Yingluck and the submitting of the charter amendment to the King
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Yingluck and the submitting of the charter amendment to the King

The Bangkok Post:

The Constitution Court yesterday accepted two separate petitions filed against the charter amendment bill for consideration.

The petitions were filed by Senator Somjate Boonthanom and Democrat Party MP for Songkhla Wirat Kalayasiri.

They asked the Constitution Court to rule whether the government’s charter amendment bill seeking to alter the composition of the Senate violates Section 68 of the constitution, and to suspend its third and final reading which is scheduled for Saturday.

They believe the bill, which allows for the election of all 200 senators, does violate Section 68, which deals with acts that could undermine the constitutional monarchy or potentially lead to the seizure of power through unconstitutional means [BP: This summary of the law is embarrassingly wrong. It is not undermine or potentially lead to the seizure of power. Section 68 states “no person shall….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”. Overthrow and undermine are completely different]

The judges on the court bench yesterday voted 5 to 2 to accept their petitions, although the judges rejected their requests for a court injunction suspending the bill’s third reading.

BP: We have already had this this before against the previous constitutional amendment. As blogged previously:

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.

BP: In the end, the court dismissed the complaint that the government’s amendment of the constitution amounted to plotting to overthrow the monarchy, but the court’s advice on needing to first seek a referendum before setting up a constitutional drafting assembly (i.e referendum whether to see up the CDA) meant the government backed down from a complete rewrite of the constitution and is now proceeding to amend the constitution issue-by-issue. Now, we are on the issue of moving from a partially appointed Senate to a fully elected Senate and well many people of fearful of an elected Senate (i.e. they can’t win and so they would prefer being appoint people). Now we are at the same absurd issue of last year and the court accepted the petition again….

The added twist is now the government is not delaying the third reading and so after the third reading, the amendment will have to go to HM the King. The Bangkok Post:

The Democrats say that if she submits the bill to the palace, Ms Yingluck may be guilty of acting inappropriately toward His Majesty the King, a serious criminal offence.

The bill is subject to several challenges in the Constitution Court amid claims the amendments are illegal.

The premier has no choice but to submit the bill [BP: No!. It is not a bill. This is a mistranslation because ร่าง should not be translated as “bill”], as Section 150 of the constitution requires it to be royally endorsed within 20 days of clearing parliament, according to Apiwan Wiriyachai, a Pheu Thai MP for Nonthaburi Apiwan Wiriyachai and member of the party’s political strategy committee.

The bill would become law only after it receives royal endorsement from His Majesty and is published in the Royal Gazette.

Mr Apiwan said Pheu Thai’s legal team had studied the case carefully and concluded that legislative procedure must be followed.

The legal team believes the charter court has no authority to accept for consideration several petitions which cite Section 154 of the charter as a reason to halt the bill, he said.

The section stipulates that “any bill” which passes parliament must be submitted to the Constitution Court if more than one-tenth of MPs petition the parliament president, Senate president, or the House speaker that the bill breaches the constitution.

Mr Apiwan said the legal team believed Section 154 covered only general or organic bills, not charter changes.

But the opposition and the Group of 40 Senators insist the “any bill” stipulation in the section also covers charter amendments.

Pheu Thai list-MP Phichit Chuenban, a member of the party’s legal team, noted that even though the Constitution Court had earlier accepted petitions against the charter change bill, the court had not ordered an injunction to suspend the third reading.

Section 291 of the Constitution:

An amendment of the Constitution may be made only under the rules and procedure as follows:

(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;

(2) a motion for amendment must be proposed in the form of a draft Constitution Amendment and the National Assembly shall consider it in three readings;

(3) the voting in the first reading for acceptance in principle shall be by roll call and open voting, and the amendment must be approved by votes of not less than one-half of the total number of the existing members of both Houses;

(4) in the consideration section by section in the second reading, consultation with the people who submit a draft Constitution Amendment shall be held;

The voting in the second reading for consideration section by section shall be decided by a simple majority of votes;

(5) at the conclusion of the second reading, there shall be an interval of fifteen days after which the National Assembly shall proceed with its third reading;

(6) the voting in the third and final reading shall be by roll call and open voting, and its promulgation as the Constitution must be approved by votes of more than one-half of the total number of the existing members of both Houses;

(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.

Section 150:

The Prime Minister shall present the bill approved by the National Assembly to the King for His signature within twenty days as from the date of receiving such bill from the National Assembly and the bill shall come into force as an Act upon its publication in the Government Gazette.

BP: Please note that a draft Constitutional Amendment is not a bill. A bill is to enact an Act of Parliament. A draft Constitutional Amendment is to amendment the Constitution. BP is not being pedantic, but the procedure for amending the Constitution is set out in Section 291 only. There is one procedure for a draft Constitutional Amendment (Section 291) and another procedure for enacting an Act of Parliament (i.e bills) is diffeerent. If a draft Constitutional Amendment was a bill then there is no need for Section 291(7). Section 291(7) is necessary to explain what to do for a draft Constitutional Amendment. For example, S ection 153 of the constitution states:

” In the case where the term of the House of Representatives expires or the House of Representatives is dissolved, the draft Constitution Amendment or all bills [BP: Or in Thai ร่างรัฐธรรมนูญแก้ไขเพิ่มเติมหรือ บรรดาร่างพระราชบัญญัติ] to which the King has refused His assent or which have not been returned by the King within ninety days, shall lapse.

