Should everyone be happy with the balance of power in Thailand?By Bangkok Pundit Jul 28, 2014 10:00AM UTC
Prayuth on Friday per the Bangkok Post:
The interim charter is now in effect following the declaration of its promulgation in the Royal Gazette on Tuesday.
“Everyone should be happy that there is a balance of power between the government and the NCPO,” he said.
He was responding to criticism that Section 44 of the interim charter gives the NCPO power over the interim government, which is to be formed soon.
Section 44 of the 2014 Interim Constitution states (adapted from this translation):
In the case where the Head of the National Council for Peace and Order views it necessary in the interests of reform in any field and to strengthen public unity and harmony, or for the prevention, disruption or suppression of any act which undermines public peace and order or national security, the Monarchy, national economics or administration of State affairs, whether that act occurs inside or outside the Kingdom, the Head of the National Council for Peace and Order shall have the powers to make any order to disrupt or suppress regardless of the legislative, executive or judicial force of that order. In this case, that order, act or any performance in accordance with that order is deemed to be legal, constitutional and final. Then, the speaker of the National Legislative Assembly and the Prime Minister are to be notified without delay.
But Pornphet Vichitcholachai, an NCPO adviser, said Section 44 did not grant the NCPO power to intervene in the legislative branch or courts, nor could it be used to order around the government or the NLA.
“The section applies only when the criteria are met. If an executive or legislative process takes a long time, the NCPO chief may issue orders or announcements to solve the problems at hand, especially security ones.
“It’s unlikely to go as far as Field Marshal Sarit, who interfered with criminal cases,” he said.
“Before this charter, the NCPO chief could do even more than what Section 44 allows him today but he had never done anything or punished anyone arbitrarily. For example, officials are transferred for suitability. I’m confident Section 44 will protect Thailand and maintain peace and order rather than the opposite,” he said.
Pornpetch Wichitcholchai, another legal adviser to the NCPO, argued that Prayuth was most unlikely to use this power like Sarit did in the 1960s, when he ordered the immediate execution of those accused of setting fire to a property as part of an insurance scam.
“I don’t think it will go that far … When we had no [provisional] constitution and [the NCPO] was the law, it could have done more than what is prescribed by Article 44, but it didn’t,” Pornpetch said.
BP: There is a big difference between can do something and will do something. Just because Pornphet argues that the junta will not do something, it doesn’t mean they legally can’t. In fact, when he goes further says Prayuth is unlikely to use the power like Sarit, he is effectively confirming that Prayuth can do so, but just that he won’t. Otherwise, instead of saying Prayuth won’t do what Sarit did, he could simply say that Prayuth can’t or doesn’t have the legal power to do what Sarit did. Of course, he can’t say that because the wording of Section 44 is clear that Prayuth has the power. This all means that his initial statement that Section 44 did not grant the NCPO power to intervene in the legislative branch or courts, nor could it be used to order around the government or the NLA, does not match up with what he says in the next sentences.*
But Chulalongkorn University Professor and former adviser to Prime Minister Abhist Vejjajiva, Panitan Wattanayagorn says there are safeguards in the constitution against the military’s power.
“The drafters of the constitution insisted that Article 44 in particular will not be exercised or implemented except in emergencies or in a crisis,” he said.
“Those three new structures or bodies will in turn implement various political functions paving the way to the normalcy and the election.”
BP: Is Panitan trying to misdirect by focusing on the military and not the junta (i.e NCPO)? For now, with Prayuth as the head of the military and the NCPO there is no real distinction. Perhaps, in the future, things will change if Prayuth is not Army C-in-C in October (he is meant to retire, but it is possible although it would be unusual for him to somehow get an extra year). The only other alternative is that Panitan has been misquoted because there are no safeguards in the constitution against the junta. Section 44 grants absolute power to the military. Panitan is just repeating what Pornpetch is saying, but as mentioned above, “can” and “will” are very different.
HRW has a more accurate take on the powers under Section 44:
Section 44 provides the NCPO with wide discretion to issue orders and undertake acts the military authorities deem appropriate, regardless of the human rights implications. Specifically, “where the head of the NCPO is of opinion that it is necessary for the benefit of reforms in any field, or to strengthen public unity and harmony, or for the prevention, disruption or suppression of any act that undermines public peace and order or national security, the monarchy, national economics or administration of State affairs,” the head of the NCPO is empowered to “issue orders, suspend or act as deemed necessary. … Such actions are completely legal and constitutional.” This sweeping power is to be carried out without any judicial or other oversight. The NCPO head only needs to report his decisions and actions to the National Legislative Assembly and the prime minister immediately after they are taken.
*As with all recent posts, caution must be used when talking about the junta….