Likhit Dhiravegin Interview – Part 3: On Article 7 and appointing a new PMBy Saksith Saiyasombut & Siam Voices May 11, 2014 4:55PM UTC
On May 9, 2014, the People’s Democratic Reform Committee (PDRC) kicked off its “all-out final battle” to oust the “Thaksin regime” by occupying state TV stations and telling them to stop broadcasting government statements and to only broadcast only the PDRC’s. They also went to the parliament building to ask the Senate to help resolve “the political deadlock.”
Thailand’s caretaker Prime Minister Yingluck Shinawatra was ousted along with nine other ministers in her cabinet by the Constitutional Court and indicted by the National Anti-Corruption Commission (NACC) May 7 and 8 respectively. The caretaker government still stands and a new acting caretaker PM has been named.
However, this has not stopped Suthep Thuagsuban and the PDRC from pushing for an appointed PM and an interim government. They reject the legitimacy of the Pheu Thai caretaker government. They are now demanding that the president of the Supreme Court and the Senate Speaker appoint an “interim people’s government and legislative assembly” to carry out their “reforms before election.”
Suthep, who has announced several times since early April that he would seize “sovereign power” to appoint a prime minister, cabinet and National Assembly, is now telling the new pro-establishment Senate Speaker Surachai Liangboonlertchai to name a new PM by Monday.
This final part of the three-part interview of Professor Likhit Dhiravegin by Jomquan Laophetch of Kom Chad Luek TV focuses on Article 7 of the Constitution, often cited as the means of appointing a prime minister and defining the role the Senate during a so-called political vacuum. (See Part 1 and Part 2.)
Professor Likhit Dhiravegin is a well-known senior political scientist and Royal Institute fellow. He had a brief stint as a politician as a political party leader for a year during 2006-2007.
Jomquan: This question is for the future. If the Constitutional Court rules in the case of Khun Yingluck which will happen very soon [this has happened as discussed in the introduction of Part 2 — Kaewmala], either on Khun Yingluck alone or Khun Yingluck together with her caretaker cabinet, if the Constitutional Court rules [to remove her/them], there will surely be problems.
Pro Likhit: Surely.
Jomquan: So the question is, should we keep arguing about the Constitutional Court, criticizing its verdict—
Prof Likhit: —well, don’t criticize then, but who’ll appoint [a prime minister] citing Article 7? You can’t cite it just for yourself. Others could cite it too.
“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.”
Jomquan: The PDRC said if the Constitutional Court rules that way [to have a PM from Article 7?] in order to have someone as prime minister, then they’ll perform the duty if there are no other agencies—
Prof Likhit: —No, other people who can assume the duty can say, “You don’t have to do it. I’ll do it.” Then what will you say? Who gave you the right to do it? Come on, this is plain to see. You don’t have to use a lot of brains or great intelligence. Why suddenly you have the right to do it alone? Others don’t have the right? Especially when this happened by design. You said it has already happened—(as planned)—and so what?
I ask, how many people do you have? Many? Then have a referendum to show how many. Which side do you want to see? Reform before election, or election before reform? Have a referendum to decide it. But the situation is not like that any more. Be warned. I don’t want to see it happen. Let me spell it out: it’s no longer about whether reform or election should come before the other; it’s now about either having a serious damage before taking care of the problem, or tackling the problem to prevent damage. It’s now damage before solution or solution before damage. It’s no long about reform vs. election any more. It’s an entirely different situation now.
Jomquan: If we don’t want what Khun Suthep has announced [to “reclaim sovereign power”], if the Constitutional Court rules in Khun Yingluck’s case to remove the entire cabinet, if not Khun Suthep’s sovereignty, then who will do it?
Prof Likhit: Wait, what power does that “sovereign” have? You can’t just announce it like that. What if after you have made your announcement other people don’t agree with it, what will you do? It’s not accepted, then what? The sovereign must be accepted: first, out of fear, like fearing the military tanks in a coup, or second, if there’s a legitimate tradition that’s handed down through generations, or third, accepted with a majority in an election, or forth, because you have charisma.
