Would an appointed government have more powers than the caretaker government?By Bangkok Pundit Feb 06, 2014 2:30PM UTC
One problem for the government now – problems are increasing day-by-day partly over rice-pledging scheme* and being a caretaker government is relevant to this – is as a caretaker government it is constrained under Section 181 of the Constitution:
The outgoing Council of Ministers shall remain in office for carrying out duty until the newly appointed Council of Ministers takes office, but in case of vacation of office under section 180 (2) the Council of Ministers and a Minister is able to carry out any duty as necessary within the following conditions:
(1) refraining from the exercise of power which resulting in the appointment or transfer of government officials holding permanent positions or salaries or of officials of State agency, State enterprise or any enterprise in which the State is a major shareholders or resulting in leaving such persons from the performance of their duties or offices or replacing other persons to replace him except by prior approval of the Election Commission;
(2) refraining from doing an act which resulting in giving of approval to spend budget reserved for emergency or necessity situation except by prior approval of the Election Commission;
(3) refraining from doing an act which resulting in giving approval of work or project or which the forthcoming Council of Ministers may be bound;
(4) refraining from using resources or personnel of State to do an act which may affect the result of a general election, and refraining from the violation of any prohibitions under the rules prescribed by the Election Commission.
However, former Finance Minister Thirachai in a recent op-ed in the Bangkok Post:
A new government, unlike a caretaker, can seek new loans for the scheme. But scenarios will dictate the timing. Should there be a politically neutral government arising not from the election, either from the resignation of the caretaker Prime Minister Yingluck Shinawatra or from a coup, the borrowing can take place immediately.
However, if it is a government which takes office from an election, the timing will be uncertain. It will take repeat elections to get enough MPs for parliament to convene. There might also be court cases after the vote count, delaying the government’s formation.
In sum, the time factor is certain for a neutral government, less so for the elected one.
This does not mean I support any type of government in particular.
Then former Finance Minister Pridiyathorn has published an open letter to the PM calling for her to resign over the rice pledging scheme and solar cell problems saying the government has failed.** A ThaiPBS journalist has a scanned copy of the letter which they have posted here. Below is a screenshot of the end of the letter:
[As summarized by BP]… But if the PM and the Cabinet think of the benefits of the country as the most important and make a decision to resign from being a caretaker government which can be done in a democracy when they are unable to administer the country further where the Constitution provides an avenue for the appointment of a neutral person to administer the country. The protesters will stop their activities immediately. The country will move forward as per normal including government and private sector. The new government will have full powers and can move immediately forward with projects that are of benefit to the country and the people. A new government with a neutral person which the people accept can attract representatives from all professions come together to reform the country….
BP: First, neutral power like himself ? (Crispin noted in his December article for Asia Times Online that Pridiyathorn is on a list to be Finance Minister in an Appointed Government).
Second, Red shirts and Puea Thai suporters will just acquiesce and be happy to be ruled by technocrats?
Third, there is no constitutional provision for a neutral person to run the country.
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 that has no power, but that is not 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
Fourth, and back to the main point of the post, how would an Appointed Government have more powers than a Caretaker Government? They are functioning as a Caretaker Government and hence, how could it be interpreted they have more powers? Rip up the Constitution and have a new interim Constitution in line with what Suthep proposes would be the only way….
* Have yet to hear a good explanation from the government on why it did not get things in order between early October (when Court upheld the Budget) and December 9 when parliament was dissolved. There was an unsuccessful bond issue in November, but it seems careless and poor management….
**Hard to explain, but bureaucratic conflict between ministries about what permits are needed for solar cells.