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Constitution Court's Verdict upon Amendment of the Constitution for Senator Source, November 20, 2013 (1)
( Last edit 2013-11-28 )
After the general election in July 2011, Pua Thai party under fugitive convicted Thaksin gains the majority in the House of Parliament. Their missions under Thaksin mandate are (a) laundering Thaksin, (b) earning from huge corruptions and (c) demolition of the existing democratic structures to ensure long term security of his tyrant regime. They openly declare abolishment of the constitution and the courts which are check and balance structures against their army of Thaksin's minions through amendment of the constitution.
The previous attempt to topple the whole 2007's constitution through amendment of article 291 prematurely failed during the final stage of the parliament approval in July 2012 when the Constitution Court passed the verdict that the 2007's constitution has been approved by the national referendum, if the parliament wants to reset the whole consitution, it should be approved before hand by the national referendum. Therefore, the bulk reset of the constitution was stalled. But Pua Thai looks for other loopholes.
Moreover, Thaksin orders his Pua Thai coalition to pass the public 50-year-long-debt 670-billion-dollar borrowing bill to finance the highspeed train project and amendment of constitution articles 68, 116, 190 and 237. Article 68 involves the check and balance intervention by the Constitution Court against any undemocratic steps to government power. Article 190 enables public and parliament check-and-balance over the government's negotiation with foreign counterparts. Article 237 counters electoral frauds by barring political rights and terminate any guilty political party.
Article 116 sets the origins of senators into two separate sources, i.e. from general provincial elections and self-selection from various professional groups or professional associations, in order to ensure that people's representatives to form the Senate would come from separate sources and be independent from political parties, in order to counter corruptions among politicians.
Being inter-independent is of paramount importance to ensure definite check and balance against the lower house, the government, the court and other independent check-and-balance organization. Virtually all of the ideas behind 2007's constitution stem from 1997's constitution which was designed to counter corrupt politics-the biggest problem of Thailand.
Failing several attempts to launder Thaksin in the first two years of Yingluck's PM term because of PAD's protest in 2012, in the last quarter of 2013 Thaksin orders full throttle on passing the the big lot "full-house" amnesty bill which would include his corruption and Yingluck's from 2004 to 2013, not only his red-shirt protesters' violent rallies.
The amnesty bill has been opposed from all directions, even from ideological red-shirts and grass roots who have been suffering most from Yingluck government's failures. Also, the draft amnesty bill designed to include Thaksin as well as Yingluck's all corruptions, is against the anti-corruption international charter and is disputed by UN. Disgracefully, Thaksin had to order a temporary retreat because hundreds of thousands took to the street. The bill is now in dormant for 6 months after the Senate's rejection.
Incidentally, the next in line of Thaksin's offensive move is draft amendment of article 116. After the lower house's and Senates' approval, 312 MPs and senators under Thaksin's influence approved the draft, Yingluck hastily proceeded to the final stage of the legislation that is the King's signature without waiting for the Constitution Court's verdict. The plaintiffs include independent 40-senators group, anti-thaksin people and Democrat party the opposition.
Because of Thaksin's urgency, Pua Thai's coalition in the lower house and senators under Thaksin's influence rush the draft bills at full speed by day-and-night house meeting, ignoring and skipping several critical legal requirements. Knowing that they would be caught guilty of the crimes, Pua Thai party publicly and rebelliously boycotts and refuses to accept the Constitution Court's authority from the onset of the proceedings. They deny the court's hearing and any would-be proceedings. As a result, they refuse to be present in the court or submit any evidences and statements to the court.
On Novermber 20, 2013, the Constitution Court passed the verdict upon the amendment of article 116 which sparks another devastation of Thaksin's regime. Here below is the verdict.
The Constitution Court has deliberated the complaints, the plaintiffs' evidences and documents as well as ordered the defendants to submit the final statements. Now, the court has enough evidences to rule. Thus, the verdict will be upon two issues as follows.
Translated from Thai script in Manager
First issue, Whether or not the deliberation process of the draft constitution (number.../year....) of the Kingdom of Thailand is in the manner of illegal acquisition of the government power and unconstitutional.
Second issue, Whether or not the amendment of the draft constitution (number.../year....) of the Kingdom of Thailand is in the manner of illegal acquisition of the government power and unconstitutional.
Before considering both issues above, the court has to initially consider whether or not the Constitution Court has the authority to rule upon the amendment of the constitution.
Any democratic countries have their objectives to establish plans and mechanisms to protect public rights and freedom by allowing the public roles to partake in governing the country and to check the exercise of the state authority. As well, they create among political institutes various check-and-balance systems which are all for balancing the exercise of sovereign power which belongs to the public and is subjected to the principle of division of the authority into three parts, namely: legislative power, administrative power, and jurisdicion.
