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Why Is The Charter Bill Unconstitutional?


Gadfly

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FM thanks for the information. It seems like the Constitutional Court is tripping over itself with pretzel logic. It enjoined further consideration of the amendments because, they claimed, of a serious concern it will challenge a democracy under the constitutional monarchy. You say: "The Amendments being considered are not the issue." I suspect you are right about the underlying concern, but that is not what the Court said in its decision. The Court enjoined further consideration of those very Amendments (that are supposedly not the issue). The Amendments therefore are the issue. Can't get more basic than that.

 

Those seeking the injunction "claimed there was no guarantee in the amendments that the CDA will not come up with a new system of government that is not a democracy with the king as the head." That is quite a stretch. Enjoining an Amendment because of what it might do or lead to?

 

This a slippery slope where the Constitutional Court can enjoin the legislature from because of imaginary phantoms about what it might do. Employing that logic, the Constitutional Court can enjoin anything. "Well, you are considering a new Fertilizer Bill, but you might...." You didn't say you would not do this, so we must assume the worst. Shouldn't the burden on the party seeking the injunction to provide - for all to see and evaluate for themselves - of evidence that there is a real risk that the amendments will come up with new system of government that is not a democracy with the king as the head. Basic principles of transparency and fair governance require at least this much.

 

It should not be based on what the Constitutional Court imagines might happen. Imagination and speculation about another party's intent, with no evidence to back it up, can lead to any conclusion.

 

You are right that everyone if focusing on procedural issues: where, in the past, these sorts of petitions could only be submitted through the Attorney General. But I think there is a more fundamental issue here: how can a Court enjoin a legislative body from considering legislation because of concerns that it might pass unconstitutional legislation without citing any evidence that there is any likelihood that it will do so?

 

This will not be perceived as a legitimate decision and you can see why. Maybe both sides will back down for now, but the PT can fairly add this to its list of grievances about a totally non-transparent judiciary that is biased against them. In the not-so-long run, the PAD is cutting its own throats. And this is not good for Thai democracy.

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FM thanks for the information. It seems like the Constitutional Court is tripping over itself with pretzel logic. It enjoined further consideration of the amendments because, they claimed, of a serious concern it will challenge a democracy under the constitutional monarchy. You say: "The Amendments being considered are not the issue." I suspect you are right about the underlying concern, but that is not what the Court said in its decision. The Court enjoined further consideration of those very Amendments (that are supposedly not the issue). The Amendments therefore are the issue. Can't get more basic than that.

 

Those seeking the injunction "claimed there was no guarantee in the amendments that the CDA will not come up with a new system of government that is not a democracy with the king as the head." That is quite a stretch. Enjoining an Amendment because of what it might do or lead to?

 

This a slippery slope where the Constitutional Court can enjoin the legislature from because of imaginary phantoms about what it might do. Employing that logic, the Constitutional Court can enjoin anything. "Well, you are considering a new Fertilizer Bill, but you might...." You didn't say you would not do this, so we must assume the worst. Shouldn't the burden on the party seeking the injunction to provide - for all to see and evaluate for themselves - of evidence that there is a real risk that the amendments will come up with new system of government that is not a democracy with the king as the head. Basic principles of transparency and fair governance require at least this much.

 

It should not be based on what the Constitutional Court imagines might happen. Imagination and speculation about another party's intent, with no evidence to back it up, can lead to any conclusion.

 

You are right that everyone if focusing on procedural issues: where, in the past, these sorts of petitions could only be submitted through the Attorney General. But I think there is a more fundamental issue here: how can a Court enjoin a legislative body from considering legislation because of concerns that it might pass unconstitutional legislation without citing any evidence that there is any likelihood that it will do so?

 

This will not be perceived as a legitimate decision and you can see why. Maybe both sides will back down for now, but the PT can fairly add this to its list of grievances about a totally non-transparent judiciary that is biased against them. In the not-so-long run, the PAD is cutting its own throats. And this is not good for Thai democracy.

 

I don’t disagree that it would be a bit of stretch for the court to have issued a decision based on what the CDA might come up with, but they did not issue a decision, they issued an injunction to give them time review the petitions. It was not a ruling on them.

 

I think that after that review they will allow the amendments to go forward. They might say that it needs to be changed to ensure that the constitutional monarchy system cannot be changed by the CDA and section 68 will not be violated.

 

I don’t see anything wrong with putting limits on what the CDA can come up with. Of course, for some of the UDD factions, they do not want any limits as they indeed have several other agendas.

