Pakorn Nilprapunt[1]
Introduction
All
parts of the world nowadays are amalgamated altogether by information technology. Any problem occurred even in a hidden corner
of one country may be communicated to the world and eventually becomes
trans-bordering problem just in short period.
The tragedy of the World Trade Center on September 11, 2001 abruptly
alerted all nations to find all measures to prevent and counter any form of
terrorism while the two buildings had not yet destructed. Iceberg meltdown, El Niño and La Niña
phenomena and other natural disasters in many countries alarm the world of the
adverse effect caused by global warming.
Another apparent instance should be the hard-hit economic crisis emerged
a couple of years ago. The fierce surge
of economic downturn originated in the US moved forward through the Atlantic
and Pacific to attack the European and Asian countries at a blink. The remarkable growth of such trans-bordering
problems requires all States to produce legislation against them timely. The one which is unable to produce law to cope
with the existed or expected problem on time may hardly avoid damage to its
social and economy. That is the reason
why bill prioritization plays importance role in legislative process of all
jurisdictions.
The
main purpose of this article is to examine the present practice in determining
priority of the bills and criteria for the determination of such priority under
Thai legislative context. In this
regards, summary illustration of Thai legislative process and some substantive
development thereof shall be mentioned in the first part of this article so as
to make clear of Thai legislative process to the reader before mentioning the
fundamental knowledge on development of bill prioritizing practice from past to
present in the second part. The finale
is the criteria for determination of bill’s priority.
Part I
Summary
Illustration of Thai Legislative Process
Thai
people had settled in Suvarnabhumi peninsula for more than 700
years. At the early day, Thailand had
been governed under absolute monarchy regime in which the King as the supreme
sovereign had absolute power all over the realm. In ruling the Kingdom, the King was the only
one that having power to make law. If His
Majesty deemed appropriate to have any law for any existing or expected
problem, the King was going to entrust “Alak,” a Royal Court officer, to
make draft law in accordance with His Majesty’s pleasure. Sometimes, the King required His noblemen to
give some comments on that problem with a view to make Him an idea in law
making or improving the draft law. Consultation
with noblemen was however limited only to the matter the King deemed
appropriate and had been organized in very rare case.[2] The draft shall become law when His Royal Signature
had been given thereto and it shall come into force upon its publication in the
Government Gazette.[3]
When
the western empires turned their gun fleets to the East in mid 1800, King Rama
V[4]
strongly realized that the only way His country might avert from the claim for colonization
of those countries was to modernize Thailand along the same line with western
standard. Roads system, irrigation
system, electricity system, trains and rails and other infrastructures had been
established systematically. Legal system
had been reconstituted upon the civil law basis of the European continent. Many Ministries and Departments were established
in 1888 as helping hands of His Majesty in conducting State administration upon
the European model of public administration.
In this regard, His Majesty had also decentralized his initiative in law
making to the Minister of each Ministry.
Despite the King had the supreme power to enact law, each Minister was
empowered to propose the bill to the King for His Royal Signature directly if
that bill was deemed necessary for the performance of duties of his Ministry.
The
evolution of Thai law drafting practice emerged when the law drafting agency,
the Department of Legislative Redaction, had been established by King Rama VI.[5] According to the Royal Proclamation of
October 27, 1923,[6]
the Department of Legislative Redaction attached to the Ministry of Justice had
the power and duty in examining all draft laws for His Majesty. All Ministries had to submit their proposed
bills to the Department of Legislative Redaction for examination and only the
examined bills shall be presented to the King for His Royal Signature.[7]
In this regard, the bill had to be
examined by the Law Councilors consisting of both Thai lawyers and foreign
legal consultants of the Royal Thai Government with a view to make legal
mechanism of the bill to be compatible with both Thai ways and international
standard. It is generally accepted that
this agency performed its functions effectively, efficiently and efficacy. The best evidence was none of the bills
examined by the Department of Legislative Redaction had been rejected by His
Majesty who had prerogative in law making.
