian Nations (Asean) itself should underline more effectively the need to protect migrant labour. On a welcome front, recently Asean adopted the Declaration on the Rights of Migrant Workers. Next month, the Asean Intergovernmental Human Rights Commission will also be set up as the overarching body on human rights in Asean. A related issue is to ensure that the Asean FTA is assessed from the angle of its impact on the situation of local and migrant labourers, with relevant remedies.
Likewise, bilateral agreements on migrant labour in Asean need to abide by international labour standards. Various practices such as the caning of labourers and the expulsion of women migrant labourers who wish to marry the residents of the destination country, are unacceptable practices.
With regard to Thailand, the country should accede to the 1990 Migrant Workers' Convention and relevant ILO treaties and implement them well.Undocumented migrant labourers should be assisted to access the remuneration to which they are entitled as part of access to justice.
The new law on the employment of alien workers should also be applied to uphold human rights standards, such as the general principle that arrests should only by undertaken with court warrants. Legal and other measures in the anti-crime field, such as those against human trafficking, should abide by the need for gender sensibility and the protection of victims and witnesses from intimidation.
In effect, a key message from the phenomenon of women migrant workers is that "Justice based on Women's Rights"should be increasingly resonant both locally and globally.
Vitit Muntarbhorn is a Professor of Law at Chulalongkorn University. He has helped the UN in a variety of capacities, including as an expert, consultant and Special Rapporteur. This article is derived from his speech at the National Platform for Women,Bangkok, Sept 17,2009.
Globalisation implies a greater integration of the international system from the angle of faster communications and information, and greater liberalisation of trade in goods, services, capital and investment flows.
However, a recurrent question is to what extent globalisation enables migration to take place in an orderly and balanced manner, with due regard to the rights of migrant workers, especially women who now constitute a large part of the work force?
Currently, the answer is somewhat ambiguous in that today's global system seems more ready to liberalise the flows of goods, services, capital and investment,rather than migration itself which is often seen as a challenge to national sovereignty and ethnic sensibility. The rules and agreements which have been evolved under the World Trade Organisation (WTO), an organisation closely linked with globalisation, have confirmed that trend.
In this context, it is necessary to see the migration issue from three angles:white collar workers (skilled labour), blue collar workers (unskilled labour) and "no collar workers," namely those who cross borders clandestinely and who often land up in exploitative situations.
White collar workers can cross borders to work in other countries quite easily,and under the WTO, this often takes place under the umbrella of opening up markets to services, thus enabling women executives and skilled workers to provide services in other countries.
With regard to blue collar workers,there are large numbers working outside their country of origin, such as maids.The arrangements are at times bilateral,at times regional. Multilaterally, while a comprehensive agreement is lacking on the liberalisation of migration flows, there are some international standards in the form of treaties which offer protection to those on the move by safeguarding their rights; these have been propelled particularly by the United Nations, in particular through the International Labour Organisation (ILO) as a specialised agency.
Yet the scenario facing women migrants is precarious for a number of reasons. First, increasingly it is evident there is a feminisation of thelabour flows,with women landing up in many jobs which exemplify the 3 D's of work dirty, dangerous and degrading. The Progress of the World's Women Report 2008-09 observes that over the last decade, more than 200 million women have joined the global labour force, and they often land up in labour-intensive and low-paying activities such as subsistence agriculture, domestic work and the clothing industry. Employers see women workers as free from the "fixed costs" of an organised labour force, such as basic minimum wages - particularly equal pay for equal work and social security guarantees. Women are thus more susceptible to discrimination and exploitation.
Second, many countries have shied away from becoming parties to international treaties for the protection of migrant labour, thus preferring to retain their discretion in dealing with migration issues without international scrutiny.In particular, there have been few accessions to the 1990 UN Convention on the Rights of Migrant Workers and their families. This treaty guarantees the basic rights of all migrant workers whether they are documented or undocumented.While documented workers are guaranteed more rights than undocumented workers, the latter still enjoy key rights under the treaty such as the right to life and humane treatment and their right to seek redress, such as payment for their work even if they are part of the illegal migrant labour. The lack of accessions to this treaty testifies to the lack of political will globally to liberalise migration flows with safeguards for migrant welfare, even though many countries are short of workers and have to import foreign labour.
