ON May 7, 2014, the Constitutional Court ousted caretaker PM Yingluck Shinawatra from office for abusing her power in transferring the former national security chief Thawil Pliensri.
The Court said in its unanimous 9-0 ruling that the transfer was “unconstitutional,” that although Ms. Yingluck had the power to transfer an official the Thawil transfer benefited her family (the new national security chief appointed by Yingluck government is a brother of her brother’s ex-wife – see more details). The Court did not only remove Yingluck from office but also nine other ministers who were members of the Cabinet at the time of the transfer was made.
The Court reasoned that there was no evidence of Thawil being ineffective, and that “transferring government officials must be done in accordance with moral principle… Transferring with a hidden agenda is not acceptable.” (Associated Press)
The ruling was widely expected but has been criticized by legal experts as disproportionate. International media reports on the verdict also include some very strong words (see especially the Wall Street Journal editorial).
Although the ruling was a big blow to Yingluck and her caretaker government, it was not the worst possible as there were concerns that the PM and the entire caretaker cabinet would be removed to create a “political vacuum” to make way for the appointed PM and interim government that anti-government protesters have been demanding.
Steps are certainly being made in that direction, though not as quickly as the anti-government protesters would have liked. Just one day after the Constitutional Court ruling was issued, the National Anti-Corruption Commission (NACC) unanimously decided to indict Yingluck for dereliction of duty in overseeing the rice pledging scheme. The NACC will forward the case to the Senate for impeachment. If impeached by a three-fifths majority, Yingluck would be barred from politics for five years.
The NACC, which admitted it had no clear evidence that Yingluck took part in or allowed corruption, found her guilty because she “did not govern the country as announced in Parliament.” (The New York Times)
The latest actions by the Constitutional Court and the NACC have further strengthened a view that Thailand is becoming a juristocracy. Many commentators use the word “judicial coup.” The Wall Street Journal editorial is particularly hard-hitting: “The situation would be laughable if it weren’t so dangerous. The conflict has emboldened extremists on both sides who threaten to start a civil war.”
There are real concerns that violence may break out if the entire elected government is once again removed and an appointed government installed. Moreover, whether a new election tentatively set for July 20 will happen is now looking uncertain yet again. Even the Election Commission is now saying it “may postpone” the election, as well as the new Senate Speaker.
The opposition Democrat Party leader Abhisit Vejjajiva has proposed a 6-month delay for the election and his party threatened to boycott yet another poll if his proposal is rejected—which it has been, resoundingly by all sides. Even Suthep Thaugsuban and the People’s Democratic Reform Committee (PDRC) have flatly rejected it because it involves an election. They are still intent on having an appointed PM from Article 7 of the Constitution and an appointed “people’s council” to carry out their “reform before elections.”
Suthep has reset the “final battle” from May 14 to May 9, the D-Day for his “all-out final battle.” He and the PDRC are now once again on the streets occupying government offices, including Government House and the Parliament, and TV stations and blocking Bangkok’s streets. They said they would need the Parliament for setting up the “people’s council.”
Suthep has called the Pheu Thai caretaker government “a headless ghost” and rejects its authority. Key people in the PDRC are now saying that the new caretaker PM, Niwatthamrong Boonsonpaisan, has “no authority” to talk with the Election Commission on organizing elections and as an acting caretaker PM he is not authorized to countersign the royal decree for the July 20 election.
Somchai Srisuthiyakorn, the EC commissioner responsible for organizing elections, is echoing the PDRC question whether the new caretaker PM has the authority to countersign the royal decree. (On the other hand, Suthep, who holds no political office and has been charged with murder and insurrection among other crimes, has declared that he would assume sovereign power and countersign a royal decree to appoint a new PM and a government.)
Part 2 continues with the interview with Prof Likhit Dhiravegin by Ms. Jomquan of Kom Chad Luek TV from early April, in which they discussed “political vacuum” and “political machinations” in the ongoing Thai political crisis involving Suthep, PDRC and the Constitutional Court. (Part 1 discussed Mr. Suthep’s announced intention to seize “sovereign power”.)
Jomquan: You have mentioned political cul-de-sac and immobilization and anarchy, which caused many to ask, then what next? Because this is what we have got and what [could potentially] create a political vacuum, and because there’s a vacuum we have arrived at Khun Suthep’s proposal. If not the PDRC proposal, then what do you propose? Do you have an alternative?
