How can we get a People’s Assembly?By Bangkok Pundit Dec 06, 2013 12:00PM UTC
NOTE: See end. Don’t have time to completely alter the post, but still think not much as changed.
The Bangkok Post on Suthep’s plan for the People’s Assembly by virtue of Article 7 of the Constitution:
When that time comes, he [Suthep] said a people’s council made up of representatives from a wide range of occupations would be formed under Section 3 of the constitution to work out policies and draw up legislation.
Section 3 says sovereign power belongs to the Thai people and that the King as Head of State shall exercise such power through parliament, cabinet ministers and the courts in accordance with the provisions of the constitution.
The people’s council would use legislative powers to push for national reforms such as better anti-corruption and election laws.
Administrative powers would be decentralised by granting each province the right to elect its own governor, while the police force must also be reformed, Mr Suthep said.
He said the council would select “decent people” without affiliations to political parties to act as caretaker prime minister and cabinet ministers under Section 7 of the constitution.
After that, a national administration would be formed as soon as possible and a general election would be held.
He urged people in all provinces to form their own People’s Democratic Reform Committee.
Reform plans have been discussed with academics and representatives of people from all sectors, Mr Suthep said.
This process, including amending the Constitution, would take three to six months. Yingluck has urged all parties to join the forum.
There are two variations on how to prepare for the dissolution of Parliament.
Pichai Rattanadilok Na Phuket of the National Institute of Development Administration (Nida) has suggested that His Majesty the King invoke Article 7 of the Constitution to select an interim government to replace Yingluck’s Cabinet to reform the country.
Surapon Nitikraipot, a former rector of Thammasat University, has offered a similar road map to Pichai’s but suggested that the Senate Speaker nominate a person to be the prime minister for His Majesty’s endorsement. The new prime minister would call an election as well as a referendum to establish the people’s assembly.
Another option proposed by Nida’s Sombat Thamrong-thanyawong is to enforce Article 3 of the Constitution to set up a “national government” as a caretaker to lay out new political rules for the country and call for a new election.
Article 3 states that sovereignty belongs to the Thai people and the King as head of state exercises power through Parliament, the government and the courts. Article 7 says that whenever no provision under this charter is applicable to any case, it shall be decided in accordance with the constitutional practice in the democratic regime of government with the King as head of state.
However, in fact there is no “constitutional practice” for His Majesty to pick anybody to sit in as the prime minister.
The last option is simply dissolving Parliament and calling a new election. This option is unlikely as Suthep and his supporters disagree with it. The Shinawatra clan would easily return to power if the election were held under the current circumstances.
The Bangkok Post with some commentary on the Article 7 suggestion:
Speaking at a seminar at Kasetsart University yesterday, Thammasat University vice rector Nakharin Mektrairat said Mr Suthep’s “people’s council” idea was utopian and unworkable.
…. he said, questioning how council members would be recruited.
Kowit Wongsurawat, an academic at the Royal Institute’s Moral and Political Science Academy, stressed the need to stick to democratic procedures under the constitution.
He said Mr Suthep’s proposal strays from the charter, and invoking sections 3 and 7, which Mr Suthep has cited to back his proposal, could be open to wide interpretation and end up creating many problems.
Mr Kowit agreed the House should be dissolved and the government should find someone else who is acceptable to all sides to act as interim prime minister.
BP: Where does one start?
1. How about the law?
The 2007 Constitution:
Section 3. The sovereign power belongs to the Thai people. The King as Head of State shall exercise such power through the National Assembly, the Council of Ministers and the Courts in accordance with the provisions of this Constitution.
Section 7. Whenever no provision under this Constitution is applicable to any case, it shall be decided in accordance with the constitutional convention in the democratic regime of government with the King as Head of State.
Section 88. The National Assembly consists of the House of Representatives and the Senate.
Section 93. The House of Representatives consists of four hundred and eighty members, four hundred of whom are from the election on a constituency basis and eighty of whom are from the election on a proportional basis.