Third, in the debate concerning whether to open up to migration, the environment behind the migration should not be overlooked. Often it is the lack of choice in their homesteads lack of opportunities, lack of income,lack of access to jobs and other productive activities which push people to leave and to seek opportunities elsewhere.This is particularly poignant for women who, more often than not, trail behind men in the availability of choices and accessibility to livelihood.
Fourth, regionally many Free Trade Areas (FTAs) have come into existence,opening up markets to trade in goods,services and capital. While white collar workers have benefited from this, blue collar and no collar workers are in a more tenuous situation.
Several export processing zones (EPZ)have grown which offer the benefits of easier trade, but without concurrent guarantees of labour rights. This has meant the lowering of labour standards on minimum wages for work and respect for worker rights, particularly women. More-over, there has been little assessment of how FTAs impact on women in the localities in general and women migrant workers in particular. In one Caribbean country noted by the Progress of the World's Women Report, it has been shown that job losses outweighed the benefits from the FTA, with women losing out in the process.
Fifth, Thailand has faced the migration issue particularly by opting for the registration of foreign migrant labour and concluding bilateral a Memorandum of Understanding (MOU) with all of its immediate neighbours. These MOUs are based on the premise that migrants can enter Thailand to work if there is a labour shortage in relation to relevant sectors and there is an official channel for them to come into the country through official channels in neighbouring countries. If they enter legally and pay the relevant contributions, they have access to medical and other benefits as part of the social security programme offered by the destination country. However, as clandestine migrant labour is an enormous issue in the country, a key challenge is how to address the issue effectively and humanely.
In addition to the prescription of registration of migrant labour introduced by Thailand several years ago, there is now a new law on the employment of alien workers. In 2008, this new law came into effect, with the innovation that unlike previous national laws which listed various types of work in which foreign labour could not be engaged, the new law will list the types of activities open to foreign labour. Employers and foreign employees must also make contributions into a fund which will be used to assist foreign migrant workers to return to their country of origin. However, one anomaly is that law enforcers will be able to arrest foreign migrant workers without a court warrant.
On another front, it should be noted that the Labour Protection Act which was updated also in 2008, does not discriminate between Thais and foreigners in terms of labour rights protection. They all have a right to equal wages. Women and adolescent workers are protected from various types of harmful work. The minimum age of employment is set at 15, while there is protection of those under 18 years of age from certain kinds of dangerous work.
To counter the exploitation and abuse which may affect workers, there are also special laws and policies, such as the law against human trafficking which came into force last year, and the antiprostitution law. The country's new National Health Act also opens the door to covering migrant workers in relation to healthcare access. Yet, in spite of these legislative changes, implementation often leaves much to be desired and there is a considerable gap between law and practice, legislation and enforcement.
For the future, various orientations deserve to be highlighted with particular emphasis on the protection of women migrant workers. At the multilateral level,the WTO should be encouraged to promote a sense of responsiveness to labour standards. This can be done, in part, by requesting states which send in their reports under the Trade Policy Review mechanism to include information on labour rights.
Countries should also sign up to the 1990 Migrant Workers' Convention as well as ILO Conventions, while ensuring that EPZs do not lower labour standards.Various anti-crime treaties such as the Palermo Protocol against human trafficking also voice the need for more global cooperation against transnational crimes.
At the regional level, the Association of Southeast Asian Nations (Asean) itself should underline more effectively the need to protect migrant labour. On a welcome front, recently Asean adopted the Declaration on the Rights of Migrant Workers. Next month, the Asean Intergovernmental Human Rights Commission will also be set up as the overarching body on human rights in Asean. A related issue is to ensure that the Asean FTA is assessed from the angle of its impact on the situation of local and migrant labourers, with relevant remedies.
Likewise, bilateral agreements on migrant labour in Asean need to abide by international labour standards. Various practices such as the caning of labourers and the expulsion of women migrant labourers who wish to marry the residents of the destination country, are unacceptable practices.
With regard to Thailand, the country should accede to the 1990 Migrant Workers' Convention and relevant ILO treaties and implement them well.Undocumented migrant labourers should be assisted to access the remuneration to which they are entitled as part of access to justice.
The new law on the employment of alien workers should also be applied to uphold human rights standards, such as the general principle that arrests should only by undertaken with court warrants. Legal and other measures in the anti-crime field, such as those against human trafficking, should abide by the need for gender sensibility and the protection of victims and witnesses from intimidation.
In effect, a key message from the phenomenon of women migrant workers is that "Justice based on Women's Rights"should be increasingly resonant both locally and globally.