After
June 24, 1932, Thai legislative process had been changed on account of the
revolution that turned State administration form of Thailand or Siam at that
time from absolute monarchy to democratic regime of government with the King as
the Head of State. The Department of
Legislative Redaction had been renamed as the “Office of the Council of State”
and became the agency under the Office of the Prime Minister. The Office of the Council of State still had
the powers and duties in making draft laws as same as its ancestor, but for the
Cabinet and other government agencies instead of His Majesty. According to law making process under the new
regime which was influenced by the British Parliamentary Government model and
being in-use until now, the sovereign power is deemed to be of Thai people and
the King shall be the person who exercises such power through the Legislatives,
the Executives and the Court. The Legislatives or the National Assembly is
bicameral composing of the House of Representatives, or the Lower House, and
the Senate, or the Upper House. The
Constitution requests a bill to be introduced to the House of Representatives. The meeting of the House of Representatives
shall be in accordance with its rules and procedure on meeting. Under this rules and procedure, the Lower House
shall deliberate the proposed bill in three consecutive readings. The first reading is a plenary session for consideration
of the principles of the proposed bill.
The bill shall be in the second reading for detailed deliberation of the
House’s Committee if its principles have been approved by the majority of votes
of the members of the House in the first reading. The third reading is a plenary session to vote
for approval of the bill amended by the House’s Committee in the second reading.
The approved bill shall then be proceeded
to the Senate and the Senate’s deliberation shall be finished within sixty days
for general bill and thirty days for financial bill. Such period may be extended for not exceeding
thirty days by the resolution of the Senate.[8] The bill’s deliberation of the Upper House
shall be made in three consecutive readings as same as that of the Lower House. If the bill has been approved by plenary
session of the Senate in the third reading, it shall be returned to the Prime
Minister so as to be presented further to the King for His Royal Signature. The signed bill shall thereafter be published
in the Government Gazette and becomes law.[9] The law shall come into force upon the date
prescribed therein, normally on the day following the date of its publication
in the Government Gazette.
It
should be noted that an introduction of the bill to the National Assembly under
Thai Constitution context is different from the practice of other bicameral jurisdictions. In respect of the ordinary bill, Thai
Constitution allows the members of the House of Representatives, the Cabinet,
such Constitutional Organizations as the Court, the National Counter Corruption
Commission, the State Audit Commission etc. and the group of more than 50,000
individuals to introduce the bill to the Lower House while the members of the
Upper House are unable to do so.[10]
The Senators may participate in an
introduction of bill only in case of an introduction of the Organic Law bill.[11]
Another interesting point is that despite
there are many channels to introduce the bill to the Lower House as aforesaid, most
of the bills however proposed by the Cabinet comparing with the number of the
bills sponsored or proposed by other channels.
All
bills introduced to the House of Representatives by the Cabinet prepared by the
Ministry having charges and duties over the matter dealing with the principle
of that bill. The commencement of bill
preparation bases upon initiative of the responsible Minister. If he is of opinion, after consider all
possible measures which may be applied to overcome the specified problem, that
legal measure is inevitably required, a legal official of that Ministry shall
consult with stakeholders to that problem on legal mechanism to be prescribed in
the bill and shall then conduct the regulatory impact analysis (RIA), generally
known as “Checklist”, and prepare drafting instruction and text of the draft
legislation.
The
RIA, as approved by the cabinet on November 23, 2004, is mandatory requirements
for all agencies desire to submit the proposal for legislation to the Cabinet
for consideration. The objective of the
RIA is not for deregulation, but better regulation. It has been made along the same line with the
RIA of OECD. The agency has to clarify
the following prerequisites prior to make a proposal for legislation:[12]
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
|
What are the objectives
and goals of the mission?
Who should be
responsible for the mission?
Is legislation
required for the achievement of the mission?
Is the proposed
legislation duplicated with others?
What are burdens of
individual caused by the proposed legislation and Is that legislation value
for money?
Are responsible
agencies ready for the enforcement of the proposed legislation?
