The Nation reports (and the Bangkok Post has a similar account) that the Constitutional Court has found it necessary to clarify its decision to intervene in the political process by “checking” on the “constitutionality of the legislative process by which the [charter] amendments are made…”.
Interestingly, the Court’s president Wasan Soypisudh has clarified by specifically confirming that the Constitutional Court is taking a biased political position. While the Court’s president cites provisions of the military junta’s 2007 constitution, he seems to not understand that basic law or, more likely, is reading them in a politically biased manner.
While Wasan states that it “is not the intent of the Constitution Court to block charter change,” he adds that the court is obliged to respond to petitions about the constitutionality of the processes. He is quoted:
Five complaints have been lodged questioning the legality of the push to amend the charter, and under Article 68 of the Constitution, the high court must launch an inquiry into the matter….
PPT again reproduces that section:
[Article] 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.
In the case where a person or a political party has committed the act under paragraph one, the person knowing of such act shall have the right to request the Prosecutor [Attorney] General to investigate its facts and submit a motion to the Constitutional Court for ordering cessation of such act without, however, prejudice to the institution of a criminal action against such person.
The rest of the section is about what the Court does following the above procedure. In other words, Wasan is ignoring the fact that a step in the procedure has been deliberately left out by the Court’s decision. That is the point of illegality that government MPs have noted in their complaints about the Court’s decision.
Wasan is specific in claiming that “Article 68 allowed the judiciary to launch a proactive inquiry…”. PPT can’t see anything of the kind in that provision. Indeed, Article 68 states that the “Prosecutor [Attorney] General to investigate its facts and submit a motion to the Constitutional Court…”. Wasan seems to be concocting a legal position.
Wasan is quoted as stating that the:
judiciary did not aspire to usurp power or infringe on the work of the legislature, he said, stating that charter change could and would remain on course if the charter amendment bill was found to be constitutional.
In fact, the military’s constitution has provisions about how this should be done, in a legal manner (and, again, not proactively as Wasan claims):
[Article] 154. 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.
That seems pretty clear. Why is the Constitutional Court acting in a manner that seems outside the provisions of the constitution?
Wasan points out that the:
core of the five complaints were suspicions that the proposed charter changes fail to adequately uphold the general provisions on Thai nationhood and democratic rule with the King as head of state … in reference to sections I and II of the Constitution.
So the Court is “investigating” the “suspicions” held by petitioners who apparently did not submit their complaints to the prosecutor.
In fact, there is no investigation, for Wasan unequivocally states the Constitutional Court’s political position: “One of the main concerns is there is no guarantee that charter provisions on the monarchy would not be amended…”. He adds:
The judicial inquiry was aimed at getting a guarantee from the government and Parliament that the new charter will not tamper with provisions on nationhood and monarchy….
The inquiry is part of the checks and balances to ensure that the government and Parliament live up to a gentleman’s agreement not to cross the line about nationhood and monarchy….
The outcome of the inquiry would help to root out any hidden agenda against democracy with the King as head of state….
Wasan is making it crystal clear that the Constitutional Court is acting on “suspicions” and demanding that the parliament (read Puea Thai government) provide a “guarantee” that there is no “hidden agenda” to alter the constitution’s current provisions on the monarchy. This is exactly the position of the Democrat Party and ultra-royalists and the Constitutional Court is affirming it.
Over the years there have been several changes to the provisions related to the monarchy, usually strengthening the position of the monarchy and raising its constitutional status beyond that of what would normally be considered normal for a constitutional monarchy. None of the provisions of the constitution prevent the parliament considering changes to the provisions associated with the monarchy.
In short, the Constitutional Court has no legal basis for its current action and there is no historical precedent for it either.
We can only assume that the Constitutional Court has been ordered to move in a manner that appears, at best, politicized, unlawful and unconstitutional.