Charter change brings up serious legal dilemma

After two days of a Constitution Court hearing, it seems that the charter-change controversy boils down to a simple dilemma: While the present Constitution does not empower Parliament to write a new charter – or initiate the writing – it apparently does not ban such action either.

The Constitution Court will have to craft a decision to form a legal precedent to deal with this dilemma. Legally, it will not be easy. And it will be a lot more difficult politically. 

The hearing, though relatively uneventful, underlines Thailand’s deep political divide. The court’s ruling, expected in the next few days, will certainly upset half of the country and delight the other half. In other words the court will get praise and condemnation in equal measure, no matter what decision it makes.

Of the 15 witnesses who testified for and against the charter revamp – which is favoured only by the ruling party and its supporters – most opted to give partisan statements rehashing old arguments presented on the floor of Parliament. One side says it is illogical and unconstitutional for a charter to “allow itself” to be dissolved and replaced by a new one. In addition, there are signs that the new charter, if it comes into existence, would arm-twist Thais into accepting a political system favoured by only half the population.

The other side decries this as paranoia, saying no one knows what the new charter will look like. They argue that Thailand writes new charters all the time, and one created in the aftermath of a coup deserves no special protection. Most of all, this democratic soul-searching is supposed to be a long and continuous process.

Only two legal titans on public law brought up fresh arguments outlining the pros and cons that will likely affect the upcoming verdict. On the first day of the inquiry, former charter writer Surapon Nitikraipot highlighted the legal issues for the anti-amendment camp. His most compelling point is that the current (2007) charter was the first to approved in a public referendum, which begs the question of whether another referendum is needed to virtually scrap it.

In Surapon’s view, the 2007 referendum means this charter is a direct reflection of the people’s aspirations. Without a further referendum, this charter only allows amendments to existing provisions, he insists.

On Friday former Supreme Administrative Court vice president Bhokin Bhalakula gave an equally strong rebuttal. The idea of a referendum ahead of drafting amendments is tantamount to taking away the legislative branch’s right to change the charter. It’s also “nonsense” to empower Parliament to amend the charter and yet at the same time require prior public consent for Parliament to begin the process, he said.

According to Bhokin, the country has never prohibited a total overhaul of a charter. Complete charter rewrites happened in 1946, 1991 and 1997, he pointed out, not to mention how the present charter came about.

Surapon and Bhokin had completely opposite views on the court’s power to conduct its inquiry under Article 68 of the present Constitution. Surapon sees Article 68 as the basis for the inquiry, as the overhaul could threaten our political system. Bhokin views the inquiry as unconstitutional due to the bypassing of the Office of the Attorney-General.

While the Constitution Court is unlikely to rule against its own decision to take up the matter, the eight judges have a tough decision to make on whether writing a new charter is allowable.

Things haven’t changed much since the day the court dropped a minor bombshell by accepting a petition against the attempt to write a new charter. The only difference between now and then is that we are much closer today to another political climax. Threats will be made and there will be calls for cool heads. On the one hand, it’s a familiar situation. On the other hand, Thailand is still rolling almost uncontrolled into unknown territory.