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Charter Change Brings Up Serious Legal Dilemma: Thai Editorial


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Charter change brings up serious legal dilemma

The Nation

Court decision on whether it's possible to write a new constitution will have only one definite result: a worsening of the country's political divide

BANGKOK: -- After two days of a Constitution Court hearing, it seems that the charter-change controversy boils down to a simple dilemma: While the present Constitution does not empower Parliament to write a new charter - or initiate the writing - it apparently does not ban such action either.

The Constitution Court will have to craft a decision to form a legal precedent to deal with this dilemma. Legally, it will not be easy. And it will be a lot more difficult politically.

The hearing, though relatively uneventful, underlines Thailand's deep political divide. The court's ruling, expected in the next few days, will certainly upset half of the country and delight the other half. In other words the court will get praise and condemnation in equal measure, no matter what decision it makes.

Of the 15 witnesses who testified for and against the charter revamp - which is favoured only by the ruling party and its supporters - most opted to give partisan statements rehashing old arguments presented on the floor of Parliament. One side says it is illogical and unconstitutional for a charter to "allow itself" to be dissolved and replaced by a new one. In addition, there are signs that the new charter, if it comes into existence, would arm-twist Thais into accepting a political system favoured by only half the population.

The other side decries this as paranoia, saying no one knows what the new charter will look like. They argue that Thailand writes new charters all the time, and one created in the aftermath of a coup deserves no special protection. Most of all, this democratic soul-searching is supposed to be a long and continuous process.

Only two legal titans on public law brought up fresh arguments outlining the pros and cons that will likely affect the upcoming verdict. On the first day of the inquiry, former charter writer Surapon Nitikraipot highlighted the legal issues for the anti-amendment camp. His most compelling point is that the current (2007) charter was the first to approved in a public referendum, which begs the question of whether another referendum is needed to virtually scrap it.

In Surapon's view, the 2007 referendum means this charter is a direct reflection of the people's aspirations. Without a further referendum, this charter only allows amendments to existing provisions, he insists.

On Friday former Supreme Administrative Court vice president Bhokin Bhalakula gave an equally strong rebuttal. The idea of a referendum ahead of drafting amendments is tantamount to taking away the legislative branch's right to change the charter. It's also "nonsense" to empower Parliament to amend the charter and yet at the same time require prior public consent for Parliament to begin the process, he said.

According to Bhokin, the country has never prohibited a total overhaul of a charter. Complete charter rewrites happened in 1946, 1991 and 1997, he pointed out, not to mention how the present charter came about.

Surapon and Bhokin had completely opposite views on the court's power to conduct its inquiry under Article 68 of the present Constitution. Surapon sees Article 68 as the basis for the inquiry, as the overhaul could threaten our political system. Bhokin views the inquiry as unconstitutional due to the bypassing of the Office of the Attorney-General.

While the Constitution Court is unlikely to rule against its own decision to take up the matter, the eight judges have a tough decision to make on whether writing a new charter is allowable.

Things haven't changed much since the day the court dropped a minor bombshell by accepting a petition against the attempt to write a new charter. The only difference between now and then is that we are much closer today to another political climax. Threats will be made and there will be calls for cool heads. On the one hand, it's a familiar situation. On the other hand, Thailand is still rolling almost uncontrolled into unknown territory.

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-- The Nation 2012-07-07

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Bhokin is right, of course. But why is there any 'dilemma' here? As Bangkok Pundit points out, things seem clear cut enough: 'Section 291 sets out the method for amending the constitution and as it now stands, pre-amendment, parliament decides the amendment. He (Suraphol) admits this. Therefore, it is nonsense to say that parliament is overriding the the will of the public because the 2007 constitution that the public voted for gave the power to amend to parliament.' http://asiancorrespondent.com/85458/debunking-the-legal-nonsense-in-the-court/

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Funny really. Write a constitution that apparently restores democracy after a coup. Get the people to vote on it under the understanding that if they vote no, they won't get anothr option as a parliament a long time.

Regain face with the rest of the democratic world by transferring power back to the civilian government with a new constitution u tell the world was voted upon completely fairly. Then run around screaming a few years later if said democratic government exercises clauses in the condition you wrote to change the thing.