Vitit Muntarbhorn is a Professor of Law at Chulalongkorn University. He has helped the UN in a variety of capacities, including as an expert, consultant and Special Rapporteur. This article is derived from his speech at the National Platform for Women,Bangkok, Sept 17,2009.
Death to the death penalty
Late last month, on a quiet Monday afternoon,warders locked down Bang Khwang prison and prepared for two executions. A pair of convicted drug dealers, Bundit Charoenwanich,45, and Jirawat Phumpruek,52, were given one hour to contact their families, eat a last meal and make their peace in this world. Then they were taken to the execution room and injected with a series of drugs, the last of which ended their lives.
It was the first time in six years that authorities had ordered an actual execution. They should be the last such prisoners to die by execution. It is time that Parliament and the government end all use of the death penalty.
There are several problems with judicial executions,and no acceptable advantage. Carrying out a death sentence always risks the chance of killing the wrong person. Police, prosecutors and courts are dedicated and efficient, but not infallible. There have been plenty of wrongful convictions over the decades of Thai justice.If even one death sentence is wrongfully carried out,the death would be on the conscience of the nation. A wrongful conviction already takes months or years from an innocent person's life. Nothing could be worse than taking his or her life.
The main reason to abolish the death penalty for terrible crimes is that it brings no true result. Justice and punishment, in the form of imprisonment, parole or work programmes, are meant to prevent further crime. To an extent, they work. While many criminals continue their ways after release, others "go straight"so that they can live freely, without worry about being imprisoned. Crimes are prevented daily by the presence of police and the courts, as would-be robbers, speeders,thieves and others stick to the law in order to avoid punishment.
Study after study over the past 50 years has proved that the death sentence is no deterrent to the terrible crimes it punishes, such as drug trafficking, premeditated murder, violent and sexual abuse of children. While proponents of the death penalty argue facetiously that execution will assure that such criminals do not carry out their acts again, there are many ways to assure that.Indeed, no rational person would accept the end of the death penalty without parallel assurances that such violent acts against society can be punished by true life imprisonment, without early release.
Abolishing the death penalty in Thailand will be an unpopular act by the government, without doubt. Even in advanced Western countries, the majority of citizens always have opposed the abolition of the ultimate penalty. Yet such abolition around the world, from Canada to Cambodia, and from Austria to Australia,has never caused an upsurge of any kind in capital crimes. If anything, the threat of lengthy, even lifetime incarceration seems to be a greater deterrent than the former death penalty. Indeed, in recent cases in the United States, federal prisoners in so-called Supermax prisons have sued the government against their lifetime sentences under harsh, maximum security rules.
The only remaining argument in favour - that it provides an emotional release of sorts for victims and a horrified public - is unacceptable. Justice is not a form of vengeance, like some feel-good ending to a movie. Law and punishment are serious matters.
Last year, a majority of the United Nations General Assembly voted for the first time to oppose the death penalty. For now, the government should order a true moratorium banning more executions, pending a rewrite of the criminal code to ban the death penalty altogether.
It was the first time in six years that authorities had ordered an actual execution. They should be the last such prisoners to die by execution. It is time that Parliament and the government end all use of the death penalty.
There are several problems with judicial executions,and no acceptable advantage. Carrying out a death sentence always risks the chance of killing the wrong person. Police, prosecutors and courts are dedicated and efficient, but not infallible. There have been plenty of wrongful convictions over the decades of Thai justice.If even one death sentence is wrongfully carried out,the death would be on the conscience of the nation. A wrongful conviction already takes months or years from an innocent person's life. Nothing could be worse than taking his or her life.
The main reason to abolish the death penalty for terrible crimes is that it brings no true result. Justice and punishment, in the form of imprisonment, parole or work programmes, are meant to prevent further crime. To an extent, they work. While many criminals continue their ways after release, others "go straight"so that they can live freely, without worry about being imprisoned. Crimes are prevented daily by the presence of police and the courts, as would-be robbers, speeders,thieves and others stick to the law in order to avoid punishment.
Study after study over the past 50 years has proved that the death sentence is no deterrent to the terrible crimes it punishes, such as drug trafficking, premeditated murder, violent and sexual abuse of children. While proponents of the death penalty argue facetiously that execution will assure that such criminals do not carry out their acts again, there are many ways to assure that.Indeed, no rational person would accept the end of the death penalty without parallel assurances that such violent acts against society can be punished by true life imprisonment, without early release.
