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Court clarifies its stand on charter amendment

Jun 03. 2012
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By The Nation

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Constitution Court obliged to review process: president; Chaturon urges House to defy court order, 'silent coup'

It is not the intent of the Constitution Court to block charter change, but the court is obliged to check on the constitutionality of the legislative process by which the amendments are made, high court president Wasan Soypisudh said yesterday.

“Five complaints have been lodged questioning the legality of the push to amend the charter, and under Article 68 of the Constitution, the high court must launch an inquiry into the matter,” he said.
Wasan said opposing sides should not try to sway the judicial inquiry, arguing the outcome would hinge on factual evidence and not sentiment.
The judiciary did not aspire to usurp power or infringe on the work of the legislature, he said, stating that charter change could and would remain on course if the charter amendment bill was found to be constitutional.
At the core of the five complaints were suspicions that the proposed charter changes fail to adequately uphold the general provisions on Thai nationhood and democratic rule with the King as head of state, Wasan said, in reference to sections I and II of the Constitution.
“One of the main concerns is there is no guarantee that charter provisions on the monarchy would not be amended,” he said in reference to the complaints. 
Although the soon-to-be-formed Constitution Drafting Assembly (CDA) will to take charge of the amendments, the new charter would eventually be scrutinised and passed by Parliament, he said.
The judicial inquiry was aimed at getting a guarantee from the government and Parliament that the new charter will not tamper with provisions on nationhood and monarchy, he said.
“The inquiry is part of the checks and balances to ensure that the government and Parliament live up to a gentleman’s agreement not to cross the line about nationhood and monarchy,” he said.
The inquiry would be conducted under the judicial mandate sanctioned by Article 68, which allows judicial intervention in cases where an attempted overthrow of the existing political system is suspected, he said.
Article 68 allowed the judiciary to launch a proactive inquiry, otherwise it could be too late to safeguard the political system, he said.
The outcome of the inquiry would help to root out any hidden agenda against democracy with the King as head of state, he said.
Judge Boonsong Kulbupar said certain legal scholars had mistakenly voiced suspicion that the high court was trying to interfere in the executive and legislative branches.
The nine high court judges had carefully examined their mandate before deciding to convene the inquiry and to put the charter-change process on hold until the completion of the judicial review, Boonsong said.
“The court order to postpone the third reading of the bill will just slightly delay the charter rewrite in exchange for the benefit of dispelling any doubts about the new charter,” he said.
Parliament was initially scheduled to vote tomorrow on the final passage of the bill, paving the way to form the CDA. The high court issued the last-minute injunction for the vote and ordered the government and relevant parties to submit their respective statements within 15 days to justify or oppose the charter change.
The judicial inquiry is expected to be complete in a month.
Former Thai Rak Thai Party leader Chaturon Chaisang has called on the public to oppose what he claimed was a “silent coup” by the Constitution Court in its ruling that Parliament suspend deliberation on provision 291 of the Constitution.
Chaturon called a press conference to respond to rumours that the military would stage a coup. He said there was no need for the military to stage a coup because a “silent coup” was being staged through judicial activism.
He said the fact the Constitution Court accepted the complaints over an alleged move to topple the country’s democracy under Article 68, and had instructed the House to defer its third reading of the draft on constitutional amendment, proved his claim.
Chaturon said the court did not have the right to issue such an order to the House, deeming it to be interference, as the latter has the right to pass legislation and amend the Constitution.
He said complainants could not take recourse in Article 68 to make the Constitution Court stop the deliberation of constitutional amendment because doing so was against the democratic principle of a balance of powers. Thus, the move was tantamount to toppling the Constitution, because it deprived the people of the right to amend the charter, he said.
“We must make the people understand that there is a coup [happening], or a serious violation of the Constitution, a threat to democracy. We must join forces to oppose the move initiated by people engaged in judicial activism. Unless we are united to oppose them, we cannot stop them,’’ he said.
“The House must not heed the order issued by the Constitution Court because its orders are not legally binding on other agencies,” Chaturon said.

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