Which agency should be
responsible for the proposed legislation
What are working
process and audit method?
Is there guideline for
the enactment of subordinate legislation?
Is there public
consultation on the proposed legislation and what are the results and
responses?
|
In
2005, the RIA had been annexed as a part of the Regulation on Rules and
Procedure for Submission of the Matter to the Cabinet which was issued under
the Royal Decree on Submission of the Matter to the Cabinet and the Rules and
Procedure for Cabinet’s Meeting of 2005.
Once
the RIA report, drafting instruction and draft bill have been made, they shall
be submitted to the Cabinet for policy approval. The approved bill together with its RIA and
drafting instruction shall be forward to the Office of the Council of State for
consideration. The Office of the Council
of State shall examine the bill of its constitutionality, compatibility with
other legislations, suitability of the proposed mechanism and legal form and
shall prepare the explanatory memorandum of the examined bill for consideration
of the Cabinet and the National Assembly.
The complete bill and its explanatory memorandum shall be delivered to
the Cabinet for consideration. If the
Cabinet approves the complete bill, it shall be forwarded to the government’s
whip for political coordination before introducing to the House of
Representatives. In many cases however
the Cabinet always orders the Office of the Council of State to send the
complete bill and its explanatory memorandum to the government’s whip directly.
Part II
Development
of Bill Prioritizing Practice
As mentioned in the first Part that
while Thailand had been governed by absolute monarchy, an initiative for
legislation came only from the King as the ruler of the Kingdom. If His Majesty was of opinion that any
problem was urgent, he might order His Royal Court official to prepare draft
law that having the provisions as he thought appropriate. Priority of laws to
be enacted therefore depended on attitude of each King on each problem. This was the reason why some laws had been
enacted many years after the cause of problem took place, while some took very
short period. The outstanding instance
for the latter was in 1866 when it appeared to King Rama IV[13]
at the beginning of that year that the number of the cases on sale with right to
redemption in the court of justice had risen sharply within two months and there
was no existing law to govern such matter at that time, His Majesty realized that
this problem might eventually cause public unrest since the court procedure in
each case took quite a long period of time and decision in each case
particularly bound the parties to the case.
King Rama IV then enacted the law on sale with right to redemption promptly
and that act came into force in the early of March of that year or within a
month after that problem had known to His Majesty.[14]
Since
King Rama V started State modernization program in 1888, the bill
prioritization practice had some changes.
Despite the King was the supremacy in law making, His Majesty had also enabled
a portfolio Minister to initiate the bill.
The main purpose of this was to make each Minister to propose any
necessary bill against the problem under his responsibilities timely. The King however still exercised the power to
initiate legislation at the same time and His Majesty’s initiative deemed to be
at first priority. An initiative of King
Rama V to make the Penal Code, the Criminal Procedure Code, the Civil and
Commercial Code and the Civil Procedure Code in accordance with the European
standards was arranged at the first priority since those four Codes were significant
counterclaim of Thailand for repealing the extraterritorial right of the
western courts over her jurisdiction.[15] The Ministers exercised the power to propose
legislation as the last resort. An initiative for legislation shall be
presented to the King only when it was inevitably to do so. In practice, the Minister tended to propose
the bill to the King upon three conditions.
Firstly, the Minister was of opinion that any administrative measure
made under his existing powers and duties was inadequate or unable to deal with
the problem successfully. Second, legal
measure was required to cope with that problem unavoidably. Finally, that problem was deemed urgent in the
Minister’s perspective. The bills
initiated by portfolio Ministers mostly approved and signed by the King without
regard to their priorities despite some were corrected by His Majesty in
details. The bills proposed by each
Minister were classified at the same priority.
It should also be observed that amongst twelve Ministries that had been
established at the commencement of the modernization program, there was no
specific organization that was responsible for bills’ prioritization for the
government holistically and there was no specific rule or guidance for setting
up priority of the bills. Though the
Department of Legislative Redaction had been established later in 1923 during
the reign of King Rama VI, it performed law drafting duty only and, in
practice, it considered the bill by order of the date of reception of each
bill.