What does he have among any of these four? Does he have the force? Does he have the tradition behind him? Does he have the overwhelming people’s votes? He doesn’t even dare to run in elections. Does he have the charisma that people respect? He’s got none of these but wants people to accept him? I think he needs to think again. If many people start saying, “I’m sovereign, you must listen to me, I will appoint all permanent secretaries as ministers,” will that be accepted?
I have no power, I won’t accept it, but I won’t do anything. I’ll just mind my own business and eat three meals a day and do my things, but other people won’t react the way I do, you know. I’m not involved with any political side. The question is what makes him so confident that his plan will be accepted when he has none of the four that is the basis of legitimacy.
Jomquan: Then who will find a prime minister in the meanwhile?
Prof Likhit: Well, you made the problem, answer it yourself! You did all this with your orchestration, conspiracy and political machinations. Now we’ve got this problem, you ask who will solve it? It’s not the question for others, but for yourself to answer. You created the problem.
Jomquan: Dear Ajarn, but there are those who don’t see it as creating a problem or conspiracy or orchestration who might want to ask you, what would you suggest if not Khun Suthep’s option?
Prof Likhit: Sure, there are people who believe that… Go ahead and do whatever you will do, but will people accept it? And when there’s a problem, then what will you do? You shutdown Bangkok and others may shutdown some other places, then how will you govern? Will it ever end? The thinking is wrong from the start. You make a mistake with the first button so all the buttons on your shirt are crooked. It’s so simple minded.
Fear, fear of losing wealth, power, economic benefits, social status, makes people do whatever to keep what they have in the short term. It’s called political myopia. Blind to the future of the country. People are just so ignorant in this society! Old because they have lived so long, and eaten a lot of rice [meaning, old but have no wisdom—kaewmala].
Jomquan: Let me ask you for a bit of knowledge. If not in this fashion, what will give the people a sense of release, besides referendum and election? Do you have any other alternative?
Prof Likhit: Look, the last time if elections had been allowed, many matters would have resolved.
Jomquan: But they had no faith in elections.
Prof Likhit: No faith! Who made the election law? Who drafted the Constitution? You made them but have no faith in them. You built your house, you live in it and you say it’s terrible. You built it yourself. Are you going blame everyone else [for the problem you made]? Is that right? Can you answer me? … You can’t answer any of this. Who drafted the Constitution? Who made the election law? (Laughter) Is the cul-de-sac natural or manufactured? And who gave you sovereign power? They don’t even know what “sovereignty” is. The person who explained it was some local finance academic, who gave a shoddy explanation. How could this fly? No knowledge to go about it.
Jomquan: So let me ask again bluntly. For the people who believe in democracy but consider that the rules and procedures for referendum or election are not yet appropriate and need to be revised; they can’t stand Khun Yingluck and her cabinet any more. And adding to that the Constitutional Court’s [expected] ruling(s) binding organizations, what can be the form of expression for those people—
Prof Likhit: Look, [they] can’t stand the government any more but the parliament has already been dissolved and there was an election. There’s a great mass of people, right? So don’t vote for the party, end of story. The government is already gone at house dissolution.
Jomquan: The kind of thinking…
Prof Likhit: Let me continue… They can’t stand the government. Parliament was dissolved. There are constitutional procedures and elections. Fight in the election. The great mass of people you believe so huge would surely win the election, wouldn’t they? Win it and then reform. So why not fight within the democratic system? Or you don’t trust yourself, that you might cheat in the election too? Is that it? Isn’t this why? Use logic. Be straightforward.
Don’t agree with the government? It’s already gone. I also agree that the rice scheme program failed and was a mess, the process of issuing the blanket amnesty bill was shoddy. I don’t like them either. I can see too they’re not legitimate, but there is a solution, that is to return to elections. They said they have a great mass of people so they would set up a sovereign body. If the number is so great, they will surely win in an election.
Jomquan: But they don’t believe in elections because they are afraid vote buying would buy victory for the other side.
