Should final decision be left to Constitutional Court?

Should it empower the Constitutional Court to decide what can be done in cases where no provision under the new charter can be applied?

On the first day of its meeting to write a new Constitution article-by-article, the CDC resolved to add another paragraph to a constitutional article that is based on Article 7 of the previous constitution.

Article 7 of the 2007 charter, which was abolished after the coup in May last year, stated that: “Whenever no provision under this constitution is applicable to any case, it shall be decided in accordance with the constitutional practice in the democratic regime of government with the King as head of the state.”

The article in question was among those most abused. Many people cited the clause as an attempt to use “unconstitutional means” to get the country out of a political deadlock intentionally created by some groups. In fact, there were other alternatives available in the constitution, but those people preferred to seek a solution outside the charter.

They talked about an unelected “prime minister under Article 7” who they said could be appointed under Royal Command, although many legal experts said that could not be done.

The constitution drafters added a paragraph that would allow the House of Representatives, Parliament, Cabinet, Supreme Court, Supreme Administrative Court, and any organisation set up under the constitution to seek a verdict by the Constitutional Court where they were unsure about the scope of their authority under Article 7.

With this added paragraph, the Constitutional Court would have the power to decide what cases should be regarded as “the constitutional practice in the democratic regime of government with the King as head of the state.” Simply put, the court will be empowered to interpret the clause in question any way they like.

Some CDC members said that the addition was aimed at preventing requests for a royally-appointed prime minister. “In order to prevent the proposals of a royally-appointed PM that were perceived as a threat to the monarchy, empowering the Constitutional Court to scrutinise charter articles would create a defence for further risks and disputes,” said a member of the charter-drafting subcommittee.

This solution to the problem has put into the constitution a means that has never existed in a democracy. 

It is dangerous to empower a single agency to have the authority over the three branches of government – the legislature, the administration and the judiciary. There are also critics who questioned the Constitutional Court’s neutrality and efficiency.

The proposed power of the Constitutional Court under this added paragraph is similar to that of the idea of a powerful “super-cabinet” proposed during a recent seminar by the King Prajadhipok’s Institute.

This has led to suspicion that the CDC’s latest move on the Constitutional Court may have been well planned as part of a plot.