Is Thai Constitutional Court’s intervention unconstitutional?By Saksith Saiyasombut & Siam Voices Jun 05, 2012 10:30AM UTC
By Saksith Saiyasombut
Thailand’s political scene has approached boiling point again over the past few days, for the first time since last year’s election, as the attempts of the ruling Pheu Thai government to pass the so-called ‘Reconciliation Bills‘ have been met with ferocious attacks in- and outside parliament. The associated proposals for amendments to the constitution are also now the subject of a review by the Constitutional Court, although the process itself is legally on shaky ground. The opponents of the of the bills say they are designed to give an amnesty for various political wrongdoings and convictions of the past six years and most of all, to pave the way for a return of exiled former prime minister Thaksin Shinawatra.
Last week’s parliament sessions on the Reconciliation Bills have been bombarded with the erratic, physical and chaotic antics of the opposition Democrat Party, bringing the debates on the deliberation (not even the content!) to a grinding halt. Outside, the ultra-royalist and reactionary “People’s Alliance for Democracy” (PAD), commonly known as the yellow shirts, and its affiliated groups have come out of a tentative hiatus and were besieging the roads leading to the parliament building, forcing the House to postpone all sessions indefinitely.
Now this push is also under siege from a judicial angle, as the Constitutional Court has accepted 5 petitions to review whether or not the corresponding amendment drafts to the 2007 military-installed constitution are constitutional and has ordered parliament to suspend all sessions on the bills. The petitioners were mostly MPs from the Democrat Party (surprise, surprise!). However, the way this has reached the Court is the subject of heated criticism and debate among politicians, academics, experts and other commentators.
At the center of this controversial decision by court is Article 68 of the 2007 Constitution. Here is the original passage with two unofficial translations – pay close attention to the second and third paragraph:
ส่วนที่ ๑๓ สิทธิพิทักษ์รัฐธรรมนูญ - มาตรา ๖๘ (การล้มล้างการปกครองระบอบประชาธิปไตย)
บุคคลจะใช้สิทธิและเสรีภาพตามรัฐธรรมนูญเพื่อล้มล้างการปกครองระบอบประชาธิปไตยอันมีพระมหากษัตริย์ทรงเป็นประมุขตามรัฐธรรมนูญนี้ หรือเพื่อให้ได้มาซึ่งอำนาจในการปกครองประเทศโดยวิธีการซึ่งมิได้เป็นไปตามวิถีทางที่บัญญัติไว้ในรัฐธรรมนูญนี้ มิได้
ในกรณีที่บุคคลหรือพรรคการเมืองใดกระทำการตามวรรคหนึ่ง ผู้ทราบการกระทำดังกล่าวย่อมมีสิทธิเสนอเรื่องให้อัยการสูงสุดตรวจสอบข้อเท็จจริงและยื่นคำร้องขอให้ศาลรัฐธรรมนูญวินิจฉัยสั่งการให้เลิกการกระทำดังกล่าว แต่ทั้งนี้ ไม่กระทบกระเทือนการดำเนินคดีอาญาต่อผู้กระทำการ ดังกล่าว
“รัฐธรรมนูญแห่งราชอาณาจักรไทย พุทธศักราช ๒๕๕๐“, Wikisource
Part 13: Rights To Protect the Constitution
Section 68. A person is prohibited from using the rights and liberties provided in the Constitution to overthrow the democratic rule with the King as the Head of the State as provided by this Constitution; or to acquire power to rule the country by means other than is provided in the Constitution.
Where a person or political party acts under paragraph one, the witness thereof has the right to report the matter to the Prosecutor General to investigate the facts and to submit a request to the Constitutional Court for decision to order cessation of such act without prejudice to criminal proceedings against the doer of the act.
If the Constitutional Court decides to order cessation of the said act under paragraph two, the Constitutional Court may order dissolution of that political party.
In case of order dissolution of that political party by the Constitutional Court under paragraph three, the leader of the dissolute Party and the member of the board of executive committee under paragraph one are prohibited the right of election for five years from the date of the order by the Constitutional Court.