Seems the issue is more the stupidity of the framers of the constitution that they can't write a water tight constitution.

Edited by Thai at Heart
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Still no one has said what exactly the changes are that they want!

Why not come straight out and say what they want changed and what it will be changed to, then all people will know what all this is about.

Dan

they haven't even formed a cda yet.

do you think people aren't going to find out what the changes are before they vote on it?

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In the USA, Canada, the EU, Australia, and so on, laws are often written which are later found to be unconstitutional by a high court. In such a case, the law is then null and void. This is not unusual.

However, the court does not and cannot disband the ruling party, or bar politicians who voted for the law from voting or holding political office for 5 years. Why not? Because it is the job of legislatures to propose, debate and vote on laws, while it is the high court's job to determine if the laws are constitutional or not. Determining whether or not a law is constitutional is difficult and requires a very high level of legal expertise. Such expertise is beyond the knowledge base of most members of parliamet hence a high court rules.

Therefore, it seems most unusual that legislators should be banned simply for proposing legislation. Furthmore, it seems extremely curious that that two parties have been banned and perhaps a 3rd political party may be banned and power handed over to a party that hasn't won an election in 20 years. Very strange, indeed. It doesn't sound democratic to me.

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In the USA, Canada, the EU, Australia, and so on, laws are often written which are later found to be unconstitutional by a high court. In such a case, the law is then null and void. This is not unusual.

However, the court does not and cannot disband the ruling party, or bar politicians who voted for the law from voting or holding political office for 5 years. Why not? Because it is the job of legislatures to propose, debate and vote on laws, while it is the high court's job to determine if the laws are constitutional or not. Determining whether or not a law is constitutional is difficult and requires a very high level of legal expertise. Such expertise is beyond the knowledge base of most members of parliamet hence a high court rules.

Therefore, it seems most unusual that legislators should be banned simply for proposing legislation. Furthmore, it seems extremely curious that that two parties have been banned and perhaps a 3rd political party may be banned and power handed over to a party that hasn't won an election in 20 years. Very strange, indeed. It doesn't sound democratic to me.

Agree with most of that, except:

Furthmore, it seems extremely curious that that two parties have been banned and perhaps a 3rd political party may be banned and power handed over to a party that hasn't won an election in 20 years. Very strange, indeed. It doesn't sound democratic to me.

Power isn't "handed over" to anyone. When a party is disbanded and it's executives banned, by-elections are held to replace the banned MPs. The government MPs that aren't banned, are still government MPs, but a new PM may need to be elected. When Samak was forced to step down, Somchai was elected PM in parliament. When Somchai and the PPP were banned, Abhisit was elected PM in parliament (and he formed a new government). I don't believe Yingluck is an executive, so she would still be PM, therefore there would be no need for a new PM to be elected.

Edited by whybother
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Funny really. Write a constitution that apparently restores democracy after a coup. Get the people to vote on it under the understanding that if they vote no, they won't get anothr option as a parliament a long time.

Regain face with the rest of the democratic world by transferring power back to the civilian government with a new constitution u tell the world was voted upon completely fairly. Then run around screaming a few years later if said democratic government exercises clauses in the condition you wrote to change the thing.

Seems the issue is more the stupidity of the framers of the constitution that they can't write a water tight constitution.

There are things that can't be changed in a constitution.. Could a democratic elected government abolish democracy? technically yes. But the constitutional court won't approve it. Well you can also disband that court and replace it with a revolutionary court.

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In the USA, Canada, the EU, Australia, and so on, laws are often written which are later found to be unconstitutional by a high court. In such a case, the law is then null and void. This is not unusual.

However, the court does not and cannot disband the ruling party, or bar politicians who voted for the law from voting or holding political office for 5 years. Why not? Because it is the job of legislatures to propose, debate and vote on laws, while it is the high court's job to determine if the laws are constitutional or not. Determining whether or not a law is constitutional is difficult and requires a very high level of legal expertise. Such expertise is beyond the knowledge base of most members of parliamet hence a high court rules.

Therefore, it seems most unusual that legislators should be banned simply for proposing legislation. Furthmore, it seems extremely curious that that two parties have been banned and perhaps a 3rd political party may be banned and power handed over to a party that hasn't won an election in 20 years. Very strange, indeed. It doesn't sound democratic to me.