Prof Likhit: What does “political vacuum” mean? “Political vacuum” means there are no provisions in the Constitution. When there are no provisions, you use the [constitutional] convention in a democratic regime, which is Article 20 of the  Administrative Charter from Field Marshal Sarit Thanarat’s time, Articles 22-23 from the charter in Field Marshal Thanom Kittikachorn’s time, and Article 4 of the Civil and Commercial Code, to rely on the letter and intent of the law, local convention or a general legal rationale. A solution must be found.
For instance, the senators that came from appointment according to the 1997 Constitution had their term expired and there weren’t enough elected senators to fill 200 seats, so there was no quorum. The Constitutional Court ruled that because there was no quorum there was no Senate. That’s not right. There has to be two houses [but] we ended up with just one. Article 7 of the Constitution applies in this kind of situation. Yes, there was no quorum and the senators’ term did expire but the convention is to stay in caretaker capacity until there is a quorum. This is how Article 7 applies. But this was what happened naturally.
“Section 7. Whenever no provision under this Constitution is applicable to any case, it shall be decided in accordance with the constitutional convention in the democratic regime of government with the King as Head of State.”
But the Article 7 that’s called a cul-de-sac is not about constitutional provisions being applicable or not. It’s a deliberate creation designed to exploit Article 7. It’s a manufactured cul-de-sac. Firstly, I don’t really want to use this term “conspiracy theory” but it’s a conspiracy to make it happen by skilled lawyers who planned it. Keeping to this plan, a team has worked in orchestration— like in an orchestra the players each play their part — until eventually there’s a cul-de-sac. It is a premeditated cul-de-sac that is mala fide (in bad faith), not bona fide (in good faith). Which means it’s dishonest. Here’s another term to know, “political machination” which means a political planning that is unlawful and wicked, designed to achieve a goal, such as all those slanders, creating dissension, pitting two sides against one another. These are called political machinations.
So all the conspiracy and orchestration—the political machinations—brought about this thing, a vacuum that did not arise from honesty. Any politics that does not stand on legitimacy or honesty is lousy politics; it has no legitimacy. Power to rule requires three things: legality, legitimacy, and moral authority. What has happened may be vaguely legal but has no legitimacy. Legality without legitimacy can have no moral authority. If the legality aspect is only slightly defective but there is legitimacy, there may be some moral authority.
But what has happened has no moral authority because it did not occur naturally because it occurred from what I said earlier. Therefore it can’t be claimed that there’s no way out and hence there is a “vacuum.” The point is who gave them the right to announce this vacuum? The other side can announce it too, can’t they? Putting it plainly, why only you [Suthep] who can announce that? And claiming a lot of people, how do you measure there’s a lot?
King Rama VII was willing to give power to all people, not to a group of people without listening to the real voices of the citizens. And how do we hear the real voices of the people? Two ways only: first, from a general election [to know] which party or group they support, and second, a referendum, if there’s a problem. Referendum is the clearest way to find out. Not claiming the “great mass of people.” Have a referendum on what to do.
Jomquan: Please let me interject. Firstly, in reference to the conspiracy theory and the orchestration to create a cul-de-sac you mentioned, to say it’s legitimate or not is an abstract and can be subjective.
Prof Likhit: No, it’s like this. Of course, legitimacy is an abstract. How can it be concrete? Definitely it’s abstract.
Jomquan: That’s why they could say that [it’s because] you don’t like it so you say it’s illegitimate, but that’s what they have to do.
Prof Likhit: You keep claiming that [but] the other side can claim it too. If that’s how you’re going to talk then we’re talking cross purposes. Are you talking to yourself? You can do it. Other people can do it too. Speaking fairly, you can’t just say, “I’m going to do this and you must follow me.” Who are you? Don’t other people own this country too? Sovereign power belongs to the Thai people. One man, one vote. All people in the North, Isaan, South, and Central regions alike are all Thai. What audacity to say you are greater than the rest and that people upcountry are of lower quality than people in Bangkok? How do you measure that? If that’s how you are going to measure the worth of people, you can’t compare with me. Even that ajarn who gave the interview [at the beginning of program], if he gets 10 votes then I should get 10,000 votes. But that’s not right, is it? I’m saying this to show that you have no right to say such a thing. Every person is equal as a human being.
There are five things in modern society, please open your eyes, those who are clueless: 1) rights and freedom, 2) equality, 3) justice – the system must be just and is not compatible with double standards, 4) human rights guaranteed by the UN, 5) human dignity. But they are saying as though the rest of the people don’t count but your group counts the most. Who are you? Does this land belong only to you?