When
the country turned to be democratic state in 1932, the sovereign power that
belongs to Thai people had been exercised by the King through the Executives,
the Legislatives and the Court. Under
this structure, the power to prioritize the bill vests in the arms’ length of
the Executives and the Legislatives.
(1)
Bill’s priority set-up by the Executives
As
mentioned in Part I that most of bills submitted to the National Assembly
sponsored by the Cabinet and there was no other establishments within the
Executives’ branch that having specific power to determine priority of the
bill. The Cabinet seemed to be the highest
organ to decide the priority of the bill.
However, the Cabinet played this role in passive manner. It declared whether what bills were necessary
for pushing its State administration policy, but it ignored to spell out when
those bill been submitted to the Parliament.
In practice, the Cabinet longed for the bill to be submitted upon an
initiative of, and priority set up by, each portfolio Minister. Once an approval had been made, a proposal
for legislation and the bill would routinely be forwarded to the Office of the
Council of State for consideration. In
this regard, the Office of the Council of State shall consider the bills in
order of the date they were approved by the Cabinet, except for tax bills,
pardon and amnesty bills and national security bills which shall be taken into consideration
at first priority. Nonetheless, there were
some rare cases that the Cabinet set up priority of the bills itself. If the Cabinet was of opinion that any legislation
was required urgently to contend against any serious problem, it would ordered
the Office of the Council of State to finish that bill “urgently” or within the
period specified by the Cabinet. It seemed
from the aforesaid practice that in general the priority of the bill set up by
each portfolio Minister with approval of the Cabinet, while the Cabinet set up
bill’s priority in exceptional case.
However,
the legislative process within the Administration does not ended up at the
Cabinet. When the Office of the Council
of State finished examination of any bill, it had not been submitted to the
Parliament automatically. It shall be
forwarded to the government’s whip for examination on politics’ dimension as to
whether such bill accorded to the government’s policies or not and when each
bill be submitted to the House. Decision
of the whip was deemed final. It could
be said that the government’s whip plays significant role in bills’
prioritizing, not the Portfolio Minister or Cabinet.
The
reason why the power to set up priority of the bill shifted from the Cabinet to
the government’s whip was relevant to specific and complicate characteristic of
Thai politics. Most of all elected governments
since 1932 were coalition governments and it was normal situation that each
government composing of Ministers from at least 3 political parties. It should be danger for government stability
if the coalition government was unable to mingle requirements of all alliance
parties. To stand firm, each government employed
the government’s whip that composing of politicians from all coalition parties to
compromise those different requirements.
As a result of that, an attention of the whip had been paid to stability
of the coalition government rather than other issues. Bill prioritization was being under this practice
as well.
This
practice had been performed for more than 60 years until an emerging of the challenging
idea of “Rethinking” in 2001. The
government of that day which is the strong government in years composing of
only two parties found that the aforesaid practice set State administration course
to unknown direction. To greater extent,
it made State administration inefficiently since the government had no legal
measures to execute its extravagance policies as promised to people during
election campaign and as stated to the Parliament. While laws were required by the government so
as to drive State administration and development, the whip spent most of its
time for constancy of the government instead of pushing bills approved by the
Cabinet to the Houses. In many cases,
the bills which were necessary for the accomplishment of the urgent government
policy had been suspended, delayed or discarded just because the whip’s members
from different parties were unable to agree upon some technical terms used in the
bills which were in the arms’ length of such technician as law drafters. Some were amended by the whip even though
Cabinet’s approval on details of that bill had been given. Sometimes such bill drafted in accordance with
policy approved by the Cabinet as Land and Building Tax Bill had long been
suspended by the whip despite it was declared urgent policy of many past governments
on the ground that it might affect key sponsors of political parties and might
cause extensive destruction to the coalition government.
The
2001 strong government then decided to renovate the bills prioritization
practice on the grounds that the government supposed to know best about its
policies stated to the Houses and their priorities. The government should therefore be the one
that having decisive power to determine as to when each policy should be
conducted and when it should be finished.
