Former chief judge says state of emergency declaration unlawful: Thailand

[webfact]

Former chief judge says state of emergency declaration unlawful



BANGKOK: -- A former chief judge of the Supreme Court said that the state of emergency declared by the caretaker prime minister is illegitimate.

The former chief judge Chuchart Srisaeng quoted Article 180 of the Constitution which states clearly that after the dissolution of the House of Representatives by the prime minister on December 9 last year, all her cabinet minister and the prime minister will lost their cabinet minister and prime minister statuses immediately.

However, he said, they still have to perform their duties as caretakers but under conditions defined by Article 181.

This mean that they will continue performing their duties until the new cabinet is formed. It does not mean that they still have authority to perform duties under the Constitution, the former chief judge said.

He also said that under Article 5 of the Emergency Act 2005, it states clearly that the prime minister, with the approval of the cabinet, has the authority to declare the state of emergency.

But as the caretaker prime minister and her cabinet have already lost their minister statuses soon after the dissolution of Parliament, caretaker Prime Minister Yingluck has no authority to declare the state of emergency.

Moreover, the former chief judge said, the protest situation in the capital did not deteriorate and reach emergency level, and the Constitutional Court has earlier ruled three times that the anti-government protests were peaceful and constitutional

Therefore, he said, that the declaration of the state of emergency and any order issued under such emergency condition announced by caretaker prime minister Yingluck are all invalid and unlawful.

Source: http://englishnews.thaipbs.or.th/former-chief-judge-says-state-emergency-declaration-unlawful/


-- Thai PBS 2014-01-23

[Zolt]

That's just silly. So according to that interpretation of the constitution, a caretaker government has in fact, zero authority to do anything?

[jaidam]

Does the caretaker prime minister have the authority to unilaterally resume being an official prime minister without being sworn in by HM? According to alot of forum members her brother did have that authority, so surely his sister should also? Or was the coup removing an imposter prime minister that had no authority to be in that position?

[taony]

I think they might be trying to say that they still have to perform the duties of the ministers (as caretakers) but do not have status as ministers. Since only the PM can call a SOE and she is not PM, only 'filling in' for PM, she can't call one.

But not sure if that is right or makes sense either. Wouldn't all of the other duties be for ministers and PM only also? or are other duties spelled out as for ministers and PM or 'others, as authorized"?

[moonao]

Typical bias yellow judge nonsense.

Part of the democratic reforms proposed by both sides should include purging the bias judiciary, EC, "checks and balances" etc and replace them with neutral, objective people.

[JRSoul]

I'm sure there will be a lot of hair-splitting views on this, but unless someone can prove that an ex-chief judge of the Supreme Court is raving bonkers, I'll take his word on this matter.

Edited January 23, 2014 by JRSoul

[Spalpeen]

Perhaps this eminent retired judge could offer an opinion on the constitutional status of seditious attempts to overthrow an elected government and replace it with an unelected junta.

[pookiki]

So who has the authority to restore order in the event of civil disobedience? Only the army? Interesting he didn't say.

[JRSoul]

Typical bias yellow judge nonsense. Part of the democratic reforms proposed by both sides should include purging the bias judiciary, EC, "checks and balances" etc and replace them with neutral, objective people.

.........approved by Thaksin. That has been the Thaksinists policy for some time now, and it's another fine mess you've got us into Moonie.

[haroldc]

That's just silly. So according to that interpretation of the constitution, a caretaker government has in fact, zero authority to do anything?

No, a caretaker government has the authority to do anything permitted by Article 181. The judge is saying that, in his opinion, declaring a state of emergency is not permitted by Article 181. Whether this opinion is correct or not is a matter for the Constitutional Court to decide.

[pantareiyingluck]

A former judge; if we start listening to all 'formers'. There was a former PM who was unlawfully toppled from his position by a coup...........

[uty6543]

I would think (only using common sense) that if a state of emergency actually exists a caretaker government can declare one.

[JRSoul]

Perhaps this eminent retired judge could offer an opinion on the constitutional status of seditious attempts to overthrow an elected government and replace it with an unelected junta.

The main point of the thread is that PTP are not the elected government, they are the caretaker government. You might like to ask this erudite gentleman if attempts to overthrow a caretaker government constitutes sedition.

<snip>

Edited January 23, 2014 by soundman
Bickering

[BillyBobThai]

[whybother]

This mean that they will continue performing their duties until the new cabinet is formed. It does not mean that they still have authority to perform duties under the Constitution

How can they perform their duties if they don't have authority to perform their duties?

[PatOngo]

Former chief judge says state of emergency declaration unlawful

Ah....... yeah.........so is corruption and prostitution.

[focus27]

Another legal ping pong bomb. The term "caretaker government", as widely used, does not appear to be defined in the constitution.