Abolishing the death penalty in Thailand will be an unpopular act by the government, without doubt. Even in advanced Western countries, the majority of citizens always have opposed the abolition of the ultimate penalty. Yet such abolition around the world, from Canada to Cambodia, and from Austria to Australia,has never caused an upsurge of any kind in capital crimes. If anything, the threat of lengthy, even lifetime incarceration seems to be a greater deterrent than the former death penalty. Indeed, in recent cases in the United States, federal prisoners in so-called Supermax prisons have sued the government against their lifetime sentences under harsh, maximum security rules.
The only remaining argument in favour - that it provides an emotional release of sorts for victims and a horrified public - is unacceptable. Justice is not a form of vengeance, like some feel-good ending to a movie. Law and punishment are serious matters.
Last year, a majority of the United Nations General Assembly voted for the first time to oppose the death penalty. For now, the government should order a true moratorium banning more executions, pending a rewrite of the criminal code to ban the death penalty altogether.
Prasopsuk backs PM on charter
Senate Speaker Prasopsuk Boondej has voiced support for Prime Minister Abhisit Vejjajiva's suggestion for former constitution drafters and academics to be recruited to vet the proposed six-point rewrite of the charter.
Mr Prasopsuk said the participation of the former members of two constitution drafting assemblies would ensure public input in the charter rewrite process.
He said the charter amendments could be completed within a few months if the government was serious about it.
A special parliamentary meeting could then be convened to screen the amendments when the House goes into recess in November, he said.
However, the speaker said it would be time-consuming if the amended constitution was put up for a referendum.There is no law governing a referendum on a new charter.
He said legislation could be sped up and completed within two months if the public wanted a referendum.
On Sunday, Mr Abhisit floated the idea of forming a fresh constitution drafting assembly to handle changes to the charter and the holding of a referendum.
He said the assembly should be made up of members of parliament, those who drew up the 1997 and present 2007 constitutions, scholars and experts.
Government chief whip Chinnaworn Boonyakiat said the government whips would discuss charter amendments with the opposition and the senate whips tomorrow to reach an agreement before Mr Abhisit's return from overseas.
He said the charter rewrite should not take more than six months.
But Puea Thai Party MP Surapong Towihcakchaikul yesterday shot down the prime minister's proposed new charter drafting assembly suggestion.
He said the party would support only the six points offered by the charter reform and national reconciliation committee.
Mr Prasopsuk said the participation of the former members of two constitution drafting assemblies would ensure public input in the charter rewrite process.
He said the charter amendments could be completed within a few months if the government was serious about it.
A special parliamentary meeting could then be convened to screen the amendments when the House goes into recess in November, he said.
However, the speaker said it would be time-consuming if the amended constitution was put up for a referendum.There is no law governing a referendum on a new charter.
He said legislation could be sped up and completed within two months if the public wanted a referendum.
On Sunday, Mr Abhisit floated the idea of forming a fresh constitution drafting assembly to handle changes to the charter and the holding of a referendum.
He said the assembly should be made up of members of parliament, those who drew up the 1997 and present 2007 constitutions, scholars and experts.
Government chief whip Chinnaworn Boonyakiat said the government whips would discuss charter amendments with the opposition and the senate whips tomorrow to reach an agreement before Mr Abhisit's return from overseas.
He said the charter rewrite should not take more than six months.
But Puea Thai Party MP Surapong Towihcakchaikul yesterday shot down the prime minister's proposed new charter drafting assembly suggestion.
He said the party would support only the six points offered by the charter reform and national reconciliation committee.
Suthep lifts imposition of security act
The imposition of the Internal Security Act in Bangkok's Dusit district will be lifted today after the weekend's red shirt rally passed without violence.
Deputy Prime Minister Suthep Thaugsuban, who is in charge of national security, yesterday said it was fortunate there was no violence during the demonstration led by the United Front for Democracy against Dictatorship.
The Internal Security Act had been invoked in Dusit district where the rally was held. The act took effect on Friday.
More than 20,000 anti-government UDD supporters gathered at the Royal
Plaza on Saturday to mark the third anniversary of the Sept 19,2006, military coup that toppled the Thaksin Shinawatra administration.Demonstrators dispersed at midnight and there Suthep: Relieved were no violent there was no violence incidents.
Mr Suthep said members of the security forces manning Government House were now pulling out of the compound.
He said the government would decide whether to invoke the Internal Security Act to ensure security for the Asean summits in Phetchaburi's Cha-am district and Prachuap Khiri Khan's Hua Hin district in late October.
