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 does not empower Parliament to write a new charter, but does not ban such action either.
The Constitution Court will have to craft a decision that offers a legal breakthrough to overcome the dilemma.
Of the 15 witnesses who testified for and against charter change, most opted to give partisan statements, rehashing old arguments presented on the floor of Parliament.
It was left to two titans of public law to bring 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 at the heart of the anti-amendment camp’s argument.
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 was the first to be passed by a referendum vote.
Surapon said the charter is, in comparison to past basic laws, a direct reflection of the people’s aspirations, and not an indirect voice spoken through the people’s representatives.
He said that in his opinion, Parliament has no mandate to write a new charter before getting the people’s consent through a referendum.
The charter only prescribes for amendments to existing provisions, he said.
In his rebuttals, Bhokin said insisting on a referendum ahead of drafting amendments is tantamount to taking away the right to change the charter.
Only the Cabinet is empowered to initiate a referendum under certain circumstances, he said.
It is nonsense to give Parliament the mandate to amend the charter, while at the same time asking for a referendum, which is outside of legislative jurisdiction, he said.
He went on to point out that up to 1997, the country had never prohibited the total overhaul of the charter.
Complete charter rewritings occurred in 1946, 1991 and 1997, he said, not to mention the present charter in 2007.
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 a ban, he said.
Surapon and Bhokin expressed diametrically opposed views on the high court’s inquiry under Article 68 of the Constitution.
Surapon sees Article 68 as a legitimate 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 its verdict.
Should the high court side with Bhokin, then a dismissal is very likely.
The second legal issue is whether Article 291, which prescribes for amendment procedures, can be interpreted to allow for an overhaul of 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 its compliance with the Constitution.
The two remaining issues, whether the charter amendment bill is designed to topple the democratic system of government and whether the co-sponsors of the bill should be punished, are peripheral questions not central to the case.
