Quite a lot of groups, including the Puea Thai Party seem to have gone cold on the election. As PPT said previously, the election solves nothing in terms of the political crisis. However, we agree with those who have been pushing the line that supporting the election is a political act that directly challenges the anti-democrats “reform first” nonsense.
Indeed, following the rules might be a useful lesson for those who never accept that the rules apply to the privileged.
Now, the Constitutional Court has “backed the rescheduling of the election yesterday, though most of them said it would be a joint responsibility for the caretaker prime minister and the EC chief to discuss the issue.” Bangkok Pundit has a useful post summarizing the ruling.
That gives a bit both ways, but is it following the rules? The report continues:
The court said the two should decide whether the election should be rescheduled and if so, a new royal decree issued on when it should be held. In the ruling, the court also cited the rescheduling of the 2006 election, when a royal decree was issued to defer the election date.
Is this following the rules? We looked at the Bangkok Post’s graphic on this, reproduced here.
Section 108 says:
The King has the prerogative to dissolve the House of Representatives for a new election of members of the House.
The dissolution of the House of Representatives shall be made in the form of a Royal Decree in which the day for a new general election must be fixed for not less than forty-five days but not more than sixty days as from the day the House of Representatives has been dissolved and such election day must be the same throughout the Kingdom.
The dissolution of the House of Representatives may be made only once under the same circumstance.
That seems pretty clear to us. The Constitutional Court is again, it seems, making things up as it goes along. Even the reference to a precedent seems odd, for the 2006 election was rescheduled, but not “under the same circumstance.”
The argument that paragraph 2 doesn’t rule out a changed date is true, but only if one ignores what it actually says. “Must” seems pretty darn clear.
At PPT there aren’t any fans of the military junta’s constitution that was rammed through on promises of being able to change it later and with huge royalist and military repression. Yet we were struck by some things in a Bangkok Post op-ed by long-time and elite-connected David Lyman of the law firm Tilleke & Gibbins. Lyman’s father began the connections.
Lyman’s article purports to be even-handed and seeking middle ground, but he essentially accepts the anti-democratic position. Yet it is his comments on the courts and law that caught our collective eye:
As a lawyer dedicated to respect and protect the rule of law, rather than rule by law, I have pondered on the direction of democracy and constitutional law in Thailand. They are in a state of flux. The current constitution may have its flaws, ambiguities and weaknesses, but it is the one we have and, to the extent possible, its provisions should be followed and upheld.
That’s true enough. The problem is that the Constitutional Court itself abuses this basic law. The case above is just one in a series of cases where the court has ignored the constitution it is meant to uphold.
Lyman continues, noting that:
the Constitution Court is under particular scrutiny. It is seen by most as the haven of last resort for good sense, balancing the practices, both good and bad, of the executive branch of government and its parliament against the rule of law and the constitution.
Clearly Mr. Lyman is confusing the court’s “good sense” with what the elite wants. Far from being “free of and above local politics and political pressures,” the court is deeply politicized. He adds that its justices must be able to “judge the legal issues before it according to accepted legal principles and the wording and spirit of the constitution.”
There’s the “out” for the lawyer and the politicized judiciary: it is the spirit of the constitution that matters…. We’ve written on the “spirit” of the 2007 basic law previously.
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. The “spirit” of the constitution, as interpreted by the Constitutional Court, is to give the elite what it wants.
The elite doesn’t want an election until it can change the rules (again). Voting now is a symbolic gesture of rejection. It is a rejection of the anti-democrats and a rejection of double standards.
Update: Bangkok Pundit has a useful follow-up post on reaction to the court’s decision. Note that the Democrat Party and its anti-democracy movement allies are still making demands about the need to change the rules of elections and more prior to an election (presumably they have to be convinced that the rule changes will be sufficient for them to gin a “fixed” election!). The New York Times is cited:
In analyzing Friday’s decision, Pornson Liengboonlertchai, a scholar at Chulalongkorn University in Bangkok who specializes in constitutional law, echoed the views of other experts in saying the court appeared to be making law, rather than interpreting it.
“The power to postpone elections does not exist in any part of the Thai Constitution at all,” Mr. Pornson said on Thai television. “The court itself is trying to establish this power.”
Mr. Lyman, take note.
And Thitinan Pongsudhirak at Chulalongkorn University is right to observe that:
[The ruling] is likely to be seen as part of the build-up to dislodge Yingluck from office, similar to what happened in 2008 but with higher stakes and higher potential for violence and unpredictability…”.