Constitution Court pushes Thailand towards a potential constitutional crisis UDPATE
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Constitution Court pushes Thailand towards a potential constitutional crisis UDPATE

UPDATE: See update below

Last Friday, the Constitution Court accepted a petition to review amendments to the constitution (the amendments have passed only two readings so they are not final) on whether they are constitutional. See Saksith’s post here. The Bangkok Post:

The Constitution Court has ordered parliament to suspend its vetting of the charter amendment bill, pending a review of its constitutionality. 

BP: The third reading was meant to take place yesterday, but was delayed. As of today, the constitution crisis appears to be averted for now as the Speaker has basically ordered a further delay. The Bangkok Post:

Parliament President Somsak Kiatsuranont has decided to delay the third reading of the charter amendment bill in a move to avoid a stand-off with the Constitution Court.

Mr Somsak said yesterday that Friday’s joint House-Senate meeting will take place as planned, but lawmakers will not consider or vote on the bill in its third reading.

BP: For how long will the crisis be averted though?

Politically, BP thinks Puea Thai have made the correct decision (will explain more in a different post), but there is still the issue, should the Court have accepted the petition? And then what does this mean now for the separation of powers?

Some general background about separation of powers and the role of different branches of the government from the 2007 Constitution:

Section 3, paragraph 2: The performance of duties of the National Assembly, the Council of Ministers, the Courts, the Constitutional organisations and State agencies shall be in accordance with the rule of law.

Section 122. Members of the House of Representatives and senators are representatives of the Thai people and free from any mandate, commitment or control, and shall honestly perform the duties for the common interests of the Thai people without conflict of interest.

Section 216. …

The decision of the Constitutional Court shall be deemed final and binding on the National Assembly, Council of Ministers, Courts and other State organs.

The rules and procedure of the Constitutional Court shall be in accordance with the organic law on rules and procedure of the Constitutional Court.

Then on the process for amending the constitution:

Section 291. An amendment of the Constitution may be made only under the rules and procedure as follows:

(1) a motion for amendment must be proposed either by the Council of Ministers or members of the House of Representatives of not less than one-fifth of the total number of the existing members of the House of Representatives or members of both Houses of not less than one-fifth of the total number of the existing members thereof or persons having the right to votes of not less than fifty thousand in number under the law on the public submission of a bill;

A motion for amendment which has the effect of changing the democratic regime of government with the King as Head of State or changing the form of State shall be prohibited;

(2) a motion for amendment must be proposed in the form of a draft Constitution Amendment and the National Assembly shall consider it in three readings;

BP: Decisions of the court are final and binding on parliament, but both the parliament and the courts shall carry out their duties in accordance with the law.

[UDPATE: Just seen Assistant Rector at Thammasat University Prinya Thewanaruemitkul state that Section 216 refers to decisions and currently we only have an order from the Court so there is a question of whether is binding]

Now, onto the key provision, Section 68 of the Constitution which is the grounds for which the Court has accepted the petition:

“บุคคลจะใช้สิทธิและเสรีภาพตามรัฐธรรมนูญเพื่อล้มล้างการปกครองระบอบประชาธิปไตยอันมีพระมหากษัตริย์ทรงเป็นประมุขตามรัฐธรรมนูญนี้ หรือเพื่อให้ได้มาซึ่งอำนาจในการปกครองประเทศโดยวิธีการซึ่งมิได้เป็นไปตามวิถีทางที่บัญญัติไว้ในรัฐธรรมนูญนี้ มิได้”

“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“.

“ในกรณีที่บุคคลหรือพรรคการเมืองใดกระทำการตามวรรคหนึ่ง ผู้ทราบการกระทำดังกล่าวย่อมมีสิทธิเสนอเรื่องให้อัยการสูงสุดตรวจสอบข้อเท็จจริงและยื่นคำร้องขอให้ศาลรัฐธรรมนูญวินิจฉัยสั่งการให้เลิกการกระทำดังกล่าว แต่ทั้งนี้ ไม่กระทบกระเทือนการดำเนินคดีอาญาต่อผู้กระทำการดังกล่าว”

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 Attorney General to investigate the 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”.

