VZCZCXRO6646
RR RUEHCHI RUEHDT RUEHHM RUEHNH
DE RUEHBK #5811/01 3190547
ZNR UUUUU ZZH
R 150547Z NOV 07
FM AMEMBASSY BANGKOK
TO RUEHC/SECSTATE WASHDC 0670
RUCNASE/ASEAN MEMBER COLLECTIVE
RUCPDOC/USDOC WASHINGTON DC

UNCLAS SECTION 01 OF 03 BANGKOK 005811 
 
SIPDIS 
 
SENSITIVE 
 
SIPDIS 
 
STATE PASS USTR 
USDOC FOR 4430/EAP/MAC/OKSA 
 
E.O. 12958:N/A 
TAGS: ECON ETRD TH
 
SUBJECT:  NEW CONSTITUTION WOULD REQUIRE PARLIAMENTARY OVERSIGHT OF 
U.S.-THAILAND FTA 
 
¶1.  (SBU) Summary:  Article 190 of Thailand's new Constitution 
outlines procedures for negotiating and approving international 
agreements, including requirements for obtaining parliamentary 
approval and holding public hearings.  Ministry of Commerce and 
Ministry of Foreign Affairs officials have expressed concern that 
Article 190's provisions could complicate negotiations and delay 
passage of important agreements.  An eventual U.S.-Thailand Free 
Trade Agreement would likely be exempted from some of the law's 
provisions as negotiations have already begun, but would be subject 
to a parliamentary vote.  End Summary. 
 
¶2.  (SBU) Thailand's Constitutional Drafting Committee expanded the 
previous Constitution's provisions on negotiation of agreements to 
include a requirement for parliamentary approval for international 
agreements and treaties, including, and perhaps especially, trade 
agreements.  Article 190's provisions require the government to 
submit a negotiation framework for parliamentary approval before 
negotiations may begin, disclose relevant information to the public, 
and hold public hearings before and after negotiations.  The Article 
also requires the government to undertake remedies for those 
affected by implementation of such a treaty. 
 
¶3.  (SBU) Dr. Somkid Lertpaitoon, professor of Economics at 
Thammasat University and a leading member of the Constitution 
Drafting Assembly, said the drafting committee on Article 190 was 
led by a liberal group that had been frustrated that former PM 
Thaksin shut the National Legislative Assembly (NLA) out of the 
negotiating process for international agreements.  The previous 
constitution held no provision requiring parliamentary involvement 
in approval of international agreements and no role in guiding 
negotiations.  Previous governments have been able to conclude 
international treaties as executive agreements.    Although Article 
190 requires parliamentary involvement in a wide array of agreements 
and treaties, Dr. Somkid said that foremost in the minds of 
Constitutional drafters was a perceived lack of transparency in 
negotiations of trade agreements during Thaksin's term, including 
the U.S.-Thailand Free Trade Agreement (FTA). 
 
¶4.  (SBU) The Ministry of Foreign Affairs is tasked with drafting 
legislation to enact Article 190's provisions, but is also competing 
with a draft that the NLA has already drawn up on its own.  Dr. 
Surichai Wun'Gaeo, a professor at Chulalongkorn University and one 
of the principal drafters of the NLA version, said the government 
would likely give priority to the MFA's version.  He considered the 
NLA version as more of a stimulus, intended to influence the MFA in 
their own drafting.  Dr. Virachai Plasai, Director General of the 
MFA's treaty office, said Section 303 of the Constitution requires 
that the Council of Ministers complete the law to implement Article 
190 within one year after the "declaration of policies to the 
National Assembly," likely to take place by March 2008.  However, a 
Ministry of Finance official told us Nov. 14 that the MFA-drafted 
version is now ready to go to the cabinet by November 20 with the 
hope that it can be passed by the NLA before the elections in 
December.  She added that a key provision of the MFA draft will 
limit the requirement for Parliamentary approval to trade-related 
agreements. 
 
Key Provisions 
-------------- 
 
¶5.  (SBU) Article 190 requires parliamentary approval of any treaty 
or agreement that changes Thai territory or has "extensive impacts 
on the country's economic and social stability, or has significant 
bindings on trade, investment, or national budget."  Although the 
Article does not specify how the NLA would approve a treaty, Dr. 
Somkid said he presumed the NLA would consider agreements in a 
strict up-or-down vote and would not have the authority to make 
changes to a negotiated text.  The Ministry of Finance told us that 
language in both the NLA and the government-sponsored MFA versions 
simply require "approval" by the NLA and presume that the NLA will 
not have scope to review individual provisions of agreements.  The 
NLA would have only 60 days from receipt of the agreement to make 
its decision. 
 