TH

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PT to vote against court order

 

 

Pheu Thai executives agreed at a meeting on Monday that the party will vote to defy the Constitution Court's order to delay the third reading of the charter amendment bill, party spokesman Prompong Nopparit said.

 

Mr Prompong said the executives were firm in their opinion that the court had no right to infringe on the legislative branch.

 

Therefore, if a vote was called on the issue in the joint sitting of parliament on Tuesday, Pheu Thai MPs will vote for parliament not to comply with the court's order.

...

 

 

 

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Pheu Thai has decided against defying the Constitutional Court order. This was a smart move by Pheu Thai.

 

This means that the Constitutional Court must now consider the matter in detail and decide if it should issue a permanent injunction. That decision will be available for public comment. The Constitutional Court cannot plausibly dodge issuing a detailed decision by claiming it was unable to provide any rationale for its decision because the urgent nature of the matter. It will need to explain its decision in a published decision.

 

To maintain the injunction, the Constitutional Court must persuasively explain why the proposed Charter Bill (e.g., changing the constitution so that all senators are elected instead of just slightly more than 50%) undermines a democracy under a constitutional monarchy. That is the sole issue before the Court. It has nothing to do with Thaksin, the red shirts or the yellow shirts or anything else. It can't be based on the shrill rhetoric from reds and yellows you see in comments on this issue. For the Constitutional Court to maintain any shred of credibility domestically and internationally, it must explain why the Charter Bill constitutes a real and serious threat to Thailand's democracy under a constitutional monarchy.

 

If it cannot do so, it should lift the injunction. That is the only right and decent thing to do.

 

If it maintains the injunction on the basis of an obviously partisan and implausible argument that has nothing to do with a clear and imminent threat to Thailand's democracy under a constitutional monarchy, it will the subject to serious and substantial domestic and international criticism. Its legitimacy will be further, and perhaps fatally, eroded.

 

And here's the irony and the tragedy: the Constitutional Court can stand as a check against the tyranny of a Thaksin regime, but only if it has legitimacy. If it sacrifices that legitimacy to prevent passage of the Charter Bill on bogus grounds, its loses the legitimacy it needs to stand up to Thaksin and his cronies.

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...To maintain the injunction, the Constitutional Court must persuasively explain why the proposed Charter Bill (e.g., changing the constitution so that all senators are elected instead of just slightly more than 50%) undermines a democracy under a constitutional monarchy. That is the sole issue before the Court.

 

As is usual, you have missed the point because you refuse to use the facts or do any analysis of them, instead resorting to inaccurate hyperbole based on what you have been told is the issue by a biased reporting.

 

The “Charter Bill†being considered does not have a provision to change the Senate to 100% elected or any other such changes. All it is doing is changing article 291 that deals with how the constitution can be changed. They are following section 291 to make this change.

 

Again, the amendment being proposed sets up an alternate way to make changes via a Constitutional Drafting Assembly (CDA). There are no limits to what the CDA can come up with; including an entirely new constitution, which for some PTP and UDD factions is the announced intent. This is the exact same process that was used n drafting the 1997 Constitution which replaced the 1991 version by a vote of the National Assembly (not a national referendum).

 

Personally I don’t see it doing away with constitutional monarchy system, but there are no guarantees that it won’t and in the amendment such constitutionally issues with whatever it comes up with is not reviewed by the Constitution Court but by the President of the National Assembly.

 

Hopefully, even you can see why the opposition to Thaksin and his wholly owned political party and so called democracy movement are worried about what will come out of this new CDA and how it could be ramroded through.

 

PTP could easily deal with these issues by making changes in the amendment to address them, but they have to date refused to do so and have overridden any debate about it.

 

If the intent was to only make changes to the Senate or do away with the party dissolution sections, those could be addressed by amendments made under the current section 291. Why do they need a CDA to make these changes? What else is on the agenda for what will undoubtedly be a thoroughly stacked CDA?

 

TH

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You say: "This is the exact same process that was used n drafting the 1997 Constitution which replaced the 1991 version" This "exact same process" has been used before and no one previously challenged the constitutionally of that process? It was acceptable then, meaning there is precedent establishing that this is an acceptable process to amend the constitution. If it was constitutional now, why is it unconstitutional now?

 

Let's get serious (meaning you need to refrain from my distracting personal attacks): this was a purely political decision. It had nothing to do with any real or even imagined threat to the Monarchy. Staying on issue, PT's decision to refrain from pressing forward means the Constitutional Court has no choice now but to address the Charter Bill and publicly explain their reasoning. That should be a hoot. If they uphold the injunction, the obvious question will be: why was it OK for the 1997 constitution but not now?

