The co-leaders of the United front of Democracy against Dictatorship (UDD) have refused to accept the verdict of the Constitutional Court (CC) which ruled that Pheu Thai Party′s effort in revising the 2007 charter is unconstitutional.
According to Dr Weng Tojilakarn, co-leader and Pheu Thai party-list MP, “The Constitutional Court has overstepped it boundary and interfered with the powers of the Legislative Branch which is the representative of the people’s power. The court neglects the rule of law and the majority while their decision was deeply undemocratic.”
“The court has no power over the amendment of the constitution because none of the articles in the constitution has given them such authority. In contrast, the responsibility to amend the constitution belongs to the parliament as written clearly in Article 291 of the constitution,” said Dr Weng.
The ruling Pheu Thai party has been attempting to amend the 2007 Constitution to replace the current half-elected Senate body with a fully elected one. According to article 113, appointed senators are selected by a panel of 7 people called the Senator Selection Committee. Four of them are presidents of independent organizations that were form and appointed by the 2006 coup makers.
The court decided to reject the proposal of the parliament based on the reason that it violates various section of the constitution.
The nine judges of the Constitutional Court voted 6-3 that the lower house’s attempt to alter the selection process of the Senate is against Section 3, paragraph 2 and four other Sections including 122, 125, 126, and 291 of the constitution.
The judges also voted 5-4 that the amendment of the constitution to allow the Senate to be fully elected violates Section 68 of the constitution which states that, “No person shall exercise the rights and liberties prescribed in the Constitution to overthrow the democratic regime of government with the King as Head of the State under this Constitution or to acquire the power to rule the country by any means which is not in accordance with the modes provided in this Constitution.”
But how can an attempt to amend the constitution by the majority of elected MPs and senators be turndown by the minority of appointed judges?
Why is it “unconstitutional” when it is the duty of the legislative branch to make law and amend constitution?
How can it become an attempt to overthrow the democratic regime if the proposed bill went through a democratic process and was supported by the majority of the people in the country?
According to Worajet Pakeerut, a leading member of Nitirat (respected group of law academics), the Constitutional Court was created by the Constitution. The CC power is limited by the written Constitution and they cannot exercise that given authority beyond its boundary.
Before considering any petition the CC have to decide whether it is beyond their jurisdiction. If none of the articles in the Constitution allow them to consider the petition, they are powerless and will have to disregard it. In Worajet and Nitirat’s opinion, “the court has exercised power beyond its boundary since they decided to consider the four petitions that were filed against the proposed senate’s selection bill.”
Worajet explained that the CC has misjudged the limit of their jurisdiction and try to legitimise their wrongful claim and decision by citing “the protection of minority” and accusing the houses for “violation of the proposal procedure”. The court also distorted the rule of law when they cited Article 3 of the Constitution as claim for power to consider the petition to examine the amendment of the constitution. According to NItirat, Article 68 does not determine or provide the CC with the authority to scrutinize the amendment of the Constitution.
According to Nitirat and the majority view of people living in this world, the most important thing in a democratic system is that the power should belong to the people. The people can and have the right to exercise their power directly or through elected representatives and government institutions. In a democratic system, the majority ruled simply because a society is full of people with different point of view. In order to make a collective decision together most of the people should agree with it before it can be applied. This is how it works. However there is also a need to protect the minority in order to check on the decision of the majority and make sure that it is reasonable. To protect the minority in this sense means that you should make sure that their voices can be heard because it can become a majority shouts in the future. Nonetheless, protraction for the voices of the minority does not mean the majority have to abide by the will of the few.
Worajet describe that the Constitution Court is just a part of a mechanism that helps minority voices keep check on the decision of the majority. It is not the responsibility of the CC to support the wishes of the minority. The CC is not the “representative” of the minority but rather a “middle-man” whose job is to protect the will of the majority and insure the freedom of speech for the minority.
From Nitirat’s statement, “if the majority have decided to amend the Constitution for the senate to be elected but the minority do not agree. The minority still have a chance to promote their election campaign and eventually changed their status from minority to the majority. When that happened they can change the Constitution to be the way that they want it to be as long it is according to a democratic procedure. There is no article which dictates that the Senate have to be fully elected as proposed by the majority forever.”
Worajet reminded the Constitutional Court’s that it is not their duty to create the political foundation of the country because that responsibility belongs to the people and other related government institutions.
“The Constitutional Court cannot determine the structure of the political institutions in this country and their claim of using the Rule of Law to protect the minority is meaningless. This claim of justification in the verdict is an attempt to obstruct the majority in order to achieve the minority’s aims. The court is helping the minority to destroy the intention of the majority. They are abusing the majority while forcing them to have no stance and eventually established the term “tyranny of the minority”,” said Worajet.
Apart from the clear rejection of the CC verdict from Nitirat, the Pheu Thai Party has also mounted a strong challenge against the Constitution Court’s ruling on the charter amendment draft.
The party has announced that it will seek the impeachment of the five court judges that voted against the bill based on the violation of Article 157 of the Criminal Code while filing complaints against them for malfeasance. The party also vowed to push through another amendment draft in a bid to rewrite the whole charter.
Charupong Ruangsuwan, head of the Pheu Thai said his party have rejected the court ruling because it have violated the constitution by accepting four petitions against the charter amendment for consideration. He said Section 291 of the constitution empowered parliament to change the charter and this was even affirmed by the court’s judges themselves last year when they ruled that the parliament have the power to amend the constitution section by section.
The head of the Pheu Thai party also said the court has clearly interfered with the legislature’s power when it ruled that MPs had violated parliamentary regulations since it is the parliament’s job to rule whether any of the MPs had violated its regulations.
Apart from seeking impeachment of the CC judges, Pheu Thai party would also revive a draft amendment to Section 291 of the constitution up for deliberation which was shelved last on its second reading last year.
The third reading vote on amending Section 291 was put on waiting list following the CC’s ruled last year that such a change could not go ahead without a public referendum.
If Article 291 is amended, a whole new charter can be draft and once that is done, a public referendum would be held on the new charter before it is proposed to His Majesty the King for a royal endorsement.
The UDD also agree with the Pheu Thai party’s bid to rewrite the whole constitution and announced its support for Pheu Thai to further challenge the Constitutional Court by calling for a third reading vote in parliament to amend article 291 of the charter. “Since we can’t change it section by section, we will change the whole charter,” said Jatuporn Prompan after hearing the court verdict last week.
On the latest update, the UDD has announced yesterday that from Sunday 24 November 2013 onward, the organization will stage a rally at Rachmungala Staduim under the slogan named “The state have been Executed by the Constitutional Court” in order to show their support for the elected government and representatives of the people while showing their rejection for the CC’s verdict at the same time. No end date has been specified.
“The majority of the people are against the decision of the Constitutional Court. The court has clearly shown that they do not respect the people’s choices and power of the other branches by claiming that they are the supreme power in this country. We have to show the opposition and the court that the true power of democracy only exists within the hand of the people,” said Thida Tavonseth, president of the UDD.
“We have fought against the Ammart for justice and democracy in the past seven years but we haven’t achieved it because the aristocrats do not want to let go of their power. The Ammart already display that they will not let the people change the constitution so it is time for the Red Shirts to show them that the parliament and the civilian government that was elected by the people is still alive. The UDD stance here is clear; we are against any form of coup, including judicial coup d’état by the Constitutional Court,” Thida added.