Why has the Thai Constitution Court changed its interpretation of the law?
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Why has the Thai Constitution Court changed its interpretation of the law?

On Friday June 1, 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. 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 are legal. Kaewmala in her post on issue blogged:

*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.

Independent legal academic Verapat Pariyawong has posted a copy of the Court’s letter rejecting the petition in May 2006 and BP has posted a screenshot below:

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It is Order No. 12/2549.

Translation of subject is: Surapong Tovichakchaikul [BP: Yes, the current Foreign Minister] asking the Constitution Court to order the dissolution of the Democrats under Section 63 due to their acts to acquire power through means not under the constitution.

For the underlined text in red, BP has translated it below:

The Constitution Court considered and views that Section 63 of the Constitution does not provide that the petitioner has the right to directly petition the Constitution Court to dissolve a political party, but must proceed in accordance with Section 63, paragraph 2 [and] submit the matter to the Attorney-General to investigate the facts and file the petition to the Constitution Court.

Below is Section 63 of the 1997 Constitution:

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 the 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 [ผู้รู้เห็นการกระทำดังกล่าว] 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.

Below is Section 68 of the 2007 Constitution:

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 who knows [ ผู้ทราบการกระทำดังกล่าว] 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.

BP: Between Section 63 of the 1997 Constitution and Section 68 of the 2007 Constitution, there is a slight difference in paragraph 2  and there is the addition of paragraph 4 although this doesn’t affect the process for filing a motion/petition. The Court clearly states that they won’t accept petitions directly in 2006, but they do now when the procedure set out is the same. So far BP has seen no explanation on why the change of interpretation by the Court…

There is still one out for the Court. The Court may order the cessation of the constitutional amendments in their current form, but state that the actions were not done by a party and were done by parliament so there is no need to dissolve any party. Hence, it is only when a matter requires the dissolving of a political party that the Attorney-General needs to investigate first so the court can argue there is no contradiction.*

*Although, the Court accepting a new petition today seemingly nullifies this……

 

 

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