Legal problems of an appointed PM in ThailandBy Bangkok Pundit May 17, 2014 11:59PM UTC
Have looked at these issues previously, but this post will look at them comprehensively. The relevant sections are all from the 2007 Constitution (all emphasis added by BP):
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 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.
The President of the House of Representatives shall countersign the Royal Command appointing the Prime Minister.
The Prime Minister shall not hold office for more than eight consecutive years.
Section 172. The House of Representatives shall complete its consideration and approval of the person suitable to be appointed as Prime Minister within thirty days as from the day the National Assembly is convoked for the first sitting under section 127.
The nomination of a person who is suitable to be appointed as Prime Minister under paragraph one shall be endorsed by members of the House of Representatives of not less than one-fifth of the total number of the existing members of the House.
The resolution of the House of Representatives approving the appointment of a person as Prime Minister shall be passed by the votes of more than one-half of the total number of the existing members of the House of Representatives. The passing of the resolution in such case shall be by open votes.
Section 180. Ministers vacate office en masse upon:
(1) the termination of ministership of the Prime Minister under section 182;
(2) the expiration of the term or the dissolution of the House of Representatives;
(3) the resignation of the Council of Ministers.
In the case where the ministership of the Prime Minister terminates under section 182 (1), (2), (3), (4), (5), (7) or (8), the procedure under section 172 and section 173 shall apply mutatis mutandis.
Section 181. 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.
BP: Yingluck was removed from office of the PM under Section 182 so Section 180 (1) applies, but the Court stated the remaining 25 Cabinet Ministers can continue in office under Section 181. Normally, we apply Section 172 (Section 173 can be ignored for now), but the voting in of a new Prime Minister cannot be done as there is no House of Representatives. Abhisit and others argue that we can still apply Section 172 by having the Senate act in the place of the House of Representatives. The three main legal problems with this are (a) the PM must be an MP (there are no MPs now so no PM to vote in), (b) the President of the House of Representatives must countersign the Royal Command (there is no President of the House of Representatives and there is no provision in the Constitution for the President/Speaker of the Senate to act in their place), and (c) there is no House of Representatives.
Now, we are being told that the Senate can act in place of the House of Representatives, but does that mean the new PM will be a Senator? (if you apply the logic that the Senate can act in place of the House and the PM must be a member of the House surely that means the PM must also be a Senator?) What is odd about all this is we’re now been told not to focus too much on the law and strict interpretation, but when the election is cancelled, the PM is removed, and interpreting the powers of the PM it is the strictest interpretation. Basically, we have a strictest interpretation in order to create a political vacuum, but then all those laws will be forgotten in order to install an unelected PM. Seemingly Section 7 will come into play here as can’t see how you can overcome the three legal issues that BP mentioned above, but who is going to decide which laws to follow and which not to? Why the Senate? Why not MPs from the dissolved parliament? If there was a political vacuum and there was a consensus from the main political parties on what interim action to take until an election that is one thing, but we have a caretaker Cabinet and there is no consensus.
Just allowing the Senate to install a PM will not be smooth. Meechai who is a member of the Council of State (the executive’s legal advisory body), but also the legal expert coup leaders bring in has questioned when it can be used. The Nation:
“Article 7 does not authorise the appointment of prime minister. Those who talk about an ‘Article-7 prime minister; have copied the phrase from someone who said it earlier because it appears cool,” Meechai wrote on his website.
“Article 7 is enforced when no Article of the Constitution can be applied directly. In such a case, the ruling tradition will be applied but it will depend on the goal of the application of the Article.”
BP: You can see what he said in Thai here. Meechai later clarified that Section 7 could be used if there was a bomb and it killed all the Ministers – along the lines of what Deputy Democrat Leader Nipit said – but we don’t have that kind of vacuum yet.
Things are unlikely to be smooth. We are now in a waiting game as to how long the Senate will take and how they will go about installing an appointed PM. BP no longer considers it a matter of if, but more of when…