Constitutional Court did not ban amendments to supreme law

People rely on fast and convenient communication. However, it often comes with a lack of restraint or discrimination. As a result, false information is shared time and again.

On Wednesday, the Constitutional Court ruled that the Future Forward Party and its former leader, Pita Limjaroenrat, were attempting to overthrow the constitutional monarchy during their campaign for last year’s election. Pita had regained his MP status just a week earlier after being acquitted of holding media shares while contesting an election, but Wednesday’s ruling puts both him and Move Forward back into hot water.
The ruling means both Pita and his fellow Forward Party MPs might face further complaints that could lead to their imprisonment.

The court on Wednesday ruled that the party’s push to amend Section 112 was an attempt to overthrow the government and the monarch

People who only listened to the end of the ruling may have got the impression that any amendment of Section 112 is equivalent to overthrowing the government and the monarch. As a drafter of the 2017 Constitution, I was shocked at this. So, I was in a hurry to examine the spirit of the Constitution. I found no section that prohibits the proposed amendment of any part of the Constitution. I can therefore guarantee that our Constitution, as well as other laws, can indeed be amended. Politicians have also recently banded together to make changes to our Constitution, the supreme law of the land. However, the more you change it, the more it is like a "monkey fixing a net”. So, as I've suggested repeatedly: “Please create a new draft. Don't make amendments.”

Those who get involved may not understand the true intent of the entire Constitution. Furthermore, many people dislike and have a bias against the 2017 Constitution. Editing would be of no use. Whatever you want, create it yourself.

The election campaigning conducted by Pita, his party's executive committee and its MPs could be viewed as accepting Move Forward’s policies as a norm. In campaigning for the party’s policy on Section 112, they may be viewed as taking direct, indirect, or hidden actions that could lead to the overthrow of the government. The notion of “hidden intentions” is nothing complicated. Under the principles of natural law, "hidden behaviour or actions" can be judged by considering elements of cause and effect as well as the decisions of others. These would include collective actions with the intention or effect of separating the monarchy and the people. Such behaviour reflects a "motivation" that can "foresee the results" of an action that will occur in the future.

The Constitution drafting process covering the monarchy was, in my observation, thoroughly transparent and well-defined.

The Constitution Drafting Committee (CDC) used the utmost caution. I cannot see any ambiguity as alleged by Move Forward people. People from all walks of life, including the drafters themselves, could not imagine things for their benefit. We checked the correctness of our interpretation of the ancient royal tradition. Moreover, the spirit of monarchy sections in Thai constitutions was thoroughly examined, from the first version in 1932 until the present. I lined up new and old versions side by side to compare each section of every Thai constitution so there were no mistakes. If we did not know something, we consulted closely with experts in the relevant field.

The Constitutional Court’s verdict on Wednesday is binding on everyone. Move Forward representatives are spreading information that should be understood in many cases as attempts to lure votes. Those who received the information without considering it carefully may have misunderstood and shared it, thereby unnecessarily increasing conflict. This misunderstanding is now being spread by people claiming that the Constitutional Court's decision may affect the balance of power between the judicial process and Parliament. As someone with in-depth knowledge of the law, I would say the ruling will not have such serious consequences.

But certain groups, including Move Forward supporters, who have not looked at the ruling carefully may be spreading dangerous misinformation about the rule of law, causing the political conflict to expand.

Such ambiguity could lead to petitions being lodged with the Constitutional Court or courts of justice. Lodging a petition with the Constitutional Court mirrors the procedure used for general courts. The petitioner simply requests the court to take immediate action over the alleged offence. The court will normally not consider anything more than the request. However, ordering the dissolution of a party or the removal of a political person relies on a specific process. So, the petitioner must include such a request in the petition.

The author is not biased toward any person group or organisation, although I have seen former political activists cry foul despite hearing that the Constitution currently in use was passed by a public referendum.

Returning to the recent court rulings, we can see that there were two defendants: Pita and Move Forward.

However, under the principle of “collective action” used in Western countries, all MPs who entered the 2023 election under the Move Forward banner without raising objections to it, could face criminal trial.

Amorn Wanichwiwatana

Amorn Wanichwiwatana, DPhil (Oxon), is a former member of the Constitution Drafting Commission and is currently a professor at the Faculty of Political Science, Chulalongkorn University.