Thai court: Bill to amend article 190 'unconstitutional'

[webfact]

POLITICS
Bill 'unconstitutional'
PRAVIT ROJANAPHRUK,
CHANIKARN PHUMHIRAN
THE NATION

Court says change in Article 190 will destroy checks and balances and increase power of the executive at the expense of parliament

BANGKOK: -- THE CONSTITUTIONAL COURT yesterday ruled that the passing of the bill to amend Article 190 of the charter is unconstitutional as it will destroy the checks and balance mechanism of Parliament, harm public interest, as well as unfairly strengthen the executive branch.

The court also said the deliberation process was hasty and cut short, making it unconstitutional.

Article 190 of the Constitution requires all treaties and contracts signed with other countries, which could have a serious socio-economic impact, to be approved by Parliament. The government has removed that clause to bypass the parliamentary process for such treaties.

"It is an attempt to reduce the power of Parliament and increase the power of the executive … with an important implication," the court said in its ruling. It added that any attempt to hasten the signing of a treaty with other countries without proper scrutiny and checks and balances could cause irreversible damage to Thai society.

The court said the move violated articles 3, 68 and 125 of the charter and was tantamount to an attempt to overthrow the current political system.

"The actions affect the checks and balances mechanism and may lead to absolute power in dealing with the signing of treaty with other states… It may lead to ensuing problems that may not be redressed."

The court made it clear that signing any treaty with a foreign state is a very important matter and Parliament as well as the public must have ample time to debate, scrutinise and oppose it if necessary.

The petition was filed by opposition Democrat MP Wiratana Kalaysasiri, who argued that Parliament's passing of the bill last year contravened the charter.

Wiratana said he would gather the signatures of at least 20,000 eligible voters to ask the National Anti-Corruption Commission (NAAC) to impeach legislators who had tried to amend Article 190 of the Constitution. The amendment efforts, according to the majority vote of the Constitutional Court judges, are unconstitutional.

The court ruled on the case in response to Wiratana's petition.

Yesterday's ruling delivered another serious blow to the Yingluck government, which is already reeling under the ongoing political crises.

Earlier, the court had ruled the charter change on composition of the Senate as unconstitutional. The NACC later opened investigations to impeach lawmakers, who had backed the bill amendment, and decided to press charges against 310 lawmakers, including former Parliament president Somsak Kiatsuranont and Senate Speaker Nikom Wairatpanij.

Meanwhile, reacting to the anti-graft body's decision to spare some lawmakers, including caretaker premier Yingluck Shina-watra, Green Group coordinator Suriyasai Katasila questioned the NACC's logic.

"If the NACC would use the voting record as the criteria on whether to file charges, what principle did it use to say that the persons who proposed the law and voted in the first reading had an intention to do wrong while those who voted only in the third reading had no such intention and have protection?" he said.

He said it did not mean that the persons who voted only in the third reading had no ill intention, as they had to consider it thoroughly before finalising the passage of the law. He also referred to the Constitutional Court ruling, which said the charter amendment on the Senate's composition was wrong both in the process and the content. Therefore, letting off the lawmakers who voted in the third reading might be a distortion of the court's ruling.

Pheu Thai MPs have expressed their anger against the NACC over its decision to press charges against 310 lawmakers for their role in proposing and approving another charter amendment regarding the qualifications of future senatorial candidates.

Party spokesman Prompong Nopparit said the NACC unfairly prolonged many cases against Democrat Party members.


-- The Nation 2014-01-09

[Robby nz]

More coffin nails are being banged every day and PT keep digging the grave with their mouth.

We await the constitution court next decision.

Loved the last 'but the Dems' bit from Prompong who should be in jail.

[EricBerg]

"It is an attempt to reduce the power of Parliament and increase the power of the executive … with an important implication," the court said in its ruling.

The missunderstood fugitive could have his servants pass new treaties in no time. Good for his hit and run grabbing. Now he will find things get more and more difficult.

[britmaveric]

Well its of no consequence you cant impeach a legislature for voting for a bill. The courts are there to determine validity and nothing else. If they do impeach its setting a dangerous precedent and it will cause chaos in the future.

[simple1]

Well its of no consequence you cant impeach a legislature for voting for a bill. The courts are there to determine validity and nothing else. If they do impeach its setting a dangerous precedent and it will cause chaos in the future.

It was not detailed in the OP that the debate on the proposed changes to Section 190 was blocked and under the rules the time allocated to review/debate any changes to the proposed legislation also did not comply. The Court has decided that the process for amendments was in contradiction to a number of other Sections of the Constitution.

