Caretaker Government, Section 7, the Senate, and Impeachment of YingluckBy Bangkok Pundit Mar 10, 2014 10:00AM UTC
The push to have Yingluck impeached is that, if she is impeached by the Senate, she and the entire Cabinet goes and this provides a political vacuum. The PDRC/establishment plan then is for the Senate to vote on the new PM as we haven’t eet the 95% threshold of MPs for Parliament to convene.
Section 7 of the Constitution states that:
Whenever no provision under this Constitution 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 the State.
This provision will be applicable in extraordinary situations like our current one.
Currently only our Senate stands since Parliament was dissolved. Therefore, the president or vice-president of the Senate will be the individual to carry out the procedures stemming from Section 7.
BP: A practical problem with this is the current Senate President/Speaker is not aligned with the PDRC/establishment. The Nation :
So if there is a political vacuum that prevents Pheu Thai from being able to name a national leader, the PDRC can quickly pursue its plan.
In the event of a political vacuum, the Senate speaker will become a key man because he has the authority to present the name of the new prime minister for royal endorsement.
The PDRC has been trying hard to get Nikom Wairatpanij kicked out of the Senate-speaker’s post for quite a long time already for this reason. The PDRC prefers the First Deputy Senate Speaker Surachai Liengboonlertchai to Nikom. If Nikom is out of the way, Surachai is seen as more likely to respond to any requests from the PDRC.
Nikom’s term as an elected senator expired earlier this month. A half-Senate election will be held on March 30 to fill 77 non-appointed seats. Nikom still serves as Senate speaker because the law requires that he stays in charge until the new Senate speaker is chosen.
BP: So from this perspective there is a benefit to the PDRC from having the newly Elected Senators in place as once they are in place, we can proceed with the vote for a new Senate Speaker with the hope the new one is more favorable than Nikom. However, an alternative option, as outlined by Post Today on March 9 pointed out that one obstacle is current Senator Speaker Nikom is also facing impeachment over the constitutional amendment about the origin of Senators and hence if he is suspended by the NACC for finding a prima facie case against him, his Deputy Surachai would then be in charge. Then Surachai could propose a PM similar to what House Speaker Arthit did when he proposed the name of Anand in 1992.
BP: Although, the big difference is that the 1991 Constitution didn’t require the PM to be an MP. Under the Constitution, the Prime Minister must be a member of the House of Representatives appointed under Section 172. Also, as far as BP is aware, Nikom has not been advised of charges against by the NACC or that the NACC will bring charges. As we have seen with Yingluck, there is the notification and then 15 days so we are starting to run short of time for this to happen.
The Post Today piece also states that the PDRC wants this to be completed by the end of March because if the new Elected Senators takes office, it will be more difficult to get a PM under Section 7 as there will be a new batch of Elected Senators with many coming from the political side. This puts pressure on Suthep to finish everything by the end of March ( ที่สุดแล้ว กปปส.เองตั้งเป้ากระบวนการเหล่านี้จะแล้วเสร็จภายในเดือน มี.ค.นี้ก่อนการเลือกตั้ง สว. เพราะหาก สว.เลือกตั้งชุดใหม่เข้าสภามาเมื่อไหร่ เกมการต่อสู้ของ กปปส.เพื่อปูทางสู่นายกรัฐมนตรีมาตรา 7 จะลำบากมากขึ้น เนื่องจาก สว.เลือกตั้งชุดใหม่จำนวนไม่น้อยเป็นคนของฝ่ายการเมือง ทั้งหมดนี้กลายเป็นสถานการณ์บีบคั้นให้กำนันสุเทพต้องปิดเกมให้ได้ภายในเดือน มี.ค.)
BP: Can this be sorted out by the end of March? As already noted in this previous post, we need three-fifths of the existing members of the Senate to impeach someone (Section 274). By BP’s reading of Senate rules, we are looking at least 4 weeks from the date of Yingluck’s suspension and possibly longer although they are likely to move quickly so it could happen within this time period.* The earliest that Yingluck will have a prima facie case found against here is March 14 although this could certainly be delayed. Hence, it seems difficult to move forward and actually impeach Yingluck before the newly elected Senators (Senate elections on March 30) take office.