Mr Suthep denied suggestions the government had been locked in a political tug-of-war with red shirt protesters.
Metropolitan police chief Worapong Chiewpreecha has issued an order lowering a security alert at the Royal Plaza to "normal" level and cutting the number of security forces in the area.
Deputy Prime Minister Suthep Thaugsuban, who is in charge of national security, yesterday said it was fortunate there was no violence during the demonstration led by the United Front for Democracy against Dictatorship.
The Internal Security Act had been invoked in Dusit district where the rally was held. The act took effect on Friday.
More than 20,000 anti-government UDD supporters gathered at the Royal
Plaza on Saturday to mark the third anniversary of the Sept 19,2006, military coup that toppled the Thaksin Shinawatra administration.Demonstrators dispersed at midnight and there Suthep: Relieved were no violent there was no violence incidents.
Mr Suthep said members of the security forces manning Government House were now pulling out of the compound.
He said the government would decide whether to invoke the Internal Security Act to ensure security for the Asean summits in Phetchaburi's Cha-am district and Prachuap Khiri Khan's Hua Hin district in late October.
Mr Suthep denied suggestions the government had been locked in a political tug-of-war with red shirt protesters.
Metropolitan police chief Worapong Chiewpreecha has issued an order lowering a security alert at the Royal Plaza to "normal" level and cutting the number of security forces in the area.
Govt at odds with Senate over loan bill
A legal battle is brewing between the two houses of parliament that could hold up the government's efforts to borrow 400 billion baht to pay for its economic stimulus schemes.
The Senate has demanded that it be allowed to scrutinise a bill on the loans,but the government insists the Senate only has to be informed about the bill.
A majority of senators yesterday voted to support a special committee's recommendation that the Senate be allowed to vet the bill.
The government wanted the Senate to be informed about the bill but did not ask for it to be vetted.
The Senate plans to ask the Constitution Court to rule on whether the bill would be constitutional if the government does not give it to the upper house for scrutiny or to change some details.
Finance Minister Korn Chatikavanij yesterday said the government had consulted the Council of State as to whether the Senate could vet the bill and make changes. The council ruled the Senate could not do so because it would be a violation of Article 171 of the constitution.
If the Senate insisted on approaching the Constitution Court, the government would lodge its own complaint with the court against the authority of the Senate,Mr Korn said.
If the Constitution Court blocks parliament's approval of the bill, the government will be unable to access the 400 billion baht in loans that it needs to stimulate the economy.
Mr Korn said the government really needed the bill to be passed into law to provide funding for the "Thailand: Investing from Strength to Strength" stimulus scheme and for investment in the private sector.
He insisted the government would spend the 400 billion baht with transparency and in the best interest of the public. He expected the funds to be disbursed early next year.
The Senate has demanded that it be allowed to scrutinise a bill on the loans,but the government insists the Senate only has to be informed about the bill.
A majority of senators yesterday voted to support a special committee's recommendation that the Senate be allowed to vet the bill.
The government wanted the Senate to be informed about the bill but did not ask for it to be vetted.
The Senate plans to ask the Constitution Court to rule on whether the bill would be constitutional if the government does not give it to the upper house for scrutiny or to change some details.
Finance Minister Korn Chatikavanij yesterday said the government had consulted the Council of State as to whether the Senate could vet the bill and make changes. The council ruled the Senate could not do so because it would be a violation of Article 171 of the constitution.
If the Senate insisted on approaching the Constitution Court, the government would lodge its own complaint with the court against the authority of the Senate,Mr Korn said.
If the Constitution Court blocks parliament's approval of the bill, the government will be unable to access the 400 billion baht in loans that it needs to stimulate the economy.
Mr Korn said the government really needed the bill to be passed into law to provide funding for the "Thailand: Investing from Strength to Strength" stimulus scheme and for investment in the private sector.
He insisted the government would spend the 400 billion baht with transparency and in the best interest of the public. He expected the funds to be disbursed early next year.
"STERN ACTION NEEDED AGAINST DRUG DEALLERS"
Authorities concerned with a growing trade in the mild stimulant drug dimethylamphetamine, are considering amending the laws to place dealership in this drug into a higher category, making punishment as severe as that faced by yaba dealers.
Food and Drug Administration (FDA) chief Pipat Yingseri said yesterday traffickers in dimethylamphetamine faced a 20year jail term, whereas yaba dealers could receive either a life sentence or death.
