So much to write about and so little time. Nevertheless, the impeachment process is likely to be a major factor with Thailand’s Prime Minister Yingluck Shinawatra likely to face impeachment “soon”. This post will not look at the merits of impeachment and standard of proof, but just the process and how long it is likely to take. The process is just one part of the jigsaw, but want to try to identify all the parts before putting them together and when referencing each part later it is possible to do so by linking to various posts. BP is a little pressed for time so with this post and with a few other posts that will plan to write in the coming weeks will be stating so in advance that this post is provisional. You should consider it draft only. The plan is to partly crowd source and to get feedback and then ideally will post again a final version. BP has seen reference to Yingluck being impeached in March, but based on BP’s reading of the Constitution and the Senate Rules, it could take a while.
1. How impeachment affects Yingluck?
Currently, the National Anti-Corruption Commission (NACC) is deciding whether there is a prima facie case against Yingluck over her handling of the rice pledging scheme. The relevant part is Section 272 of the 2007 Constitution:
When the inquisition is complete, the National Counter Corruption Commission shall prepare a report thereon for submission to the Senate. The said report shall clearly state whether, and to what extent, the accusation put in the request is prima facie case together with convincing evidences and shall state the resolutions therefor.
In the case where the National Counter Corruption Commission is of the opinion that the accusation put in the request is an important matter, the National Counter Corruption Commission may make a separate report specifically on the said accusation and refer it to the Senate in advance.
If the National Counter Corruption Commission passes a resolution by the votes of not less than one-half of the total number of the existing members that the accusation has a prima facie case, the holder of the position against whom the accusation has been made shall not, as from the date of such resolution, perform his duties until the Senate has passed its resolution. The President of the National Counter Corruption Commission shall submit the report, existing documents and its opinion to the President of the Senate for proceeding in accordance with section 273
BP: So if a prima facie case is found against Yingluck, she will be suspended. What does this mean? BP understands she will still keep her job as PM, she just can’t do anything.
Section 180. Ministers vacate office en masseupon:
(1) the termination of ministership of the Prime Minister under section 182;
Section 182. The ministership of an individual Minister terminates upon:
(8) being removed from office by a resolution of the Senate under section 274.
BP: So essentially, a Minister, including the Prime Minister, is only removed from office upon being impeached under Section 274. Merely being suspended under Section 272 is not enough. Hence, the Cabinet is still in place until (or perhaps we should only say “if”) Yingluck is removed under Section 274.
2. Impeachment process
Section 273. Upon receipt of the report under section 272, the President of the Senate shall convoke a sitting of the Senate for considering the said matter without delay.
In the case where the National Counter Corruption Commission submits the report out of session of the Senate, the President of the Senate shall inform the President of the National Assembly in order to tender a petition to the King for the issuance of a Royal Command convoking an extraordinary session of the National Assembly. The President of the Senate shall countersign the Royal Command.
Section 274. A senator shall have autonomy in casting a vote, which must be by secret ballot. A resolution for the removal of any person from office shall be passed by the votes of not less than three-fifths of the total number of the existing members of the Senate.
BP: So three-fifths is required, but how quickly can this take place. For that, we need to turn to the Senate rules (English translation here) and starting from the period after a prima-facie case is found against a person:
Rule 115. The President of the Senate shall order to distribute copies of the report, documents and opinions of the N.C.C. Commission to senators and the accused person to study in advance not less than fifteen days before the first sitting to be held under Rule 117; provided that where there are a lot of documentary evidences, the senators or interested parties shall examine the said documents at a room provided therefor by the Secretariat of the Senate.
Rule 117. The President of the Senate shall convene the first sitting, within twenty days from the date of receipt of the report and opinions of the N.C.C. Commission, for fixing the day on which the N.C.C. Commission and the accused person shall make oral statements under Rule 120 and for considering the application for submission of additional evidences under Rule 121.