Well in Austria and in German the court can ban the rulling party. It never happened but smaller parties were banned because their political oppinion was against the constitution.

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On the first day of the inquiry, former charter writer Surapon Nitikraipot highlighted the legal issues for the anti-amendment camp. His most compelling point is that

the current (2007) charter was the first to approved in a public referendum,

which begs the question of whether another referendum is needed to virtually scrap it.

In Surapon's view, the 2007 referendum means this charter is

a direct reflection of the people's aspirations.

Without a further referendum,

this charter only allows amendments to existing provisions, he insists.

A partly clear point.

Provisions or details can be modified, but whole items can not be replaced.

There can be amendments to provisions drawn,

but they will NOT become adjusted law without a full national referendum on them.

As was needed to enact the ones ones they potentially might replace.

Laws could be adjusted, but not replaced or removed.

And if the amendements as drawn when voted on in parliament

contravene HRM as head of state even before being voted on publicly,

then that might likely be actionable by the courts as unconstitutional,

and those drawing them as having ill intent, or gross incompetence

for not understanding what they wrote.

Edited by animatic
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Funny really. Write a constitution that apparently restores democracy after a coup. Get the people to vote on it under the understanding that if they vote no, they won't get anothr option as a parliament a long time.

Regain face with the rest of the democratic world by transferring power back to the civilian government with a new constitution u tell the world was voted upon completely fairly. Then run around screaming a few years later if said democratic government exercises clauses in the condition you wrote to change the thing.

Seems the issue is more the stupidity of the framers of the constitution that they can't write a water tight constitution.

There are things that can't be changed in a constitution.. Could a democratic elected government abolish democracy? technically yes. But the constitutional court won't approve it. Well you can also disband that court and replace it with a revolutionary court.

Why can't things be changed in a constitution?

Someone sensible would put various levels of super majority and necessary checks to prevent frivolous change, but is it the case that for example if say the usa wanted to do away with the senate there is a legally acceptable way for it to be achieved? It may need an unusual amount of agreement but it can in theory be done if all agree or not.

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Funny really. Write a constitution that apparently restores democracy after a coup. Get the people to vote on it under the understanding that if they vote no, they won't get anothr option as a parliament a long time.

Regain face with the rest of the democratic world by transferring power back to the civilian government with a new constitution u tell the world was voted upon completely fairly. Then run around screaming a few years later if said democratic government exercises clauses in the condition you wrote to change the thing.

Seems the issue is more the stupidity of the framers of the constitution that they can't write a water tight constitution.

There are things that can't be changed in a constitution.. Could a democratic elected government abolish democracy? technically yes. But the constitutional court won't approve it. Well you can also disband that court and replace it with a revolutionary court.

Why can't things be changed in a constitution?

Someone sensible would put various levels of super majority and necessary checks to prevent frivolous change, but is it the case that for example if say the usa wanted to do away with the senate there is a legally acceptable way for it to be achieved? It may need an unusual amount of agreement but it can in theory be done if all agree or not.

You could put in the constitution that there are elections only every 20 years (in Austria they increased from 4 to 5 years. Is it undemocratic? What if the increase to 7 years?, where is the limit?). They could make a monolithic system without separation of power, which would be much more efficient.

Or they could unite all parties and change the country to a single party system. All by democratic means. To block that, you have the constitutional court.

Else it would be just to easy that a party that has a big majority keeps in power forever by changing the constitution.

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Funny really. Write a constitution that apparently restores democracy after a coup. Get the people to vote on it under the understanding that if they vote no, they won't get anothr option as a parliament a long time.

Regain face with the rest of the democratic world by transferring power back to the civilian government with a new constitution u tell the world was voted upon completely fairly. Then run around screaming a few years later if said democratic government exercises clauses in the condition you wrote to change the thing.

Seems the issue is more the stupidity of the framers of the constitution that they can't write a water tight constitution.

There are things that can't be changed in a constitution.. Could a democratic elected government abolish democracy? technically yes. But the constitutional court won't approve it. Well you can also disband that court and replace it with a revolutionary court.

Why can't things be changed in a constitution?