Surely the current government would have/should have had constitutional lawyer/s to provide guidance and advice on the appropriate rules & legislation. I rarely comment on Thai politics, but to me this matter is a deliberate act of maleficence & would be appropriate to commence impeachment

[ramrod711]

Therefore, letting off the lawmakers who voted in the third reading might be a distortion of the court's ruling.

I agree, if it's unconstitutional you ban everyone who voted for it, or none of the people who voted for it. The decision by the court was clearly a political one.

[moe666]

As per his usual way of doing business Big T got in a hurry to centralize power in the PMs office and it backfired just as it happened in his first and only term. And by the way he wasn't PM when the coup took place, just for the few here who still believe the propoganda

[spirit47]

Well its of no consequence you cant impeach a legislature for voting for a bill. The courts are there to determine validity and nothing else. If they do impeach its setting a dangerous precedent and it will cause chaos in the future.

They have to check before voting for a bill if it collides with the constitiution...In the most cases it is very clear, what the constitiution say, but the legislature want more power, and mostly for cut some human rights. I prefer a strong court, take care about the constitution.

[Cnxforever]

Well its of no consequence you cant impeach a legislature for voting for a bill. The courts are there to determine validity and nothing else. If they do impeach its setting a dangerous precedent and it will cause chaos in the future.

It was not detailed in the OP that the debate on the proposed changes to Section 190 was blocked and under the rules the time allocated to review/debate any changes to the proposed legislation also did not comply. The Court has decided that the process for amendments was in contradiction to a number of other Sections of the Constitution.

Surely the current government would have/should have had constitutional lawyer/s to provide guidance and advice on the appropriate rules & legislation. I rarely comment on Thai politics, but to me this matter is a deliberate act of maleficence & would be appropriate to commence impeachment

"Well its of no consequence you cant impeach a legislature for voting for a bill. "

I agree with you - this is why the constitutional court has the last say.

You can not impeach somebody for trying to pass legislation which is later ruled unconstitutional by the highest court. In democratic countries this is called check and balance.

And as for lawyers providing guidance and advice - ask 10 lawyers to interpret a certain law and you get 10 different answers - again this is why the highest court sets a precedent with it's ruling.

But all this is just the political game played in Thailand for so many years.

It should have ended with the ruling - but the NACC is now holding the cards on somebodies orders until they may or may not need to use them in the future.

Which ever way the tide will turn - the cards are kept under the table until they can be used in "somebodies" favor as a political tool to get rid of political opponents.

This has been practiced over and over in this country - I don't know why some people still fall for this?

The law in this country applies only to the large majority of "unconnected" people - for certain people it can be "bent" - but they are still not above the law if they go to far or fall out of favor.

In the hands of the very few people with the real power - who are above the law - the law is interpreted the way they want it to be - and that is why this country is stuck in the past and can not move forward.

That is also why the general public has a very low opinion of courts who have became political tools to be used by very few to keep things the way they are or make them go the way they want.

This is made very clear in the much publicized cases against Thaksin Shinawatra - when he was acquitted when he should NEVER have been and when he was not acquitted when he should have - both decisions have exposed how politicized courts in this country are and sadly judicially Thailand has gained the status of a "Banana Republic" because of this.

When courts can be swayed by certain people - the functioning of a country in the eyes of the international community is nothing but a charade.

If you listen carefully to the reasoning of the court as well as look into the judges background - and I mean not the part "The Nation" is publishing here - then you understand how this ruling came to be!

This is Thailand - nothing is black and white!

[dominique355]

Here we see the true face of Thaksin's Pheu Thai pary and PM Yingluck: Dismantling democracy piece by piece:

- Senate election to bring it under PT control

- Amnesty to cover up corruption

- Shortcut the Parliament's (and thus the people's) right and influence for legislation, here International teaties. (Separartion of power? Never heard of!)

- Shortcut the Parliament's (and thus the people's) right and influence for state finance, in the reaching 1 trillion baht Rice scheme

- Shortcut the Parliament's (and thus the people's) right and influence for state finance, 2.2 trillion baht for the government to spend without ANY control

- Shortcut the Parliament's (and thus the people's) right to speak in parliament by shutting out the opposition from debates

- Cheating in parliament by vote rigging

- do I have to mention the flood control, the 1st. car owner subsidy, etc...

Bravo, Yingluck! You are the true defender of Democracy and the people's right!

[xminator]

It is obvious to anyone looking from the outside that the constitution court have too much power.

It is also obvious that the judges have problems with their roles. Bangkokpundit have an article today where a constitution court judge argues that Thailand do not need a high speed rail system. It is not the courts role to dabble in politics. Their role is to check that the law is followed.

For me the opposition to any constitution change seems political motivated. Any functioning society changes its constitution. Not trough coups, but trough the majority vote in parliament.

