On Friday June 1, the Constitution Court accepted a petition to review amendments to the constitution on the grounds that the amendments have (or potentially will in the future?) 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. BP has blogged on the defence of the Constitution Court provided by noted Thaksin opponent, Kaewsan. BP has blogged on the Constitution Court’s defence of the acceptance of the petition and also blogged on the Attorney-General stating that the amendments don’t breach the constitution. BP has also blogged querying why the Court has changed its interpretation of the wording in Section 68 from a previous case where the Court rejected to accept a petition directly against the Democrats.
So far these posts have not looked at the exact wording in the constitutional amendments and asked the question, what provisions in the amendments evidence a threat to “overthrow the constitutional monarchy” (or to acquire the power to rule the country by any means which is not in accordance with the modes provided in this Constitution)? BP has yet to see anyone, in English or in Thai, examine the wording in the amendments. The amendments amend Section 291 to change the process of amending the constitution from parliament to setting up a constitutional drafting assembly and the requirement for a referendum.
First, section 291 of the 2007 Constitution sets out the process for amending the Constitution:
(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 [ ญัตติขอแก้ไขเพิ่มเติมรัฐธรรมนูญที่มีผลเป็นการเปลี่ยนแปลงการปกครองระบอบ ประชาธิปไตยอันมีพระมหากษัตริย์ทรงเป็นประมุข หรือเปลี่ยนแปลงรูปของรัฐ จะเสนอมิได้]
(7) after the resolution has been passed in accordance with the above rules and procedure, the draft Constitution Amendment shall be presented to the King, and the provisions of section 150 and section 151 shall apply mutatis mutandis.
BP: Independent legal academic Verapat has kindly scanned and uploaded a copy to his site (scroll down to “ร่างรัฐธรรมนูญ แก้ไขเพิ่มเติม มาตรา 291 ซึ่งผ่านการพิจารณาโดยรัฐสภา ในวาระที่ 2”) ร่างรัฐธรรมนูญ แก้ไขเพิ่มเติม มาตรา 291 ซึ่งผ่านการพิจารณาโดยรัฐสภา ในวาระที่ 2 (Draft constitutional amendments to Section 291 which have passed the 2nd reading). Basically, the amendments amend Section 291 to change the process of amending the constitution from parliament to setting up a constitutional drafting assembly and the requirement for a referendum (although they are quite detailed and go for 9 pages in setting up and detailing the process).
In regards to what provisions in the amendments is evidence of a threat to “overthrow the constitutional monarchy”, the most relevant provision is Section 291/11 paragraph 5 which provides “ร่างรัฐธรรมนูญที่มีผลเป็นการเปลี่ยนแปลงการปกครองระบอบ ประชาธิปไตยอันมีพระมหากษัตริย์ทรงเป็นประมุข หรือเปลี่ยนแปลงรูปของรัฐ หรือเปลี่ยนแปลงแก้ไขบัญญัติในหมวดว่าด้วยพระมหากษัตริย์จะกระทำมิใด้” [or when translated into English “A draft of the constitution which has the effect of changing the democratic regime of government with the King as Head of State or changing the form of State or changing/amending provisions in the Chapter on the King shall be prohibited”].
The amendments are actually broader than Section 291(1) as not only do they not allow the effect of changing the democratic regime of government with the King as Head of State or changing the form of State, but they also do not allow the draft to the amend provisions in the Chapter on the King – which is Chapter II of the Constitution and which deals with the role of the King, the role and selection of the Privy Council, the Regent, and succession. There is no evidence in the amendments of a threat to “overthrow the constitutional monarchy”. They specifically prohibit it.
This poses the question, why did the Court accept the petition under Section 68 in the first place? What prima facie evidence was there that the amendments were a threat to “overthrow the constitutional monarchy”? The Nation quoting Constitution Court President Wasan Soypisudh:
At the core of the five complaints were suspicions that the proposed charter changes fail to adequately uphold the general provisions on Thai nationhood and democratic rule with the King as head of state, Wasan said, in reference to sections I and II of the Constitution.
“One of the main concerns is there is no guarantee that charter provisions on the monarchy would not be amended,” he said in reference to the complaints.
Although the soon-to-be-formed Constitution Drafting Assembly (CDA) will to take charge of the amendments, the new charter would eventually be scrutinised and passed by Parliament, he said.
The judicial inquiry was aimed at getting a guarantee from the government and Parliament that the new charter will not tamper with provisions on nationhood and monarchy, he said.
“The inquiry is part of the checks and balances to ensure that the government and Parliament live up to a gentleman’s agreement not to cross the line about nationhood and monarchy,” he said.
BP: BP wants to ask the obvious question, has the Court even seen the amendments before accepting the petition?* The amendments do guarantee – actually they are much broader than the current guarantee – that the monarchy will not be amended.
A gentleman’s agreement is defined as “an agreement secured only by the honor of the participants” (emphasis added). This is not a gentleman’s agreement. No one is dependent on the honor of the participants to enforce it. It is actually written into the amendments. It will be equal to Section 68. Now, you may say, but will they live up to the amendments? Well, how exactly how can you provide a guarantee? Swearing in blood? Promising to the country’s guardian spirit?
Please note that this is not the post on the judicial coup. It is a post that is a necessary precursor to that post although this post provides the meat of the details on the judicial coup threat from Section 68 in relation to the amendments. Simply put, it is one thing to delay the amendments. It is another to go beyond that. The Court in its defence did not actually state what evidence of a threat there was. They have just said people said there was a threat so we would look into that. Based on the evidence presented, and the actual wording of the amendments is the most relevant, there is no evidence of a threat to overthrow the monarchy. Unless there is some no evidence introduced – exactly what is even hard to imagine – it will be very difficult for the court to find an argument to stop the amendments, let alone, do something beyond that like dissolving Puea Thai and banning its executives.
The court then is much more likely to (a) either dismiss the petitions, or (b) look for a face-saving move, such as, require a more strongly worded guarantee. This then provides the rationale for the court accepting the petition in the first place (and hence avoiding criticism of the court for delaying the amendments). It would mean we have additional delays in the amendments which was the whole point of the entire exercise in the first place. The government is then put in a position of defying an actual decision of the court – which is different from an actual order – as opposed to complying and there only be a further delay.* The easier thing to do for the government then is to comply….
h/t to a reader
btw, in case you think that BP has somehow discovered something unknown to anyone, well the Council of State (the government’s legal arm which provides the executive with legal advice) as already stated they will point this out to the Court….
*One assumes they would go back to the 1st reading again. BP is unsure how much longer the delay will be, whether a few days or a few weeks depending on how much discussion in parliament, but adding an extra sentence or two may not take that long when starting the process again.