Someone sensible would put various levels of super majority and necessary checks to prevent frivolous change, but is it the case that for example if say the usa wanted to do away with the senate there is a legally acceptable way for it to be achieved? It may need an unusual amount of agreement but it can in theory be done if all agree or not.

You could put in the constitution that there are elections only every 20 years (in Austria they increased from 4 to 5 years. Is it undemocratic? What if the increase to 7 years?, where is the limit?). They could make a monolithic system without separation of power, which would be much more efficient.

Or they could unite all parties and change the country to a single party system. All by democratic means. To block that, you have the constitutional court.

Else it would be just to easy that a party that has a big majority keeps in power forever by changing the constitution.

All true, but it doesn't mean that nothing can ever change in a constitution. For major issues of change it should be difficult to achieve with super majorities and checks and balances, however to claim that nothing should ever be changed is destined to make any country stand still.

The right to bear arms is enshrined in the US but that was written at a time without machine guns and the possibility to be eaten by bears and there was literally the wild west. I expect that eventually that right may change, but it will need agreements from many organizations at the same time.

The issue is the very understanding a constitution should be able to be changed if the people, government and other organizations agree that the decision making process decide such a thing concurs with the law.

Edited by Thai at Heart
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On the first day of the inquiry, former charter writer Surapon Nitikraipot highlighted the legal issues for the anti-amendment camp. His most compelling point is that

the current (2007) charter was the first to approved in a public referendum,

which begs the question of whether another referendum is needed to virtually scrap it.

In Surapon's view, the 2007 referendum means this charter is

a direct reflection of the people's aspirations.

Without a further referendum,

this charter only allows amendments to existing provisions, he insists.

A partly clear point.

Provisions or details can be modified, but whole items can not be replaced.

There can be amendments to provisions drawn,

but they will NOT become adjusted law without a full national referendum on them.

As was needed to enact the ones ones they potentially might replace.

Laws could be adjusted, but not replaced or removed.

And if the amendements as drawn when voted on in parliament

contravene HRM as head of state even before being voted on publicly,

then that might likely be actionable by the courts as unconstitutional,

and those drawing them as having ill intent, or gross incompetence

for not understanding what they wrote.

There can be amendments to provisions drawn,

but they will NOT become adjusted law without a full national referendum on them.

As was needed to enact the ones ones they potentially might replace.

Laws could be adjusted, but not replaced or removed.

Do you want to try again with that?

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All true, but it doesn't mean that nothing can ever change in a constitution. For major issues of change it should be difficult to achieve with super majorities and checks and balances, however to claim that nothing should ever be changed is destined to make any country stand still.

The right to bear arms is enshrined in the US but that was written at a time without machine guns and the possibility to be eaten by bears and there was literally the wild west. I expect that eventually that right may change, but it will need agreements from many organizations at the same time.

The issue is the very understanding a constitution should be able to be changed if the people, government and other organizations agree that the decision making process decide such a thing concurs with the law.

You are complete right. If you can't change anything there is a stand still. There are different things. Relative unimportant changes. Putting a law for how to label wine in the constitution (Austria) or something that changes the foundation of it.

Small changes I would say a 66% vote.

But for fundamental changes? If you put too many checks and balances it is the same as it isn't possible at all because there will be always a small group that doesn't agree.

On the other hand a real evil person wouldn't care about the checks and balances anyhow. See Hitler. When the SA knocks on your door every opposition will agree to everything.

Solution: I don't know.

But for Thailand it isn't about improving the situation it is just to help Thaksin.

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Still no one has said what exactly the changes are that they want!

Why not come straight out and say what they want changed and what it will be changed to, then all people will know what all this is about.

Dan

How can the ruling party come out now & say exactly what they want & what they are really trying to achieve by changing the constitution.

I mean..

We want to change the constitution in any way possible so that we can overturn a verdict made by the elected court of the land so that a convicted criminal can be pardoned, return to Thailand, re-enter politics so that he can further advance his personal activities, line his huge pockets to an even greater degree with the countries wealth & take care of the poor by wiping a few crumbs off his families dinner table, but all done under the guise of "reconciliation"

That wouldn't really look good on the application form.

Only the gullible whose votes are so easily bought for a few Baht would swallow that ploy.. but then this is Thailand & common sense never prevails..