“Constitution of the Kingdom of Thailand 2007, B.E. 2550 (2007)“, unofficial translation by IFES Thailand and the Political Section and Public Diplomacy Office of the US Embassy Bangkok. (PDF)
Part 13: Right to Protect the Constitution
Section 68. No person shall exercise the rights and liberties prescribed in the Constitution to overthrow the democratic regime of government with the King as Head of State under this Constitution or to acquire the power to rule the country by any means which is not in accordance with the modes provided in this Constitution.
In the case where a person or a political party has committed the act under paragraph one, the person knowing of such act shall have the right to request the Prosecutor General to investigate its facts and submit a motion to the Constitutional Court for ordering cessation of such act without, however, prejudice to the institution of a criminal action against such person.
In the case where the Constitutional Court makes a decision compelling the political party to cease to commit the act under paragraph two, the Constitutional Court may order the dissolution of such political party.
In the case where the Constitutional Court makes the dissolution order under paragraph three, the right to vote of the President and the executive board of directors of the dissolved political party at the time the act under paragraph one has been committed shall be suspended for the period of five years as from the date the Constitutional Court makes such order.
“Constitution of the Kingdom of Thailand 2007, B.E. 2550 (2007)“, unofficial translation by the Asian Legal Information Institute
All three versions say that an Attorney General (or here a “Prosecutor General”) is to be contacted by those filing a petition, who then submits this case to the Constitutional Court for review. However, so far reportedly only one petition has gone through the Attorney General, while the rest seems to have skipped him and have gone directly to the court.
This all comes down to the fine semantic details of the second paragraph: can the entire process, from receiving a petition to submitting the case to the Court, be only done by the Attorney General? Or to put it another way: can the petitioner contact the Attorney General, but also go directly to the Court to launch a motion? The Constitutional Court apparently chose the latter interpretation.
However, critics say this is a (intentional) misinterpretation and a political interference:
The Constitution Court has been accused of acting outside its jurisdiction when it ordered parliament to suspend vetting of the charter amendment bill.
The Pheu Thai Party and legal experts yesterday were gearing up for impeachment proceedings against the court’s judges whom they claim violated the constitution as they had no right to take up protest petitions without a final opinion by the Office of the Attorney General. (…)
Legal expert and former senator Panas Tassaneeyanond agreed the court’s order was unconstitutional. ”The action can be deemed a violation of the charter as it is meddling in administrative power. I call on the public to sign a petition to impeach the judges under Section 270 of the constitution,” Mr Panas wrote on his Facebook page on Friday.
He said under the principle of the supremacy of parliament, the House does not have to follow the Constitution Court’s order to suspend vetting of the bill.
“Constitution Court under fire over charter bill vote“, June 3, 2012
These are a few voices against the move by the Constitutional Court (e.g. political commentator Nattakorn Devakula, the Nitirat group and many, many more) but the consensus is that Article 68 has been wrongly interpreted.
The Constitutional Court itself is unimpressed by the impeachment calls and its president has clarified its decision, citing the motives of the petition (“questioning the legality of the push to amend the charter”), while ignoring the Attorney General’s role in this process – but most of all being concerned that “there is no guarantee that charter provisions on the monarchy would not be amended,” revealing where the priorities are for them.
The government and its coalition parties have 15 days (since this past weekend) to clarify and defend their proposed amendments to the constitution, while it is deliberating to defy the court-ordered suspension and push the bills ahead anyways (albeit in some other way) or to call it a break let things cool down over the summer recess, as suggested by Abhisit and considered by Pheu Thai.
The contents of the Reconciliation Bills, which give a blanket amnesty for all wrongdoings done by everybody in the past years while sacrificing justice for the victims of the political crisis for the sake of “national unity”, need to be debated.
However, the Constitutional Court’s interference into the debate that is being fought at all fronts, fears of a “judicial coup” have come up that could befall the current Pheu Thai-led government with the same fate of its previous incarnation in 2008 by yet another re-politicized institution that is not meant to be politicized.