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Constitution Court's Verdict upon Amendment of the Constitution for Senator Source, November 20, 2013 (2)
( Last edit 2013-11-28 )
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(2) Whether or not the date setting for modification of the draft amended constitution (number.../year....) of the Kingdom of Thailand is legal by the constitution.
Debate or expression of ideas in legislating process is fundamental rights of MPs, particularly those who would modify the motion, have reserved to modify the motion, or commissioners who reserve their comments. They duly have the rights to debate and express their reasons for the issues of modification of the motion, reservation the modification of the motion, or for what they have commented.
For this issue, the evidences in the case and the testimony to the court during the investigation, reveal that the first round and the second round, the first and the second defendants alternately presided the convention. In the first round, fifty seven of debate requesters, modification-of-the-motion requesters, the modification-of-the-motion reservers, and comment reservers were denied the rights with the claim that those comments are against the principles, although no debate was heard yet.
The first and the second defendants, followed the majority vote in the convention to terminate the debate. It is seen that despite the termination of the debate is for the first and the second defendants to rule and even with the majority votes supporting the termination of the debate, the ruling and the majority votes must neither override the duties of MPs nor ignore the minority's comments. Premature termination of the debate and the adjourn of the convention in order to force the convention to vote, is therefore, illegal exercise of power to benefit the majority with bias and against the rule of law.
Moreover, the plaintiffs claim that the timing for modification of the motion is illegal. They claim that after the convention accepted the principles in the first round, on April 4, 2013, there were requests to modify the motion at 15 and 60 days for which the convention's regulation stipulates that the parliament convention must vote for the length of time. Before the vote, there was a trouble with quorum which did not qualify as the constitution states. The vote was then not carried out. The first defendant ordered the time for submitting the motion within 15 days from the date of the parliament's acceptance of the principles. But there was an opposer. The first defendant then called another convention on April 18, 2013, in which a resolution of 15 days for modification of motion was passed. However, the first defendant concluded that the time to be counted for 15 days must start from April 4, 2013. Therefore, the actual time for modification of the motion was not 15 days as determined by the convention and leaving only one day for MPs to present the modification motion.
As for motion modification, it is the right of MPs to propose their ideas and sufficient time is needed for MPs who wish to modify the motion should know the exact time to submit the request. This is the right to carry out the duty of MPs under the constitution. The timing of the motion modification may not be backward. Instead, it must be counted from the date of the convention's passing the resolution.
If the time is counted backward, there would be only one day left for requesting motion modification which is against the regulation of the convention and unfair, therefore contradictory to the constitution article 125 clause 1 and clause 2 as well as the principle of the rule of law in the constitution article 3 clause 2. Thus, the timing for modification of the motion is illegal and against the constitution article 3 clause 2 and article 125 clause 1 and clause 2.
(3) Whether or not the methods of personal identification and voting in the deliberation of the motion to amend the constitution relating to sources of senators, is constitutional.
Upon consideration of the important principles of parliamentary democratic government, it is obvious that MPs are very important to the system because those are representatives through people's election or selection, in order to exercise legislative authority on behalf of the people.
However, under the Constitutional Monarchy, the 2007 Constitution of the Kingdom of Thailand article 122 clearly stipulates that MPs and senators are representatives of all Thais without any commitment to other mandates or influences. They must carry out the duty with honesty for the collective benefits of all Thais without conflict of interests. Also, their duty must follow the rule of law as stipulated in the constitution article 3 clause 2 which states that the parliament, the cabinet, the courts as well as constitutional and other state bodies must abide by the rule of law.
As for the exercise of the authority of MPs, as representatives of all Thais who are actual owners of sovereign power, the constitution article 126 clause 3 sets one important principle relating to the authority in legislature that one MPs may cast one vote in each vote except the vote is tie, the Speaker of the convention may cast a decisive vote. Therefore, in each vote of each MP performing the duty, the self identification to vote is specific to each individual. They have to identify themselves in each convention to deliberate any motion by themselves and may cast only one vote in each issue.