As we can see from the preamble of the 2007 Constitution of the Kingdom of Thailand which is the supreme law of the country, which expresses the intention of the constitution that the draft has the joint purposes of Thai people to preserve the independence and national security, to cherish all the religions, and to respect the beloved King as admirable head of the nation. The constitutional monarchy is to be the way to govern the country, to protect public rights and freedom by allowing the public roles to partake in governing of the country and to tangibly check the exercise of the state authority, to assign political mechanisms to balance both legislative body and administrative body for efficiency in governing under the parliamentary system, as well as to enable the courts and other independent bodies to perform correctly, honestly, and justly.
From such principles, it is obvious that the purpose of this constitution is for political bodies or institutes to carry out their duties correctly, justly, independently and honestly without conflict of interests, for the public benefits of all Thais. It does not wish any political bodies or institutes to all forms of abuse the authority and all forms of unjust. Moreover, it does not wish any political bodies or institutes to exploit any laws to claim for or to support as basis for their own or their crony's personal benefits.
Although democracy makes decisions following the majority, but if the majority ignores, or selfishly exercises the power or violates the minority without respecting to reasons and without guarantees for minority to comfortably coexist, how can it be counted as democracy? Instead, it becomes majority dictatorship and explicitly contradicts to the governing system of the country. This important principle has been confirmed all along that there must be measures to prevent ones who gain the position to exercise people's sovereign power not to arbitrarily abuse the power for personal or for particular group's benefits, by holding the principles of division of sovereign power which is authority belonging to all Thais, in order that each authorized body or political institute is in the position to properly check and balance others to scrutinize and properly counterbalance. That is not to divide free territory to be independent from others to arbitrarily or haphazardly exercise the authority. If any party is left with absolute authority without being checked and counterbalanced, it would be highly tempted to cause damages and lead the country to ruin because of astray indulgence of the state power holder.
Sovereign power-exercising bodies, no matter head of the state, the parliament, the cabinet or the courts, have been authrorized by the constitution. Therefore, their authority must be limited both in terms of the form and the essence and resulting in their exercise of the power cannot be contradicted or against the constitution. As a result, the 2007 Constitution of the Kingdom of Thailand brings in the rule of law to govern the exercise of power of all parties, all bodies and all government units, to be not only under the principle of power explicitly authorized by the law but also according to the rule of law principle.
Claiming as a majority without considering minority, in order to arbitrarily exercise the authority to achieve goals or objectives despite conflicts of self or group interests against national interests and public peace and order, and any acts which would lead to national disasters and ruin or extensive division among people, contradict to the rule of law as stated by article 3 clause 2 of the 2007 Constitution of the Kingdom of Thailand, as implied by article 68. All exercise of the law and power must be honest, not corrupt, not spurious, and without hidden agenda. Otherwise, the majority honest people of the nation would lose their due benefits to authorized people or group of people who unjustly exercise the power. Rule of law therefore is the way to govern from the natural justice principle which is pure just, without bias and without self and hidden interests. Rule of law therefore is above the tangible written law and the parliament, the cabinet, the courts as well as constitutional and other state bodies must abide by.
As for the principle of democracy which means the government of the people, by the people and for the people, not the government following a particular person or any particular group and not the government which bases only from the election.
Since the government principle in democracy has another important component, any authorized organization or institute who always claim their victory of the election by the people, but actually follow someone's or a particular group's mandate, cannot be a democratic government which intend to benefit the public as a whole under the rule of law. Democracy does not mean only being elected or election victory of politicians because the elected majority only means reflection of eligible voter's wishes in each election. It does not mean that the representatives can exercise the power without respecting rightful and just causes under the rule of law.
Meanwhile, this constitution specifies the Constitution Court for an important role to check and balance the exercise of power to follow the rule of law under the rightful control of the constitution. This is the philosophy of the government in democratic regime which would enable concrete protection of the people's rights and freedom as endorsed by the constitution, along with the maintenance and preservation of the supremacy of the constitution as one can see from article 213 clause 5 which states that the verdict of the Constitution Court is final and obligatory for the parliament, the cabinet, the courts and other state bodies. In addition, article 27 which states that the rights and freedom obviously or subtly approved by the constitution or by the ruling of the Constitution Court are guaranteed to be protected and are directly obligatory to the parliament, the cabinet, the courts and the constitution organic bodies and other state bodies in legislation, law enforcement and all law interpretation.
After thorough deliberation, it is seen in this case that the plaintiffs claim the rights to defend the constitution according to article 68 clause 2 by filing to the Constitution Court claiming that the defendants carried out measures to abolish the Constitutional Monarchy or measures to acquire administrative authority with unconstitutional means, therefore, the Constitutional Court should have the authority to rule.
