Thai politics: Should final decision be left to Constitutional Court?

[webfact]

BURNING ISSUE
Should final decision be left to Constitutional Court?
ATTAYUTH BOOTSRIPOOM

BANGKOK: -- IN ADDITION to the controversial proposal for an outsider prime minister who does not need to be an MP, the Constitution Drafting Committee is now dealing with another hot issue - involving one of the most abused articles in the previous constitution.

Should it empower the Constitutional Court to decide what can be done in cases where no provision under the new charter can be applied?

On the first day of its meeting to write a new Constitution article-by-article, the CDC resolved to add another paragraph to a constitutional article that is based on Article 7 of the previous constitution.

Article 7 of the 2007 charter, which was abolished after the coup in May last year, stated that: "Whenever no provision under this constitution is applicable to any case, it shall be decided in accordance with the constitutional practice in the democratic regime of government with the King as head of the state."

The article in question was among those most abused. Many people cited the clause as an attempt to use "unconstitutional means" to get the country out of a political deadlock intentionally created by some groups. In fact, there were other alternatives available in the constitution, but those people preferred to seek a solution outside the charter.

They talked about an unelected "prime minister under Article 7" who they said could be appointed under Royal Command, although many legal experts said that could not be done.

The constitution drafters added a paragraph that would allow the House of Representatives, Parliament, Cabinet, Supreme Court, Supreme Administrative Court, and any organisation set up under the constitution to seek a verdict by the Constitutional Court where they were unsure about the scope of their authority under Article 7.

With this added paragraph, the Constitutional Court would have the power to decide what cases should be regarded as "the constitutional practice in the democratic regime of government with the King as head of the state." Simply put, the court will be empowered to interpret the clause in question any way they like.

Some CDC members said that the addition was aimed at preventing requests for a royally-appointed prime minister. "In order to prevent the proposals of a royally-appointed PM that were perceived as a threat to the monarchy, empowering the Constitutional Court to scrutinise charter articles would create a defence for further risks and disputes," said a member of the charter-drafting subcommittee.

This solution to the problem has put into the constitution a means that has never existed in a democracy.

It is dangerous to empower a single agency to have the authority over the three branches of government - the legislature, the administration and the judiciary. There are also critics who questioned the Constitutional Court's neutrality and efficiency.

The proposed power of the Constitutional Court under this added paragraph is similar to that of the idea of a powerful "super-cabinet" proposed during a recent seminar by the King Prajadhipok's Institute.

This has led to suspicion that the CDC's latest move on the Constitutional Court may have been well planned as part of a plot.

Source: http://www.nationmultimedia.com/politics/Should-final-decision-be-left-to-Constitutional-Co-30251927.html


-- The Nation 2015-01-15

[zaphod reborn]

"With this added paragraph, the Constitutional Court would have the power to decide what cases should be regarded as "the constitutional practice in the democratic regime of government with the King as head of the state." Simply put, the court will be empowered to interpret the clause in question any way they like. . . . This solution to the problem has put into the constitution a means that has never existed in a democracy."

Utter nonsense. In the US, the Supreme Court has the sole authority to make final decisions about the the constitutionality of any legislation, act of the President, or act of any official or agency of the U.S. government. Even if there is a lack of legislation, the Supreme Court must rule on the matter, based on the constitutional framework and the policy of existing law that surround the gap. The Nation needs to send its journalists back to university for a basic course in political science.

[rickirs]

Empowering the Constitutional Court to decide what can be done in cases where no provision under the new charter can be applied is simply giving it legislation powers to create new law. As necessary the CC can not only abrogate any democratic legislation but essentially write its own laws, all under the guise that the Constitution is "vague" or "silent."

The current CC should be disbanded and a new Court appointed by an elected government.

The unelected Court judges were largely (one exception) appointed by the previous coup (#11) and will likely be biased towards the interests of the elitists as evidenced by retention of the Court judges by the current coup. Its silence with the Prayut coup's abolishment of the 2007 Constitution and illegal overthrow of the Constitution was at least a dereliction of duty, if not treasonous.

The CC's cooperation with the current coup as part of the coup-led government violated its judicial independence. If the CC had a true commitment to the 2007 Constitution and the Thai people, it should have resigned en mass in protest to the coup. It should have refused to recognize the coup's authority and the coup-created government. It should have refused to recognize the coup's Provisional Charter. It didn't and that amounts to an implicit acceptance of the coup as legitimate embodiment of the Thai electorate. The CC has betrayed the very constitution that it was charged to protect.

[JAG]

No, leave the power where it seems to reside, in the hands of the head of the army.

And whatever you do, don't take the slightest notice of whatever the electorate decide!