'Rewriting violates democratic principles'

national July 06, 2012 00:00

By Kittipong Thaveevong,

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Witnesses for petitioners say sovereignty rests with public

Amending the Constitution to allow a new one to be written is the “destruction of the current charter and violation of the principles of democracy”, law professor Suraphol Nitikraipot said yesterday – the first day of the Constitution Court trial against the proponents of the amendment bills. 

Suraphol, former rector of Thammasat University who is a key witness for the petitioners, said the post-coup Constitution of 2007 was the only one that was endorsed by the public in a nationwide referendum. 
Hence, replacing it with a new one would require support from the majority in a public referendum, he said, adding that representatives of the voters should have no power to override the decision by the public, who are “owners of the sovereignty”.
In court yesterday, the petitioners and witnesses presented their case showing how parliamentarians had no authority to allow the writing of an entirely new constitution, and that doing so would be tantamount to overthrowing the country’s democratic regime with the King as head of state. 
After the five petitioners and their two witnesses presented their testimonies, they were cross-examined by the defendants and their lawyers. Witnesses who had submitted their written testimonies did not appear at yesterday’s hearing.
The court is scheduled to hear the defendants and their witnesses today. 
Suraphol told the court yesterday that the current Constitution is “not usual” because it is the only charter and the only law in the Thai political history to be approved in a public referendum. He said the representatives of the people could not change the Constitution without the approval of the people themselves. 
Hence, a referendum should be held before, not after, a new constitution is written, as has been stated in the government-sponsored amendment bill, he said. The professor said he believed that every constitution has a mechanism to prevent it from being replaced by a new one and the current charter has one too. He explained that the 2007 Constitution only allows changes to be made to clauses, not the entire law.
“Although the amendment is in line with Article 291, it is meant to destroy the current Constitution and this goes against the principles of democracy. The representatives [MPs and parliamentarians] are attempting to overrule a decision made by the owners of sovereignty [the general public],” Suraphol said. 
According to the Constitution, amendments can be made by parliamentarians, who are representatives of the people, he said, adding that by allowing a constitution drafting assembly (CDA) to write a new charter with no clear guidelines on what issues need to be amended is like “writing a blank cheque”.
Chusak Sirinil, a law expert for the ruling Pheu Thai Party, during his cross-examination said that voters in a public referendum would not know which issues need to be amended either. Suraphol responded to this by saying that in a referendum, there should be clear questions about these issues. He said the problem was that even proponents of the constitutional amendments could not specify which issues in the current charter need to be amended. 
Before yesterday’s hearing, Constitutional Court Justice Nurak Marpraneet said that the trial would focus on four issues:
lWhether the complainants are authorised to bring the case to court under Article 68;
lWhether Article 291 allows for the annulment of the current Constitution and the writing of a new one; 
lWhether seeking an amendment to allow a new constitution to be written is tantamount to overthrowing the country’s democratic regime; and 
lWhether such an act is punishable by the dissolution of political parties involved and imposing a political ban on the politicians involved. 
Democrat MP Wirut Kalayasiri, one of the petitioners, pointed out that the charter-amendment bill could lead to the monarchy being overthrown or its powers being reduced. During his cross-examination, the defence pointed out that Wirut and his Democrat colleagues had also taken part in the parliamentary debate on constitutional changes. 
Wirut responded that the opposition MPs did not support the amendment and that they had done what they could to oppose it.
Earlier at yesterday’s hearing, petitioner General Somjet Boonthanom compared the constitutional amendment bill to a coup d’etat that abolishes the charter. “The only difference is that in a coup, guns are used,” he said.
Former Constitution drafter Dej-udom Krairit, another witness of the petitioners, said voters had “the power to establish a Constitution”, adding that the current one was approved by the majority in a referendum. 
Petitioner Wanthongchai Chamnankit said the power of amending the current charter, as per Article 291, rests with the parliamentarians. 
“Hence, it is clearly against the Constitution for MPs and senators to relegate the power to a CDA,” he said.

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