Prof Likhit: What?… Well… (laughter), if the voices of the great mass of people are really great, no amount of vote buying will buy the other side victory. Or are you looking down on your own people now? Can the voices of the great mass of people be bought? If the number is greater, then victory is certain. Or are you saying votes of the great mass of people can be bought? The way of thinking is so problematic. The logic is problematic. There’s no rational reasoning. You keep on arguing and all the daggers turn to yourself. You can’t give rational answer because you start without a rational basis. It’s all shaky. Right, if the great mass of people is greater so you have legitimacy. You claimed a huge number of people coming [to the PDRC street protests], then why are you afraid? You’ll surely win the election.
Jomquan: But there may be other parties that buy votes in the election—
Prof Likhit: If you have the great mass of people, it doesn’t matter which party [buys votes] you’ll surely win, no? You’ll surely get more than half the votes. Because if you don’t get more than half, you don’t have the right to claim a majority. If you claim the great mass of people and you have more than half, you’ll get to be government. That’s logic. That’s reason. Can you refute it? Or why would you claim the great mass of people? Isn’t it because you haven’t got that much? You’re afraid you won’t win, right? Isn’t this the fact? Can’t you see? I really want to ask all those good speakers to come and debate with me with logic.
Jomquan: The last question, and perhaps you could give your personal view… If the Constitutional Court rules that Khun Yingluck must go and maybe even the cabinet will have to go as well, who then has the right to be the interim prime minister? If the Court says all have to go.
Prof Likhit: Let me put it this way. Most people don’t know Article 7, so let me tell you [how it came about]. I went to Bangladesh with Khun Pitak Intharawichainant, to ask for their Constitution which had over 600 articles. When I returned I told Ajarn Bowornsak Uwanno that we had only some 300 articles in the 1997 Constitution and there weren’t enough. So [let’s] put this article in the Constitution like Article 20 in Field Marshal Sarit’s charter. If there are no applicable provisions, we should add “[it shall be decided in accordance with] the constitutional convention in the democratic regime of government.” Ajarn Bowornsak then added “with the King as Head of State.”
Article 7 is to be used when there is a gap. It has nothing to do with the King. There is a royal convention, but there is also a bureaucratic convention. It’s not about the King appointing somebody as prime minister. That’s not what it’s about. That’s a misconception. That kind of claim disturbs the King because His Majesty has already said [in his April 2006 speech] that the King has no authority [to appoint a prime minister from Article 7]. A convention can apply such as in the case of the Senate [acting in place of Parliament]. If there’s nothing else, we can apply a traditional convention.
A country cannot have a vacuum of power. How to fill the vacuum, we go back to the past convention for available options. When a permanent secretary is not in office, a deputy permanent secretary acts in charge. If it so happens this time that the entire cabinet is gone, and there are no members of parliament (MPs) left, we’ll find the closest to MPs, and that’s the senators. With the new set of [elected] senators [senate election for the elected half of the Senate was held on March 29—kaewmala], the Senate could find an interim prime minister during a stop-gap period, because there can’t be a vacuum or a cul-de-sac as long as the Constitution is still in effect. But if the Constitution has not provided any provision, Article 7 can then be used.
And how to use Article 7 in the absence of parliament and the executives? First, the permanent secretaries can assume an acting capacity [as ministers] as in the past. But for the prime minister, the Senate can find one, that is, after the Senate opens for session with a full house, but not with the remaining 30-40 senators [who] haven’t got any credit. Can you see the picture?
[Note: The new Senate opened for its first session on May 9 and voted for a new speaker. The pro-establishment choice, appointed senator Surachai Liangboonlertchai, received 96 votes against the pro-government choice Jongrak Jutanont. This means the Senate is likely to have the 3-5th majority to impeach Yingluck for the rice pledging scheme and other 308 pro-government MPs, senators and ministers as recommended by the NACC for alleged misconduct in voting for the constitutional amendment legislation to change the Senate from currently half elected back to a fully elected body as prior to the 2006 coup.—kaewmala]
Jomquan: You mean the Senate must find a prime minister.
