The Bangkok Post:

The caretaker government is using the Council of State, its legal arm, to delay the next meeting of the Senate. Apparently, the delay is a bid to block the removal of Nikhom Wairatpanich as Senate Speaker, and Somsak Kiatsuranon retroactively as parliament president, by the National Anti-Corruption Commission (NACC).

..

The allegation arose after the Council of State wrote to the cabinet secretariat last Friday and asked the latter to inform the Senate secretariat that the Senate cannot convene a meeting on April 18. The date is the 20-day deadline for the Senate to hold a meeting to proceed with the impeachment of Sen Nikhom and Mr Somsak as required by the NACC.

The Council of State explained that the NACC proposed the impeachment outside a session of the Senate, and in this case the constitution required the Senate speaker to ask the parliament president to seek a royal command for a Senate session to be convened.

Deputy Senate Speaker Surachai Liangboonlertchai, the acting Senate speaker, disagrees with the stance of the Council of State. He said that the next Senate meeting would be after the House dissolution, not a meeting outside a Senate session. Therefore, Ms Yingluck could countersign the royal command for the Senate session to be convened instead of the parliament president, Sen Surachai said.

The Nation:

Without the House of Representatives, some legal experts believe Surachai, who has close ties with the anti-government Group of 40 Senators, should nominate the PM. But the government camp has argued that Surachai, by position, is not legally qualified to carry out this job.

While the anti-government’s mission of dragging the country into a political vacuum has almost become a reality, the government has made a last-ditch attempt to stop the move by blocking the Senate from carrying out its duty – in other words putting Parliament in a vacuum.

The Senate had earlier called for a special parliamentary session to carry out three tasks – consider impeaching Nikom, appoint Supreme Administrative Court specialists and replace NACC member Jaided Pornchaiya, who has retired. If the country had not been deeply divided, the Senate should have been allowed to do these tasks. But the government chose to ask the Council of State to rule whether Parliament should be reconvened and it got the answer it wanted – no.

The council cited that calling a special parliamentary session is the duty of the Parliament President and that the deputy Senate Speaker is not authorised to do this job. So the caretaker PM is unlikely to issue a Royal Decree calling for a special session.

The Nation:

The government apparently wants to block the Senate from getting involved in the final round of the “political game” by rendering it unable to function.

This issue of not calling a special parliamentary session has nothing to do with the endorsement of new senators. Even if the EC endorses up to 95 per cent of the senators-elect, as long as less than 95 per cent of MPs are endorsed as required by the charter to open a House session, the Senate cannot call a working meeting.

If the government refuses the Senate’s request to conduct a session, it is likely that the Constitutional Court will have to put the matter to rest. In the government’s view, as long as there is no House session, a Senate session is not possible.

BP: Ok, the legal argument is as follows (all references to the 2007 Constitution)

Can the Senate meet now? 

Section 132. During the expiration of the term or the dissolution of the House of Representatives, the Senate shall not hold its sitting except in the following cases:

(2) a sitting at which the Senator shall consider of a person for holding office under the provision of this Constitution;

(3) a sitting at which the Senate shall consider and pass a resolution removing a person from office.

BP: In BP’s view yes they can meet to appoint an NACC member (Section 132(2)) or to remove someone from office (Section 132(3)) which is what the meeting was about, but how do you get the Senate to meet?

Section 273 (regarding impeachment):

Upon receipt of the report under section 272, the President of the Senate shall convoke a sitting of the Senate for considering the said matter without delay.

In the case where the National Counter Corruption Commission submits the report out of session of the Senate, the President of the Senate shall inform the President of the National Assembly in order to tender a petition to the King for the issuance of a Royal Command convoking an extraordinary session of the National Assembly. The President of the Senate shall countersign the Royal Command.

BP: So who is the President of the Senate and the President of the National Assembly?

Section 89. The President of the House of Representatives is President of the National Assembly. The President of the Senate is Vice-President of the National Assembly.

In the case where there is no President of the House of Representatives, or the President of the House of Representatives is not present or is unable to perform his duties, the President of the Senate shall act as President of the National Assembly in his place.

BP: The President of the House of Representative is Somsak Kiatsuranont, but the NACC has found a prima facie case against him so he is suspended (also see Section 124 below*). Hence, the the President of the Senate to act in place of President of the National Assembly, but the NACC has foundprima facie case against him so he is also suspended. Also, Section 128:

The King convokes the National Assembly, opens and prorogues its session.

The King may be present to perform the opening ceremony of the first general ordinary session under section 127 paragraph one or may command the Heir to the Throne who is sui juris or any person to perform the ceremony as His Representative.

When it is necessary for the interests of State, the King may convoke an extraordinary session of the National Assembly.

Subject to section 129, the convocation, the prolongation of session and the prorogation of the National Assembly shall be made by a Royal Decree.

BP: As BP understands it, there can be no Senate meeting without a Royal Decree  (the Deputy Senate Speaker has written to the PM requesting the issuance of one) hence the request by the government for a Council of State ruling. What the Deputy Senate Speaker views is that he can be the Acting Speaker and thus he also fits the definition of Section 89, but government’s legal advice is to the contrary. Hence, we may need a Constitutional Court ruling on this issue, but this will take some time as well.

It is likely the Court will rule that the Deputy Speaker can act as Acting Speaker even if not explicitly mentioned in the Constitution (cannot see anyone referencing this can be done) so as to ensure there is no political vacuum,** but then again even if this happens if the Court rules that someone be Acting then surely this also means we can have a Deputy PM as Acting PM too like what happened in 2008. The government is just trying to delay the inevitable and to use any Constitutional Court ruling to show the inconsistent nature of court rulings.

*Section 124:

The President and the Vice-Presidents of the House of Representatives hold office until the expiration of the term or the dissolution of the House.

The President and the Vice-Presidents of the Senate hold office until the day preceding the date of the election the new President and Vice-Presidents.

BP: So the President of the House of Representatives has also lost his position because of the dissolution, but the President of the Senate has not.

**Surely, this is what Section 7 is meant to be used for in helping the interpretation.