UN Common Country Assessment
Thailand,1997-1998

 

Chapter 2 : Governance and Human Rights

Contents

Introduction

Representation and Participation

Decentralization and Local Governance

Accountability and Transparency

Human Rights and Justice

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Introduction

Thailand has made momentous progress in the area of governance and human rights in the past decade. The Eighth National Economic and Social Development Plan (1997-2001) introduces, for the first time, a chapter on good governance. The new Constitution promulgated in October 1997 represents a gigantic step in institutionalising far-reaching political, administrative, and social reforms.

Parallel with these institutional developments, Thai people have become keenly aware and interested in important issues such as transparency, accountability, representation, participation, decentralisation, self-governance, rule of law, human rights, etc. In recent years, Thai people have also shown less tolerance for and active involvement in combating corruption in high places, with encouraging results. The significance of these issues has been accentuated by the economic crisis as mismanagement and bad governance in both the private and public sectors are generally held responsible as the root cause of the problem.

Among key topics in governance and human rights, four have been selected as the most important and relevant to Thailand and the work of the UN system in the country. They are also crosscutting issues that all UN agencies have encountered in carry out their mandated activities. They are

While all four are equally important and are somewhat interdependent, the order of the four topics also corresponds to the magnitude of the problem of each topic. Compared with other countries in the region, Thailand ranks more favourably in the area of human rights and justice while it has the least decentralised system. This suggests both opportunities and constraints that should be taken into consideration when outlining the course of action.

Representation and Participation

Background

Since the popular uprising in May 1992, democracy is considered to be more or less "consolidated" in Thailand. Democratisation is no longer the most important issue, the "quality" of democracy has become the issue. At the heart of this issue is the question of representation and participation.

The gravity of the matter was reflected in the debates during the drafting of the new constitution in 1997. Among the most contentious issues was the system of representation. The fact that the new system mandated by the Constitution is a far cry from its predecessor is testimony to the public’s discontent with the old system that was notoriously plagued by vote-buying, election fraud, corruption and abuse.

The single-member constituency, the party-list system, the elected Senate, the recall system, the independent National Election Commission, the Ombudsman, to name only a few, will add new dimensions to the Thai political arena. (The single-member constituency was used briefly during 1937-1946). The change is not limited to the national level. As the Constitution strongly espouses the principle of decentralisation and local governance, the representation system at the local level will also undergo considerable change.

Representation and participation, however, go beyond the electoral system. The Constitution endorses a number of channels and forms of representation and participation in policy-making and public administration. For instance, an independent multi-sectoral committee is mandated in a number of key issue areas; public hearing is now a prerequisite for all large-scale public projects. It is therefore important that the public and private sectors as well as the civil society cultivate and develop the attitude, the skills, the process, and the technical and institutional capacity for such participatory and cross-sectoral representation and participation system.

These new opportunities represent a great challenge for Thai society. The transition is very crucial for the country to embark on a path toward a better society – one with the institutional arrangements that are conducive to sustainable human development.

Data and Analysis:

Traditional low voter turnout – about 50 per cent in Bangkok, for example, - will change as the new Constitution has made voting mandatory. Voter turnout is no longer a good indicator of political participation. Neither is the political party membership which is at a dismal rate of 6-7% of eligible voters. Apparently, being a member of a political party is still not considered "politically correct" in Thai society

As far as political participation is concerned, the public is still very concerned about the quality and fairness of the electoral process. Cases of reported vote-buying and other violations of election laws during the general elections have been systematically recorded by the Poll Watch since 1992. This can be a good indicator of the quality of the representation system. Under the new system, a Provincial Election Commission is being set up in each province with continuous budgetary support for carrying out national and local elections. Hence, the supervision should be more thorough and effective, thus resulting in a more acceptable result.

One important aspect of all elections is that women have figured much less prominently. In the last general election in 1996, there were 360 female candidates or about 18.5%, a significant increase from approximately 10% in the early 1990s. Twenty-two won the election, compared with 24 in 1995 and 16 in 1992. Through the works of several women’s groups, female candidates are actively encouraged, not only for women empowerment, but with a conviction that the increased participation of women will benefit the overall political system.

