By Kaewmala

Part 1: Constitutional Court and constitutional amendment

Last week Thai politics again reached a point where a Parliament vs. Constitutional Court face-off looked imminent. Fortunately sense prevailed and another constitutional crisis has been averted for the moment. But Thailand is nowhere near the end of its struggle to achieve a genuine democracy in which citizens have the final say.

Background – Constitutional Court’s intervention

Since the Pheu Thai Party came to power after a decisive election in July 2011, it has been trying to amend the Constitution— a key part of its election campaign. Its first attempt was thwarted in June 2012, when the Constitutional Court ordered Parliament to suspend the third vetting of the draft constitutional amendment.

The Constitutional Court’s intervention followed a complaint from five individuals that the proposed charter amendment was unconstitutional and that Parliament was plotting to “overthrow the democratic regime of government with the King as Head of State” (read: constitutional monarchy) in violation of Section 68 of the Constitution.

The Constitutional Court’s decision pushed the country into a constitutional and political crisis. While supported by the opposition, the Democrat Party, the judicial intervention was viewed by many as an overreach of power. Some called it a judicial coup attempt. Several legal scholars questioned the Constitutional Court’s authority to accept the direct complaint, as the Court’s own procedure specified the Attorney General as the only entity with the right to submit a motion to the Court under Section 68.

The decision brought into the open a debate on the scope of the respective constitutional authority of Parliament and the Constitutional Court. The purpose of a constitution is to define institutional power and restraints on the exercise of such power. Institutions, however, have a tendency to liberally interpret the scope of their power while diminishing or ignoring its limitations. The Constitutional Court’s multiple interventions in the constitutional amendment process has raised a question whether the Court has exceeded its constitutional role and may have itself violated the Constitution.

Last year’s constitutional showdown between Parliament and the Constitutional Court ended in a compromise and a crisis was diffused. The compromise appeared to be more political than legal or judicial. The Constitutional Court dismissed a complaint as speculation that Parliament’s attempt to amend the Constitution had another agenda, i.e. it was plotting to overthrow the monarchy. The Court said there were “not enough facts to show [such an agenda],” hence there were no grounds for the governing party to be disbanded or its senior members to be punished (by being banned from politics).

But the Court didn’t stop there. In what Western legal scholars call an obiter dictum (a court’s non-binding view of the law) it gave a “recommendation” that Parliament not completely rewrite the charter and that either the draft amendment (with amendments to multiple sections) be put to a referendum or the charter be amended piecemeal section by section. Yet, the Court’s recommendation has been taken as a binding ruling. The politically careful Pheu Thai government chose the latter option: amending the Constitution section by section.

The unfinished war between the old and the new forces

It is worth noting that the 2007 Constitution came a year after a military coup toppled Thaksin Shinawatra in September 2006. Thaksin’s unprecedented electoral popularity among the rural poor and an emerging rural middle class favoring his populist policies was seen as a threat to the old establishment. Widespread corruption in his government and his autocratic style also played a big role in his downfall.

The 2007 Constitution was drafted by a military junta-appointed drafting assembly. Besides providing amnesty to the 2006 coup leaders from prosecution, the key features of the 2007 charter include changing the Senate from an all-elected body back to a half-appointed one. It has also increased the power of independent state agencies and the judiciary, while curbing the power of elected politicians. With increased power, the role of the judiciary and independent agencies would become politically dominant under the 2007 Constitution.

After the coup, in May 2007 Thaksin’s Thai Rak Thai Party (TRT) was disbanded for violation of electoral laws by the Constitutional Tribunal, with 111 of its executives barred from politics for five years. The remaining Thai Rak Thai politicians quickly regrouped and formed People’s Power Party (PPP). PPP won the December 2007 general election only to be dissolved again by the Constitutional Court in December 2008. During a brief duration in government, the PPP-led, Thaksin-aligned coalition came under heavy attack from inside and outside of Parliament.

For half of 2008 the People’s Alliance for Democracy (PAD), an anti-Thaksin, urban middle class-supported, royalist movement, aka the yellow shirts, staged large and aggressive street protests against the Thaksin-proxy government. The PAD occupied the Government House to pressure the first PPP-led coalition under Samak Sundaravej’s premiership to resign. The second PPP-led government under Somchai Wongsawat was literally barred from the Government House by the PAD, which hounded its “mobile cabinet” preventing it from conducting legislative sessions. The PAD also seized Don Muang Airport and Suvanabhumi Airport at the height of its protests.

