Mixed opinions on court's purview over charter

national August 08, 2012 00:00

By The Nation

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Panellists at a law seminar offered mixed opinions yesterday on judicial purview over charter change, ranging from condemning the judiciary for transgressing into legislature and condoning it for trying to safeguard the Constitution.

Panellist Poonthep Sirinupong from Thammasat University said that under prevailing laws, he saw no justification for the Constitution Court to intervene in the legislative process to amend the charter.

He outlined three legal systems in relation to the court’s purview. In the first system, the court would be given the power to interpret charter provisions. In the second, it would have limited purview and could exercise its mandate as prescribed by law.
In the third system, the court has the duty of protecting the charter as per Germany’s judicial model but the Thai charter was not designed for judicial checks on charter amendments, even though the court’s formation was based on that in Germany.
Poonthep said he personally believed the high court did not have the power to check on or overrule amendments to the charter. 
Should the authorities, at a later date, decide to make the court a protector of the Constitution, then the people or their elected representatives should be given a say in judicial appointments, he argued. 
Senator Kamnoon Sidhisamarn, also a panellist, said the court’s July 13 verdict was a binding legal interpretation of how the legislature and parties concerned should go about amending the charter.
All sides were obliged to abide by the verdict, otherwise differences over rewriting the charter would remain unresolved, he said, noting that before there could be a judicial decision, the charter change debate had turned into a grudge battle between opponents and supporters of former prime minister Thaksin Shinawatra.
The verdict had provided guidelines and the legislature would now have to decide to proceed within these, he said.
Panellist Komson Pokong, from Sukhothai Thammathirat Open University, welcomed the verdict as a timely intervention to foil a war between political colours.
He voiced support for the Constitution Court’s interpretation of its mandate to launch a review and protect the charter, which was the country’s first basic law promulgated via a referendum vote.
Panellist and former Thaksin government minister Pongthep Thepkanchana, also a writer of the now-suspended 1997 charter, said the verdict was not clear.
The high court said the people endorsed the present charter in a referendum, but it failed to specify details of this which asked for public consent to overhaul charter provisions, he said. He called for the judiciary to strictly uphold impartiality, otherwise people would lose trust.
“Nowadays the courts appear to be mired by wrong decisions – for example, in a single case the lower court will have found the defendant guilty, the appellate review would have acquitted him before the Supreme Court orders a retrial,” he said.

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