Verdict puts the ball right back in govt's court

Yesterday’s Constitution Court verdict on the charter amendment bill was first described as a “win-win” or “nobody wins” situation for both sides in Thailand’s political conflict. Advocates of the current Constitution were able to celebrate the fact that the court only gave a limited green light to the process of charter overhaul. In other words, the court did not find the attempt to set up a Constitution Drafting Assembly (CDA) to be illegal, but did not sanction the creation of a brand-new Constitution either. Government supporters can be happy with the fact that the ruling Pheu Thai Party was not convicted of anything and that charter reform can now go ahead, albeit with some conditions.

After the verdict sank in, though, it seemed that one side was happier than the other. That the court did not allow the drawing up of a new constitution left a bad taste in the mouths of many red-shirt leaders. Thida Tojirakarn said she disagreed with the verdict “virtually on all counts”. Nuttawut Saikua said he would prefer a public referendum on whether the Constitution Court should continue to exist. In a less aggressive tone, Jatuporn Promphan said the charter reform agenda of the government must move ahead.

The Democrats, who campaigned against the charter amendment bill, were apparently satisfied that the court gave some level of protection to the existing Constitution. According to the court, a new charter can be created only after a public referendum is held to do away with the current Constitution. This leaves the pro-overhaul camp in an awkward position. The government will have to make a tough decision on whether it will continue to seek the writing of a new charter or back away from the original plan and do selective amendments to the current charter as the court suggested.

Neutral observers can see a reasonable verdict. Writing up a new charter, under normal or less confrontational circumstances, is a way to cleanse a defective political system. Under the present situation, however, it may only fuel national strife and eventually defeat the government’s proclaimed purpose of restoring political peace. 

The court did not denounce the government’s charter plan, clearly saying that concerns that have been expressed are premature. And the court’s call for a public referendum to back up the writing of a new constitution stemmed from the fact that the existing Constitution was approved in a public referendum.

As of now, the government can choose to ignore the verdict and go ahead with writing a new charter, as its MPs have overwhelmingly voted to defy the court’s stand. Or the government may yield to the court by calling a referendum to determine if Thailand wants to do away with the existing charter. Or the government can choose to have the CDA do as the court suggests – which is amend the current charter and not write a new one. The last option is for the government to scrap its current charter revamp plan and have Parliament amend the existing Constitution selectively instead.

All options have their own risks but it is obvious which option carries immediate threats to political stability. Ignoring the court totally and going ahead with setting up the CDA to write a new charter will virtually be a declaration of war between the executive and legislative branches on one side and the judiciary on the other. Highly dangerous as it seems, this option must be favoured by hardcore red-shirt leaders who view the Constitution Court with disdain.

Selectively amending the current charter is also risky, depending on what articles are targetted. Article 309, for example, protects the post-coup legal clampdown on Thaksin Shinawatra while other articles give “independent bodies” like the Constitution Court power to counterbalance politicians in power. Attempts to tackle these articles will undoubtedly raise the political temperature, as one side of the political conflict will strongly oppose them.

Calling for a referendum to practically dissolve this existing charter is not easy either. There will be fierce campaigns on both sides, and that will not do the government’s stability any good. Moreover, if the government loses in the referendum, the charter reform scheme will be dead in the water.

The ball has been put back in the government’s court. Things are not getting easier. The only way forward is to try to foster trust, which in Thailand is the rarest commodity at the moment.