He said many yaba addicts, if unable to find the drug, bought dimethylamphetamine and took it in higher doses to achieve the same effect as yaba.
The drug's price of Bt150Bt200 per tablet was the same as yaba, but as people needed to buy more, many dealers were turning to trade in it due to the higher profit, Pipat explained.
If more severe punishment was not introduced, dealers would shift to sell it or mix it with their yaba formula. Police reported that dimethylamphetamine trafficking now accounts for 10 per cent of national drug busts.
The FDA and the Office of the Narcotics Control Board (ONCB) have agreed dimethylamphetamine dealers should face punishment as severe as those selling yaba by lifting this drug into category 1, Pipat said.
Pipat said Public Health Minister Wittaya Kaewparadai had signed the regulation for such a change in February and sent it on to the Cabinet's secretariat for publication in the Royal Gazette.
However, FDA was notified in June the regulation had a format problem and suggested 34 other drugs promoted earlier should also be included in the regulation. FDA was working on the new law before resubmitting it to Public Health Minister, he explained.
Following the ministry's legal advice, Pipat said yesterday he had sent a letter calling on the secretariat to announce the regulation for implementation urgently.
Format changing could delay the process, in which the regulation must be scrutinised by the Psychotropic Substance Committee and the Narcotics Control Board, he said.
Food and Drug Administration (FDA) chief Pipat Yingseri said yesterday traffickers in dimethylamphetamine faced a 20year jail term, whereas yaba dealers could receive either a life sentence or death.
He said many yaba addicts, if unable to find the drug, bought dimethylamphetamine and took it in higher doses to achieve the same effect as yaba.
The drug's price of Bt150Bt200 per tablet was the same as yaba, but as people needed to buy more, many dealers were turning to trade in it due to the higher profit, Pipat explained.
If more severe punishment was not introduced, dealers would shift to sell it or mix it with their yaba formula. Police reported that dimethylamphetamine trafficking now accounts for 10 per cent of national drug busts.
The FDA and the Office of the Narcotics Control Board (ONCB) have agreed dimethylamphetamine dealers should face punishment as severe as those selling yaba by lifting this drug into category 1, Pipat said.
Pipat said Public Health Minister Wittaya Kaewparadai had signed the regulation for such a change in February and sent it on to the Cabinet's secretariat for publication in the Royal Gazette.
However, FDA was notified in June the regulation had a format problem and suggested 34 other drugs promoted earlier should also be included in the regulation. FDA was working on the new law before resubmitting it to Public Health Minister, he explained.
Following the ministry's legal advice, Pipat said yesterday he had sent a letter calling on the secretariat to announce the regulation for implementation urgently.
Format changing could delay the process, in which the regulation must be scrutinised by the Psychotropic Substance Committee and the Narcotics Control Board, he said.
PM backs charter panel, referendum for changes
Prime Minister Abhisit Vejjajia is proposing that a constitution drafting assembly be set up to handle changes to the constitution.
A public referendum could then be held to approve them, he said yesterday.
The prime minister told his weekly radio and television audience before leaving for the UN General Assembly in New York last night all parties and senators should try to find common ground on the issue.
They should come up with a single charter amendment draft which they could agree upon, which could then be tabled in parliament for a vote.
Presenting different versions of the draft could only lead to further conflicts,Mr Abhisit said.
After returning from the US, the prime minister will meet whips from the government, the opposition and the Senate to discuss what steps should be taken.
A charter drafting assembly may be formed to study and amend the constitution, he said.
He proposed that the assembly be made up of members of parliament,those who drew up the 1997 charter and the present 2007 charter, scholars and experts.
Mr Abhisit said this approach would open up the charter amendment process to public participation.
He said it did not matter whether the assembly sought amendments to charter provisions considered controversial or a rewrite of the whole constitution.
A referendum could be needed on the individual articles of the charter that are amended, the prime minister said.
"I believe this should yield results and there should be a timeframe to proceed with the matter," Mr Abhisit said.
He was explaining his position on efforts to seek amendments to the constitution and his ideas on how to approach the matter.
A parliamentary committee set up to study reconciliation, political reform and a rewrite of the constitution has come up with six recommendations.
It proposed amending charter pro-visions dealing with the selection of MPs and senators, a requirement for parliament to approve international contracts, the dissolution of parties,and intervention by MPs in the administration and budgeting of government projects.
