Constitutional court or national advisor?

By
Aim Sinpeng, Guest Contributor
– 16 July 2012Posted in: Thailand

The Constitutional Court’s rulings on July 13 broke new ground when it comes to judicial intervention. Not only did the court step out of bounds, it also repositioned itself as the nation’s advisor.

Last week’s Friday the 13th was like none other in Thailand. The country was on edge waiting for the Constitutional Court’s verdict on whether the current government intended to subvert the constitutional monarchy. The Red Shirts geared up for what was hailed as the “last war,” while their opponents camped outside to show support for the Court. Bangkok readied itself for mass demonstrations. Hundreds of police officers guarded the Court, fully equipped.

The ruling was in response to petitions filed by five groups of people who believed the current government’s attempt to amend section 291 to pave way for a new constitution may contravene section 68 that protects the constitution from being amended in order to topple the constitutional monarchy.

At 14:14 the Court began delivering the following verdict:

  1. It is within the Constitutional Court’s jurisdiction to accept the petitions.
  2. Setting up an assembly to rewrite the entire constitution cannot be done. A national referendum should be held to determine whether a new constitution should be written or not. If seeking to amend the constitution, it is suggested that amendments be done section by section.
  3. The proposed amendment to section 291 does not intend to topple the constitutional monarchy.

The ruling should not be cause for celebration for either the Red Shirts or Peau Thai. On the contrary, it’s the groups that filed these petitions that should be cheering for successfully orchestrating yet another judicial intervention. Dr. Tul Sithisomwong, leader of the Multi-Colored Group responsible for one of the five petitions, was elated: “The verdict effectively presented obstacles for a new constitution.” Kamnoon Sitthisaman, a vocal PAD-aligned senator, and Pipob Thongchai, one of PAD’s core leaders, said the Court did the best it could under the circumstances. “The Court has established itself as the protector of the constitution.”

Indeed, dismissing the complaint that the current government sought to overthrow the constitutional monarchy was the least controversial issue about the verdict. It was obvious to most parties that the claim was too far-fetched. The opposition groups used this claim as a “trap” to get the court to temporarily suspend the reading in parliament. By filing these petitions with the Constitutional Court, they gave the Court a reason to intervene. “On receiving the petitions, the court ordered parliament to delay the vote on the third reading of the charter amendment bill, pending its verdict,” reports the Bangkok Post.

What’s really troubling about this ruling is twofold. First, does the court have the power to rule on this matter in the first place? The 2007 Constitution stipulates that such a petition should be submitted first to the Office of the Attorney General for review. Despite opposition from many legal academics, the Court argued that it has jurisdiction to rule whether the government’s charter amendment plan contravenes section 68.

Secondly, and more importantly, not only did the Court act outside its bounds, it also sought to give “advice” to parliament that rewriting the entire constitution cannot be done unless a referendum is held. By asserting that a referendum is needed, it certainly raises the stakes. “Does the Court understand that a referendum would cost 2,000-3,000 million baht? This is nonsense,” argues Thammasat University’s law professor, Dr. Nantawat Boramanan.

Nowhere is it written in the 2007 Constitution that a referendum needs to be held to determine whether a constitutional drafting assembly can be established. In fact, a referendum is needed in any case to decide whether the people will accept a new constitution in the end. There is no reason for holding two referenda.

Note that the Court said parliament “should” hold a referendum before drafting a new constitution. It was unclear at first whether this was an order or advice. The Court’s spokesperson later said in a press conference that the Court merely gave advice to the parliament and that parliament will have to be held responsible for any decisions taken.

The Court did not disallow the parliament from moving forward into the third reading. Yet, by advising the parliament on what to do on an issue in which the Court’s jurisdiction is questionable in the first place, the Court has effectively and directly intervened.

“The [verdict] is a democratic trap. The Court is a judicial body whose role is to adjudicate…not to mediate or find a solution to a political conflict. Otherwise the Court will lose its legitimacy as an ultimate arbitrator,” argues independent lawyer Weerapat Pariyawong.

The ordeal managed to throw Peau Thai off course. There was much disagreement both within the party and between the party and the UDD – beginning with the Court’s request to halt the third reading (see my earlier article here). After the verdict, some Peau Thai members wanted to push ahead with the third reading, while others wanted to heed the Court’s advice. At the UDD press conference, Nattawut Saikua told a crowd of Red Shirt supporters: “I think we need to proceed through the third reading…or else we need to ask ourselves what the Constitutional Court is for? The fact that the Court argues it has the power to rule on this matter is tantamount to a judicial intervention.” On the other hand, many Peau Thai MPs got cold feet and felt “confused” about what to do next.

One thing is clear is that the Court has managed to get some of the public on its side. After the ruling, the business community cheered on as the SET rose by 17 points. Meanwhile, both Suan Dusit and ABAC polls show more than 80% of the respondents backed the Court’s decision. The Court has, in effect, removed some of Peau Thai’s legitimacy to rewrite the constitution, which was the party’s campaign promise, by arguing for a referendum.

So what next?

Peau Thai can bow to the Court and amend the constitution section by section. This is the most likely scenario if the government still wants to go ahead with the overall framework of “national reconciliation.” Alternatively the government can hold a referendum, which is going to be costly but not implausible. Other options could also be in the making. Whatever the case may be, the process will be delayed as various groups contemplate their next move.

“We became too politicized. Ultimately it all comes back to Thaksin. Our country is stuck for who knows how long and everyone started to sound like a broken record when saying that the Red Shirts will do this or Thaksin will do that. There is no end in sight,” opines Dr. Nantawat.