Two Legal Titans Clash Over Charter Change: Thai Analysis

[webfact]

ANALYSIS

Two legal titans clash over charter change

Avudh Panananda

The Nation

BANGKOK: -- In a nutshell, the charter change inquiry boils down to a simple dilemma - the Constitution has not empowered Parliament to write a new charter but does not ban such action either.

The Constitution Court will have to craft its decision to make a legal breakthrough overcoming such dilemma.

Of the 15 witnesses testified for and against charter change, most opted to give partisan statements rehashing old arguments presented on the floor of Parliament.

Only two legal titans on public law brought up fresh arguments outlining the pros and cons which will likely impact on the upcoming verdict.

On the first day of the inquiry, former charter writer Surapon Nitikraipot highlighted the legal issues for the anti-amendment camp.

The next day, former Supreme Administrative Court vice president Bhokin Bhalakula gave convincing rebuttals on the pro-amendment camp's behalf.

The most compelling issue raised by Surapon is that the 2007 charter is a first to pass the referendum vote.

Surapon said the charter is, in comparison to past basic laws, a direct reflection on the people's aspirations and not an indirect voice spoken through the people's representatives.

He said in his opinion, Parliament has no mandate to write a new charter before getting the people's consent through referendum.

The charter only prescribes for amendments to existing provisions, he said.

In his rebuttals, Bhokin said the idea of a referendum ahead of drafting amendments tantamounts to taken away the right to change the charter.

Only the Cabinet is empowered to initiate the referendum vote under certain circumstances, he said.

It is nonsense to give Parliament the mandate to amend the charter but at the same time ask for the referendum which is outside of the legislative jurisdiction, he said.

He went on to point out that upto 1997, the country had never prohibited a total overhual of the charter.

The complete charter rewritings happened in 1946, 1991, 1997, he said, not to mention the present charter.

Under the suspended 1997 charter, only provisions on statehood and democratic rule with the King as head of state were banned from any changes.

The bill to amend the Constitution did not violate such ban, he said.

Surapon and Bhokin have a complete opposite view on the high court's inquiry under Article 68 of the Constitution.

Surapon sees Article 68 as the basis for the inquiry. Bhokin views the inquiry as unconstitutional due to the bypassing of the Office of the Attorney General.

The mandate under Article 68 is the very first of four legal issues that the high court will address in forming the verdict.

Should the high court side with Bhokin, then the verdict of dismissal is very likely to happen.

The second legal issue is whether Article 291, which prescribes for amendment procedures, can be interpreted to overhaul the entire charter.

This is seen as the central question on the parliamentary mandate to write a new charter.

The high court is expected to shed light on the extent of charter change as well as outline on the constitutionality compliance.

The two remaining issues, whether the charter amendment bill is designed to topple the democratic rule and whether the co-sponsors of the bill should be punished, are of peripheral questions not central to the case.

-- The Nation 2012-07-06

[ramrod711]

In his rebuttals, Bhokin said the idea of a referendum ahead of drafting amendments tantamounts to taken away the right to change the charter.

I'm definitely in favour of a referendum, but it seems to me that it should be held after any proposed changes. I don't think two referendums are needed, one to see if people want changes and then another to see if they approve of them. Would the court be acting within the law to require a referendum before any changes to the charter are enacted?

[bigbamboo]

In his rebuttals, Bhokin said the idea of a referendum ahead of drafting amendments tantamounts to taken away the right to change the charter.

I'm definitely in favour of a referendum, but it seems to me that it should be held after any proposed changes. I don't think two referendums are needed, one to see if people want changes and then another to see if they approve of them. Would the court be acting within the law to require a referendum before any changes to the charter are enacted?

Enough.

Set out the proposals, make sure the people know exactly what they are and the consequences of change or no change and then have a referendum as they did in 2007.

Then foreign governments may start taking Thai politicians seriously again.

[geriatrickid]

This is the first article that I have seen that actually provides a simple explanation of the two legal interpretations of the proposed amendment. TVFers are like the poeple that rehashed the old political arguements in court. Not very helpful and not reflective of the actual legal issues involved.

[phiphidon]

This is the first article that I have seen that actually provides a simple explanation of the two legal interpretations of the proposed amendment. TVFers are like the poeple that rehashed the old political arguements in court. Not very helpful and not reflective of the actual legal issues involved.

To be fair to TVFers this is the first time that it has been revealed that what had been billed as the main thrust of the argument, that the charter bill was designed to topple the Head of State, is now regarded as a peripheral question not central to the case.

