EXPERTS DIVIDED ON PROPOSED ROLE OF CONSTITUTIONAL COURT
DIRECTLY and indirectly, the Nat-ional Council for Peace and Order (NCPO) has always signalled that the country needs a mechanism to cope with its never-ending political impasses – in the hope there will not be yet another coup and the constitution would not be torn up time and again.
Despite the issue being stipulated already in the interim charter in Article 35, the NCPO led by Prime Minister Prayut Chan-o-cha recently submitted another suggestion list. In it, the need for a mechanism to drive the country through critical times was emphasised again, among other proposals.
This was no small deal. Such a mechanism had been a subject of debate before in the previous constitution draft. At that time, it came as the National Strategic Reform and Reconciliation Commission (NSRRC), and drew much criticism.
Many believed it was a super-body holding supreme power to override the elected executive branch. Partly as a result, the mechanism eventually met its end as the National Reform Council (NRC) shot it down before the draft could enter a national referendum.
Learning from the mistake, the present CDC vowed not to create new bodies. Drafters have constantly said they would try to make the most out of existing bodies and get them to work as mechanisms to steer the country out of any predicament. And therewith, drafters revealed that the Consti-tutional Court would be one, among others, to act as such an apparatus.
The court would be authorised to give a final say on any legal disputes, they said. This included when a constitutional conflict arose between the executive and legislative branches. The court would rule what was constitutional and what was not.
Drafters said this was an exit to the problem with Article 7 of the first charter draft, which had always been deemed broad and vague, although it was the one measure to break any dead-end political crisis. However, more often than not, use of the article brought hot water on “the revered institution”. They explained that in the new charter draft, the court would have the authority to plug this hole.
Udom Rathamarut, a drafter and a law professor from Thammasat University, said such a practice was what some might call “breaking the deadlock”.
“When there are issues in the charter and it does not stipulate what exactly has to be done, the question arises: Who is to say? In the past it has always been the revered institution, but that is inappropriate. So we shift it to the Constitution Court. It has to be [such, because] it is the constitution’s guardian,” he explained.
Another drafter, who is also a veteran political scientist, Chartchai Na Chiangmai, explained the charter court was now being designed to prevent the kind of conflicts that have happened in the past.
“If a conflict is between a good number of people and the powers that be, there should be a channel for the Constitutional Court to step in and steer everything back to normal.” He added that the situation should not be left until it reached the point where the military has to intervene.
With all these processes, the court would have the authority to initiate peacekeeping process. It would not have to wait until chaos broke out to step in. However, someone has to request the court to do so, he explained.
Take the Amnesty Bill in 2013 that led to national upheaval, as an example. Chartchai said if this model were to be imposed in that context, the Constitutional Court would have helped rule whether the bill was constitutional. This could have prevented people taking to the street, he claimed.
Ekachai Chainuvati, a pro-democracy law professor from Siam University, said that to grant the Constitutional Court such a power was feasible. Nowadays, anything could be put in the charter, he said.
However, one effect would be that the institution would hold supreme power to rule the country if it exercised its power excessively, he said.
“In principle, the legislative, executive and judicial branches must be on the same level. It is not right to have the Constitutional Court at a higher position than the Cabinet and Parliament. Thus to have the Constitutional Court become a plug similar to Article 7 would be rather dangerous as it could hold a position higher than the Cabinet and the Parliament, he said.
This is a dangerous decision because it could leave the court to make political decisions, when actually courts are for ruling on legal disputes, not political ones,” Ekachai said.
He said the decision on whether the country needed any mechanisms to drive it through critical times must be made by the people in a referendum. If it were approved, the CDC could proceed and include such a mechanism in the charter draft.
It could be for the Constitutional Court to do the job, but Ekachai believed judicial bodies must not decide on political issues; rather they should decide only on legal issues. Political issues must be the responsibility of politicians, not the court. Otherwise, the court itself would become political, he said.
Constitutional Court Judge Charan Phakdi Thanakoon said he agreed that there must be some mechanism to break deadlocks before people took to the streets and things got worse, as in the past. However, he refused to say whether the authority to prevent the impasse should fall to the charter court.
Udom said that “eventually, someone has to do the job to bring the country through an impasse”. Ekachai responded that this argument was valid, but it was beyond the CDC to make the call, it was a question for all Thai people.
The case for a Constitutional court
THE Constitutional Court was established for the first time under the 1997 Constitution and has been active through the 2007 Constitution until now. Previously, Thailand had a constitutional court commission to help rule on charter related cases, but its status and authority did not completely come under the judiciary.
Under the 1997 Constitution, the Constitutional Court became a specialised court that followed the German model, tasked with protecting the supremacy of the charter.
Under the charter draft, the Constitution Court would comprise of nine judges; each serving a nine-year non-extendable term. An expert panel would select the judges from relevant professions, to ensure they are capable of performing their tasks.
The drafters initially agreed that the Constitutional Court would be additionally authorised to rule whether or not a politician was qualified to hold his or her office, similar to the authority that previously belonged to the Senate for impeachment.
The drafters believe that impeachment would not work well here, because Thais tend to be kind and considerate. So, they resolved to replace it with the practice of “disqualifying”. When a politician is disqualified by the Constitutional Court, he or she must leave office.
In addition, the drafters are considering granting it enough power to deliver a final say on constitutionally controversial issues and thus help end a “crisis”, without establishing any new and independent bodies to do that task.
This is considered as empowering it to exercise a clear-cut decision to unresolved situations as stated under the Article 7.
Sources: The Constitutional Court and the Constitution Drafting Commission.