Alongside the PAD’s protests, the opposition Democrat Party mounted pressure in Parliament with censure debate against the PPP cabinet while independent agencies such as the Election Commission (EC), the then National Counter Corruption Commission (NCCC) and the Constitutional Court investigated PPP leaderships for wrongdoings. In the end both PPP prime ministers were removed from office by the Constitutional Court: Samak for receiving payment for his appearance in a cooking show and Somchai for neglect of duty eight years earlier during his service in the Justice Department.

The PAD stopped its protests once the Thaksin-aligned government was removed. The PAD had conservative political views. It called for constitutional amendments to make Parliament a largely royally appointed body (70 appointed-30 elected ratio), and also for the military and the traditional elite to take a greater role in politics. After the PPP dissolution, a new government was formed with the leader of the opposition party Abhisit Vejjajiva as prime minister.

The May 2010 anti-government protests were the biggest, and the bloodiest, in Thailand's history. Pic: AP.

The Abhisit government then came under siege by the pro-Thaksin, anti-establishment United Front for Democracy Against Dictatorship (UDD), aka the red shirts, which staged the largest street protests in Thailand’s modern history. The initially peaceful red-shirt protests became violent during April-May 2010 and ended in bloody military crackdowns that left nearly 100 people dead and 2,000 injured. Then came another election in July 2011 in which the current ruling Pheu Thai Party, a reincarnation of PPP, won in a landslide, installing Thaksin’s youngest sister Yingluck Shinawatra as Thailand’s first female prime minister.

A continuing tug of war

Given this background, it is clear that the current constitutional amendment struggle is part of the larger ongoing tug of war that started even before the 2006 coup between the old establishment aligned with the military, the judiciary, independent agencies and the opposition party with the backing of the conservative urban elite and the old middle class on one side, and the new anti-establishment forces personified by Thaksin and represented by his party with the broad-based support of the rural poor, a new middle class and democracy advocates on the other. The clashes of the old and new forces came to a breaking point with the 2006 coup, with the old establishment reasserting its power.

But Thailand of the 2000s is no longer the same as Thailand of the 1980s. The previously political passive populace has been awakened. The old establishment still sees the rural poor as ignorant, gullible peasants manipulated by greedy and evil politicians like Thaksin and his ilk. But the truth is these people may not be so ignorant or gullible, or not so poor in many cases. They actually seem to know what they want and demand it: more equality and justice, and more say in government.

The old establishment underestimated the changes in Thailand’s political landscape and overestimated the efficacy of military coups. The 2006 coup might have ousted Thaksin physically from Thailand but it has failed to oust his party from power or erase his influence, for the newly awakened electorate is unwilling to turn back the clock.

With military intervention in politics having proved no longer effective and the opposition party championing the interests of the old elite having failed to win elections for the last two decades, and with no chance of becoming government anytime soon, a force that remains with some real power is the judiciary and independent agencies. So the strategy has shifted and the war is now fought mostly in courts.

The Yingluck government has, by all accounts, kept a tenuous truce with the military and a deal is believed by many (though no one has any actual evidence to offer) to have been made between the new and old powers as reflected in that truce. But there is always more than meets the eye. There has been no lack of legal and judicial skirmishes and big conflicts are erupting once more.

Tensions flare after Pheu Thai’s bold stand

Despite the Constitutional Court’s intervention last year, the Pheu Thai government has not let up its efforts to amend the Constitution (also interchangeably called “charter”). Picking up the game this year, it pushed its charter amendment through all three required readings in Parliament despite the opposition’s strong objection against the Senate composition. The amendment will do away with appointed senators and return the Senate to a fully elected body like before.

What sparked the fire this time was an unexpectedly bold stand by the Pheu Thai government—it has refused to budge from submitting the charter amendment for royal endorsement after its passage. On 28 September the amendment legislation was approved by the majority in the National Assembly—with a walk out by all Democrat MPs and some appointed senators. The planned submission of the charter amendment for royal endorsement, while following the constitutional procedure, met with loud cries from a group of appointed senators and Democrat MPs in the opposition.

