Kaewsan’s defence of the Constitution Court
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Kaewsan’s defence of the Constitution Court

Last Friday, the Constitution Court accepted a petition to review amendments to the constitution on the grounds that the amendments have (or will?) breach Section 68 of the Constitution which provides that “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”.

There has been widespread criticism of the court by legal experts – BP has summarised some of the criticisms here. Even the Bangkok Post in an editorial:

Mr Charoen said on Sunday that he believes the court has seriously overstepped its authority by issuing an order to a separate branch of government. He and Pheu Thai lawyers quickly concluded that the court has no power or right to order parliament.

Legally, Mr Charoen appears to be on strong ground. There is also strong reason to criticise the court, which admitted in its ruling last week that it has taken up the issue for reasons that are more political than legal.

BP: The Bangkok Post invited Worachet Pakeerut, a member of the Nitirat academic group, who took the position of criticizing the court whereas Kaewsan Atibodhi, a former member of the coup-installed Assets Scrutiny Committee, defends the court. The Bangkok Post on what Kaewsan states:

The petitioners view the efforts to pass the charter amendment bill as an attempt by some legislators to overthrow the constitutional monarchy.

The bills would amend Section 291 of the constitution, which would allow a Constitution Drafting Assembly (CDA) to be set up to rewrite the charter.

The complainants believe the Pheu Thai Party will exert undue influence on the CDA as it is set up.

They also expect the party to influence the public hearing process and the types of changes which will be made to the charter by their hand-selected assembly.

The petitioners say they are concerned these amendments will eventually bring about the overthrow of the constitutional monarchy.

As a result, I understand that the Constitution Court wants to know how the charter will be rewritten. If the parties concerned provide clear explanations, the court will dismiss the petitions.

BP: As you see there is a belief on what may happen. Who can answer the question of how the charter will be rewritten? The CDA will decide that and since the vast majority of them will be elected, it seems how to talk about the *how*. So mere assurances are enough?

Kaewsan continues:

The complainants do not focus on any particular person in parliament but on the process of the charter rewrite.

BP: But Section 68 does not deal with the process, it is about the actions of individuals or parties….

Kaewsan continues:

In reviewing the petition, the court may interpret Section 68 of the constitution mainly in the political aspect, not the legal aspect.

The complainants believe the government will use off-parliamentary power _ the red-shirt groups _ to augment its majority in parliament to acquire a level of state power which may exceed what is provided in the constitution.

If we consider the case in a purely legal light, it is correct _ as Worachet Pakeerut mentioned _ that the court does not have authority to suspend parliament’s readings of the constitution amendment bills.

But if we take into account the petitioners’ concerns about political manoeuvring, it is a different matter and the court’s decision to suspend proceedings can be understood.

The court made its decision because groups of people told the judges that moves are afoot to overthrow the constitutional monarchy.

They asked the court to stop this movement, not to stop the charter amendment.

The court should consider overall conditions when making its decision, not just the legal aspects. Based on this overall premise, the court has authority to suspend the process.

BP: Kaewsan concedes it is about politics and not the law. We have seen a few cases over the years starting from Thaksin’s asset concealment case, decision to invalidate the 2006 election, not granting bail to the election commissioners (Kaewsan even criticized that decision), the Samak case etc. where it seems clear that politics has been a factor. The acceptance of this petition though really tops the list. In all the other cases, there was not a question of whether the matter should have been before the court; it was that politics was seen as being a factor in the decision. In the current case, the court is exceeding its mandate in accepting the case. Hence, the push back has been much stronger than the past. Just last year, there was a survey and 57% of those surveyed had little or no confidence in the Constitution Court. Will their numbers take a further hit now?

*Kaewsan’s anti-Thaksin credentials include writing a book about stopping the Thaksin regime, comparing Thaksin to a rapist, and was a member of the military-appointed committee to investigate Thaksin after the coup….


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