Likhit on sovereign power, political vacuum, and Section 7By Bangkok Pundit May 15, 2014 10:00AM UTC
Likhit Dhiravegin, a fellow of the Royal Institute, long-term academic and work on both sides of politics (for the Democrats and a Thai Rak Thai MP) recently was interviewed by Jomquan on Nation Channel’s Kom Chud Luek‘s political news program.*
Kaewmala has provided a translation and some context for the interview in 3 posts (On Suthep’s ‘sovereign power’ grab, On the orchestration of a political vacuum, and On Article 7 and appointing a new PM). Below are some excerpts from the first post on sovereign power (all emphasis by BP):
Prof Likhit:…Legitimacy must be based on the people. The people vote in elections. For instance, the President of the United States is elected by the American people, the President is องอธิปัตย์ (ong a-thi-pat – “the sovereign”) but the power still rests with the American people who have the right to vote. Therefore, these two concepts sometimes need to be distinguished. Those who talk about “sovereignty” from Article 3 don’t know what they were talking about; they talked without knowledge. And those who cite the reference are totally off course. It’s worrying the country is being led astray.
On the concept of rattha-thipat (“the sovereign”/“sovereignty”), humans are social animals and we live in groups. When in living in groups, conflicts are unavoidable because there are limited resources. If conflicts occur and we use only brute force in absence of rules, we would go eventually extinct. Someone with a good mind could see the peril so they established themselves, for instance, as the leader in the hunt and assumed power to organize society, using helpers, division of labour, social roles and statuses. This is called “political organization.” The leader set the rules and resource distribution and the people accepted and followed the leader because if not they’d be hit on the head. This is the origin of “the State.” There was society and then came the State.
“The State” is an abstract. The group of people who exercise state power to govern is called the “government.” They have supreme power, are the sovereign and accepted by the people due to fear. But using only fear was not sustainable long term, so a “tradition” was created for popular acceptance, often by claiming divine right to rule. Westerners claimed divine power from God, the Chinese from Heaven and the Indians from Devaraja [God King].
Through generations [the tradition] was accepted and there was no need to use force as legitimacy was established. Therefore, royal succession is succession of sovereign power. Kings in ancient regimes were the sovereign.
So now we have four kinds of sovereign/sovereignty: from brute force, from tradition, from law and legal rationale, and from special quality or charisma.
Article 3 of the Constitution is about sovereignty of the modern kind, in which sovereign power belongs to the people. Meanwhile, the King as the Head of State exercises that power through National Assembly, the Council of Ministers and the Courts as provided by the Constitution. That means in Thai society the sovereign power belongs to the people but is not exercised by the people but by the King through the three state bodies mentioned. But the National Assembly must come from elections to reflect popular sovereignty. Once the elections are completed, the prime minister is royally endorsed. This is a co-exercise of power between the people and the monarch. And the reason it is this way is because Article 2 states very clearly that, “Thailand adopts a democratic form of government with the King as Head of State.” So you can’t cite only Article 3. You can’t cite Article 3 to form a government without mentioning Article 2 which says it must be a democratic form of government, or without mentioning [the rest of Article 3] that the King exercises that power through the National Assembly, the Council of Ministers and the Courts. So be very careful, you can’t just refer only to the people. Read the Constitution carefully and make sure you understand it well. Don’t mix it up.
Jomquan: Having listened to your explanation and combined it with what Khun Suthep has said, that is, sovereign power belongs to the Thai people but in the end there will be a leader royally endorsed anyhow, so the power—
Prof Likhit: The power as prescribed in the 2007 Constitution, there is a process to exercise it, in which there must be elections. There must be a parliament and voting for a prime minister in the parliament. You can’t just suddenly claim power and do as you wish. If you want to do that, you must cancel the Constitution first—by staging a coup.
But be warned, the 2007 Constitution came from the September 19, 2006 coup. It was drafted to legitimize the coup because it came from use of force. There was uncertainty whether it would be accepted, so lawyers proposed a referendum, using the voice of the people for legitimacy. If there’s a new coup d’etat to topple the 2007 Constitution, you will be effectively robbing the people of the power—you yourself asked them to vote in the referendum. Even the 1997 Constitution had no referendum. It would be going against the people—about the 60% who voted in the referendum. [The Constitution] is not a toy. Wouldn’t it be an insult to the people? You can’t have a coup, if you want to talk principle.
Jomquan: The person who talked about this has mainly been Khun Suthep, and Article 3 is the explanation from the PDRC side.
Prof Likhit: Article 3, then where’s Article 2? Where’s Article 2?
Jomquan: But looking at Khun Suthep’s explanation, he didn’t necessarily leave out the Head of State component, which is the King, because Khun Suthep said he would appoint a prime minister and a cabinet for the King to endorse.
Prof Likhit: And where did he get that power? Is it not in violation of Article 2? It also violates Article 68—which is toppling the democratic system. It’s in violation of Article 70: the duty to protect democracy, and Article 71: the duty to obey the law. And blocking elections violates Article 3: the people’s rights, and Article 72: the citizens’ duty to exercise their right to vote in elections. And after 20 million people have voted, the election is ruled unconstitutional. That’s a violation of 20 million people’s rights. All wrong. Those without knowledge keep talking and people get confused. Sovereignty can’t be claimed in this way.
[See Thailand’s 2007 Constitution – pdf]
If those claiming sovereignty cite [the sovereign power of] the people in Article 3, then how many people do they have? To find out how many people they have, there must be a general election. Then we’ll know if the number is in the majority or in the minority. Or, because the 2007 Constitution came from a referendum and Article 3 says the power belongs to the people, you can have a referendum whether or not to have a new government. You can’t just claim a great mass of people on your side. What if the other side claims a great mass of people too? Then we have two sovereignties. So how many people do they claim? How many people can they claim?
….Then why does it have to be Khun Suthep? The other side could say the same thing: There’s a vacuum so we’ll make ourselves sovereign. Do they have the right? What number to go by then? Can you imagine? All of a sudden you stand up and say I have the power. Where from? Because the other side can make the same claim, then we have two sovereigns.
Jomquan: For a person to “declare sovereignty”/ him or herself “sovereign” in a traditional or historical practice, how does this work?
Prof Likhit: As I already said: 1) Use force to give yourself power [like] a coup d’etat, once that’s done, you become sovereign. When the Council of Democratic Reform (CDR) staged a coup d’etat in 2006, Khun Sonthi Boonyaratglin became sovereign. All power was in his hand. That’s why the first order was to declare a democratic system of government with the King as the Head of State and effectively return the sovereign power to the King—theoretically speaking. 2) Royal succession. In ancient regime it was called ราชาภิเษก (raja-phisek – “coronation”)—that’s the sovereign. If with the use of force, ปราบดาภิเษก (prabda-phisek – “enthronement”). 3) Election. Who has the most votes get to be prime minister or president. 4) If none of the above, use personal charisma, which doesn’t happen any more these days so no need to talk about it. These are four means to become sovereign. Not suddenly declaring and claiming what? Article 3? Is it claiming for just yourself? Or for a group of people? How many? What about the other side? They can also claim it. Where do you get the legitimacy to say you are superior? A great many people? How many? How do you measure the number?
BP: For the reason why Suthep is talking about sovereign power – see this post and this post – but basically is because of the limited powers and Constitutional powers if there was ever to be of a Section 7 PM.
*If you look at the Kom Chad Leuk, YouTube page for the latest 10-20 videos, you will see that normally their videos get 2,000-10,000 views, but this interview has over 100,000 views.