Rule 120. In commencing the consideration, the person entrusted by the N.C.C. Commission has the right to give oral statements of opening the case in accordance with the report and opinions of the N.C.C. Commission. Afterwards the accused person or his representative shall have the right to make oral argument against the oral statements or report and opinions of the N.C.C. Commission without interrogation. Upon completion of the oral statements under paragraph one, the sitting shall consider whether to make any additional interrogation, by considering the motions submitted by senators in advance before the date of the sitting. If the sitting resolves to interrogate any issue, there shall be established an interrogative committee to which Rule 101 and Rule 102 shall apply, and the Senate shall fix a sitting to interrogate the persons concerned within seven days and its resolution on interrogation must be informed the interested parties without delay. The interrogation under paragraph three shall be within the scope determined by the sitting and shall be made by the interrogative committee only.
Rule 122. The N.C.C. Commission and the accused person shall have the right to submit an application for making oral conclusions or for submission of written statement of conclusions to the sitting within seven days from the date of opening the case. In the case where there is an application for making oral conclusions, the President of the Senate shall convene a sitting for hearing such conclusions within seven days from the date of receiving such application. In the case where there are oral conclusions of both parties, the N.C.C. Commission shall precede. In the case where there is an application for submission of written statement of conclusion, such application shall be submitted to the President within seven days from the date of expiration of the period under paragraph one.
Rule 123. The President of the Senate shall convene a sitting for passing a resolution whether to remove the accused person from office or not within three days from the date of making oral conclusions or the date of expiration of the period for submission of written statement of conclusions.
We have a case example of the process in the past. Who you may ask? Well the corruption crusader and moral arbtrar of all things right Suthep himself…
The Nation on July 27, 2012:
The national anti-graft agency yesterday resolved to seek the impeachment of Suthep Thaugsuban, a heavyweight in the opposition Democrat Party, for interfering with the Culture Ministry while serving as deputy prime minister in the government of Abhisit Vejjajiva.
The National Anti-Corruption Commission (NACC) will forward its report and relevant documents on the matter to the Senate in support of Suthep’s impeachment and five-year ban from politics, NACC spokesman Klanarong Chantik said. Klanarong, who is also an NACC commissioner, told a press conference yesterday that the agency found that Suthep, in his capacity as a deputy prime minister, sent a letter dated February 25, 2009, to the then culture minister requesting political appointments for 19 individuals, including Democrat MPs.
The Bangkok Post on August 26, 2012:
The Senate will tomorrow begin considering whether to retroactively remove Suthep Thaugsuban, a Democrat Party MP for Surat Thani, as deputy prime minister and is expected reach a decision on Sept 18, Senate speaker Nikom Wairatpanich said on Sunday.
The National Anti-Corruption Commission has petitioned the Senate for the removal of Mr Suthep for allegedly interfering in the work of the Culture Ministry while deputy prime minister in the previous government under Abhisit Vejjajiva.
If the Senate confirms the NACC’s finding, Mr Suthep would be removed retroactively as deputy prime minister and would be banned from politics for five years.
The removal would not have real effect because Mr Suthep is not longer in the position [BP: Hence, the convenience of it taking so long investigate….]. However, the political ban would disqualify him as an MP.
Mr Nikom said that on Monday the case would be brought before the Senate and a five-member committee would be set up to compile questions from senators between Aug 27 and Sept 6.
The committee would raise these questions for the NACC, the accuser, and Mr Suthep, the accused, to answer on Sept 11.
Both sides were to submit their closing statement in the case by Sept 17.
The Senate would decide on Sept 18 whether to remove Mr Suthep as an MP and ban him from politics for five years.
The Bangkok Post on September 18, 2012:
Democrat Party MP for Surat Thani Suthep Thaugsuban on Tuesday survived an impeachment bid when the Senate voted 95-40, with 3 abstentions, against a petition seeking his retroactive removal as deputy prime minister.
In order to remove him, at least 88 senators, three-fifths of the 146 currently sitting senators, had to vote in support of the petition filed by the National Anti-Corruption Commission (NACC).
BP: Look, the Senate could move more quickly against Yingluck, but because of the rules we still talking about weeks and not days…. If anyone has any information to the contrary on the process, please pass onto BP by e-mail [email protected] or @bangkokpundit on Twitter.