Nakharin Mektrairat, dean of political science at Thammasat University,said a charter drafting assembly would be needed only if proposed amendments would lead to major changes.
A referendum would not be necessary as long as amendments were only proposed to certain provisions which are not controversial and would not affect the whole structure of the charter.
Holding a referendum to decide on provisions of lesser importance would be a waste of money, as referendums cost 2 billion baht to hold, he said.
"There is no need to set up a new charter drafting assembly," Mr Nakharin said."Parliament, which represents the public, can deal with the task of amending only a few provisions that would not be central to the charter."
Puea Pandin Party MP for Udon Thani and party secretary-general Chaiyos Jiramethakorn said members of parliament should lead the effort to amend the charter.
Mr Chaiyos said he supported a change back to single-seat constituencies.
The electoral system is a point of contention between the Democrat Party and its coalition partners in the government.
Many key members of the Democrat Party want to keep the electoral system featuring multi-seat constituencies for MPs.
But member parties of the coalition want to revert to a single-seat system.They argue that if multi-member constituencies stay in place, the opposition Puea Thai Party will continue to dominate the crucial Northeast region.
They say the single-seat constituency system, in which each constituency becomes smaller with just one seat up for grabs, would give them a chance to win more seats and defeat Puea Thai in the region.
Government chief whip Chinnaworn Bunyakiat said the government would discuss how to proceed, then hold talks with whips of the opposition Puea Thai Party and the Senate about the next steps.
He said the government wanted to ensure a unified approach to amending the charter.
A public referendum could then be held to approve them, he said yesterday.
The prime minister told his weekly radio and television audience before leaving for the UN General Assembly in New York last night all parties and senators should try to find common ground on the issue.
They should come up with a single charter amendment draft which they could agree upon, which could then be tabled in parliament for a vote.
Presenting different versions of the draft could only lead to further conflicts,Mr Abhisit said.
After returning from the US, the prime minister will meet whips from the government, the opposition and the Senate to discuss what steps should be taken.
A charter drafting assembly may be formed to study and amend the constitution, he said.
He proposed that the assembly be made up of members of parliament,those who drew up the 1997 charter and the present 2007 charter, scholars and experts.
Mr Abhisit said this approach would open up the charter amendment process to public participation.
He said it did not matter whether the assembly sought amendments to charter provisions considered controversial or a rewrite of the whole constitution.
A referendum could be needed on the individual articles of the charter that are amended, the prime minister said.
"I believe this should yield results and there should be a timeframe to proceed with the matter," Mr Abhisit said.
He was explaining his position on efforts to seek amendments to the constitution and his ideas on how to approach the matter.
A parliamentary committee set up to study reconciliation, political reform and a rewrite of the constitution has come up with six recommendations.
It proposed amending charter pro-visions dealing with the selection of MPs and senators, a requirement for parliament to approve international contracts, the dissolution of parties,and intervention by MPs in the administration and budgeting of government projects.
Nakharin Mektrairat, dean of political science at Thammasat University,said a charter drafting assembly would be needed only if proposed amendments would lead to major changes.
A referendum would not be necessary as long as amendments were only proposed to certain provisions which are not controversial and would not affect the whole structure of the charter.
Holding a referendum to decide on provisions of lesser importance would be a waste of money, as referendums cost 2 billion baht to hold, he said.
"There is no need to set up a new charter drafting assembly," Mr Nakharin said."Parliament, which represents the public, can deal with the task of amending only a few provisions that would not be central to the charter."
Puea Pandin Party MP for Udon Thani and party secretary-general Chaiyos Jiramethakorn said members of parliament should lead the effort to amend the charter.
Mr Chaiyos said he supported a change back to single-seat constituencies.
The electoral system is a point of contention between the Democrat Party and its coalition partners in the government.
Many key members of the Democrat Party want to keep the electoral system featuring multi-seat constituencies for MPs.
But member parties of the coalition want to revert to a single-seat system.They argue that if multi-member constituencies stay in place, the opposition Puea Thai Party will continue to dominate the crucial Northeast region.
They say the single-seat constituency system, in which each constituency becomes smaller with just one seat up for grabs, would give them a chance to win more seats and defeat Puea Thai in the region.
Government chief whip Chinnaworn Bunyakiat said the government would discuss how to proceed, then hold talks with whips of the opposition Puea Thai Party and the Senate about the next steps.
He said the government wanted to ensure a unified approach to amending the charter.
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