BP:

First, the provision clearly states that no person shall exercise the rights and liberties prescribed in the Constitution. Worachet, one of the Nitirat academics, in the Bangkok Post:

However, the petition must be about acts that were committed by a person or a political party.

The fact is that the charter amendment legislation was undertaken by parliament as authorised by the constitution, and parliament is not regarded as a person or political party.

BP: Rights and liberties in the Constitution are in Chapter III (Sections 26-69) and include the right to life, liberty, freedom of expression etc.  Are MPs in parliament exercising rights and liberties when amending the constitution? According to Section 122, MPs are performing duties. From the wording of Section 68, in BP’s opinion it is aimed at those groups who do not currently have power- the part about acquiring power to rule the country makes this clear – whether that is a group or individuals or a political party who seek to overthrow the current system of government, i.e. a communist or republican party.

If the concern was the amendment would have the effect of changing the democratic regime of government with the King as Head of State, why was Section 68 invoked at all and not just Section 291(1) (as bolded above)? The simple answer is, does the current constitutional amendments have the effect of changing the democratic regime of government with the King as Head of State? No. There are just suspicions on what may happen…

Second, on who has the power to file the suit?

From the Constitution Court Web site (PDF):

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BP: The left-hand column is for “issue”, and the issue here is the “Consideration of decisions concerning persons or political parties who use their rights and liberties in a political sense in contravention of the Constitution (Sections 68 and 237).”

The middle column is ‘who has the right to file the motion’ and the listed answer is “Attorney-General” only.

The right-hand column is “process and conditions”  the person knowing of such act shall have the right to request the Attorney General to investigate the facts and submit a motion to the Constitutional Court for ordering cessation of such act or dissolving that political party” [it continues and talks about removing the political rights of executives of that political party etc] .

The Constitution Court’s own Web site clearly lists the Attorney-General as the person with the right to file the motion under Section 68.

During the drafting of the Constitution, Section 68 was discussed. In the Report on the Meeting of the Assembly for the Drafting of the Constitution, No. 27/2550 (PDF), the wording of Section 68 was discussed. BP can see nothing aside from the issue of the Attorney-General being able to file a motion. BP can see no mention of individuals being able to file a motion directly to the Constitution Court. It was not raised as an issue – they were most talking about “knowledge” or “awareness, type of punishment etc. Now, a discussion of the intent of the drafters can serve as an aid, but of course will not be binding. Nevertheless, one of the current Constitution Court judges (Jaran P), who was then one of the drafters, specifically refers to the Attorney-General filing the motion.

Shouldn’t the Attorney-General have the right to file a motion? If so, doesn’t the Court’s acceptance of the petition contradict this? What becomes the role of the Attorney-General? Remember the relevant wording is “person knowing of such act shall have the right to request the Attorney General to investigate the facts and submit a motion to the Constitutional Court”. Pimol Thampitakpong, a court spokesman is quoted in the Bangkok Post:

Pimol said the petitioners filed the complaints under Section 68 of the charter. The clause allows those who are aware of an attempt to overthrow the constitutional monarchy to grab power in unconstitutional ways to either ask the attorney-general to investigate the matter or petition the Constitution Court to stop the act.

The Bangkok Post quotes former senate speaker Meechai Ruchupan:

Meechai said the second paragraph of Section 68 can be interpreted in two different ways:

1. For the person knowing of such act (as stated in the first paragraph) to “propose” that the Attorney General investigate the facts and to “request” the Constitution Court to issue an order to stop such act.

2. The person who knows of such, has the right to ask the Attorney General to “investigate facts and submit a proposal” for the Constitution Court to issue an order to stop such act.