So why did the Constitutional Court say that Article 68 was the reason they were considering the constitutionality of the charter change bill and not on whether they interpret that Article 291 allows complete or partial change to the constitution?

[lungmi]

But why stupid people like me and the other Thai have no information what they want to change?

GK give me this information and I would be happy.

[geriatrickid]

But why stupid people like me and the other Thai have no information what they want to change?

GK give me this information and I would be happy.

I really do not understand what you are asking. Are you asking why I don't give you the information asbout the change? Well, the proposed charter amendments are available to the public. Unfortunately, for many foreigners, as the law is in the Thai language, they may not be able to fully understand.

What this story demonstrates is that some groups engaged in gross exageration in respect to the charter changes, making misleading claims about the proposed amendments. It is rather revealing that those TVFers who are so outspoken in their opposition to the changes have avoided this thread like the plague . It would appear that much of the TVF opposition is based upon a personal hatred for the PTP and the inaccurate statements of the opposing groups, . Now that the two legal issues are set out, these people won't come near the thread as they would have to offer arguments based upon the law and rational thought.

Surapon Nitikraipot argued against the amendments. Perhaps his views are legally valid. Yet, I don't see any of the TVFers opposed to the amendments discussing his arguments. Instead, they still cling to the false statements made about the amendments. I think the reluctance to focus on the specific legal issues demonstrates the profound ignorance of some people. It's easier for these people to fling their feces like enraged chimpanzees than to offer a sentient statement.

[siampolee]

Come come GK answer answer the question that lungmi asked, Your response # 7 was indeed worthy of a squirming politician proffering a, ''Bucket full of nothing,'' in response to a probing question .

You yourself are part of the TVFers who are the targets of your criticism in many of your posts,

Remember that, '' An expert knows very little about a great deal whilst a specialist knows a great deal about very little.''

Which category do we TVFers fall under?

This categorization must of course include you with your myriad of postings on an amazing number of topic

Don't be shy we can take it on the chin you know.

Edited July 7, 2012 by siampolee

[geriatrickid]

Come come GK answer answer the question that lungmi asked, Your response # 7 was indeed worthy of a squirming politician proffering a, ''Bucket full of nothing,'' in response to a probing question .

You yourself are part of the TVFers who are the targets of your criticism in many of your posts,

Remember that, '' An expert knows very little about a great deal whilst a specialist knows a great deal about very little.''

Which category do we TVFers fall under?

This categorization must of course include you with your myriad of postings on an amazing number of topic

Don't be shy we can take it on the chin you know.

???? I am content with former Supreme Administrative Court vice president Bhokin Bhalakula's arguments. He shredded the opponents of the amendment changes and the court is going to have to be very imaginative to decide against him. My position has been consistent with the views that he expressed. Whereas, the most vocal TVF opposers" were the ones making the false claims such as the monarchy would be abolished or that the changes would undermine the judiciary. Surapon Nitikraipot certainly did not make any such claims in his arguments. He offered his interpretion of the law in respect to whether or not the government could propose amendments. As such, I think the TVFers that made the wild accussations and allegations now have to explain themselves, not me.

[noitom]

"Legal titans."

[Thai at Heart]

But why stupid people like me and the other Thai have no information what they want to change?

GK give me this information and I would be happy.

I really do not understand what you are asking. Are you asking why I don't give you the information asbout the change? Well, the proposed charter amendments are available to the public. Unfortunately, for many foreigners, as the law is in the Thai language, they may not be able to fully understand.

What this story demonstrates is that some groups engaged in gross exageration in respect to the charter changes, making misleading claims about the proposed amendments. It is rather revealing that those TVFers who are so outspoken in their opposition to the changes have avoided this thread like the plague . It would appear that much of the TVF opposition is based upon a personal hatred for the PTP and the inaccurate statements of the opposing groups, . Now that the two legal issues are set out, these people won't come near the thread as they would have to offer arguments based upon the law and rational thought.

Surapon Nitikraipot argued against the amendments. Perhaps his views are legally valid. Yet, I don't see any of the TVFers opposed to the amendments discussing his arguments. Instead, they still cling to the false statements made about the amendments. I think the reluctance to focus on the specific legal issues demonstrates the profound ignorance of some people. It's easier for these people to fling their feces like enraged chimpanzees than to offer a sentient statement.

Do you have a link to the list of proposed changes. Would like to actually see what is in there, because I reckoned from the beginning that the statements about the changes to the role of the monarchy was a ruse just to get everyone's goat up, and stop any debate before it had a chance of starting.

[tlansford]

The most compelling issue raised by Surapon is that the 2007 charter is a first to pass the referendum vote.