[MK1]

This is what happens when you become a proxy for a family member and allow that exiled member to continue to input and pull the strings from a far. She and her party members knew the risks and now the caretaker government looks like a pathetic dysfunctional backward organization, now the Constitution Court has ruled and exposed them.

If I was one of those 310 colluding law makers, I would be securing a seat on that plane for when Yingluck decides to cut and run with the remaining family fortune rather than have to face the risk of impeachment alone…maybe some of them can sleep on the sofa at Thaksin’s in Dubai.

Edited January 9, 2014 by MK1

[tingtongteesood]

MWUHAHAHAHA Karma's biting the criminals on all their asses now, you must pay for your crimes against society. Yingluck must also be held responsible, the general is responsible for the actions of his soldiers and likewise, the so called 'premier' must be responsible for the actions of her cabinet. Ignorance is NOT an excuse. She took the puppet job and she must accept the strings that come attached to it ( pun totally intended ).

[tingtongteesood]

Well its of no consequence you cant impeach a legislature for voting for a bill. The courts are there to determine validity and nothing else. If they do impeach its setting a dangerous precedent and it will cause chaos in the future.

It was not detailed in the OP that the debate on the proposed changes to Section 190 was blocked and under the rules the time allocated to review/debate any changes to the proposed legislation also did not comply. The Court has decided that the process for amendments was in contradiction to a number of other Sections of the Constitution.

Surely the current government would have/should have had constitutional lawyer/s to provide guidance and advice on the appropriate rules & legislation. I rarely comment on Thai politics, but to me this matter is a deliberate act of maleficence & would be appropriate to commence impeachment

"Well its of no consequence you cant impeach a legislature for voting for a bill. "

I agree with you - this is why the constitutional court has the last say.

You can not impeach somebody for trying to pass legislation which is later ruled unconstitutional by the highest court. In democratic countries this is called check and balance.

And as for lawyers providing guidance and advice - ask 10 lawyers to interpret a certain law and you get 10 different answers - again this is why the highest court sets a precedent with it's ruling.

But all this is just the political game played in Thailand for so many years.

It should have ended with the ruling - but the NACC is now holding the cards on somebodies orders until they may or may not need to use them in the future.

Which ever way the tide will turn - the cards are kept under the table until they can be used in "somebodies" favor as a political tool to get rid of political opponents.

This has been practiced over and over in this country - I don't know why some people still fall for this?

The law in this country applies only to the large majority of "unconnected" people - for certain people it can be "bent" - but they are still not above the law if they go to far or fall out of favor.

In the hands of the very few people with the real power - who are above the law - the law is interpreted the way they want it to be - and that is why this country is stuck in the past and can not move forward.

That is also why the general public has a very low opinion of courts who have became political tools to be used by very few to keep things the way they are or make them go the way they want.

This is made very clear in the much publicized cases against Thaksin Shinawatra - when he was acquitted when he should NEVER have been and when he was not acquitted when he should have - both decisions have exposed how politicized courts in this country are and sadly judicially Thailand has gained the status of a "Banana Republic" because of this.

When courts can be swayed by certain people - the functioning of a country in the eyes of the international community is nothing but a charade.

If you listen carefully to the reasoning of the court as well as look into the judges background - and I mean not the part "The Nation" is publishing here - then you understand how this ruling came to be!

This is Thailand - nothing is black and white!

Why is it that EVERY time something doesn't go PT's way it must be 'political' and 'someone is giving the orders, they have been bought' ?

Maybe, just MAYBE they are actually doing their job properly. If someone was to get to them you can guarantee Thaksin would be the highest bidder and the fact that this has come out at all shows that they are unbiasedly doing what they are supposed to do in my opinion.

[tingtongteesood]

It is obvious to anyone looking from the outside that the constitution court have too much power.

It is also obvious that the judges have problems with their roles. Bangkokpundit have an article today where a constitution court judge argues that Thailand do not need a high speed rail system. It is not the courts role to dabble in politics. Their role is to check that the law is followed.

For me the opposition to any constitution change seems political motivated. Any functioning society changes its constitution. Not trough coups, but trough the majority vote in parliament.

Try reading the article properly and understanding WHY the court has ruled it unconstitutional. PT have been trying to set up a Thaksin dictatorship - that is not democracy !

[chuang]

Amazing

[rubl]

"Party spokesman Prompong Nopparit said the NACC unfairly prolonged many cases against Democrat Party members."

Well, what else would you expect him to say

[aimbc]

I think it's not the content, but these official passed the bill by trying to get around the Check and Balance. Please find out more in detail about the justification. Justice is blind remember that. And they have their reason. And it is the right of the Law enforcement or the NACC to look into this issue. There maybe be a conspiracy to overthrow the monarchy. So far this is the second incident that the parliament have been found breaking the law.

