Thailand: How the meaning of ‘and’ starts a constitutional crisis – Updated
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Thailand: How the meaning of ‘and’ starts a constitutional crisis – Updated

THAILAND may be heading to its first major constitutional crisis in history.

Thai Constitution Court has performed an interesting exercise in semantics with one of the most basic words: the word “and.” Not that verbal gymnastics is foreign in Thai politics but this case is unusual as it happens in the judiciary, and the ramifications may be explosive and quite significant in the development of Thailand’s political system.

If you follow Thai politics, you must be aware of the latest attempt at a judicial coup. This judicial coup déjà vu is the talk of the town this week.

On 2 June 2012 Thailand’s Constitution Court ordered an injunction against Parliament suspending its vetting of the constitution amendment bills* (amending the constitution was one of the winning Pheu Thai Party’s key election platforms).

The Constitution Court’s intervention came just a few days after the relatively small but noisy Yellow-shirt PAD protests in front of Parliament and the opposition party Democrat MPs inside Parliament against the controversial reconciliation bills which the Pheu Thai-led government was pushing. The opponents of the reconciliation bills say the bills will whitewash former Prime Minister Thaksin Shinawatra (along with any parties on all sides involved in the 2010 violence and deaths). In fact, most people — yellow, red, and other shades and hues — are not keen on the reconciliations bills and the parliament has yielded to pressure and decided to postpone the deliberation of the bills for now.

But the Constitution Court injunction is for Parliament vetting of the constitution amendment bills, not the reconciliation bills. The Court said it had to review of the constitutionality of the amendment bills, which might lead to drafting of a new charter, which in turn, it argued, might amount to an attempt to overthrow the democratic regime of government as the King of Head of State as alleged by the petitioners.

As the vetting of reconciliation bills has been postponed to avoid the breaking point, the focus is now squarely on the Constitution Court’s intervention. Despite increasingly widespread and noisy criticisms over the past days from a number of legal experts, academics, political commentators, as well as politicians on the government side that its intervention is an unconstitutional overreach, the Constitution Court insists that it has authority to suspend Parliament’s consideration of the charter amendment bills it believes could bring about a regime change.

At the face of the current, rather unprecedented, public debate is the language of paragraphs 1 and 2 of Section 68 in Thailand’s Constitution. Bill Clinton tried to grapple with the word “is” over a decade ago, but the contentious word presently in a central role in the looming constitutional crisis in Thailand is “and.” Not just any word “and” but the word “and” in the second clause in the first sentence in paragraph 2 of Section 68.

Thailand’s Constitution 2007, Section 68 (para 2):

“ในกรณีที่บุคคลหรือพรรคการเมืองใดกระทำการตามวรรคหนึ่งผู้ทราบการกระทำดังกล่าวย่อมมีสิทธิเสนอเรื่องให้อัยการสูงสุดตรวจสอบข้อเท็จจริงและยื่นคำร้องขอให้ศาลรัฐธรรมนูญวินิจฉัยสั่งการให้เลิกการกระทำดังกล่าวแต่ทั้งนี้ไม่กระทบกระเทือนการดำเนินคดีอาญาต่อผู้กระทำการดังกล่าว”

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”.

How many ways can one interpret the word “and” bold and underline above? Apparently more than one way, according to seven Thai Constitution Court judges and a few of their commentators who support the Court’s judgment.

The first report of the Constitution Court’s interpretation of the now quite well-known paragraph 2 of Section 68 was in the Bangkok Post. Mr. Pimol Thampitakpong, the spokesman of the Constitution Court, reported the Bangkok Post on 2 June, admitted that the escalating political tension had “forced the Constitution Court to take swift action” (by accepting the five complaints directly submitted to the Court, bypassing the Attorney General). Mr. Pimol further explained:

[T]he 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.