Prof Likhit: I’m not saying the Senate must find one. I mean if there’s a vacancy and a solution must be found, you look at the mechanism to appoint a prime minister which must come from the House of Representatives. But in the case of no House of Representatives, you look for the closest body. It’s not that if there’s no House of Representative and you say there’s nothing and do nothing. When there’s still the Constitution, you look for the most comparable, which is the Senate. However the Senate might be is another matter.
Jomquan: Even though the Constitution does not say that the Senate has this duty?
Prof Likhit: Because there’s nothing specifically written for this, so we are relying on the convention. The convention is a country cannot have a power vacuum. There must be an executive power. During this interim period, permanent secretaries can work in place of line ministers. There must be the head of the executive branch and this head must come from parliament and if there’s no parliament then find the closest body which comes from elections, which is the Senate. And how the Senate will deal with this is another matter. This is just for an interim period, which can be three months and then hold elections.
Jomquan: Yes. This will be really the last question. To summarize what you said, this means the Senate will be the body that chooses a person to be acting prime minister in the interim period from among permanent secretaries who also have to serve as acting ministers. Is that right?
Prof Likhit: That is possible, but I mean the main principle is that a country or government cannot have a power vacuum. There must be head of the executive branch. It cannot go floating about with no way out in a dead end as it has been planned. Use the closest body to parliament, which is the Senate that’s [half] elected. Even if it’s not elected and all appointed, it has to be used. Because there’s no other way [but] it must be only temporary. And temporary is not beyond three months. Then hold a general election to start again, and return to normalcy. That is, with the 2007 Constitution still in effect.
But you can’t just say, “I’ll appoint one.” Who gave you the power? Where do you get the power? Or do you have a back-up and the back-up gave you the power? The back-up don’t have the power either. Sincerely, as an academic, as a Thai citizen, I would like to see what’s right. I cannot tolerate what’s not right, done by any organization. It creates problems in the academia, for justice and truth. A society that does not respect justice and truth cannot survive and prosper because there’s no human dignity. It’s a worthless society.
***end of interview***
Postscript: Real violence is looking increasingly possiblesince the Constitutional Court’s ruling on Yingluck’s removal on May 7 and the developments following it. While angered, the red shirts remain cautious in not being provoked easily and playing into the hands of the PDRC. But how long will this last given increasingly aggressive provocation by anti-government forces? Especially the PDRC that is pushing for a new appointed interim government.
Long-time observer of Thai politics and academic Duncan McCargo said in a Foreign Affairs op-ed: “Thailand is now entering new and extremely dangerous political territory.”
It is clear to many, especially international media, that what has happened amounts to a judicial coup. The New York Times editorial calls it “a coup by another name.” Most sensible observers say an election is the only way out. The UN Secretary General has called for restraint and respect for democratic principles, and the United States has called for a peaceful resolution that includes elections and elected government.
However, as the Wall Street Journal editorial rightly said, “peace will remain precarious because the two sides hold fundamentally incompatible visions for Thailand’s future.” The paper is brutally honest in saying that “the royalists who can’t win an election stage a judicial coup” and that “the Constitutional Court’s decision this week is a last gasp of the old regime, discrediting itself as it fights to hold back the forces of democracy.”
At the root of Thailand’s protracted crisis of the past decade is the fundamental difference in ideological belief among the populace in an epic conflict: the privileged minority wants to maintain the old order and hierarchy while the newly politically awakened majority want a more equal and egalitarian new order. This is a tectonic rift that is vast and irreconcilable. The country has to go either forward or backward, but given the tsunami of change going forward has already started there is no stopping it. The old order’s days are numbered.
As Duncan McCargo said in the Financial Times, “the elite cannot turn the tide of politics. [It] is destined to lose power against new political forces whose rise seems inexorable. Ousting Ms. Yingluck on a technicality was an act of desperation, not a show of strength.”
The establishment forces on the streets, in the courts or behind the curtain may be celebrating victories in purging piece by piece representatives of the so-called Thaksin regime, but these will only be small victories in small battles. If they continue on this destructive path, it won’t be long before they realize small victories are nothing when you are losing the war. The question is what kind of damage the country and Thai citizens will have to suffer before this happens.