In the case where the achievement of such policies required supporting
legislations, the government should know best what were the required
legislations and their details, which agency should be responsible for such
legislation and when that laws supposed to be enacted. The government, with help of its legal
advisory body, should also be the one to set priority of the supporting bills
for each policy accordingly. The whip should
become government assistant in monitoring the government agencies related to
each bill to conduct their works as scheduled and in defending the bill in the
Houses.
Based
upon the new paradigm, the government of that day enacted the Royal Decree on
Rules and Procedure for Good Governance, B.E. 2546 (2003) requiring the Office
of the Secretariat of the Cabinet, the Secretariat of the Prime Minister and
the Office of National Economic and Social Development Board to prepare the
Cabinet the “State Administration Plan” within 90 days as from the date the
Cabinet states its policies to the Houses in order to make fantastic words written
in such policies paper to be concrete plan.[16] Further, the Office of the Council of State and
the Secretariat of the Prime Minister shall jointly prepare and submit the “Legislative
Plan” in response of the State Administration Plan to the Cabinet for approval. The Legislative Plan shall compose of names
and principles of the bills that are required for the achievement of the government
policies as stated to the National Assembly and the Administration Plan, names
of responsible agencies and priority of each bill.[17] This initiative has nowadays been endorsed by
the existing Constitution.[18]
In
practice, the government policy as stated to the Parliament shall be classified
into 2 parts. The first part known as
“Urgent Policy” composes of the policies planned to be executed at first
priority; normally within one year, while the second part composes of policies
which are going to be done during the rest period of the government. The State
Administration Plan shall then clarify targets, strategies, projects and
activities to be executed for the achievement of both urgent and non-urgent
policies. The Office of the Council of
State together with legal liaison officers of each Ministry shall consider State
Administration Plan whether what laws are required for the fulfillment of each target,
strategy, project or activity specified in the plan and how urgent they are and
shall then prepare and submit the Legislative Plan to the Cabinet for approval.
In determining priority of legislations
in the Legislative Plan, the laws that support the urgent policy shall be
classified at the first priority to be submitted to the House of
Representatives within one year while laws supporting other policies shall be
put in lower priority depending on readiness of the responsible Ministry in
proposing that bill to the Cabinet. If
Cabinet approval has been given, all Ministries and Departments shall have the
duty to propose the bills in accordance with priority set out in the
Legislative Plan and the Office of the Council of State shall monitor and
assess the accomplishment of the plan and report the result thereof to the
Cabinet from time to time. It should be
noted that legislations to be specified in the Legislative Plan includes the
Royal Decrees and Ministerial Regulations even though they are subordinate
legislations which shall be made by the Executives’ power.
The
first Legislative Plan had been made in 2005 under Thaksin Administration.[19] It composed of 362 bills supposed to be made,
amended or repealed for the compliance with the government policies and the
State Administration Plan together with 614 draft Royal Decrees and 344 draft
Ministerial Regulations. The 2nd
Legislative Plan had been made in 2008 under Samak Administration[20]
composing of 141 bills, 119 draft Royal Decree and 74 draft Ministerial
Regulations and the present Legislative Plan, the third one, under Abhisit
Administration[21]
was made in 2009 composing of 152 bills to be enacted and 4 and 11 draft Royal
Decrees and Ministerial Regulations respectively.
At
the outset, the new bills prioritizing practice seemed to be successful. Many bills had been proposed in accordance
with their priorities set out in the Legislative Plan as approved by the
Cabinet. Despite the government’s whip
did not participate in bills prioritization, it contributed its full effort in
pushing the bills to the Houses within scheduled. The key of such productive performance was
the feature of the government of that time which was the strong coalition
government and the extension of session period of the Houses from 90 days to
120 days.[22] Unlike other coalition governments in the
past, the strong coalition government of 2001 had absolute majority of votes in
the House. There was no need for the
government’s whip to worry about the maintenance of government stability and it
became significant tool of the government in pushing the bills to the Houses as
scheduled in the Legislative Plan instead.