Elections are only one among many systems of representation. Inclusion of representatives from non-governmental organisations in national committees provides another channel of public participation. Unfortunately, notwithstanding the important role of provincial and local committees in development activities, it is extremely difficult to maintain updated information on their status and membership, considering the fact that national committees alone number several hundreds. Also, the level of unionisation is extremely low, at approximately 3 per cent of the workforce and trade unions do not have the force to play an effective role in representation.

Another concern that should be addressed is the mechanism by which the "representatives" of each societal group are selected to be a member of the committees. In general, an attempt is made to include representatives from the private sector, NGOs, and academia. But the decision as to who will represent these groups usually lies with the government agency that serves as the lead agency in the committee. Although this practice may have worked satisfactorily in the past, one should be aware of potential problems of representation and transparency associated with this discretionary system.

In addition, public representation and participation can be exercised by each citizen by way of endorsing the submission of a draft bill, endorsing a recall motion, participating in public hearings on public projects. This will present a new and interesting data set that indicates the degree to which each private citizen has exercised his or her rights in public decision-making.

Data Quality and Needs:

Most data concerning national and local elections and the candidates will be collected and maintained by the National Election Commission. The data will be available to the public as a measure to promote free and fair elections. Data on trade unions are not readily available and not always reliable. Trade union centres should be assisted in setting up relevant databases.

Data concerning membership in the national committees and the allocations of national and local government budgets to NGOs and POs are not readily available; the first will be easier to gather than the latter which involves obtaining information from thousands of local government units. The only practical way to collect information on the budget allocations is for the Bureau of the Budget and the Auditor General to make it a prerequisite for budgetary support.

As mentioned earlier, data on direct citizen participation have never existed because these citizen’s rights are unprecedented in Thailand. In the past, a number of government agencies have kept records of other forms of participation such as complaint letters, and recently, numbers of protests and demonstrations that take place each year. Considering the nature of the activities, this set of data is not difficult to establish.

Decentralization and Local Governance

Background

The highly centralised and cumbersome system of regulations is generally acknowledged to be the root cause of inertia, inefficiency, inflexibility and lack of responsiveness in the Thai public sector. The inertia is largely attributed to the long delay in decentralisation and the absence of genuine local self-governance.

Due to structural, fiscal and organisational constraints, more than 7,000 local government units (LGUs) find themselves with increasing responsibilities on the one hand, and disproportionately decreased capacity on the other. Further, the LGUs have not shown themselves to be a fertile ground for grassroots democracy as in the case of other democratic countries.

Recognising the LGUs’ overwhelming constraints and potential, the new Constitution specifically endorses and mandates concrete steps toward a complete overhaul of the local government system that entails a large-scale decentralisation and devolution of administrative and fiscal power, resources and personnel to the LGUs. This is a gigantic task that requires massive capacity building and change in management at various areas of local self-governance.

Data and Analysis

The need for decentralisation is unambiguously manifested by the allocation of personnel and resources between the central government and the LGUs. In 1995, Thailand’s civil service consisted of approximately two and a half million (2,585,703) civil servants; of which 11.6% were public enterprise personnel, 72.1% national personnel and only 16.3% local government personnel. It is clear that a large number of the central government’s personnel have to be devolved to the LGUs. However, at present, LGU positions are generally perceived to be less prestigious, with fewer career advancement opportunities, and thus not usually the first career choice among top quality graduates.

A lack of resources is one of the most important obstacles facing the LGUs. In fiscal year 1997, the LGUs’ revenue, including intergovernmental transfers, was only 11.46% of the central government revenue. This minuscule amount, notwithstanding having increased from 7.95% in 1993, clearly demonstrates the fiscal constraints faced by the Thai LGUs. This fiscal deficiency is very well recognised, and will be redressed by the draft bills on decentralisation and on local government revenues as well as the Local Government Fiscal Plan. The new system is expected to increase immediately the LGUs’ revenue by 18 billion Baht. The economic crisis, however, has raised uncertainties as to the extent to which the central government can transfer scarce resources to the local authorities.

