Kavi misunderstands sovereign rightsBy Bangkok Pundit Dec 09, 2013 10:00AM UTC
There seems to be this trend to randomly cite sections of law or the constitution. We have had it with Sections 3 and 7, but Kavi introduces Section 87 (he is not the only one as it has been mentioned in social media) in his op-ed:
Now all anti-government protesters have merged into a single movement known as the People’s Democrat Reform Committee.
In a democracy, voters elect a government to take care of their livelihoods and run the country they belong to. Thailand is no exception. In this case, they temporarily ceded their sovereignty to the poll winners, including those who bought votes wholesale.
The 2007 Constitution’s Article 3 states succinctly that the sovereign powers belong to the Thai people. Today, the Thais are marching in all corners of the country and asking for the return of their sovereign rights. Under the charter’s Section 10, Article 87, five provisions also clearly guarantee the broad-based rights of public participation in all state affairs. The Thai people want their sovereign rights back. This is a new political awakening, fragile and uncertain as it may be.
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.
The performance of duties of the National Assembly, the Council of Ministers, the Courts, the Constitutional organisations and State agencies shall be in accordance with the rule of laws.
Section 87. The State shall act in compliance with the public participation policy as follows:
(1) encouraging public participation in the determination of public policy and the making of economic and social development plan both in the national and local level;
(2) encouraging and supporting public participation to make decision on politics and the making of economic and social development plan and the provision of public services;
(3) encouraging and supporting public participation in the examination of the exercise of State power at all levels in the form of profession or occupation organisation or other forms;
(4) strengthening the politics power of the public, and preparing the laws establishing civil politics development fund for facilitating the communities to organise public activities and for supporting networks of the groups of people to express opinion and requirements of the communities in the localities;
(5) supporting and providing education to the public related to the development of politics and public administration under the democratic regime of government with the King as Head of State, and encouraging the public to exercise their rights to vote honestly and uprightly.
In providing public participation under this section, regard shall be had to approximate proportion between women and men.
BP: Section 87 is about encouraging people to participate that is all. Legislative power is still exercised by the National Assembly.
Now, back onto to sovereign rights. Hard to quote academic articles as they are all beyond paywalls, but it is not really necessary to go far to find a quote:
The union and exercise of all human power possessed in a state; it is a combination of all power; it is the power to do everything in a state without accountability; to make laws, to execute and to apply them: to impose and collect taxes, and, levy, contributions; to make war or peace; to form treaties of alliance or of commerce with foreign nations, and the like. Story on the Const. Sec. 207.
2. Abstractedly, sovereignty resides in the body of the nation and belongs to the people. But these powers are generally exercised by delegation.
3. When analysed, sovereignty is naturally divided into three great powers; namely, the legislative, the executive, and the judiciary; the first is the power to make new laws, and to correct and repeal the old; the second is the power to execute the laws both at home and abroad; and the last is the power to apply the laws to particular facts; to judge the disputes which arise among the citizens, and to punish crimes.
Wikipedia summarizes the theory from philosophers:
Popular sovereignty or the sovereignty of the people is the principle that the authority of the government is created and sustained by the consent of its people, through their elected representatives (Rule by the People), who are the source of all political power. It is closely associated with republicanism and social contract philosophers such as Thomas Hobbes, John Locke and Jean-Jacques Rousseau. Popular sovereignty expresses a concept and does not necessarily reflect or describe a political reality.[a] It is usually contrasted with the concept of parliamentary sovereignty, and with individual sovereignty. The people have the final say in government decisions.
Political scientist Donald S. Lutz noted the variety of American applications:
To speak of popular sovereignty is to place ultimate authority in the people. There are a variety of ways in which sovereignty may be expressed. It may be immediate in the sense that the people make the law themselves, or mediated through representatives who are subject to election and recall; it may be ultimate in the sense that the people have a negative or veto over legislation, or it may be something much less dramatic. In short, popular sovereignty covers a multitude of institutional possibilities. In each case, however, popular sovereignty assumes the existence of some form of popular consent, and it is for this reason that every definition of republican government implies a theory of consent.
Yingluck has proposed a dissolution where the people can exercise their rights to vote for representatives in an election or a referendum essentially on Suthep/protester’s proposal. Yingluck yesterday (as per the Foreign Ministry translation sent to the press via e-mail):
However, such proposals, be it the establishment of a People’s Council or requesting a Prime Minister under Section 7 [of the Constitution], have no provisions to support them under the present Constitution and it is unclear how to operationalize them. There are no laws that would serve as a basis for such actions. Academic debate continues on the issue, but to date has not reached a conclusion acceptable to all sides. I would like to inform my fellow citizens that the Government stands ready to dissolve the House if it is indeed the wish of the majority of the people. This must be done in accordance with the law, that is, when the House is dissolved, an election must be held within 60 days as stipulated by the law and under fair rules. But if the protesters and a major political party do not respond to or accept the outcome of the election, it would only prolong the conflict, as was the case in 2006 (B.E. 2549), when a political party boycotted the election, creating a political vacuum that culminated in the coup d’état. The Government, therefore, proposes the setting up of a forum to discuss the proposals of the protesters. If a conclusion cannot be reached, the Government proposes a referendum so that a majority of the Thai people may make the decision with a view to arriving at an electoral approach that is fair and just, and lead to consensus amongst all political parties, protestors and all sectors of society so as to accept the decision of the people according to the rules in order to truly resolve and put an end to the conflict.
Fellow Thai Citizens, I wish to reaffirm that I have no attachment to my position. I would be pleased to dissolve the House or to resign, provided one can be sure that it is a genuine way out and can put an end to the conflict to allow the country to move forward. It must be ascertained that such proposals are indeed by the majority of people. Khun Suthep’s proposal – which has always insisted that neither a House dissolution nor my resignation would be acceptable, but only a return of power to the people without an election – is a novelty and it remains inconclusive whether it adheres to democratic principles. For a government to run the country without going through a democratic electoral process is a major issue that affects the country’s image and international confidence. If the proposal were to be carried out, the Thai people must be consulted on whether it is truly the wish of the majority of the country. Calling a referendum is a method that is legally provided for under the Constitution.
In response, Akanat Promphan, Spokesperson of the People’s Democratic Reform Committee and Suthep’s step-son said that “in regards to referendum, it was looking down on the people and not understanding the people because the reason that people have come to oppose Thaksinocracy today is because the people want to clearly show that they don’t want to be slaves to Thaksinocracy and want to reform the country “ส่วนการทำประชามติเป็นการดูถูกประชาชน ไม่เข้าใจประชาชน เพราะสาเหตุที่ประชาชนออกมาต่อต้านระบอบทักษิณวันนี้ เพราะประชาชนต้องการแสดงเจตนารมณ์ชัดเจนว่า ไม่ต้องการเป็นทาสระบอบทักษิณและต้องการปฏิรูปประเทศ”.
BP: The protest movement believe they speak for all the people and nothing seems to shake this. They don’t believe in people exercising their sovereign rights whether it is through a referendum (as rejected above) or a dissolution (rejected repeatedly) resulting in an election. In fact, the suggestion of allowing people to vote on something is seen as if the government is looking down on people, but the more likely explanation is that a People’s Assembly would be rejected in a referendum. They know this and so don’t want to test it…
btw, will someone senior from the Democrats please state on-the-record and not some of the same vague statements so far that the party will participate in an election if Yingluck dissolves parliament. So far, we have statements that they welcome a dissolution which could may sound like they want an election, but it is still unclear whether they would participate if one was called (they boycotted in 2006)….