However,
all three governments since 2007, including the present one, are not strong
coalition government as the 2001 Administration. Stability has become critical concern of the
government once again, especially after the bloodshed rally in May 2010. As a result, the government’s whip has reincarnated
to be the institution that play substantial role in bills prioritization once
again. Despite bills’ priority have been
set out in the Legislative Plan, many of them have been suspended or delayed by
the government’s whip for the reason that they may cause governmental instability. According to the existing Legislative Plan,
the whip pushes 5 out of 8 bills that support the urgent policy specified in
the State Administration Plan to the House of Representatives on time while
many bills that support others policies are pending. The bill amending the Penal Code which
enabling the Court to forfeit and confiscate any form of proceeds of crimes is
an obvious example. This bill has been
submitted to the government’s whip in mid 2009, but it still in process until
now even the Ministry of Justice, the responsible agency of that bill, affirms
that this bill is necessary for ratification of the Counter Corruption
Convention.
It
is noteworthy to observe that priority of many bills have been set up by the
provisions of the Constitution. This
tradition commenced on 1997 as a result of the 1997 Constitution that requested
the government to submit many Organic bills and ordinary bills to the National
Assembly for deliberation within specific period. This fashion has been transmitted to the 2007
Constitution as well. The transitory provisions
of the 2007 Constitution requires many bills to be enacted within specified
period. Some of these had been filled in
the Legislative Plan, but they are in awaiting for submission to the House of
Representatives though the submission period as prescribed by the Constitution
has elapsed. The bill on rules and
procedure for the making of treaties with foreign States and international
organizations which is required to be enacted within February 2009 under
section 190 and section 303 (3) of the 2007 Constitution is an instance. It had been withdrawn from the Lower House by
the Cabinet during its first reading for some improvements to avoid friction of
government stability. When the improved
bill reaches the whip once again, the whip establish its sub-committee to
rewrite the amended bill and it is in process of the whip until now.
In the research on Proposal
for Efficiency Enhancement of Thai Legislative Process, the researchers found
that the aforesaid practice produce adverse effect to the legislative
process. That paper suggested that the
government’s whip should play active role in bill prioritizing rather than
passive role as present. The whip should
take part in bill prioritization at the stage the bill has been approved in
principle by the Cabinet and it should determine when the Office of the Council
of State should finish bill’s examination, when the examined bill should be
submitted to the House of Representatives for deliberation and when the bill
should be passed by the Lower House. This
Australian model may help the government to enact law that is required for
State administration timely.[23]
It
could be summarized from the foregoing that in Thai context the institution
having authority in prioritizing the bills depends on the nature of the
government. The coalition Administration
with more than three parties always calls for service of the government’s whip
in bills prioritization with a view to maintain political stability of the
government. Subject to this sort of
practice, the whip sometimes seems to have superior power than the Cabinet and
the Legislative Plan because it may freeze any bill if the whip is of opinion
that that bill may undermine government’s stability even though Cabinet’s
approval has been given to that bill. The
strong coalition government however performs in contrast. The whip become change agent of the
government with the duty to push the bills to be enacted as the Acts of
Parliament within schedule as set out by the Cabinet itself.
(2)
Bill’s Priority set up by the Legislatives
Under
the meeting rules of both Houses, the Speaker of the House of Representatives
and the Speaker of the Senate shall be responsible for setting up priority of
the bills submitted to the Lower House and the Senate respectively.