Even for this very small revenue, the LGUs are heavily dependent on the central government and have little fiscal and financial autonomy. In fiscal year 1995, locally generated revenue represented only 18.17% of the LGUs’ total revenue. This situation comes about due to their narrow tax base, limited powers of taxation and tax collection capacity. The LGUs’ two largest sources of revenue are surcharge and share taxes (49.77%) collected and transferred to LGUs by the central government, and discretionary and non-discretionary grants (32.05%) from the central government. Restructuring the revenue sharing or tax sharing, tax assignment systems are necessary to enhance LGUs’ financial autonomy.

LGUs’ mandate has been limited by the aggrandisement of line ministries of the central government over the years. Many of the development activities and services that could be delivered by LGUs, have been undertaken by the provincial offices of the line ministries. There are no consolidated data on this matter. The closest proxy is the budget of the Prosperity Decentralisation Policy Programme that covers about 70% of the project budgets of 10 line ministries identified as core development agencies. In fiscal year 1996, the programme budget stood at 116,737 million baht or 13.8% of the national budget. A large amount of project activities and resources under this programme can be transferred to the LGUs. As of now, LGUs are left with rudimentary tasks that have little impact on the socio-economic development of their constituencies.

In March 1998, the Cabinet approved guidelines on the transfer of functions from national and provincial agencies to LGUs and endorsed the Committee on Decentralisation’s proposal that in the fiscal year 1998, 24 projects costing over 33,000 million Baht can be immediately transferred to LGUs.

Data Quality and Needs

The databases held by LGUs are huge but are not maintained and updated in one comprehensive system by any one agency. Disaggregate data are kept within each LGU. This has been the most serious obstacle to policy research on this matter. To obtain sufficient samples for comparative studies, a researcher has to make separate requests to each LGU. Only few aggregate data are readily available at the Department of Local Administration. It is important to bear in mind that the data do not represent real needs and performance of the LGUs as they still have little control over the resource and the personnel matters.

As far as grants are concerns, data that distinguish discretionary from non-discretionary grants are not commonly presented. These should be available upon request although some data reprocessing may be needed. A more common breakdown shows general versus specific grants. Although all general grants are non-conditional and are based mainly on head-counts, the specific grants encompass both head-count grants, such as the education grant, and project-based grants that require discretionary approval from the central government.

The most serious data gap is on the line ministries’ budgets on development activities in the provinces. As of now, the by-agency budget allocation system does not lend itself well for an area-based analysis. The Prosperity Decentralisation Policy Programme budget is suggested as a proxy. As it is a very large programme, with 10 line agencies involved, there are several factors that should be taken into consideration. A detailed study of the budget of the programme is needed to improve and quantify the use of this proxy.

Accountability and Transparency

Background

Although accountability and transparency are two very closely linked concepts, Thais are more familiar with "transparency" since the term was introduced during the premiership of Mr. Anand Panyarachun, who is now an ardent advocate of good governance in Thailand. Accountability requires that public officials – politicians and bureaucrats alike, answer to the people on the disposal of their powers and duties, act on criticisms or requirements made of them and accept responsibility for failure, incompetence or deceit

Transparency means sharing information and acting in an open manner. It allows stakeholders to gather information that may be critical to uncovering abuses and defending their interests. Transparent systems have clear procedures for public decision-making and open channels of communication between stakeholders and officials, and make a wide range of information accessible.

Since the onset of the economic crisis, the public’s outcry for enhancement of accountability and transparency has extended beyond politics and the bureaucracy to the private sector. For the first time, demands for "corporate governance" mount from policy makers, private entrepreneurs as well as international organisations.

Data and Analysis

In theory, politicians within democratic systems have an automatic accountability system; they have to face censure debates from their opposition and have their mandate renewed periodically from their constituencies. In practice, the system does not work effectively as the electoral system itself is at fault. The Counter Corruption Commission in Thailand is labelled a "paper tiger" as it has limited power and its jurisdiction is limited to civil servants, not politicians and political appointees.