Seven Constitution Court judges voted for interpretation No 1 and one was in favour of No 2, he wrote. This led to the court’s order that parliament to delay voting on the charter amendment bill.

BP: If Pimol is correct, isn’t the role of the Attorney-General then just limited to investigating the matter? If you are going to replace “and” with “or” then this limits the power of the Attorney-General to only investigating the matter and then filing criminal charges, but not filing a motion to the Court.

Alternatively, if you are going to replace “and” with “and/or”, does this mean there will be two court cases? One where the person(s) who have knowledge file the case directly with the court and then a second case when the Attorney-General files a case after investigating the matter.

[UPDATE: Bloomberg : “The court can accept petitions directly as well as from the Attorney General, Pimol Thampitakpong, a spokesman for the Constitutional Court, said by phone.” This confirms that the court is reading “and” as “and/or”…..]

You can see the obvious point on why it makes sense that someone can make a complaint to the Attorney-General and then there is an investigation as to the facts of the matter before the Attorney-General files the motion to the Court. What facts were there that the amendments would lead to the overthrow the democratic regime of government with the King?

This means the Court is not burdened with excessive petitions. Will this be the first of many such cases? Will all government or parliament actions be suspended? Worachet, one of the Nitirat academics in the Bangkok Post touches on some related issues:

This case is not about the rights of people to file the petition with the court, but about the use of legislative authority by parliament in considering the charter amendment bills.

If the court allows the petition saying the people have a right to voice their objection, it will set a precedent that will create problems in the future.

Any decision made by a prime minister or any state agencies may be challenged with the court in the future by accusing them of trying to usurp power to rule the country.

BP: Indeed…. There is a separation of powers issue. Now, you may argue that government decisions should be able to be reviewed, but this can already be done under administrative law. The issue that Worachet is raising is that, now can any party file a petition under Section 68 arguing that the actions are part of an attempt to overthrow the democratic regime of government with the King as Head of State and this leads for that action to be put on hold pending the outcome? We will just have permanent gridlock?

Now, trying to think about how the court rule – which is unlikely to take place until next month – BP thinks the court will try to find a way to justify their decision without the result being harsh.

The Bangkok Post quoting Constitution Court president Wasan Soypisudh:

He responded to calls for Speaker Somsak Kiatsuranont to defy the court, saying the order to suspend vetting is binding for parliamentarians because they are the people who would eventually endorse the bill if it passes.

The bill, if passed, will enable parliament to set up a charter rewriting assembly. After the new draft of the charter is finished the amended constitution will be sent to the parliament for endorsement.

Mr Wasan said the court needs to look at some vital issues regarding the bill.

As an example, he said advocates of an amendment insisted sections on the monarchy would not be touched. However, the bill did not explicitly stipulate that the relevant provisions in the charter are to be spared.

“[The suspension] will help build up public confidence that the charter amendment process will not get out of hand. We have to check it for the sake of accountability,” the court president said.

BP: This is the absurdity of the whole thing. Doing X is against the constitution. No one has done X. They are just suspicions that some people may do X. Court launches proactive inquiry into whether X may occur and mentions it is worried that there is no explicit mention that you cannot do X. This raises the question, why do you need an explicit provision not to do X if doing X is unconstitutional in the first place? What other provisions do we need saying explicitly what other illegal or unconstitutional conduct that the drafters will no do. This is aside from the issue that even if there was a proposal to do X it would have to go to parliament again and the court step in then…

btw, what do last week’s Democrat party antics and the court accepting the petition mean for any backroom deals? Another judicial coup? Probably not – if you think of the push back of the court merely accepting the petition, now imagine if they were to rule against the amendments and then dissolve Puea Thai and ban all the executives what kind of a shit storm that would create – but things are up in the air until the decision is handed down….

h/t to Verapat – see his Facebook post (in Thai), his appearance on Kom Chad Luek (in Thai), and on ASEAN TV (in English)

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