Jomquan: But what you have said, perhaps they may not be applicable to what we are facing? They’ll say, you can make your own proposal if you don’t like theirs. But right now we’re getting extremely close to a real vacuum.
Prof Likhit: But it’s a vacuum that you made up and claimed has happened. And how can you claim to be the sovereign to countersign royal decrees? Who appointed you? You make a claim, the other side can say I’ll make myself sovereign too. Then we’ll have two sovereigns. In ancient Japan I can’t recall precisely whether it was before Kamakura or Meji era, the land could not have two suns. If there were two suns, then there must be a separation. In China, Mao Zedong and Chiang Kai-shek [couldn’t coexist]. During the Taiping Rebellion [1850-64 against the Qing Dynasty] which established a [new kingdom and] emperor in Nanjing, Beijing had to subdue Nanjing. So you can’t just claim [sovereign power] without any basis. You must ask the people first, and find out what the people think. If you want to know the number, then have either a referendum or an election. Otherwise, anyone can make the same claim.
Jomquan: Referendum or election may be viewed as a mechanism that doesn’t quite work now.
Prof Likhit: Who set the rules? Who drafted the 2007 Constitution? Who changed the election law? Who changed from three representatives in one district to only one? You did all that. It was you who did all that, from abolishing the 1997 Constitution to drafting the 2007 Constitution, wrongfully using the voices of the people to legitimize a coup d’etat. And now you are saying it doesn’t work? You built the house, you have lived in it, now the house is crumbling down and you are blaming other people? Look at it with some justice. Have you forgotten it all? If the mechanism doesn’t work, then why didn’t you make it workable then?
In the 15 months you were the government, why didn’t you work on reform? Why did you draft the Constitution like this? You drafted it and say it’s defective, and have the audacity to go on. You have no right to complain because you have created all this. It’s all your doing. I’m not on any side and am no longer involved in politics but I want to say sincerely and fairly, as an academic who values the truth, that I am fed up with untruth in this society. Who has been doing all this? Answer me.
Who drafted the Constitution? Who? Who drafted the election law? The EC, the NACC, who appointed them—without royal endorsement even? Can you remember? The judges who issued laws retroactively to dissolve political parties, who appointed them? Where did they get the power? It’s all dictatorial power. Issuing laws retroactively is against international legal principle, against the UN, against the International Covenant on Civil and Political Rights (ICCPR). It contravenes all these principles. Blocking elections violate Article 21 of the Universal Declaration of Human Rights, and Article 25 of the ICCPR. It violates both international and national laws. It violates Articles 209 and 310 [of the Criminal Code] for illegal detention.
Jomquan: All that you have said, the Constitutional Court has already explained, it’s not that there won’t be another election. There will be another one but [the Court] has a reason for why the last election was unconstitutional.
Prof Likhit: Listen. Let me speak clearly. The [February 2] election was not held on the same day so it was “unconstitutional” [this is the rationale the Constitutional Court gave in its ruling — kaewmala]. Everybody knows. But why was it “unconstitutional”? Because it was obstructed. And in obstructing it there was use of force, it’s illegal, isn’t it? So why [did the Court] say it was peaceful? What does “peaceful” mean? Obstructing an election is peaceful? Hence the Court didn’t say [the February 2 election] was “null and void.” In fact it should have been ruled “null and void,” not “unconstitutional”. It should be either yes or no, not that it “should be put to a referendum.” Say it, that it was null and void. Did [the Court] dare? If the Court had said that, they would have to say who made it null and void, right? Can [the Court] still say [the PDRC protesters who blocked the poll stations] did the right thing? And that’s why it was null and void? It would be supporting the obstruction to nullify the election, wouldn’t it? That’s why the Court didn’t use the word “null and void.” If you want to make a ruling that’s binding you have to be decisive. Don’t make this kind of ruling. Anyone can see it’s not right and [the election] wasn’t held on one day. The question is why wasn’t it held on one day? It was because of the obstruction, wasn’t it? Can you deny it? And was the obstruction legitimate? No, it wasn’t. But it was said to be “peaceful and without use of force,” which means it was legitimate, right? Where’s the logic to that?
Jomquan: But if—
Prof Likhit: Wait, listen, answer this first. Isn’t that right?
Jomquan: Yes, yes.
Prof Likhit: Right. How did it happen? It’s plain to see, is it not? It’s as clear as day, and we’re not getting at the truth? Call a spade and spade.
… continued in Part 3: On Article 7, appointed PM and the Senate