In the case where the term of the House of Representatives expires or where the House of Representatives is dissolved, the National Assembly, the House of Representatives or the Senate, as the case may be, may, after a general election of members of the House of Representatives, continue the consideration of the draft Constitution Amendment or the bill which has not yet been approved by the National Assembly if the Council of Ministers which is newly appointed after the general election so requests within sixty days as from the first sitting day of the National Assembly after the general election and the National Assembly approves it. If the Council of Ministers does not so request within such period of time, such draft Constitution Amendment or bill shall lapse.

The further consideration of the draft Constitution Amendment or the bill under paragraph two shall be in accordance with the rules of procedure of the Hose of Representatives, the Senate or the National Assembly, as the case may be”

BP: If a draft Constitution Amendment was a bill then there is no need to refer to them separately. It is precisely because they are different, they are referred to separately. So hence you can see that Section 153 applies to both a draft Constitutional Amendment and a bill.

NOTE: Also, “bill” is the accurate translation in English, but the Thai wording literally could be translated as “draft Act of Parliament” which is what a “bill” is.

What about Section 154 which allows for the PM to delay submitting a bill:

After any bill has been approved by the National Assembly under section 150 or has been reaffirmed by the National Assembly under section 151, before the Prime Minister presents it to the King for signature:

(1) if members of the House of Representatives, senators or members of both Houses of not less than one-tenth of the total number of the existing members of both Houses are of the opinion that provisions of the said bill are contrary to or inconsistent with this Constitution or such bill is enacted contrary to the provisions of this Constitution, they shall submit their opinion to the President of the House of Representatives, the President of the Senate or the President of the National Assembly, as the case may be, and the President of the House receiving such opinion shall then refer it to the Constitutional Court for decision and, without delay, inform the Prime Minister thereof;

(2) if the Prime Minister is of the opinion that the provisions of the said bill are contrary to or inconsistent with this Constitution or it is enacted contrary to the provisions of this Constitution, the Prime Minister shall refer such opinion to the Constitutional Court for decision and, without delay, inform the President of the House of Representatives and the President of the Senate thereof.

During the consideration of the Constitutional Court, the Prime Minister shall suspend the proceedings in respect of the promulgation of the bill until the Constitutional Court gives a decision thereon.

BP: If Section 154 said “draft Constitution Amendment or bill” then Section 154 would be relevant, but it doesn’t. It simply says “bill”.

The Bangkok Post:

Parliament president Somsak Kiatsuranont says he is unlikely to pass on to the Constitution Court two Democrat Party petitions seeking to halt the charter change bill.

The decision would clear the way for Prime Minister Yingluck Shinawatra to seek royal endorsement of the controversial bill [BP: It is not a bill. A ร่าง is not a bill] within 20 days.

Mr Somsak made the remark on Saturday after a joint parliamentary sitting voted 358-2 to pass the third and final reading of the bill [BP: It is not a bill] . There were 30 abstentions, while Democrat MPs staged a walk-out and did not vote.

Immediately after the bill’s passage, 67 senators and 143 Democrat MPs invoked Section 154 of the charter and lodged two separate petitions with Mr Somsak seeking to halt the bill’s [BP: It is not a bill] royal endorsement.

Section 154 stipulates that “any bill” which clears parliament must be submitted to the Constitution Court if more than one-tenth of MPs petition the parliament president, Senate president, or the House speaker claiming the bill breaches the constitution.

But Mr Somsak said the issue was unlikely to be accepted by the court since it had already ruled in 2011 on a similar case.

In February that year, the Constitution Court rejected a petition lodged by Pheu Thai MP Surapong Tovichakchaikul and then senator Ruangkrai Leekitwattana. Both invoked Section 154 against the charter amendments being pushed at the time by the Democrat Party.

In its ruling, the court pointed to Section 291 (7) of the charter, which states constitutional amendment must be made under Sections 150 and 151, not 154.

Mr Somsak said the court ruling indicated Section 154 covers only general or organic bills, not charter change.

….

But chief opposition whip Jurin Laksanavisit insisted Mr Somsak was obliged to submit the petition to the charter court. He said the amendment dealing with senate elections was different from 2011 because it involved conflict of interest of those elected senators who signed to support the bill. The amendment would mean all 200 senators would be elected, rather than the current system whereby half are appointed.

BP: Hmm. The 2011 amendment dealt with MPs changing the electoral system which affects MPs so if that wasn’t considered a conflict of interest, how can it be now for Senators? Also, if it was considered different, it doesn’t add the words “draft Constitution Amendment” to Section 154. That is what the Court ruled on in 2011. The only way this can change, would be for the Court to say its 2011 ruling is wrong and to say that when the word “bill” appears in Section 154 it should be interpreted as ” draft Constitution Amendment or bill”. However, this would open up a can of worms because then why every use of “bill” in the Constitution then have to be interpreted as “draft Constitution Amendment or bill”. It would be difficult to carve out an exception for Section 154.

Hence, the PM has to submit the draft Constitution Amendment within 20 days. If she didn’t then the Court could say we already ruled that Section 154 doesn’t apply in 2011 and well then she could be in trouble legally too if she didn’t submit the draft Constitution Amendment in 20 days…