So far, the bureaucrats are accountable for their exercise of discretionary power through the judicial system and disciplinary actions. This, however, seldom happens due to cumbersome procedures and the unwillingness of the bureaucrats to expose any wrongdoing of their fellow bureaucrats.

In this respect, the introduction of the Public Administrative Procedural Act of 1996 and the Tort Liability of Officials Act of 1996 should enhance accountability within the bureaucracy as they provide concrete grounds and measures for private citizens to take legal action against public officials and public offices. But these legal instruments have not yielded noticeable impact as they are very new, have not been promoted and are probably too complicated to be understood by the public at large.

In the 1990s, the first landmark of transparency in the public sector was the introduction of the Concessions, Public Sector Contracting and Public-Private Investment Act in 1992 that specified a transparent and competitive procedure for large-scale public concessions, contracting, and public-private joint ventures.

A subsequent noteworthy development was the promulgation of the Official Information Act in 1997 to guarantee the right to know for the public as espoused in the Constitution. The establishment of the National Committee on Official Information at the Prime Minister’s Office in 1998 helps facilitate and accelerate the implementation of this very important Act.

It is expected that many new institutions mandated by the Constitution will be more effective in enhancing accountability and transparency in the public sector. The National Counter Corruption Commission (the Counter Corruption Commission with new structure and expanded mandate and power), the State Audit Commission and the Auditor General, the Ombudsmen, and the Administrative Court should serve as key pillars for a more accountable public sector.

For example, under the new system, all public officials are subject to public scrutiny and sanction and all high-level politicians and bureaucrats have to publicly declare their assets. A system of checks and balances is expected to come mostly from the public: under the Administrative Court, the people, in defending their individual and community rights, will find it easier to file complaints and lawsuits against public officials and public offices.

A recent attempt to draft the Conflict of Interest Act and the Anti-Exploitation Prime Minister’s Directive shows that steps toward good governance are being undertaken in earnest. The first will prohibit high-level public officials from working, during the first two years after their public service, for a business firm in the same area as that of their official responsibility. The latter will prohibit executive board members of state enterprises from holding an interest in or be in competition with the agencies they serve.

Corporate accountability entails the alignment of managerial and shareholders’ interests with the board of directors and audit committee comprising independent members, and corporate compliance with applicable laws/regulations. Transparency involves timely disclosure of adequate information concerning corporate financial and overall performance.

Since the onset of the economic crisis, there has been the shocking revelation of the extent to which malfeasance, mismanagement, unethical business practices, and lapses of regulatory control have been the norm in the financial sector. It is therefore important that the entire corporate sector undergo significant reforms.

Within the corporate sector, the companies listed by the Security Exchange of Thailand (SET) including all the commercial banks and finance companies are a good starting point as they are supposed to be the best regulated and also because they have attracted a large amount of investment by the public. Recently, SET has launched new regulatory measures such as mandating an internal audit committee for all 423 SET registered companies, and training a large number of qualified auditors.

Data Quality and Needs

There are a number of difficulties in establishing a generic database and indicators for accountability and transparency. First of all, improvements in this area are usually more evident in the "process" than "output" or "outcome" which make them difficult to measure. Second, generic indicators cannot accommodate a great diversity in different sectors. A set of criteria specific for each sector, i.e. transportation, banking and finance, trading, is a better monitoring system.

It is foreseeable that access to data, data collection and analysis will be a major problem especially for the private sector unless it is undertaken by government regulatory agencies that have a mandate and power over the sector.

Human Rights and Justice

Background

Among developing countries, Thailand has been regarded as one of the most democratic and open societies in Asia. The situation of human rights has improved considerably as incidences of outright political oppression and flagrant violation of basic human rights are now only few and far between. Nonetheless, the institutional framework and law enforcement, or lack thereof, still allow for widespread low-level infringement in people’s daily lives. This situation, however, is expected to improve continuously as many sections of the new Constitution, especially those in the chapter "Rights and Liberties of the Thai People", become operational.