Any deeds falsifying the vote casting must be considered unconstitutional and against the intent of the constitution. Having deliberated, it is seen that in this case, the plaintiffs have eyewitnesses to testify along with crucial evidences, that is DVD recording footage of three episodes of such deeds, showing that a certain MP was applying electronic ID cards to vote on behalf of others in a voting machine during the deliberation of draft amended constitution related to sources of senators.
For this, Miss Rangsima Rodrasmi, a Democrat MP, as a witness of the second plaintiff and fourth plaintiff, testified with the three video clips, to confirm that there was such person inserting several electronic ID cards into a voting machine and press the button for identification and vote on behalf of several others in each voting session. According to the testimony of Mrs.Achara Juyuenyong, head of audiovisual department, secretariat office of the parliament, each minister and MP has one personal electronic ID card in order to identify oneself to check quorum and to vote. Another set of spare copy of the cards for each one is kept with the office is to be used if any MPs do not bring their cards Another set of spare copy of the cards for each one is kept with the office is to be used if any MPs do not bring their cards along.
In addition, the sounds heard in the video clips are corresponding to the sounds of the recorded video of the televised the convention of the parliament and the convention report which is the same period of time of the joint parliament convention mentioned in the plaints. The recorded video is the evidence which the secretariat of the House of Representatives sent to the Constitutional Court.
Also, during a witness interrogation, the parliament secretariat who saw and listened to the video clips testified that he remembered the voice of the House Speaker which was presiding the convention at that moment. Additionally, Miss Rangsima Rodrasmi, a Democrat MP, as a witness of the second plaintiff and fourth plaintiff, testified with photos from the video clips submitted by the second plaintiff, indicated that the 162th defendant, an MP, was serially inserting several electronic ID cards into a voting machine and serially pressed the identification button several times.
Moreover, the plaintiffs' witness testified to confirm that she. without personal adversary and conflicts, recognized this defendant well. Despite this complaint, she still conversed as usual with him because she has been an MP for 10 years and was following, checking and making complaints about the abuse of the ID cards to vote on behalf of others all along. Mr.Naris Thongtirat, in particular, asked her assistance to take photos and videos for the evidences in the filing.
On inspection of the photos shown by the witness to the court, a side view of a person's face is seen and can be confirmed that it is Mr.Naris Thongtirat, the 162th defendant, who wore the same-colour suit as appeared on the video clip when he was holding a number of electronic ID cards of more than two, more than each MP is supposed to have. He was seen inserting and removing such electronic ID cards in the card-reader slot and pressing the button on the reader continually. Thus, such acts are misbehaviours of an MP in using ID cards for identification and in voting with multiple electronic ID cards.
From the evidences and the testimony during the investigation, the video and eyewitnesses' testimony supporting the video of the televised parliament convention at the time of voting for the draft amended constitution relating to the source of senators are obvious that several MPs did not come to vote in that event and let another MPs cast the votes on their behalf in the deliberation of the draft amended constitution.
Such proceedings not only violate the fundamental principles of being member of parliament which supposedly represents all Thais and should have performed the duty without any commitment to other mandates or influences. They must have carried out the duty with honesty for the collective benefits of all Thais without conflict of interests as stipulated by the constitution article 122. Such proceedings are also against the parliament convention regulation and the principles of honesty which the MPs have pledged according to the constitution article 123, as well as contradictory to the principles of voting as stipulated by article 126 clause 3 which permit one MP to cast one vote in each voting. Thus, that casting of votes was corrupt, not following the intent of all Thais because it comes from illegal proceedings, against the parliament convention regulation and unconstitutional as mentioned above. It is then considered an illegal resolution of the parliament in deliberation proceedings of the draft amended constitution.
The second issue to deliberate is: 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.
The amendment of the constitution according to the draft amended constitution, which the plaintiffs filed the complaint to the Constitutional Court to deliberate, possesses several changes in issues of practice of senators. Therefore, the deliberation must be whether or not such draft amended constitution abolishes Constitutional Monarchy, or for anyone to unconstitutionally acquire the government power.