In
case of the Lower House, the meeting of the House shall be made in order of the
agendas set up by Clause 16 of the Rules for the Meeting of the House of
Representatives of 2008 as follows:
Agenda
1
|
Motions
|
Agenda
2
|
Information
from Speaker
|
Agenda
3
|
Approving
the minute of the meeting
|
Agenda
4
|
Report
of the Committees
|
Agenda
5
|
In
awaiting matters
|
Agenda
6
|
Newly
submitted matters
|
Agenda
7
|
Other
matters
|
If a new bill is submitted to the Lower House, the Speaker shall
set priority of the newly submitted bill to Agenda 6 in order of the date of
receiving of each bill upon first come first serve basis. In the case where the Speaker is of opinion,
whether on his own initiative or upon request of the government, that the newly
submitted bill should be considered urgently, he may put that bill at the first
priority of Agenda 6, but that bill has to be deliberated after the agenda on
Report of the Committee.[24] The Speaker however exercises such special
power only rare case. In practice, if
the Administration intends to hasten any bill, it shall signal the government’s
whip or its members to ask for the House’s resolution to rearrange the meeting Agendas
by putting such bill at top priority of Agenda 6 and asking for putting off the
consideration of Agendas 3-5. As for the
Organic Law Bill, the Rules for the Meeting of the House of Representatives request
the Speaker shall put that bill as urgent agenda.[25]
There is no need in this case for the
government or the whip to request for rearrangement of the meeting Agendas.
As
for the Senate, the Rules for the Meeting of the Senate of 2008 have similar
provisions of that of the Lower House.
Clause 19 of that Rules requires the Speaker of the Senate to conduct
the meeting in 7 Agendas as same as that of the House of Representatives and
the newly submitted matter, including the bill approved by the House of
representatives, shall normally be put in Agenda 6 that has to be considered
after Agenda 4 Report of the Committee and Agenda 5 In-awaiting matters. However, Clauses 131, 134 and 158 of the
Rules for the Meeting of the Senate provides that the bill approved by the lower
House, irrespective of whether it is the Organic Law bill, normal bill or
Emergency Decree, shall be put at the first priority of Agenda 6. In the case where there are many bills put in
Agenda 6 at first priority, they shall be considered by the Senate in order of
the date the Senate receives those bills, except where the senators have a
resolution to rearrange such order.
Part III
Bills Prioritization
Criteria
According to the development of bill
priority setting practice as mentioned in Part II, criteria for determination
of bill priority seems to be normative rather than being concrete one. Such norm however explicitly shown that bill
prioritization in Thai context depends on two criteria, viz. seriousness
of each problem and government stability.
In
ordinary case, bill prioritization depends upon attitude of the government itself
on degree of the problems faced by the country, both the existing problems and
the expected one. Any problem classified
by the government that it may affect national security, public safety, national
economy, public order or good moral and public health shall in practice be
classified at high importance and the bills against this kind of problem are
always classified at first priority as well.
If we are looking at the content and details of the State Administration
Plan and the Legislative Plan, we will find this implication distinctly. It is notably that there is no concrete rule
for specifying which matter relates to the matter of national security, public
safety, national economy, public order or good moral and public health. The determination thereof bases upon subjective
perspective of the Cabinet, the whip and related government agencies. For example, in 2007 the government of that
day submitted the National Security Bill to the National Assembly by claiming
that such bill was necessary for the situation of the country at that time whilst
public at large did not support that bill because there was no clear sign of
national insecurity as claimed by the Administration. But that bill passed the National Assembly in
a year later. In 2010, the government
plans to submit the Peaceful Assembly Bill but the public and many
non-governmental organizations fail to accept this bill.
In
sorting out the degree of the problems, the Cabinet shall, with assistance of
such technocratic units like the Office of the National Economic and Social
Development Board and the Office of Secretariat of the Prime Minister, take
into consideration the current situation of the country, domestically and
internationally, in conjunction with predictable scenario. The result of classification together with solutions
against those problems shall be made in form of State Administration Plan. The bills that support each solution shall be
put in the Legislative Plan. In this
regard, the bills supporting the urgent policy as specified in the State
Administration Plan shall be identified as urgent bills to be submitted to the National
Assembly normally within the first year of administration while the bills that
are necessary for the fulfillment of other policies shall be identified as
lower priority depending on readiness of the responsible agencies in preparing
those bills under the complicate legislative process. Due to the fact that the bill priority set
out in the Legislative Plan depends on attitude of the government on degree of
each problem, the government may, upon the changing of economic, social and
political situations, rearrange bills’ priorities set up in the Legislative
Plan from time to time.