First issue, Whether or not the deliberation process of the draft constitution (number.../year....) of the Kingdom of Thailand is in the manner of illegal acquisition of the government power and contradicted to the constitution.
(1) Whether or not the draft amended constitution involving sources of senators, which was used in the joint convention of both houses of parliament, is the same one as what submitted to the secretariat office of the House of Representatives acting as the secretariat office of the parliament
The plaintiffs claim that there are several discrepancies between the draft constitution (number.../year....) of the Kingdom of Thailand and the copies which were distributed to the MPs on the first round, the principle acceptance stage.
In this case, for the court's deliberation, the court ordered the secretariat of the parliament to submit the original copy of the draft amended constitution which was presented to the parliament for deliberation in the first round, the principle acceptance stage. Mr.Suwijak Nakwacharachai, the parliament secretariat submitted to the court on November 12, 2013. Examination of the secretariat's submission reveals the draft amended constitution which was presented to the parliament possess hand-witten page numbers starting from: the letter addressing the House Speaker; the name list of the MPs who presented the motion, the name list of the MPs who co-presented up to page 33. But on the next pages which are the record of the principles and reasons, the draft amended constitution and its analytic summary neither have page numbering nor hand-writen message. Additional examination reveals the font used in the page 1 to 33 is different from the font used in the record of the principles and reasons, the draft amended constitution and its analytic summary.
Whereas the attached documents in the plaint of the first and second plaintiffs who claim that they were handed out for the joint parliamentary convention possess hand-written appending next to the draft constitution title on the page of the analytic summary. Also, they possess sequential numbering starting from the letter addressing the House Speaker requesting to submit the draft amended constitution, the name list of the MPs who jointly presented the draft amended constitution motion, and its analytic summary, making a total of 41 pages which also use the same single kind of font from the first to the last page.
Moreover, when taking into the deliberation, the motion documents requesting the amendment of the constitution related to article 190 which Mr.Prasit Pothisuthon proposed, according to the secretariat has submitted to the court, it reveals hand-written sequential numbering starting from the letter addressing the House Speaker; the name list of the MPs who presented the motion, the name list of the MPs who co-presented, and its principles and reasons up to the last page which is its analytic summary. In addition, there is the hand-written appending words "amended (number.../year....)" next to the draft title "Constitution of Kingdom of Thailand" on the page of the analytic summary of the amended constitution.
As for the font used for printing, it is the single same font type from the first to the last page. The feature of page numbering from the first to the last page and the correction of the title of the draft is of the same font from the first to the last page as in the plaintiffs' documents received from the parliament's convention.
From above evidences, it is thus considered that the draft amended constitution (number.../year....) of the Kingdom of Thailand which was submitted to the parliament's deliberation on the first round, the principle acceptance stage, and distributed copies to members of parliament for the convention, is not the original draft which Mr.Udomdej Ratanasathien had submitted to the secretariat office of the House of Representative on March 20, 2013. Instead, it is another newly published draft which has several different texts from the original.
Although Mr.Suwijak Nakwacharachai testified that the documents after admission may be corrected if there are errors which should be only minor such as typos, not editing which would contradictory to the original principles. If major editing had been present, there should have alerted motion co-signers to check the draft amendment after such editing.
In fact, it turns out that there are several changes of the important principles from the original draft, i.e., there is an additional principle by amending article 196 clause 2 and article 241 clause 1. Crucially, the amendment of article 196 would allow senators and ex-senators whose terms have finished, to be eligible for reapply for the post again without waiting for another period of two years in between.
Also, the proceeding appears to be concealing of facts, without notifying all MPs that there was a new draft made. When facts are settled that in the joint convention of the parliament, in the first round, the principle acceptance stage, the draft constitution about the senator origin which was presented by Mr.Udomdej Ratanasathien on March 20, 2013, is not the one that was deliberated. Instead, without MPs' endorsement, it is the newly made draft which has several other principles different from what Mr.Udomdej Ratanasathien presented. As a result, the proceeding of the draft amended constitution which the parliament accepted the principles, subjected to this plaint, is against the constitution article 291 clause 1. click to continue on part 2
Millions of Thais come out to expel Yingluck government, Why? Read THAILAND: UPROOTING WALL STREET'S PROXY REGIME
Red-shirts, supporters of Thaksin gathered in front of the Constitution Court building to protest against and threaten the judges after they accepted to deliberate Pua Thai's cases. Thaksin and his crony always accept courts' verdicts if any ruling is in favour of them but ferociously attack the courts if the verdicts are not whereas Yingluck chants rule of law and legal state for every speech and interview.