In late September the Constitutional Court accepted two petitions from these two groups (one on the charter amendment legislation and the other on the 2.2 trillion baht budget bill). The petition on the former filed by a senator called for an injunction against the charter amendment being submitted for royal endorsement invoking Section 68 as in the previous year. Meanwhile, the Democrats strongly warned Prime Minister Yingluck that if she submitted the amendment for royal endorsement she could be “acting inappropriately toward His Majesty the King, a serious criminal offence.”

The so-called Group of 40 Senators (mostly appointed) went further and said the PM’s submitting the charter amendment without waiting for the Constitutional Court’s review would amount to lèse-majesté. Even a member of the National Anti-Corruption Commission came out to warn the PM and the government to consider the “propriety” of their action. A group called the People’s Democratic Force to Overthrow Thaksinism (Pefot) threatened the government with a protest if the PM did not refrain from submitting the amendment. (A side note: The Bangkok Post originally reported 200 Pefot members gathered at the Government House and later changed the figure to 500.)

Another face-off averted

The public was keen to see how the Constitutional Court would react to the petitions this time around. A number of critics have made a strong case that the Court exceeded its authority by accepting the petition against the charter amendment filed under Section 154. The positions of the opposition and the government are worlds apart and probably confusing for laypeople.

The Group of 40 Senators have argued that “any bill” approved by Parliament must be submitted to the Constitutional Court for review as stipulated in Section 154 of the Constitution, if at least one-tenth of lawmakers in either or both houses file a petition that it contravenes the Constitution. On the other hand, the government said the PM was “duty bound” to submit the charter amendment legislation within the 20-day deadline, and if she failed to submit the legislation she would breach the Constitution (Section 291 (7)).

As it happened, on October 2 the Constitutional Court decided to reject the petition for an injunction against the submission. The Court reasoned that “there were no reasons or time constraints to justify an injunction.” In any case, the charter amendment has already been put in the process of submission for royal endorsement. (It is important to keep in mind this was a petition to stop the parliamentary process in the constitutional amendment protocols. It says nothing about the Constitutional Court’s intention in the future to review the amendment once it becomes part of the Constitution.)

On the other petition against the approved 2.2 trillion baht budget bill, the Constitutional Court gave a ruling two days later that it is not unconstitutional. This has also cleared the way for the government to forward it to the palace for royal endorsement. So there won’t be any government shutdown here — not that it was ever likely in Thailand’s case with the ruling Pheu Thai party controlling the House.

The Constitutional Court’s role in constitutional amendment

Examining the institutional roles in the amendment process, a prominent public law scholar Worachet Pakeerat has explained and clarified the authority of the Constitutional Court in the matter.

Dr. Worachet said that there seems to have been a false understanding of the status of the charter amendment legislation that it is a bill, while in fact it is not. He explained that the status of the charter amendment legislation is higher than that of a bill and follows a different legislative procedure as laid out in Section 291 of the Constitution, which deals specifically with rules and procedure of charter amendment (see the text in this article by Bangkok Pundit). Parliament is constitutionally empowered to enact charter amendment legislation within the scope of Section 291 (and the Constitutional Court is excluded from this process).

According to Dr. Worachet, the Constitutional Court has authority to accept petitions on the budget bill but it does not have the authority to accept any petition on the charter amendment. Section 154 does not apply to constitutional amendment legislation, as it is not just “any” bill. So the Constitutional Court should not have accepted any petition on the charter amendment under this section in the first place.

To reiterate Dr. Worachet’s explanation, the constitutional amendment process is part of the political process, in which the government has or claims to have a constitutional mandate to amend or change the Constitution. Parliament has the legal authority to change the power structure, including appointment or election to political institutions such as the Senate. In doing so, it makes a political decision on behalf of the people, and it does not need the consent of the Constitutional Court.

If the opposition objects a democratic course of action isn’t filing a petition with the Constitutional Court, but launching a campaign in the next election cycle to convince the voters to elect them to reverse the changes made to the Constitution. If they prevail, they get to form a government and have the right to change the Constitution back. Whether this is an ideal process or not isn’t the point, but it is what the Constitution provides.