180(2) states that Ministers vacate office en masse upon [...] the dissolution of the House of Representatives", but

181 starts with "The outgoing Council of Ministers shall remain in office [...] and may perform duties only to the extent of necessity..." - and goes on to list certain restrictions.

So, is a "caretaker government" in office or not? There are restrictions on executive activities - that's why the EC was asked if it be allowed to spend unallocated monies to rice farmers (it would have been OK if they had been smart enough to figure this bit out before calling an election! doh!) - but there is a wide degree of interpretation as to what is deemed "necessary" - and by whom.

Again, poorly worded constitution.

[binjalin]

stay retired - nothing worse than someone who "used to" be something start meddling when there day is over

[TVGerry]

stay retired - nothing worse than someone who "used to" be something start meddling when there day is over

He's a former chief judge so his opinion matters. Just because you don't agree with him doesn't mean he's meddling. He's definitely more qualified then everyone on TV regarding this matter.

[Bakseeda]

Perhaps this eminent retired judge could offer an opinion on the constitutional status of seditious attempts to overthrow an elected government and replace it with an unelected junta.

What elected government are you talking about...Oh, the one that BOUGHT & BULLIED its way to government. You are right ... ofcourse you are...

[Crushdepth]

That's just silly. So according to that interpretation of the constitution, a caretaker government has in fact, zero authority to do anything?

They are authorised to continue in a minimal role (necessities) only. Minding the shop, basically.

[wprime]

He is correct in that if the protests did not reach emergency level, the SoE is unlawful. This is however for the CC to rule upon.

His other point is based on a logical fallacy arguing that because the Emergency Act outlines one means of invoking an SoE, that other means are inherently illegal.

[ggold]

Typical bias yellow judge nonsense. Part of the democratic reforms proposed by both sides should include purging the bias judiciary, EC, "checks and balances" etc and replace them with neutral, objective people.

But but, that is what the PTP wanted to do purge the bias Judiciary and replace it with yes men! Just because you don't like what they say doesn't mean they are biased. Besides the way things are it seems even the politicains don't know thier own constitution!

Edited January 23, 2014 by ggold

[Nowhereman60]

So a caretaker government could not declare an act of war if the country was attacked. Interesting. Guess the do just like they are doing now. Not a damn thing.

[Crushdepth]

Typical bias yellow judge nonsense. Part of the democratic reforms proposed by both sides should include purging the bias judiciary, EC, "checks and balances" etc and replace them with neutral, objective people.

But but, that is what the PTP wanted to do purge the bias Judiciary and replace it with yes men! Just because you don't like what they say doesn't mean they are biased. Besides the way things are it seems even the politicains don't know thier own constitution!

Their legal advisers are certainly useless. Blunder after blunder after blunder.

[smedly]

There is one thing that bothers me - why couldn't the government call elections without dissolving the house, surely they can do that, wouldn't that have allowed them to evade all the grief they are getting now

[Scamper]

This is absolutely correct, for all the clear and sober reasons stated. The administration is behaving unlawfully, and the Thai media - as if it isn't restricted enough - is now being given the Kim Jung Un manual for friendly broadcasts. This would mean no Cambodian mercenaries stories. No more narratives of such a funded insurgency. No more narratives of opposition or opinion that does not coordinate with the administration's narrative and interpretation of events. But the main argument outlined here by this judge is key. As this is officially a caretaker administration, they do not have the authority to administer a state of emergency in Robert Mugabe fashion on the eve of an election.

[Thait Spot]

Does the caretaker prime minister have the authority to unilaterally resume being an official prime minister without being sworn in by HM? According to alot of forum members her brother did have that authority, so surely his sister should also? Or was the coup removing an imposter prime minister that had no authority to be in that position?

You've answered your own question at the end.

There was no coup at all - its a malicious ubiquitous red myth

Just the boys in green out on jolly

Sent from my Nexus 4 using Thaivisa Connect Thailand mobile app

[Thait Spot]

I think they might be trying to say that they still have to perform the duties of the ministers (as caretakers) but do not have status as ministers. Since only the PM can call a SOE and she is not PM, only 'filling in' for PM, she can't call one.

But not sure if that is right or makes sense either. Wouldn't all of the other duties be for ministers and PM only also? or are other duties spelled out as for ministers and PM or 'others, as authorized"?

A caretaker puppet with a caretaker organ grinder

Sent from my Nexus 4 using Thaivisa Connect Thailand mobile app

[Thait Spot]

Typical bias yellow judge nonsense.Part of the democratic reforms proposed by both sides should include purging the bias judiciary, EC, "checks and balances" etc and replace them with neutral, objective people.

So, a retired judge airs his opinion and you want to bring down the remaining pillars of society?

Tarit is first on the list for the glue factory by a country mile

Sent from my Nexus 4 using Thaivisa Connect Thailand mobile app