Whether or not the Court spokesman took into account the legal implications of such a language is anybody’s guess, but the actual language of Section 68 paragraph 2 reads quite different. Without having read the actual text of Section 68, most people probably didn’t take note of the disjunctive “either – or” in the above statement. But as it turned out the Court judges’ chosen position is consistent with the line of reasoning presented by the Court spokesman. In interviews and reports the Constitution Court takes the position of the word “and” in Section 68 paragraph 2 as articulated clearly for the Court by the notable lawyer MeechaiRuchupan. Bangkok Post reported on 5 June:

Mr 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 [act], 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.

However, except for Mr. Meechai and a few other lawyers who have spoken in support of the Court’s position (one being the legal expert of the Democrat Party), most legal experts and academics agree with the lone dissenting Constitution Court justice, that the word “and” in the second paragraph conjoins the two acts meant to be carried out by the Attorney General. (Bangkokpundit discusses that point in more detail here.)

The Constitution Court’s interpretation and ruling, which effectively turned the function and meaning of the word “and” in paragraph 2 to “either – or” or “and/or” is curious. Strangely curious and bewildering given that on the Constitution Court’s own website, the Attorney General is specified as the only entity given the right to submit a motion to the Constitution Court under Section 68. The Constitution Court procedure document states clearly the interpretation No. 2 (see column 3 in the image below).

AG-Petition-Sec68-621x340

Source: Constitution Court http://www.constitutionalcourt.or.th/dmdocuments/Exercising%20rights%20in%20the%20Constitutional%20Court.pdf

(The text shown in the image above is from page 8 in this English version of a document on the Constitution Court website entitled “Exercising Rights with the Constitutional Court” which specifies who/which state body — in column 2 of the document — has the right to file a motion to the Constitution Court under which section of the 2007 Constitution. It is on page 3 in the Thai version.).

Even more curious, at the 6 June press conference the president of the Constitution Court Mr. Wasan Sroipisut advised the public to read the English translation of Section 68 as “it will become clear.” Of course, that statement instantly got social media buzzing and Thai twitteratis nicknaming him “Mr. Dictionary.” Supposedly, the Constitution Court president argued, the English translation indicates “clearly” that “not only the Attorney General but also the person knowing of such act to file the motion to the Constitution Court.” Huh? As in interpretation option 1 as Mr. Meechai explained? And how is that different from the language in Thai?

It is difficult to make sense of the Court president’s meaning, for both the Thai word และ /lae/and the English word “and” are placed in exactly the same position in the sentence and functions in exactly the same way as a conjunctive particle, indicating that what comes before and after it are both to be done by the subject the precedes the two separate verbs: ‘investigate’ the facts and ‘submit’ the proposal. The role of the “person knowing of such act” is here to ‘request’ the Attorney General to perform the investigation of the facts and the submission of motion to the Court, as already specified in the constitutional procedure shown above.

For argument’s sake, let’s say the interpretation 1 is also correct, then why mention the Attorney General in the constitutional procedure at all? Does the role of the Attorney General then become optional, if the person can go directly to the Constitution Court without the Attorney General investigating the facts first, as it is the case here? Can any person then file a motion with the Court tomorrow because they suspect their next-door neighbor of attempting to “overthrow the democratic regime of government with the King as Head of State”? (Anyone smelling Article 112 from the Criminal Code?) Will the Court then issue an order to detain the next-door neighbor in his house while it reviews the facts (doing the job for the Attorney General)?

*In fact, who has the right to file a petition to the Constitution Court under Sec 68 is a matter that has a precedent, and the position of the Constitution Court was once very different. In May 2006, the Constitution Court rejected a petition by a former MP submitted under the same section in the previous constitution on the basis that Section 63 (which became Section 68 in the current constitution, containing the same text) did not allow the complainant to directly submit the petition to the Constitution Court. The Court then ruled that the petition must first be considered by the Attorney General. The rejected petition in 2006 was filed to request the Court to disband the Democrat Party. Politics by its nature is always shifting. It would appear that in the six years of separation between the 2006 case and the 2012 case, either the law or the judges have shifted along with politics.

