The Bangkok Post:

Finance Minister Korn Chatikavanij is demanding the opposition take the rap for any adverse impacts on the country from the delay to the draft executive decree to seek 400 billion baht in loans.

Parliament’s reading of the draft decree to allow the Finance Ministry to obtain the loans was postponed after House Speaker Chai Chidchob yesterday forwarded a petition lodged by 99 Puea Thai MPs to the Constitution Court, asking it to check on its constitutionality.

The opposition Puea Thai Party claimed Article 184 of the constitution only allowed the government to seek loans on an emergency basis [BP: Didn't the post bother to read what the section says, shouldn't they have been alerted by the words "emergency"], while the amount of money stated in the draft decree was much higher than the government actually needs.

The court’s next meeting has been set for tomorrow but it is uncertain whether the issue will be on the agenda.

Government chief whip Chinavorn Boonyakiat expected the court to hand down its ruling after the current parliamentary session ends. The parliament secretariat said yesterday His Majesty the King had already endorsed the closure of the current ordinary parliamentary session on Thursday.

Mr Chinavorn said once the court delivered its ruling, the government would seek a special parliamentary session be held to pass the decree.

Of the 400 billion baht in loans set out in the decree, at least 200 billion baht will be used to make up for this year’s tax revenue, which has fallen short of target. Another 200 billion baht will be spent on investment projects that could be implemented immediately.

The government has insisted that the executive decree is necessary given the urgent need to use the money.

“The opposition must take responsibility for the damage that will affect the people, the economy and the people’s opportunities,” Mr Korn said.

Damage would be incurred from the delay to the government’s spending on its investment projects, he said.
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Sombat Thamrongthanyawong, rector of the National Institute of Development Administration, criticised the opposition for holding up the decree, accusing them of putting their party’s interests ahead of the benefits to the public.

But Direk Patmasiriwat, a lecturer at Thammasat University’s faculty of economics, voiced opposition to the government’s loan plan.

He said the loan amount was too high. Between 30 and 40 billion baht would be enough.

BP: So why is the government using the emergency decree process? Simple, because it is easier and quicker than a normal Act of parliament where there all kinds of rules on its enactment – see Section 142 onwards of the constitution.

Now, emergency decrees are used by various governments of all stripes as the constitution allows for it. However, the constitution places limits on the executive’s ability to promulgate emergency decrees.

First, an emergency decree can only be issued when the Cabinet is of the opinion that there is an emergency and that an emergency decree is unavoidable because of a necessary urgency (Section 184, paragraph 2). However, the constitutional court has held that it was not “empowered to examine the constitutionality” of Cabinet’s opinion (Constitution Court Decision 14/2546 – the same provision was in the 1997 Constitution).

Second, section 184, paragraph one states that an emergency decree can only be promulgated if it is necessary to for the purpose of maintaining national security, public safety, or national economic stability, or to avert a public calamity. However, Section 185 states that MPs or senators of not less than one-fifth of the total number of the existing members of their respective Houses can submit a petition to the Constitutional Court, via the President of the House of Representatives, that the emergency decree is not in accordance with the Constitution. The Court is willing to review legislation to see whether it meets Section 184, paragraph one (Decision No. 29-30/2547).

Third, an emergency decree must be submitted to legislature for approval without delay.

So you can issue an emergency decree and then get a staight vote next week. Now, you can see, why the government would want this as opposed to the normal process? No need to go through a messy debate. Just issue an order and have a vote. It is a legitimate shortcut, but it is still a shortcut. Nevertheless, the constitution imposes limits (well otherwise all government lawmaking would be through decress then) so Puea Thai have decided to challenge it as also most decrees are challenged. Historically, the Constitution Court has been quiet lenient on what consitutes an emergency – in this case – it will probably come under “national economic stability”. The question will be whether the loan needs to be strictly for emergency money (i.e the government is about to run out of money and needs it or not) or part of a larger program for the shortfall for this year and other investment projects?

Tulsie looks at the politics of it:

Virtually headless and down on their luck, the opposition MPs deserve some praise for their fighting spirit. The government of Prime Minister Abhisit Vejjajiva must think otherwise, though, after watching in disbelief as its executive decree seeking to borrow Bt400 billion headed straight to the Constitution Court instead of the parliamentary floor. A hard blow it was, but all the administration should do is pretend it does not hurt.

Finance Minister Korn Chatikavanij can cry foul all he wants, but the Pheu Thai Party’s attempted block of the decree had “We did it your way” written all over it. Combining parliamentary tactics with constitutional ones, the opposition managed to execute a controversial agenda by playing 100 per cent by the rules. The Democrats would have done exactly the same thing in a role reversal.

After experiencing political intrigues that rival conspiracies in Dan Brown books, this is a thankful break. The executive-decree showdown involves the least-complicated issue in politics anywhere in the world: the government’s right to spend and borrow, and the opposition’s duty to make sure the cash doesn’t come and go too easily.

That’s why we are hearing all the basic arguments. The Abhisit government is saying that this is urgent and we can’t wait, while the opposition is saying that the “urgent” decree is also to facilitate something that is not so urgent. And since the Constitution allows issuance of an executive decree only in the case of an emergency, the Pheu Thai Party believes it is fully entitled to question the decree’s justification.

Simply put, the opposition acknowledges an emergency, but insists that this is not a Bt400 billion emergency. While there may be a need for Bt200 billion to keep fiscal reserves from falling ill, requiring another Bt200 billion to create short-term investment projects smacks of a sick boy claiming to be sicker then he is so as to get two days off school instead of one. If that money is really needed, the opposition says, the government should seek it through the normal parliamentary channel, which provides greater transparency and scrutiny.

The government argues that the additional Bt200 billion is aimed at helping to counter the looming unemployment crisis.
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The legal move is a good blow, but opportunities for a knockout punch should be aplenty with the amount of money involved.

BP: What was that really Tulsie? He actually correctly articulated the Puea Thai argument. They are arguing we don’t mind you borrowing some money for an emergency, but we don’t need 400 billion baht now. One Bangkok poll says people are in favour by 54%-46% of borrowing money, but you need to remember this has been framed under investment in the future where Puea Thai got little coverage of their argument and not necessarily done through an emergency decree. Now, this case brings it into the public arena. 200 billion is actually for a government shortfall this year. If we get into a debate about where the money is going and the necessity of borrowing all the money it may get messy for the government and prove an annoying distraction which it wanted to avoid by going the emergency decree way. This probably lead to Korn’s reaction. You also have some of those opposed to Thaksin (PAD, ASTV Manager, and The Nation) have also talked of unease over borrowing big to spend.

Nattakorn argued last night on TV that Puea Thai expect to lose the case anyway, but if they do so they will just state that it shows the court’s bias in favour of the Democrats further enraging their “base”.