The outcome of the Constitutional Court’s (close) ruling yesterday is that the court has essentially ruled that changing a basic law that came from an illegal act is out of the question.
The 2007 constitution resulted from an illegal action by a military junta that overthrew an elected government and a widely-accepted constitution. It replaced it with a constitution drawn up by the junta’s hand-picked committee that was tutored by the junta and its unelected government. One of the reversions to type in that junta constitution was creating a Senate that could be controlled by palace-associated conservatives. That control came through appointed members and meant that opposition plus senators were likely to prevent popular change to law and the elite’s state.
Those unelected senators are essentially appointed by panels of judges, creating an inherent conflict of interest when this conservative and undemocratic aspect of the constitution is challenged.
PPT went looking for some of the claims made by the promoters of the 2007 constitution when they were fixing it.
We found this commentary in an academic paper* that kind of summarizes the situation in 2007:
You get a picture from this that parliament was to have control over the amendment of the constitution, and, indeed, amendment was to be by a simple majority in parliament. You also see that the current government has been struggling and campaigning to amend the constitution since it was being doctored into place by the military and associated royalist politicians.
The court has now made it clear that democratizing the Senate is virtually an act of treason by invoking Section 68:
Section 68. 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.
Of course, this is a logical and legal nonsense, but the kangaroos of the court know that their rulings create precedents for elected governments, while juntas can do what they like and make it “legal” later.The court’s ruling also made it clear that it remains an essential politicized element of the conservative control of Thailand’s politics.
While not making these same points, the logic of this analysis is reinforced by Nitirat lawyer Worachet Pakeerut’s statement reported at the Bangkok Post. He calls on the “government and its MPs should reaffirm their democratic rights by continuing with the charter amendment despite the Constitution Court’s ruling…”.
He argues that “the court has no right to halt the charter rewrite, which he considers is part of the democratic duty of elected parliamentarians.” There’s nothing incendiary in this, for that is exactly what the constitution says, and using Section 68 is a ruse by the court to maintain its control and to preserve the junta’s undemocratic constitution. Worachet is correct to observe that “the ruling showed the court reaffirming its role in counter-balancing the ongoing process of progressive democratisation.”
His challenge to “the Pheu Thai Party executives, the prime minister and self-exiled leader Thaksin Shinawatra to make a bold move and reassert their rights despite the court’s ruling,” is, PPT guesses, unlikely to be taken up for his suggestion that “parliament ignore the ruling” and “simply wait for the King to either endorse the amendment or return the bill untouched” shifts the political challenge to the monarchy, and the ruling party is scared witless about such a challenge and is petrified by the idea of pitting parliament against the king.
Not only are they petrified on the power of the palaces networks but they are frightened of the opening it allows opposition political grifters.
Update: The New York Times has a useful account of the court’s decisions, quoting one of the judges:
Supot Kaimook, one of the nine judges of the Constitutional Court, said in the court’s decision Wednesday that the rights of the minority were being trampled.
“Thailand’s democratic system allows the majority to set the standard,” he wrote. “But once it uses its power arbitrarily and suppresses the minority without listening to reason, this makes the majority lose its legitimacy.”
He said the system could no longer be called “democratic” when the majority acted this way. “It results in the tyranny of the majority,” he said.
This is the mantra of the Democrat Party, which loses elections with such regularity that it appears to use a political laxative, and supports the views of anti-democratic protesters who see their rich and privileges selves as a “minority.” The Times added:
To outsiders, the court’s reasoning may appear odd — the direct election of senators would seem to be a move that strengthens democratization. But in a country where mistrust of politicians runs deep and vote buying is common [PPT: we disagree for recent elections], the court argued that if both houses were fully elected, the “political class” would have “absolute dominance of power.” (Many law experts disagreed, with one saying on television that the court’s decision was bizarre.)
That bit in the brackets is in the story and not added by PPT. We could also describe the decision as “bizarre,” but, in fact, all Constitutional Court decisions in recent years could carry that description. In this sense, they are “normal” rather than “bizarre.” In other words, the court has made the bizarre normal.
*We are having trouble getting this link into the post. The academic paper is available as a PDF: kevinhewison.files.wordpress.com/2011/02/hewison-2010_hku_book.pdf