People can continue arguing until they are blue in the face about how the word “and” indicates who has the right to submit a petition to the Constitution Court according to paragraph 2 in Section 68, but the real issue here isn’t really in paragraph 2 but in paragraph 1.

Thailand’s Constitution 2007, Section 68 (para 1):

“บุคคลจะใช้สิทธิและเสรีภาพตามรัฐธรรมนูญเพื่อล้มล้างการปกครองระบอบประชาธิปไตยอันมีพระมหากษัตริย์ทรงเป็นประมุขตามรัฐธรรมนูญนี้หรือเพื่อให้ได้มาซึ่งอำนาจในการปกครองประเทศโดยวิธีการซึ่งมิได้เป็นไปตามวิถีทางที่บัญญัติไว้ในรัฐธรรมนูญนี้มิได้”

“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.”

The five petitions filed directly with the Constitution Court supposedly cited Section 68, in particular a suspected attempt by Parliament “to overthrow the democratic regime of government with the King as Head of State” because it was considering the government-sponsored bills to amend the Constitution (as provided by Section 291), which might lead to drafting a new constitution. In this case, public law scholar Dr. Worachet Pakeerat argues that there are no grounds in paragraph 1 to begin with:

[T]he 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.

In other words, Parliament was acting within its authority in considering a legislation to amend the Constitution. Although the constitution amendment bills, if passed into law, might possibly lead to drafting a new one, how is that an attempt to overthrow the democratic regime with the King as Head of State? No one has yet proposed a piece of legislation for Thailand to become a republic or any other form of government different from what it is today. Is the Constitution Court taking a pre-emptive strike to stop “an act” that it fears might happen? Does it have an authority to do so?

It seems that those occupying one side of Thailand’s political divide and supporting the proactive role of the Constitution Court believe it properly exercised its authority in this case. Kaewsan Atibodhi, former member of coup-installed Assets Scrutiny Committee, conceded that if put in a purely legal light the Constitution Court does not have authority to stop Parliament vetting the charter amendment bills. Still, the Court’s intervention is understandable. He explained:

In reviewing the petition[s], 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….

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.

Mr. Kaewsan’s statements show clearly that he, and others taking the same position, see the Court’s role as rightfully political, and in that capacity, has the authority to act beyond legal imitations prescribed in the Constitution. But is this appropriate role of the Court in a purportedly democratic system which is also a constitutional monarchy? Dr. Worachet’s view echoes the concerns of many:

If the court allows the petition[s]…, 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.

Legal interpretations in a country which is governed by democracy must be based on democratic principles and the rule of law. Political conflicts in the past have dragged several independent agencies into the mix, including the justice system. As we have seen, several court rulings have spawned public criticism and doubts.

The court’s decision in this case will be a turning point for the worse for the country’s legal system.

This judicial battle will likely continue being fought out in the weeks or perhaps months to come. Parliament may yet go ahead with the third reading of the charter amendment bills during a joint session of the two Houses tomorrow (8 June). Today in the afternoon the Redshirts submitted a petition to the Senate to impeach the seven Constitution Court judges who voted for the injunction for unconstitutional exercise of power. They will collect at least 20,000 signatures for the impeachment as required by the Constitution. Later in the evening the Attorney General told the press that constitution amendments were legal and in considering constitution amendment Parliament acted within its authority prescribed in Section 291 of the 2007 Constitution. The Attorney General also said:*

[S]tate prosecutors agreed that all of the three charter amendment bills _ proposed by the government and its supporters _ have no provisions attempting to overthrow the democratic regime of government with the King as head of state, nor are they trying to acquire power to rule the country by unconstitutional means.

As a result, the six petitions received by the Office of the Attorney General (OAG) had no sufficient grounds for the OAG to submit a motion to the Constitution Court! (See more of the Attorney General’s statement here.)