He who has the deepest pockets wins all the spoils of war!!

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Still no one has said what exactly the changes are that they want!

Why not come straight out and say what they want changed and what it will be changed to, then all people will know what all this is about.

Dan

they haven't even formed a cda yet.

do you think people aren't going to find out what the changes are before they vote on it?

That was certainly suggested. The PM herself suggested that the government had the mandate to do so. You can find this in the list of questions that Yingluck has actually answered. It won't take long as it's a very short list.

This is why nobody other than the screaming scarlets believes them.

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Still no one has said what exactly the changes are that they want!

Why not come straight out and say what they want changed and what it will be changed to, then all people will know what all this is about.

Dan

they haven't even formed a cda yet.

do you think people aren't going to find out what the changes are before they vote on it?

That was certainly suggested. The PM herself suggested that the government had the mandate to do so. You can find this in the list of questions that Yingluck has actually answered. It won't take long as it's a very short list.

This is why nobody other than the screaming scarlets believes them.

Moruya, I cannot believe the number of times I have posted this in answer to your ridiculous assumption that there will not be a referendum. This time please read and absorb what is said

The bill - a change to Article 291 of the 2007 Constitution that cites only the process of charter amendment - allows the setting up of a new drafting body to draw up a new version of the supreme law.

The new CDA will be made up of 99 members - 77 elected to represent each of the provinces, and 22 members appointed by the Parliament. Six of them will be experts in public law, with six experts in political science or public administration, plus 10 with experience in politics, public administration, economic or social fields, or charter drafting.

The Parliament President is authorised to issue selection regulations and a 15-member panel will verify the qualifications of candidates nominated by university councils, social, economic and private agencies.

After the members are selected, the Assembly is required to finish drafting the new charter within 240 days. The time count will pause if the House of Representatives reaches the end of a term or is dissolved. But it can continue working after a new House is formed.

In drafting the new constitution, the assembly is required to hear opinions from people in all regions.

However, the amendment prohibits changing the political system from a constitutional monarchy. It also prohibits changing the form of the state from a single state, and prohibits changing any clause in the chapter on the monarchy in the current Constitution.

The Election Commission will be required to hold a national referendum on the CDA's new charter within 60 days after it receives the draft passed on by the Parliament President.

However, the EC must leave at least 45 days before holding the referendum as time to promote the ballot and publicising the charter draft. This must be done within 60 days but not before 45 days after the EC receives the draft.

http://www.nationmul...d-30181992.html

NOW will you believe it?

Edited by phiphidon
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Still no one has said what exactly the changes are that they want!

Why not come straight out and say what they want changed and what it will be changed to, then all people will know what all this is about.

Dan

How can the ruling party come out now & say exactly what they want & what they are really trying to achieve by changing the constitution.

I mean..

We want to change the constitution in any way possible so that we can overturn a verdict made by the elected court of the land so that a convicted criminal can be pardoned, return to Thailand, re-enter politics so that he can further advance his personal activities, line his huge pockets to an even greater degree with the countries wealth & take care of the poor by wiping a few crumbs off his families dinner table, but all done under the guise of "reconciliation"

That wouldn't really look good on the application form.

Only the gullible whose votes are so easily bought for a few Baht would swallow that ploy.. but then this is Thailand & common sense never prevails..

He who has the deepest pockets wins all the spoils of war!!

Suggest you do a bit more research?

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In the USA, Canada, the EU, Australia, and so on, laws are often written which are later found to be unconstitutional by a high court. In such a case, the law is then null and void. This is not unusual.

However, the court does not and cannot disband the ruling party, or bar politicians who voted for the law from voting or holding political office for 5 years. Why not? Because it is the job of legislatures to propose, debate and vote on laws, while it is the high court's job to determine if the laws are constitutional or not. Determining whether or not a law is constitutional is difficult and requires a very high level of legal expertise. Such expertise is beyond the knowledge base of most members of parliamet hence a high court rules.

Therefore, it seems most unusual that legislators should be banned simply for proposing legislation. Furthmore, it seems extremely curious that that two parties have been banned and perhaps a 3rd political party may be banned and power handed over to a party that hasn't won an election in 20 years. Very strange, indeed. It doesn't sound democratic to me.