Human rights advocates are now turning to other aspects of human rights – the rights to development, and mainstreaming human rights in development. In this regard, Thailand is making preparation to become a signatory to the International Convention on Economic, Social and Cultural Rights. The 1997 Constitution also guarantees important development rights to the people and their communities.

In addition, Thailand has established a national committee to draft the Human Rights Master Plan and Human Rights National Action Plan. The Constitution also mandates the establishment of an independent National Human Rights Commission.

These developments fit very well with UNDP’s global agenda to integrate human rights in development as evident in the Memorandum of Understanding between UNDP and the UN High Commissioner for Human Rights of 4 March 1997. However, of the human rights standards relevant to the world of work much remains to be done. Although Thailand has ratified the ILO Forced Labour Convention and the Abolition of Forced Labour Convention, none of the Conventions protecting freedom of association and promoting free collective bargaining have been ratified. Unions are banned in state-owned enterprises and legislation to remedy this situation has been postponed continuously. On a more positive note, progress has been made towards the elimination of discrimination of women workers and to ratify the Minimum Age Convention as a tool against child labour.

Data and Analysis

Freedom of the press is a basic indicator of human rights. The Thai press is amongst the freest and highest quality in Asia.. It is not subject to censorship or political pressure to cover up "bad news" or malfeasance in the name of "national stability".

Other forms of media, namely radio and television, are more problematic. Most of the airwaves and the stations still belong to the armed forces and agencies of the state even if most of these are managed by private companies under concessions or contracts. The Constitution now stipulates that the airwaves belong to the public and mandates the establishment of an independent agency to distribute, regulate and supervise transmission frequencies and the business of broadcasting. The extent to which the ownership and management of all kinds of the media are liberalised and regulated under a transparent system is a good yardstick of progress in this area.

In most open societies, the judicial system is a weapon of last resort for a citizen to protect his/her rights and liberties against possible violation including those by the state. The Constitution has upgraded this mechanism by reducing the power of the police. It prohibits an arrest without a warrant from the Prosecution Office and stipulates that the person cannot be held for more than 48 hours prior to being presented to the Court.

Other indicators of progress are the development of new institutions and mechanisms to enhance the rights of the people, such as, the Human Rights Master Plan, the Human Rights Action Agenda, the National Human Rights Commission the Administrative Court, the Ombudsmen.

Human rights and justice are judged by the equity in opportunities that are crucial for a human being to maintain his/her dignified life, namely basic education and primary health care. The Constitution guarantees an equal right to receive free twelve-year education and standard public health service, including free medical treatment for the indigents. The number of people still lacking these basic social services is therefore an indicator of the status of human rights and justice in Thailand.

With regard to mainstreaming human rights in development, the Constitution endorses the rights of a citizen to participate in the management and protection of natural resources and environment to ensure that it is not hazardous to his or her health, sanitary condition, welfare or quality of life. Likewise, it endorses the rights of a community to maintain its traditional way of life and to participate in the management and exploitation of natural resources and the environment. Further, consumer rights shall also be protected and enhanced by the establishment of an independent consumer protection organisation.

Data Quality and Needs

Progress on human rights is much more difficult to monitor and report than violations which manifest themselves in concrete cases. In some cases, the most practical indicators are those on institutional development that can only be presented in checklist format.

In cases where it is possible to obtain quantitative data, careful consideration should be exercised. Increase in reported violations may mean either an increase in the incidence of an abuse or an increase in public awareness and civic activism in combating the problem. In the same vein, increase in number of arrests for such violations may mean either increase in the magnitude of the problem or improvement in law enforcement.

Likewise, an increase in court cases, including those that invoke constitutional rights, is not always a welcome development. For the time being, however, this information must represent a surrogate for an increasing awareness and the exercise of human rights enforcement which are still limited in Thai society. Thus, the following indicators must be used with care.

Indicators for chapter 2

I. For which data exist

II. For which data do not yet exist

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Dated: 26Jan1999