It is seen that the 2007 Constitution of the Kingdom of Thailand was drafted with the 1997 Constitution of the Kingdom of Thailand as a template of which several principles about properties of senators have been changed to prevent troubles as what happened under the 1997 Constitution of the Kingdom of Thailand.
In detail, it has been stipulated that there are selected senators in equal proportion with elected senators to form the Senate, in order to provide opportunity for people in all sectors and all occupations to jointly perform in the Senate to carefully benefit the country. Also, the properties of senators are also set to be independent from politics and MPs. For example, parents, spouse and children of MPs or political-post holders are prohibited to be senators. Relationship with political parties and other political posts are prohibited to senators for 5 years.
The 2007 Constitution of the Kingdom of Thailand stipulates that the Parliament comprises of 2 Houses, the Senate and the House of Representatives, to balance each other. By this manner, the role of senators is to be a checking body, screening MPs' works and counter balance against MPs' authority by the power of checking and MPs revocation in case of MPs being accused of: unusual wealth indicating corruption to the duty, unconstitutional abuse of power against the law, or severely violation or not following ethical standard as stipulated in article 270.
Having deliberated senator's authority, it is seen that the intention of the constitution is to free senators absolutely from MPs, resulting in stipulated prohibition of close interrelationship. Otherwise, there would be no straightforward scrutiny and contradictory to the principle of check and balance against each other, which is the basic principle of this constitution.
According to the plaints, the amendment of this constitution is a backward change to the drawbacks in the past which are sensitive drawbacks risky of distrust and disunity of all Thais. It is an attempt to bring the country backward into the darkness, allowing the Senate to return to be a college of family, relatives, and spouses, losing the status and potential of wisdom for the House of Representatives to become a reflection of the same group of people, destroying the essence of having two houses, leading to monopoly of the state authority, excluding partaking of all people of various branches and various occupations, affecting the Constitutional Monarchy and allowing collaborators to unconstitutionally resume the government authority against the 2007 Constitution of the Kingdom of Thailand which has been approved by all Thais through the national referendum.
In addition, the amendment of the source of senators to only come from election which is the same source as MPs, would make it as a single parliament out of the two, without difference and independence from each other, absolutely destroying features and essence of two parliamentary system. The amendment of the source and properties of senators to allow relationship with political partisans or MPs and significantly destroy principles of check and counterbalance of the two parliamentary system, enabling political partisans to gain absolute control over the parliaments without checking and counterbalancing, would affect the Constitutional Monarchy and open loopholes to any relevant party in this deed to gain unconstitutional authority to govern the country as stipulated by the law.
Moreover, the matters about legislature processes of organic laws for election of MPs and senators in the draft amended constitution article 11 and article 11/1 are also against the Constitution because such organic laws enactment would be unduly shortened, not following the constitution article 141 which stipulates that the draft constitution must be scrutinized by the Constitution Court before hand. This is against the check and balance which is a principle in democracy and would allow the political partisan to arbitrarily legislate with majority and free from scrutiny.
With reference to the above ruling, therefore, the court rules with the majority of 6 to 3 that the process of deliberation and the resolution to amend the constitution by all defendants in this case, is unconstitutional and against article 122, 125 clause 1 and clause 2, article 126 clause 3, article 291 and article 3 clause 2.
The court rules with the majority of 5 to 4 that the draft amended constitution has essential matters which are contradictory to basic principles and intents of the 2007 Constitution of the Kingdom of Thailand. Therefore, the defendants have committed the deeds which are acquisition of the government power with unconstitutional means, not stipulated by the 2007 Constitution of the Kingdom of Thailand and against article 68 clause 1.
As for the plaintiffs' requests to disband the relevant political parties and revoke voting rights of those parties' directors, it is seen that it does not fit the condition according to the 2007 Constitution of the Kingdom of Thailand article 68 clause 3 and clause 4. Thus, such requests are lifted.
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