¶6.  (SBU) Paragraph 3 of the article requires the Cabinet to 
"propose the negotiation framework to the National Assembly for 
approval," prior to beginning negotiations.  Ministry of Commerce 
officials expressed uneasiness that the provision could require them 
to publicize their negotiation strategy and bargaining positions 
before talks could even begin.  Mr. Winichai Chaemchaeng, Deputy DG 
of the Department of Trade Negotiations, said his Department 
presumes that the Article's drafters intended the Ministry to 
present a broad set of goals rather than specific positions, but is 
concerned about how implementation of the law will play out. 
 
 
BANGKOK 00005811  002 OF 003 
 
 
¶7.  (SBU) Paragraph 3 also requires the Cabinet to conduct public 
hearings before concluding a treaty, and after its signing, to 
"provide access to the details of the treaty to the public." 
Professor Surichai said the intention of the language was not to 
slow approval of trade agreements though it would likely have that 
effect.  He conceded that groups would attempt to take advantage of 
the public hearing process to block approval, but said they would be 
less likely to be successful if the deliberation process were truly 
open.  He compared the proposed approval process favorably to the 
U.S. system for approving trade agreements and said Thailand needs 
to learn more about the U.S. system. 
 
¶8.  (SBU) Paragraph 4 requires that if the public or small- and 
medium-sized businesses are affected by an agreement, that the 
government "shall take steps in rectifying or remedying the impacts 
suffered by aggrieved persons..."  Deputy DG Winichai said the 
provision did not refer to making changes to a signed agreement to 
protect affected parties, but rather a requirement to institute a 
form of assistance not unlike the U.S.'s Trade Adjustment Assistance 
program.  Thailand already has a limited program in place, with a 
focus on assisting impacted industries by funding research and 
development, rather than assisting specific companies or 
individuals. 
 
¶9.  (SBU) Deputy DG Winichai chafed at the Constitution's new 
requirements, saying that obtaining Cabinet approval for trade 
agreements is already a difficult challenge, and his Department now 
would have to satisfy the NLA and feisty non-governmental 
organizations as well.  Dr. Virachai at the MFA said his office's 
task was to draft legislative language that was "reasonably 
detailed" to give civil society a voice in the negotiation process, 
but flexible enough to allow the government to credibly handle 
negotiations.  Another academic observer who spoke to Econoff 
sniffed at the MFA's concerns, saying the Ministry is unconcerned 
about transparency and democratic procedure and suspected that they 
simply wants to avoid the extra workload that public hearings and 
NLA approval would entail. 
 
U.S.-Thailand FTA Affected 
-------------------------- 
 
¶10.  (SBU) Dr. Virachai said that the Constitutional provisions 
would apply to any continuation of negotiations on a U.S.-Thailand 
Free Trade Agreement, but would not affect the work done to date 
("What's done is done.").  Section 305 of the Constitution states 
that the provisions of paragraph 3 of Article 190 will not apply to 
work done prior to the promulgation of the Constitution, but "shall 
apply to acts which remain incomplete and require further action." 
A completed U.S.-Thailand FTA would, therefore, be subject to 
parliamentary approval. 
 
¶11.  (U) Full text of Article 190 follows: 
 
Section 190. The King has the prerogative to conclude a peace 
treaty, armistice and other treaties with other countries or 
international organizations. 
 
 A treaty which provides for a change in the Thai territories or 
extraterritorial areas over which Thailand has sovereign rights or 
has jurisdiction in accordance therewith or in accordance with 
international law or requires the enactment of an Act for the 
implementation thereof or has extensive impacts on national economic 
or social security or generates material commitments in trade, 
investment or budgets of the country, must be approved by the 
National Assembly. For this purpose, the National Assembly shall 
complete its consideration within sixty days as from the receipt of 
such matter. 
 
 Prior to taking steps in concluding a treaty with other countries 
or international organizations under paragraph two, the Council of 
Ministers shall provide information and cause to be conducted public 
hearings and shall give the National Assembly explanations on such 
treaty. For this purpose, the Council of Ministers shall submit to 
the National Assembly a framework for negotiations for approval. 
 
 When the treaty under paragraph two has been signed, the Council of 
Ministers shall, prior to the declaration of intention to be bound 
thereby, make details thereof publicly accessible and, in the case 
where the implementation of such treaty has impacts on the public or 
operators of small- or medium-sized enterprises, the Council of 
Ministers shall take steps in rectifying or remedying the impacts 
suffered by aggrieved persons in an expeditious, appropriate and 
fair manner. 
 
 There shall be the law on the determination of procedures and 
 
BANGKOK 00005811  003 OF 003 
 
 
methods for the conclusion of treaties having extensive impacts on 
national economic or social security or generating material 
commitments in trade or investment and the rectification and 
remedying of impacts suffered by persons in consequence of the 
implementation of such treaties, having regard to justice to persons 
benefited and persons aggrieved by the implementation thereof as 
well as to general members of the public. 
 
 In the case where there arises a problematic issue under paragraph 
two, the power to make the determination thereon shall be vested in 
the Constitutional Court and, for this purpose, the provisions of 
section 154 (1) shall apply mutatis mutandis to the referral of the 
matter to the Constitutional Court. 
BOYCE