Why Is The Charter Bill Unconstitutional?

[Gadfly]

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 monarch

 

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 (

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

 

 

Your assumption was indeed wrong. This was my point from the outset: there was nothing in the amendment that threatened the monarchy. I thought everyone knew this. It was obvious. Indeed, there was a specific language prohibiting any proposal that would damage the monarchy. If you can read Thai, you see it here My link

 

The amendments are actually broader than Section 291(1) [which prohibits any change of the constitution that protects the role of the monarch] 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

 

So, going back to my original question: why did the Constitutional Court enjoin the legislature from even a considering this bill? It doesn't threaten the monarchy. In fact, it goes further than the existing constitution in protecting the monarchy.

 

As I said before, the Constitutional Court needs to explain why it took the extraordinary step of enjoining even consideration of this legislation. Even emergency injunctions need to be explained with express references to the facts - here, the actual language of the amendment. That is about basic as it gets. And here the actual language of the amendment goes further than the constitution itself in protecting the monarch.

 

And like I said before, I am waiting to see how the Constitutional Court can justify any of this. As matters stand now, its credibility as a non-partisan judicial body is in tatters - here and internationally. Now, I am waiting to see how the court explains this extraordinary intervention in a transparent and legitimate legislative process without further damaging its credibility. The world is watching.

 

The Embassies all understand this and they are all waiting to see you how the CC explains this manifestly inappropriate intervention in the legislative process. None of the relevant members of the diplomatic community ever thought any of this was legitimate. If the CC drags this out (that is our fear), it will further erode the legitimacy of Thailand's judiciary.

[Specialist]

So, going back to my original question: why did the Constitutional Court enjoin the legislature from even a considering this bill? It doesn't threaten the monarchy. In fact, it goes further than the existing constitution in protecting the monarchy.

As I understand it, the problem is this: the bill that sets up the CDA does NOT enjoin the CDA from altering the constitutional monarchy.

 

The fact that the current draft amendment to Section 291, the draft that the CDA, once appointed, would use as a starting point, does not alter the monarchy means nothing. It appears to me that, without such a specific injunction on the CDA, the Constitutional Court fears that the CDA may indeed attempt to tamper with the monarchy, and there would not be enough teeth in the existing legal framework to stop such an attempt in its tracks.