Surapon said the charter is, in comparison to past basic laws, a direct reflection on the people's aspirations and not an indirect voice spoken through the people's representatives.

Wow, pretty amazing claim.

But, he was preaching to the choir...

[siampolee]

So yet again we see from your comments GK that you are in your view on a par with the Oracles at the Temple of Delphi. You qoute a wonderful amount of flim flam, yet as per usual you've not actually answered the question posed by lungmi.

In your opinion.

Well what is your opinion worth here on T.V. or on a national platform here in Thailand?

You are making accusations and comments that are in your own word formed from your own opinion, let us hear what you consider the wider implications are of the matter in hand as quoted by those people actually involved in the matter.

We as foreigners are totally inconsequential to the current state of affairs, and as you say the wording is in Thai.

I presume from your comments you are indeed able to read and actually understand the Thai legal language in the relevant documents ?

If as you imply you are actually able to understand the document and all its content why are you unable or unwilling to share your knowledge with we lesser mortals?

Or is it possible your source of information is itself unable to relay the contents of the document in a literate fashion to your good self ?

All rather like duck shooting on a foggy morning, '' lots of ducks lots of shots but no bag of game.''

Edited July 7, 2012 by siampolee

[geriatrickid]

So yet again we see from your comments GK that you are in your view on a par with the Oracles at the Temple of Delphi. You qoute a wonderful amount of flim flam, yet as per usual you've not actually answered the question posed by lungmi.

In your opinion.

Well what is your opinion worth here on T.V. or on a national platform here in Thailand?

You are making accusations and comments that are in your own word formed from your own opinion, let us hear what you consider the wider implications are of the matter in hand as quoted by those people actually involved in the matter.

We as foreigners are totally inconsequential to the current state of affairs, and as you say the wording is in Thai.

I presume from your comments you are indeed able to read and actually understand the Thai legal language in the relevant documents ?

If as you imply you are actually able to understand the document and all its content why are you unable or unwilling to share your knowledge with we lesser mortals?

Or is it possible your source of information is itself unable to relay the contents of the document in a literate fashion to your good self ?

All rather like duck shooting on a foggy morning, '' lots of ducks lots of shots but no bag of game.''

Instead of going after me, why don't you focus on the actual legal issues involved?

I am not the one that made the claims in the forums that the amendments would undermine the judiciary, that the action was illegal or that this was a step in the direction of oppression. It is up to the people people that made those claims to respond. They can reference the applicable laws and advance their arguments.

Yes, it is my opinion that they, like you, remain silent on those issues because you haven't got a pot to piss in. There is no fogginess coming from me. I respect the positions of the two pleading groups. They both offered arguments that they believed were supported by the law. However, Bhokin Bhalakula's rebuttal certainly has taken the wind from the sails of those that have used facetious statements and false allegations such as the dismantling of the monarchy or the interference in the judicial process. These arguments were not made in the pleadings. It is therefore incumbent upon those TVFers that put forward those arguments to explain themselves. I didn't make those claims.

How many times do I have to write that my views were consistent with Bhokin Bhalakula's arguments, and his views were consistent with constitutional law experts. Yes, it is my opinion that I read their views and interpretations before the case and that I agreed with them. If you don't, good for you, feel free to explain why their legal interpretation is incorrect. However, it seems to me that these legal views were based on solid legal reasoning and I certainly cannot improve on Bhokin Bhalakula's arguments.

[siampolee]

Post # 7

I really do not understand what you are asking. Are you asking why I don't give you the information asbout the change? Well, the proposed charter amendments are available to the public. Unfortunately, for many foreigners, as the law is in the Thai language, they may not be able to fully understand.

Nobody is going after you GK, you are being treated the same as you treat others, now according to your post the information concerning the proposed charter changes are freely and readily availble to the general public, however according to you it is only in Thai so foreigners are not able to understand the document.

You are by your own inferences of course fluent in spoken Thai and extremely erudite in your understanding of the written word in Thai, everyday language and legal terminology as well as well as being well informed as to the situation from hearsay ?

That being the case are you not able to or not willing to impart the information you are privy to so as we lesser mortals can be better informed ?.

I personally have not entered into open discussion concerning the matter as at this moment in time I feel I am not informed enouh to make comments, thus your valuable assistance would for me and countless others indeed be a boon to understanding the matter in depth.

You are often demanding proof in your multitude of posts from others, you are being asked to do the same please.

Edited July 8, 2012 by siampolee

[Reasonableman]

...the proposed charter amendments are available to the public...

For those who can read Thai, a link would be great! Thanks.