 

And even if the injunction is upheld, PT will just introduce a new Charter Bill that accomplishes their goals while meeting the make believe and politically convenient objections to the current Charter Bill. The yellows and and Dems have been out maneuvered again. The yellows and PAD aren't accomplishing anything with these stunts; instead, they are undermining their already anemic credibility with the Thai and the international community.

 

It's a shame that Thailand does not have a truly democratic opposition to the anachronistic Democrats and opportuntistic PT.

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Let's get serious (meaning you need to refrain from my distracting personal attacks):

 

The drafting process for the 1997 Constitution was always to come with a entirely new constitution outside the national assembly and in an atmosphere that was nothing like the divineness that permeates today’s politics. There was no elephant in the room such as Thaksin represents today, pulling the strings of his Shin Corp subsidiary political party and democracy movement with the single agenda to get his money back.

 

The conclusion that PTP backing off forces the Court "to address the Charter Bill and publicly explain their reasoning" is illogical. By issuing the injunction the court was always going to have to address the petitions. That was the reason for the injunction, to give them time to review and make a ruling. Any ruling they make on the petitions has always had to be accompanied by an explanation. How does PTP backing off from ignoring the injunction change that?

 

Then from the non sequitur that backing off from the confrontation with the court forces them address the issue you come up with another one. "The yellows and and Dems have been out maneuvered again". It appears that Thaksin is the one that has been "been out maneuvered" and has been forced to back off his single minded agenda, at least for now.

 

I agree, let's do get serious and we can start with you actually addressing the questions I raised rather than continuing with your non sequiturs and spurious attacks on the Democrats.

 

Why are constitutionally issues with whatever the CDA comes up with not reviewed by the Constitution Court but by the President of the National Assembly.

 

 

If the intent was to only make changes to the Senate or do away with the party dissolution sections, those could be addressed by amendments made under the current section 291, why do they need a CDA to make these changes?

 

What else is on the agenda for what in the current political climate will undoubtedly be a thoroughly stacked CDA?

 

What would you expect a "truly democratic opposition" to do to stop the changes they oppose, such as giving Thaksin amnesty and returning his money? Is sitting on your hands quietly in Parliament while the democratic process is shredded on the orders and behest of a single person democratic and would meet your approval? Is going the court somehow undemocratic? Or are you just indulging in an instinctive, knee jerk attadck on anything that is done by Thaksin’s opponents?

 

TH

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Than Phu Naam is willing to do anything to get back in power:

 

Suthep says Thaksin sent 'negotiator' to him

 

Democrat MP for Surat Thani Suthep Thaugsuban is claiming ousted prime minister Thaksin Shinawatra sent a representative to approach him for reconciliation talks.

 

However, Mr Suthep did not disclose the name of Thaksin's alleged representative.

 

A source in the opposition party said Thaksin made contact with Mr Suthep through one of the former 111 Thai Rak Thai executives last week.

 

Mr Suthep yesterday told the Bangkok Post that he is suspicious of Thaksin's commitment to fostering reconciliation in the country.

 

"It is pointless to hold talks with Thaksin because he will go back on his word again. It will be hard for me to explain to people close to me and to my voters.

 

"To be frank, I've been fooled several times. It would be a shame to be [fooled] again," Mr Suthep said.

 

Mr Suthep said he has asked the "coordinator" to pass on some advice to the deposed prime minister in a goodwill gesture.

 

The Democrat MP said he has asked Thaksin to back down on his plans to push for the charter rewrite and trying to whitewash his wrongdoings through a reconciliation bill.

 

"If the constitutional amendment and reconciliation bids are stopped, there will be no grounds for fresh political tension," he said.

 

Mr Suthep said he has also urged the former prime minister to allow the Pheu Thai-led administration a free hand in running the country.

 

The Democrat MP said he is confident that the Yingluck Shinawatra cabinet is politically stable and capable of completing its four-year term if it is free of pressure from Thaksin.

 

Mr Suthep has suggested that Thaksin hold talks with red shirts and cut ties with the hardcore ones or more damage would be inflicted upon the country.

 

"If he can do so, half of the red shirts may end up joining Pheu Thai. When they [the hardcore] don't receive financial aid, they will be less dangerous to the country," Mr Suthep said.

 

Mr Suthep has also asked Thaksin to stop his support for what he claimed was the training of armed groups for use in inciting violence.