The relevance of this (and why Suthep wants it over by March ?) is that out of the 308 lawmakers who face possible suspension and then impeachment over their vote for the draft constitutional amendment regarding the origin of Senators there are 38 Senators including 3 Appointed (so 35 Elected Senators?). There has been a scenario going around that the NACC finds a prima facie case against the 38 Senators then they are suspended and can’t vote. As the 38 are mostly (all ?) pro-government Senators then this makes impeachment of Yinguck easier, but if you need three-fifths of the existing members of the Senate those 38 Senators who are Senators have not lost their positions, they can’t vote as they suspended. However, it is not until they are impeached that they have lost their positions and that you have a reduction of 38 Senators from the number of of the Senate.
As there are only 144 Senators (as of February 27), 86 Senators (60% of 144) are needed for impeachment. Therefore, if you were to suspend and then impeach all 38, you would reduce the existing members of the Senate by 38 and so this gives you 106 members and three-fifths of 110 is 64 which is much easier to achieve. However, as we already know with Yingluck’s case, we are looking at 15 days notification by the NACC for those Senators regarding the charges that will be brought and then if a prima facie case is found against them then another 4 weeks for impeachment. By this time, and unless there is disruption to the Senate election on March 30,** impeachment of those 38 Senators won’t be able to take place until after April 25 at the earliest and so the newly Elected Senators will almost certainly have replaced those 35 and so the importance of impeaching the 35 Senators is suddenly note so important. At most, we get impeachment and 3 out of the Appointed Senators are impeached although by this time, enough pro-government Senators may be able to block this.
It should be noted that Section 117 the Constitution states that “no senator shall hold office more than one term” hence those 35 Elected Senators who are under investigation by the NACC cannot be candidates for the March 30 election. Therefore, because of the time it takes for the Senate to impeach someone, BP doesn’t see how the 38 Senators can be suspended and impeached in just over one month (March 30 election and then a week or so to confirm the results).
Therefore, in conclusion, it seems likely that the impeachment vote for Yingluck (assuming that NACC finds a prima facie case against her) won’t take place until after Songkran at the earliest and by then we will almost certainly have the newly Elected Senators in place so it makes it even more difficult to get around 90 out of 150 votes for impeachment. So if Suthep wants to remove Yingluck before then and have the Senate vote in a new PM, they may need another avenue.
One other option is that the caretaker Cabinet is deemed to have expired. As previously blogged , a former drafter of the Constitution explained in a FB post that within 30 days of the election of members of the House of Representatives, parliament must be summoned for its first sitting (Section 127) then within 30 days of this first sitting the House of Representatives they must consider and choose a PM (Section 172). However, the problem is that under Section 93, we need at least 475 MPs in order to meet the minimum threshold for the House of Representatives to convene so his argument is that as of April 3, the caretaker government of Yingluck can no longer continue. This interpretation is contested by legal analyst Verapat. First, the Yingluck Cabinet is a caretaker Cabinet. It is compelled to continue its role under Section 181 until a new Cabinet takes office. Second, there is 180 days under Section 93, paragraph 6 to get to 95% minimum threshold of MPs for the House of Representatives to convene so there is no 60 day deadline.
BP: Normally, within 60 days of the election the caretaker Cabinet will be replaced by a new Cabinet, but Section 181 does not put a maximum timeframe on how long the caretaker Cabinet can continue. It simply states the caretaker Cabinet continues until a new Cabinet takes office. In BP’s view this is clear. There is no expiry date so the caretaker government can continue until it is replaced by a new Cabinet. There is a Constitution Court case now regarding this issue, but surely the remedy if 95% of MPs are not elected within 30 days and so parliament cannot legally convene is for the February 2 election to be voided and we start again. Then again, the Court has shown itself to be creative in its decisions….
*Potential flashpoint, reds surround the Senate to delay Senators from voting on impeachment… Or later reds surround the Senate to delay Senators from voting on a new PM. The latter is more likely and could signal the beginning of the new protest cycle…
**This seems unlikely for now as no disruption to candidate registration by the PDRC and well there are actual local PDRC leaders in the South running as candidates too…