Section 111. The Senate consists of one hundred and fifty members acquired upon the basis of election in each Changwat, one elected senator for each Changwat, and upon the selection basis in an amount equal to the total number of senators deducted by the number of senators from the election basis.
Section 171. The King appoints the Prime Minister and not more than thirty-five other Ministers to constitute the Council of Ministers having the duty to carry out the administration of State affairs with collective accountability.
The Prime Minister must be a member of the House of Representatives appointed under section 172.
NOTE: Article and Section refer to the same thing…..
BP: Section 3 refers to the National Assembly, but Section 88 sets out what the National Assembly is which is the House of Representatives and the Senate. Section 93 outlines who can be members of the House of Representatives and Section 111 outlines who can be members of the Senate. The only way to form a parliament/National Assembly with any legislative power is to have members in accordance with Sections 93 and 111. Hence, there is no provision for some arbitrary unelected body which has legislative power. Now, a group could be set up who has no power, but that is now what Suthep is talking about.
Similarly, the PM must be an MP as per Section 171.
2. HM the King has previously dismissed calls under the previous Constitution for a Section 7 PM.
To the Supreme Court judges, HM the King stated:
Translation of part of the above:
“I am greatly troubled. Whatever happens there will be request for a royally appointed prime minister. [This] is not democratic. If you cite Section 7 of the Constitution, it is a wrong citation. [You] cannot reference this. Section 7 has only has two lines; that is, whatever is not stated in the Constitution then it should be in accordance with tradition or what has occurred before…. Asking for a royally appointed prime minister is not in accordance administration by democracy. It is administration, sorry [for saying] irrational and it is มั่ว”.
NOTE: มั่ว has been translated as “mess”, but you could also say “haphazard”, “indiscriminate”, “to do any old which way”.
On the same day, HM the King also gave a speech to Supreme Court judges where he stated:
“Article 7 does not empower the King to make a unilateral decision. It talks about the constitutional monarchy but does not give the King power to do anything he wishes. If the King did so, he would be overstepping his duty. I have never overstepped this duty. Doing so would be undemocratic.”
NOTE: Sourced and adapted the translation used by Chris and Pasuk from Thaksin, 2nd edition, page 274
BP: This was a very strong rejection. There was no ambiguity here yet Suthep has specifically called for it…
The Dean of the National Institute Development Administration’s faculty of law, Banjerd Singkaneti, who is also a member of the People’s Democratic Reform Committee (PDRC), said he believed an unelected prime minister, as stipulated in Article 7 of the Constitution, would follow the due process of the law, making the appointment legitimate.
… turn to Article 3, which stipulates that sovereignty belongs to the people.
“If the government quits and does not carry out its role as ‘caretaker’, we will be left with a political vacuum. We are therefore pushing political sentiment in this direction so that sovereignty is returned to the people.
“When a solution cannot be found in the Constitution, we have to resort to the ‘democratic norm’ [Article 7] and not involve the King by seeking a royally sponsored PM. We can manage by ourselves, as sovereignty belongs to us,” Banjerd said.
Commenting on the PDRC’s proposal, Panas Tassaneeyanont, former senator and former dean of Thammasat University’s faculty of law, said anything could happen while the PDRC and protesters did not seem to care about any legal principles.
BP: So who chooses the PM? It seems semantics to move from royally-appointed to royally-sponsored. It still doesn’t get over the fact that the PM has to be an MP. Essentially, the plan is, if there is some kind of vacuum then they can do anything.
You know what is kind of funny. The PDRC argue that sovereign power belongs to the people, but when the people elect representatives and those representative want to change to a fully elected Senate they are not allowed to. However, the argument by the PDRC is that they represent the people and hence they can choose the government. Surely, if there was some political vacuum, the PM would continue as caretaker PM and Ministers as well (per Section 181 of Constitution) until an election as surely the best way to comply with “the democratic regime of government with the King as Head of State”
The People’s Assembly idea is just delusional.