Uncharted amendments: Thailand constitution changes in legal limbo again
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Uncharted amendments: Thailand constitution changes in legal limbo again

Thailand’s lawmakers have passed proposals to amend the constitution. But the changes are still a long way from being inked, as the Constitutional Court will now consider the proposals in a process that could not only endanger the amendment process, but also the ruling government coalition, explains Saksith Saiyasombut.

As if this Wednesday – that already spilled into Thursday morning – wasn’t going long enough, the senators and the MPs were still talking at almost 2am in the assembly hall. Shortly before that, the majority of the 505 lawmakers passed proposals to amend certain articles of the military-installed 2007 constitution. That marked the end of a three-day marathon, with sessions often going over 12 hours and a lot of arguments and a lot of barbs being exchanged.

What Articles of the Constitution Are Being Amended?

Article 68 concerns how a petition can be filed to Constitutional Court, in case “a person or political party” tries to “to overthrow the democratic regime of government with the King as Head of State under this Constitution“. The current wording states that anybody has “the right to request the Prosecutor General to investigate its facts and submit a motion to the Constitutional Court,” making it ambivalent whether or not the attorney general is required to submit petitions or if he can be ignored. The amendments see that ambiguity is clarified.

Articles 111-112, 115-118 and 120 deal with the Senate and, according to the proposals, that every senator should be elected again. Currently, 76 are elected, while the other 74 are appointed ones made up by (in theory) experts from various sectors such as the academic, the public and the private sector.

Article 190 requires that all treaties and contracts signed with another country needs to be approved by the parliament. The amendments want this to be softened.

Article 237 is the constitutional base for a dissolution of a whole political party. It’s already enough when “a candidate (…) who commits an act (…) in violation of the organic law on election (and) the President or an executive board of director of a political party (…) fails to deter or revise such commission. (…) In such case, if the Constitutional Court orders to dissolve such political party, (…) the President or the executive board of directors of a political party shall be suspended for the period of five years as from the date such order is made.” The new version is supposed to make it harder to dissolve a party.

However, on Wednesday afternoon – while the session was still going on – the Constitutional Court accepted a petition by 40 (mostly appointed) senators calling for a halt to the amendment process:

Thailand’s Constitutional Court has agreed to examine whether an attempt to amend an article in the country’s constitution is legal.

The judges, however, refused to issue an injunction suspending parliamentary debate on the proposed change (…)

Opposition Sen. Somchai Sawaengkarn also asked the court to dissolve the ruling party and other parties that support the amendment process.

Thai court to examine charter amendment legality“, Associated Press, April 4, 2013

The panel of 9 judges voted 3 to 2 to accept the petition, while the other 4 are reportedly gone on an overseas trip.

It is rather ironic that this case touches on nearly all Articles that are planned to be amended (see above): A group of 40 mostly appointed senators (Articles 111-112) called directly on the Constitutional Court without the attorney-general (Article 68) to halt the current deliberations on the constitutional amendments, arguing that the amendments of these Articles 68 and 237 is unconstitutional. And on top of that, the senators urge the Court to ban every lawmaker in favor of the charter changes and dissolve their political parties (Article 237).

This case is almost a carbon copy of last year, when the Constitutional Court also controversially accepted a petition to determine the constitutionality of the charter amendments in the so-called government-sponsered ‘Reconciliation Bills’ that proposes a far-reaching amnesty to political prisoners and others sentenced during the numerous political protests in recent years. The case also brought up the question whether or not a complete rewrite of the 2007 Constitution was possible. (See our blog posts here and here.)

While many feared a ‘judicial coup’, the Constitutional Court ruled to maintain the status quo, as it did not find any grounds that the bill was intended to overthrow the constitutional monarchy system, sparing the ruling Pheu Thai Party from dissolution; but also ruled out a complete charter overhaul, suggesting that it can only be done article-by-article.

The current process is another attempt by the Pheu Thai government to amend the constitution in order the reverse the effects of the 2006 military coup, but also – according to the fiercest critics – repeatedly testing the waters for a return of fugitive former prime minister Thaksin Shinawatra.

After passing in the first reading, a draft committee has been set up to rewrite the articles before they are submitted for approval by parliament. Until then the ball is in the Constitutional Court, which must decide on the constitutionality of the amendments, showcasing once again political struggles that go beyond parliament and possibly beyond the democratic playing fields.

About the author:
Saksith Saiyasombut is a Thai blogger and freelance foreign correspondent based in Bangkok, Thailand. He writes about Thai politics and current affairs since 2010 and also reports for international news media such as Channel NewsAsia. You can follow him on Twitter @Saksith and read his full bio on about.me/saksith.