Agree with most of that, except:

Furthmore, it seems extremely curious that that two parties have been banned and perhaps a 3rd political party may be banned and power handed over to a party that hasn't won an election in 20 years. Very strange, indeed. It doesn't sound democratic to me.

Power isn't "handed over" to anyone. When a party is disbanded and it's executives banned, by-elections are held to replace the banned MPs. The government MPs that aren't banned, are still government MPs, but a new PM may need to be elected. When Samak was forced to step down, Somchai was elected PM in parliament. When Somchai and the PPP were banned, Abhisit was elected PM in parliament (and he formed a new government). I don't believe Yingluck is an executive, so she would still be PM, therefore there would be no need for a new PM to be elected.

still equating those 2 changes of PM when they aren't comparable at all.

good job...

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NOW will you believe it?

No mate. There is nothing to believe. There is nothing written down. Until there is I shall remember the words of Yingluck and Chalerm on the whole sordid reconciliation (amnesty) bill/charter change fiasco

Yingluck: "Reconciliation must be accepted by the majority of the people. We got the clear mandate from the people."

Chalerm: “Did they fall asleep and didn’t know we got our power from the election?”

All the polls inicate that the people don't want it but PTP knows best

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Agree with most of that, except:

Furthmore, it seems extremely curious that that two parties have been banned and perhaps a 3rd political party may be banned and power handed over to a party that hasn't won an election in 20 years. Very strange, indeed. It doesn't sound democratic to me.

Power isn't "handed over" to anyone. When a party is disbanded and it's executives banned, by-elections are held to replace the banned MPs. The government MPs that aren't banned, are still government MPs, but a new PM may need to be elected. When Samak was forced to step down, Somchai was elected PM in parliament. When Somchai and the PPP were banned, Abhisit was elected PM in parliament (and he formed a new government). I don't believe Yingluck is an executive, so she would still be PM, therefore there would be no need for a new PM to be elected.

still equating those 2 changes of PM when they aren't comparable at all.

good job...

How they came to the need to elect a PM may have been different, but the election of them was exactly the same.

Allegiances changed for various reasons, as they have a number of times over the years in Thailand. The PPP/PTP lost the support of a regional block of MPs, probably for exactly the same reason as they had their support in the first place.

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Agree with most of that, except:

Furthmore, it seems extremely curious that that two parties have been banned and perhaps a 3rd political party may be banned and power handed over to a party that hasn't won an election in 20 years. Very strange, indeed. It doesn't sound democratic to me.

Power isn't "handed over" to anyone. When a party is disbanded and it's executives banned, by-elections are held to replace the banned MPs. The government MPs that aren't banned, are still government MPs, but a new PM may need to be elected. When Samak was forced to step down, Somchai was elected PM in parliament. When Somchai and the PPP were banned, Abhisit was elected PM in parliament (and he formed a new government). I don't believe Yingluck is an executive, so she would still be PM, therefore there would be no need for a new PM to be elected.

still equating those 2 changes of PM when they aren't comparable at all.

good job...

How they came to the need to elect a PM may have been different, but the election of them was exactly the same.

Allegiances changed for various reasons, as they have a number of times over the years in Thailand. The PPP/PTP lost the support of a regional block of MPs, probably for exactly the same reason as they had their support in the first place.

Not hardly.

Selecting a new PM when the governing coalition doesn't change and selecting a new PM when the governing coalition does change is not at all the same.

And it makes a difference if there was or was not a general election in between.

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Not hardly.

Selecting a new PM when the governing coalition doesn't change and selecting a new PM when the governing coalition does change is not at all the same.

And it makes a difference if there was or was not a general election in between.

The governing coalition didn't change until AFTER the election of the new PM.

If the PTP didn't have the numbers to elect a PTP PM, then maybe they should have been the ones to call an election.

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"The bill - a change to Article 291 of the 2007 Constitution that cites only the process of charter amendment - allows the setting up of a new drafting body to draw up a new version of the supreme law."

So, we need just a tiny change to the charter to allow us to draw up a completely new version. We have the best of your interest in our mind and actions. No need to complain now, we didn't say yet how the new version will look. Please believe us and we'll tell you all about it when it's too late to complain.

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