Two legal titans clash over charter change
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In a nutshell, the charter change inquiry boils down to a simple dilemma - the Constitution has not empowered Parliament to write a new charter but does not ban such action either.
The Constitution Court will have to craft its decision to make a legal breakthrough overcoming such dilemma.
Of the 15 witnesses testified for and against charter change, most opted to give partisan statements rehashing old arguments presented on the floor of Parliament.
Only two legal titans on public law brought up fresh arguments outlining the pros and cons which will likely impact on the upcoming verdict.
On the first day of the inquiry, former charter writer Surapon Nitikraipot highlighted the legal issues for the anti-amendment camp.
The next day, former Supreme Administrative Court vice president Bhokin Bhalakula gave convincing rebuttals on the pro-amendment camp’s behalf.
The most compelling issue raised by Surapon is that the 2007 charter is a first to pass the referendum vote.
Surapon said the charter is, in comparison to past basic laws, a direct reflection on the people’s aspirations and not an indirect voice spoken through the people’s representatives.
He said in his opinion, Parliament has no mandate to write a new charter before getting the people’s consent through referendum.
The charter only prescribes for amendments to existing provisions, he said.
In his rebuttals, Bhokin said the idea of a referendum ahead of drafting amendments tantamounts to taken away the right to change the charter.
Only the Cabinet is empowered to initiate the referendum vote under certain circumstances, he said.
It is nonsense to give Parliament the mandate to amend the charter but at the same time ask for the referendum which is outside of the legislative jurisdiction, he said.
He went on to point out that upto 1997, the country had never prohibited a total overhual of the charter.
The complete charter rewritings happened in 1946, 1991, 1997, he said, not to mention the present charter.
Under the suspended 1997 charter, only provisions on statehood and democratic rule with the King as head of state were banned from any changes.
The bill to amend the Constitution did not violate such ban, he said.
Surapon and Bhokin have a complete opposite view on the high court’s inquiry under Article 68 of the Constitution.
Surapon sees Article 68 as the basis for the inquiry. Bhokin views the inquiry as unconstitutional due to the bypassing of the Office of the Attorney General.
The mandate under Article 68 is the very first of four legal issues that the high court will address in forming the verdict.
Should the high court side with Bhokin, then the verdict of dismissal is very likely to happen.
The second legal issue is whether Article 291, which prescribes for amendment procedures, can be interpreted to overhaul the entire charter.
This is seen as the central question on the parliamentary mandate to write a new charter.
The high court is expected to shed light on the extent of charter change as well as outline on the constitutionality compliance.
The two remaining issues, whether the charter amendment bill is designed to topple the democratic rule and whether the co-sponsors of the bill should be punished, are of peripheral questions not central to the case.