By all appearances the Constitution Court’s intervention this time is facing a fierce push back. Will the Court push forward with its controversial intervention?

As things are rapidly coming to a head, it is not too late to ask a key and salient question. Not what is the meaning of “and” and who has the right to file the motion to the Court. But what really is the appropriate role of the Constitution Court in a democratic system of government with the King as Head of State?

In any political system, there are power arrangements in which power relations among key institutions are maintained and the respective role of each institution is defined within the constitutional framework which defines the principles of the system of government. Legitimacy of government and of institutions is sustained within this framework, in which each institution plays its role according to the rules of the game.

And the rules of the game is the Constitution, under which other subsidiary rules (laws enacted by Parliament, court judgments, etc.) are created and expected to be obeyed. The constitutional procedures and sequences of actions prescribed are either followed or ignored. There is considerable risk of using political expediency to ignore the constitutional power relations defining the respective roles to be performed by each branch of government.

In Thailand we have elected and unelected branches of government. These institutions have a specified constitutional role to perform and that role is often conditioned on the involvement of other institutions. The strength and stability of a democratic system (with the King as Head of State) like ours is in these institutions performing their roles and duties according to and within their prescribed authority and powers in the political process. If any one branch of government tries to usurp another, the overall political system becomes unstable and institutional friction accelerates into a constitutional crisis we witness today.

Thailand has been at the constitutional tipping point before. In the days of the Thaksin administrations, the legitimacy of the democratic system was in crisis because the executive branch was deemed excessive in its exercise of power and authority. Since his downfall in 2006, attempts to restrain Parliament have led to an enhanced role of the courts as guardians of the political system. The underlying premise is that elected officials can’t be trust while the judges can be trusted.

The Constitutional Court may have overshot the goal by exceeding the limitations restricting their jurisdiction under the Constitution. Achieving political equilibrium has been a difficult task since the 2006 coup. Despite the most recent general elections bringing into power a new government, the situation has not resolved the issue of who to trust. Thai elections have been insufficient to convince other non-elected constitutional institutions that Parliament is to be trusted with changes to the constitutional structure. To sustain democracy, the electorate as well as the institutions must cooperate according to the rule of law.

The irony is that in attempting to preserve the political system and the highest institution it believes under danger of being toppled, the Court has rushed to act with a presumptive assumption about intentions to act in the future without evidence to support such acts would come about. The Court is acting as though the coup-supported 2007 Constitution is a sacred law that must not be touched by the Government through an amendment process.

Thailand has a history of 18 military coups and as many constitutions. Each of the previous constitutions was ripped up and replaced by a new one after a military coup. The Thai history on constitutional change is not one of amending the constitution, but military intervening and throwing out the whole document and starting over. What is so special about this 2007 Constitution is that at a point of constitutional crisis, rather than military intervention, the Constitution Court is playing a reverse role. Rather than throwing the constitution out, it acts as the protector of the political system. The Court does not want the Constitution it believes serves as a shield of the political system to be tampered with in any way.

The Thai Constitution Court may try to be “creative” in its interpretation of the language of the law and its role and authority because it believes itself to be righteous. Unelected judges, especially righteous ones, may have a goal of advancing the best interest of the nation but the question must be asked—what if the majority of people who vote disagree with their view?

Between the righteous judges and the not-so-righteous politicians who can be voted out, the people of Thailand this time may want to stick with the latter to work for them within the rules of the game. For better and for worse.

*Author’s note: The article has been edited on 8 June 2012 to reflect: (1) that there are three constitution amendment bills now in Parliament rather than one as originally stated; (2) a 2006 precedent regarding the right to submit a petition to the Constitution Court under Section 68; and (3) the actual statement by the Attorney General reported in the press, h/t Bangkokpundit.

Kaewmala is a writer, a blogger and an avid twitterer. She blogs at thaiwomantalks.com and is a provocateur of Thai language, culture and politics @thai_talk.