Remember, they have to be accountable for their actions. Not blame it on ignorance, like PM has done. My opinion, anyone who voted for the bill at the final reading, must be accountable for their actions. It's like a contract. Once you sign it, you acknowledge that you understand it. If the PM relied on her staff to interpret it for her, that is her option for being lazy and not to read it herself, she can sue her staff. But she signed it and that means she acknowledge it and must be prosecuted with the rest. That is the democratic way.

It is as straight forward as an election which some people only focus on in a democracy. This is also part of the democracy. So if anyone cries foul, you have no rights to.

[Cuchulainn]

Can these people do ONE thing legally, decently, honestly or truthfully? I hope to helll that the whole lot are impeached and banned for life. (Thrown in jail to rot is too much to ask).

]

[RonCM]

If this was a large ship, the captain is in total control of the crew, if the boat sinks the captain goes down with the boat (figuratively speaking) Lets recall it was the Prime minister who carried the document to the king for approval, she is just as much to blame as the 310 others. (In my opinion)

[Scamper]

This ruling by the Constitutional Court yesterday is a huge, huge thing. It shows the clearest indication to date of where this administration is headed - regardless as to what happens on the streets or not.

[Maha Sarakham Marty]

In the hands of the very few people with the real power - who are above the law

When courts can be swayed by certain people

Who specifically are these "people"?

[indyuk]

The judges have made a serious mistake if indeed the judgement does state:-

"tantamount to an attempt to overthrow the current political system"

Such an uncalled for 'judgement' as this when the referral to the court did not seek it suggests that the Judges are honoring a commitment to persons unknown.

[moonao]

members of the Constitutional Court needs a few checks and balances on them.

Edited January 9, 2014 by moonao

[binjalin]

expected but a sad reflection on Thailand that an elected government cannot seek to alter or change things

[khunken]

It's hardly unexpected that the PTP acolytes will criticise the ruling - after all the PTP were 'elected' and can do what they like, is the mantra.

This ruling is 100% correct as international agreements & treaties should be very carefully scrutinised by the parliament (without debates being curtailed by the government speaker). Allowing the cabinet this power is anti-democratic, but of course that's what big T wants - total power.

The second point is the criticism about the CC not ruling according to the constitution is sometimes correct (not in this case however) but, compared to the downright underhand, stand-in voting, and illegality of far too many actions of the PTP, the CC is a paragon of virtue.

The third issue is with the amending of the constitution. It needs re-writing to contain a two-thirds majority of parliament, followed by the same proportion in a referendum - for any future amendments. It is just far too easy to amend what ought to be the basis of law, justice & politics.

The last issue is again with those who criticise the CC. Where are the proper checks & balances that developed democracies have developed over many years? An elected Senate? Stupid if elected in the same way as parliament. A referendum? Always avoided by the noisiest upholders of their version of democracy. A Constitutional Court? Yes - the final arbiter after a really independent (of the government) Senate is devised.

[cdnvic]

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[dominique355]

The judges have made a serious mistake if indeed the judgement does state:-

"tantamount to an attempt to overthrow the current political system"

Such an uncalled for 'judgement' as this when the referral to the court did not seek it suggests that the Judges are honoring a commitment to persons unknown.

I beg to disagree. Yingluck and her PT buddies try nothing less than make the parliament (one of the three fundamental powers in a democracy) voiceless and useless. This amounts to basically distroying a parliamentary democracy and thus overthrowing the current political system.

In this it continues Thaksin's earlier attempts to concentrate all power in his person (executive) and to weaken the legislative and judicial powers in the country.

And this is going on, just watch what the Cort will say when it has to deal with the 2.2 trillion baht blanko check to the government.

[MK1]

The judges have made a serious mistake if indeed the judgement does state:-

"tantamount to an attempt to overthrow the current political system"

Such an uncalled for 'judgement' as this when the referral to the court did not seek it suggests that the Judges are honoring a commitment to persons unknown.

QUOTE ”The court said the move violated articles 3, 68 and 125 of the charter and was tantamount to an attempt to overthrow the current political system” UNQUOTE.

The court has handed down its decision. Therefore, not up to us thereafter to challenge or question their decision, particularly on complex constitutional law, because they’re respectfully more well-informed on the subject than thou.

[Thait Spot]

The judges have made a serious mistake if indeed the judgement does state:-

"tantamount to an attempt to overthrow the current political system"

Such an uncalled for 'judgement' as this when the referral to the court did not seek it suggests that the Judges are honoring a commitment to persons unknown.

A piece of legislation that would allow the PTP government to sell tracts of land to Cambodia for example or oil and gas rights in the Gulf of Thailand without a house vote?

You think that it should be passed?

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