Government
stability is an important criterion in bill prioritization process, especially
when the government is a coalition government with more than two parties. In political dilemma or in harsh political
situation, many sensitive bills always withhold by the government’s whip to
assure that the Administration may not involving in additional complications
which may affect government stability though those bills have been put in the
Legislative Plan as necessary legislations for the achievement of the State
Administration Plan. Those bills however
will be submitted to the House of Representatives for deliberation after the
political condition is “safe.”
Among
the two criteria, the first one seems to be general principle for bill
prioritization while the latter seems to be an exception. The exception in practice prevail the general
principle however. This situation is the
reflection of political instability of Thailand which requires the political
parties to pay more attention to government stability than the State
Administration Plan and the Legislative Plan.
This characteristic is not permanent situation, but temporally one. When the Administration becomes strong government,
e.g. the 2001 government, there is no need for the government’s whip to play as
government guardian and it will play government supporter role in pushing the
bills specified in the Legislative Plan to the Parliament instead.
Conclusion
Bill
prioritization is the key factor that enables all countries to enact laws
against any problem responsively and timely.
In Thai context, there is no specific criterion for the determination of
bill’s priority. Nonetheless, an
implication of the legislative process itself shows that the bill
prioritization related to two norms, namely, attitude of the government on
degree of the problem and political situation.
The first mentioned norm is general principle in deciding priority of
the bills akin to any other country. The RIA requires the Administration to
analyze necessity and urgency of the bill to be submitted to the Cabinet. The State Administration Plan and the
Legislative Plan urge the government to set up priority of problems and bills
against those problems with regard to degree of each problem. However, Thai government has specific
character. It always be coalition
government of many political parties.
Under this situation, attentions of all governments have been paid to
government stability inevitably. This is
the reason why the second norm plays important role in determining priority of
the bill rather than degree of seriousness of problems as specified in the
State Administration Plan and the Legislative Plan.
[1]Law
Councilor, Office of the Council of State. Published in www.lawreform.go.th with authorization of
the writer © 2011. (Remark: This article had been writted prior to the
dissolution of the House of Representatives of 59th Session on May
10, 2011)
[2]King
Prajadhipok’s Institute, Research on Public Consultation of Stakeholders in Law
Making Process of the Executives, 2008, p.12.
[3]Office
of the Council of State, 60th Year of the Office of the Council of
State, 1993, pp.1-4.
[4]1853-1890,
generally known as “King Chulalongkorn”.
[5]1880-1925,
generally known as “King Vajiravudh”.
[6]Published in the Government Gazette, Vol.
40, dated October 28, 1923.
[7]Office
of the Council of State, Research on Proposal for Efficiency Enhancement of
Thai Legislative Process, 2006, pp.9-11.
[8]Section
146 of the 2007 Constitution
[9]Section
150, ibid.
[10]Section
142, ibid.
[11]Section
139, ibid.
[12]Office
of the Council of State, Regulatory Impact Analysis Manual (13th ed.),
2009.
[13]1804-1868,
generally known as “King Mongkut”.
[14]Codification
of King Rama IV Laws, 1865-1868.
[15]Preamble
of the Penal Code of 1907 (This Code has
been repealed and replaced by the Penal Code of 1956)
[16]Section
13 and Section 14 of the Royal Decree on Rules and Procedure for Good
Governance, B.E. 2546 (2003)
[17]Section
15, ibid.
[18]Section
76 of the 2007 Constitution
[19]2001-2006
[20]2008
[21]2008-present
[22]King
Prajadhipok’s Institute, Research on Effectiveness of Thai National Assembly,
2002, p.207.
[23]Office
of the Council of State, Research on Proposal for Efficiency Enhancement of
Thai Legislative Process, op.cit., pp.229-230.
[24]Clause
16 of the Rules for the Meeting of the House of Representatives of 2008
[25]Clause
104, Ibid.
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