 

"I gave him my advice through the contact last week. I have no idea if he will listen," Mr Suthep said.

 

Meanwhile, a source in Pheu Thai admitted yesterday that attempts have been under way to negotiate with the Democrat Party, especially Mr Suthep. :hmmm:

 

The source said the Democrats have constantly rejected Pheu Thai. But the ruling party saw no point in having enemies after its election victory.

 

"We've entered negotiation mode but our efforts are futile. Mr Suthep thinks he has the upper hand and rejects holding talks," said the Pheu Thai source.

 

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Your post contains a great deal of speculation about PT's intent in introducing the Charter Bill, but that is irrelevant. If a court can enjoin mere consideration of legislation simply based on a claim about its purported intent to benefit one side or the other, there is no limit on what a constitutional court can enjoin. We're now waiting for the court's ruling. That ruling should be based on what is in the four corners - the actual text - of the charter bill. What exact provisions in that charter bill overturns the constitutional monarchy?

 

Everything else you mention is irrelevant and misdirection. Pause and think about it for a moment: even if you think a Court can enjoin legislation before it is enacted (a dubious position), should a court be allowed to enjoin even consideration of legislation when it cannot point to anything unconstitutional in that legislation simply because of conjecture and speculation about some imagined nefarious conspiracy behind the "real" intent of the legislature?

 

It would be an extraordinary decision and a radical departure from constitutional jurisprudence as it recognized in the rest of the world to do so. Courts are supposed to decide legal dispute based on existing laws and the facts - here, at the actual text of the Charter Bill - not wild speculation about some hidden conspiracy to over throw the monarchy.

 

The Charter Bill probably will benefit Thaksin. But that is not a legitimate basis for saying the bill is unconstitutional. Indeed, the Constitutional Court is not saying the Charter Bill is unconstitutional because it benefits Thaksin. They're claiming that the text of the Charter Bill raises concerns about a threat to a constitutional monarchy that are so obviously evident from the text of the Charter Bill and so serious that it was compelled to take the extraordinary step of enjoining Parliament from even considering the Charter Bill.

 

I want to see the justification for this. Thaksin and the red shirts are irrelevant. The only thing that matters is the language of the Charter Bill.

 

Questions about Thaksin, his devisiveness and his policies are not in front of the court or on the table for discussion. The sole issue that faces the court is this: what specific provision or provisions of the Charter Bill overturns the constitutional monarchy?

 

Since we need to wait and see how the Constitutional Court rules, I see no point in further argument. Let's wait and see the decision they issue. And let's hope they don't stall in doing so.

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The Bangkok Pundit has an article that discusses the actual wording of the proposed amendments to section 291. According to his translation there is wording in the amendments that explicating forbid changing the system of government from a constitutional monacrch

 

The amendments are actually broader than Section 291(1) as not only do they not allow the effect of changing the democratic regime of government with the King as Head of State or changing the form of State, but they also do not allow the draft to the amend provisions in the Chapter on the King – which is Chapter II of the Constitution and which deals with the role of the King, the role and selection of the Privy Council, the Regent, and succession. There is no evidence in the amendments of a threat to “overthrow the constitutional monarchyâ€. They specifically prohibit it.

 

His analysis of why the court accepted the petitions and what they will likely rule

 

…The Court in its defence did not actually state what evidence of a threat there was. They have just said people said there was a threat so we would look into that. Based on the evidence presented, and the actual wording of the amendments is the most relevant, there is no evidence of a threat to overthrow the monarchy. Unless there is some no evidence introduced – exactly what is even hard to imagine – it will be very difficult for the court to find an argument to stop the amendments, let alone, do something beyond that like dissolving Puea Thai and banning its executives.

 

The court then is much more likely to (a) either dismiss the petitions, or (
B)
look for a face-saving move, such as, require a more strongly worded guarantee. This then provides the rationale for the court accepting the petition in the first place (and hence avoiding criticism of the court for delaying the amendments). It would mean we have additional delays in the amendments which was the whole point of the entire exercise in the first place. The government is then put in a position of defying an actual decision of the court – which is different from an actual order – as opposed to complying and there only be a further delay.* The easier thing to do for the government then is to comply….

 

As I had not seen anything on the actual wording, I was incorrect in my assumption the amendment did not have wording limiting what the CDA could do. I was correct that the the court issued the injunction to give them time to review the amendment and answer the question raised by the petitions. I also said, this is just a delaying tactic, there is little that can be done by the opposition to stop the passage.

 

TH

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