July 14, 2012 00:00 By AVUDH PANANANDA THE NATION 8,604 Viewed
Verdict endorses constitutional amendment on specific conditions ,Govt must make tough decisions on how to proceed with charter reform
The Constitution Court has poured cold water over the proposed charter change by handing down what some dubbed a “win-win” verdict that allowed the opposing camps to claim victory.
The ball is now in the government’s court to chart out its next step in amending the charter. With the red shirts not totally happy with the eight judges’ conditions for writing up a new charter, the Yingluck administration will have tough decisions to make in the next few days.
Although the high court ruling dropped the complaints against the charter amendment bill proposed by the ruling party, the judges did not give the green light for the government to overhaul the political system and promulgate a new charter before organising a referendum vote.
The bottom line is the government can proceed to amend the charter but the judges gave the yet-to-be-formed Constitution Drafting Assembly (CDA) no mandate to rewrite the entire charter unless the people give their consent in a referendum to discard the 2007 Constitution.
The court’s verdict went beyond expectations. It had been expected to either endorse the government bill completely or reject it outright. It turned out that the judges endorsed the bill conditionally. Instead of ruling that the CDA was unconstitutional, the judges said the CDA could function if it amended the existing charter instead of writing a new one.
Since the current charter had gone through a referendum, dissolving it and writing a replacement must require a referendum, too, the judges said. Under the draft provisions to form the Constitution Drafting Assembly, the government has made clear its intent to replace the charter.
Should the government opt to go ahead and form the CDA at this juncture, it will likely reach a dead end about overhauling the political system.
If it decides to hold a referendum seeking a mandate to frame a new charter, then its stability will be at risk. In the face of the prevailing polarisation as evidenced by the last general election, the chance to win the referendum is about 50-50, give or take just a little.
The Pheu Thai Party definitely won the constituency votes for House seats but its proportionate votes barely outpaced the Democrats by a slim margin. The referendum, if held, will likely be a rerun of the nationwide popular vote.
In forming the decision, the eight-judge panel voted unanimously on every legal issue, except for a 7-1 vote on the court’s jurisdiction under Article 68 of the Constitution to bypass the Office of the Attorney-General and look into charter change.
The opponents and proponents of charter change can cry or laugh to their heart’s content following the verdict. But none of the camps got what they had hoped for.
The anti-amendment camp could not defeat the move to amend the charter. It only managed to stall the rewriting. The pro-amendment camp can rewrite the charter but cannot introduce a completely rewritten charter without the people’s endorsement.
The government and its red-shirt allies will have to reflect long and hard on whether to proceed with charter change or to hold a referendum for a greater mandate.
Whatever the decision may be, an underlying implication is the fate of fugitive former prime minister Thaksin Shinawatra. If the Constitution survives the rewriting, then the chance for Thaksin’s amnesty would decrease drastically.
That the court did not allow the immediate drawing up of a new constitution left a bad taste in the mouths of many red-shirt leaders. Thida Thavornset said she disagreed with the verdict “virtually on all counts”. Natthawut 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.
Violence was averted yesterday, but uncertainties still very much prevail on the Thai political landscape.