In other words, the Constitutional Court has jurisdiction to decide whether an ordinary bill is “constitutional” in that it must not violate the provisions of the Constitution. But an amendment to the Constitution is a different kind of fish. It’s not a question of violating the Constitution, but changing it. The Constitution vests Parliament with the right to change the Constitution. The Government of the day makes amendments based on a political mandate. Full stop.

By intervening, the Constitutional Court has transformed its judicial role into a political one. It has in effect “rewritten” the amending process on principles that transcend the Constitution itself. The Court’s decisions, and the government’s willingness to go along with the interpretation, cast doubt on what is the highest law of the land, which institution administers that highest law, and who reviews its decisions.

Either the Constitution is the highest law or it isn’t. Either Thailand is a genuine parliamentary democracy with all parties playing by the rules or it is not, with existing laws and rules getting twisted politically, repackaged as “legal” argument and becoming the basis to, in effect, rewrite the law.

What’s next?

The Constitutional Court’s rejection of the petition for an injunction and its ruling on the budget bill are by no means the end of this protracted fight between the elected legislative branch of government aiming to revert the 2006 coup legacy in the 2007 Constitution, and the non-elected judicial branch and the opposition aiming to keep the 2007 Constitution intact. Compromises have been made, which in itself shows how the rule of law can be bended to political necessities.

The tug of war goes on and a new episode has already begun. Just as the Constitutional Court rejected one petition, it accepted another against the charter amendment from a Democrat MP claiming that the approved amendment is unconstitutional because some Pheu Thai MPs voted for it on behalf of their colleagues. The Group of 40 senators steadfastly continues to argue that making the Senate a fully elected body is unconstitutional and amounts to an overthrow of the constitutional monarchy.

Such argument is either credible or ludicrous depending on what one values more between political expediency and the rule of law. It doesn’t really matter that those trying to stop the government’s charter amendment would be hard pressed to find anything in the amendment that will change Thailand’s political system into anything other than a constitutional monarchy. It doesn’t matter either what kind of mental gymnastics has to be performed to explain exactly how making the Senate a fully elected body amounts to overthrowing a constitutional monarchy. It’s all part of political maneuvering—or rather politicized legal maneuvering. Which might explain why the Parliament Speaker is also seeking the Constitutional Court’s decision on the legality of a fully elected Senate in the charter amendment.

The Constitutional Court is expected to make a ruling on the second petition on the charter amendment within 90 days, likely sooner. The Bangkok Post quoted an unnamed source in the Court saying:

It’s highly likely the draft amendment to the constitution will be found to contain flaws, especially with [proxy] voting for other lawmakers.

Meanwhile, the Democrats said they would ask the PM to withdraw the charter amendment from royal approval.

In the event that the charter amendment is not royally endorsed (either the King returns it unsigned to Parliament, or it is not returned after 90 days), the government can decide whether it will put it through Parliament once again for confirmation, which will require a two-third majority approval. If the amendment legislation is not approved by a two-thirds majority, it is then considered dropped. If it is approved, the PM can re-submit it for royal approval. In this instance, if the legislation is not signed by the King and returned within 30 days, the PM can announce it in the Royal Gazette and it officially becomes law.

After two years it appears that the Pheu Thai government may be stepping up its game. In April 2013 Pheu Thai MPs threatened to impeach Constitutional Court judges for alleged interference in the power of the legislative branch. And soon after the charter amendment was approved in Parliament, the Pheu Thai-led Cabinet asked the Council of State to draft a law that will require high-level civil servants and members of independent agencies to declare assets like politicians. Whether this is a fast-pitch or a bunt, we will know soon enough.

 

UPDATE: Wednesday, 9 October 2013. The Constitutional Court rejected the Group of 40 Senators’ petition filed under Section 154, on the basis that Section 154 does not apply to constitutional amendment legislation. See the official press release here (in Thai). It would seem that the Constitutional Court is threading more carefully now than in last year. This leaves the petition from the Democrat MP claiming on the technicality of the approved amendment being unconstitutional because some Pheu Thai MPs allegedly voted on behalf of their colleagues.

Continued in Part 2: The guardians of Thai democracy

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About the author:
Kaewmala is a writer, a blogger and an avid twitterer. She blogs at thaiwomantalks.com and is a provocateur of Thai language, culture and politics @thai_talk. Kaewmala is the author of a book that looks at the linguistic and cultural aspects of Thai sexuality called “Sex Talk”.