Doing Business in Thailand

If you are a frequent reader on my blog you will know that i do not normally copy past article from the web and that i always draft original articles. However an article just published by the Bangkok Post on the Constitution Court case on the Charter Review has catched my interest and I think i should give it to you as it is:

Quoted from the Bangkok Post of the 10.07.2012:

” The Constitution Court judges are treading a self-destructive path because they are dealing with larger issues beyond their legitimate power, such as the public mood and political responsibility, and they could plunge the country into a further round of political turmoil, two respected legal experts warned on Tuesday.

Likhit Dhiravegin, retired professor of law and a fellow of the Royal Institute, said that it was clear from the beginning that the court was not the appropriate venue to deal with the issue of the charter amendment bill,  using Article 68 of the constitution, but the issue was politicised.

Accepting the case and proceediing with it was already an undemocratic move. The court had not abided by the principle of the separation of powers, said Mr Likhit, who was a deputy interior minister in 1997.

In 2006, the Constitution Court rejected a petition by MP Surapong Tovichakchaikul submitted under the same section in the previous constitution on the basis that Section 63 (which became Section 68 in the current constitution, containing the same text) did not allow the complainant to directly submit the petition to the Constitution Court.

The court then ruled that the petition, which requested the court to disband the Democrat Party, must first be considered by the attorney-general.

The charter court’s current undertaking had become a cul de sac, said Mr Likhit.

“There is now doubt whether the court is acting innocently in its undertaking because there seem to be orchestrated efforts that might entrap the court’s verdict, locking it into a situation that leads to further violent conflict,” said the law professor.

If the court ruled that the charter amendment move was appropriate under Article 68, the parliament must  continue with the third, final reading of the bill, he said.

But if the court ruled the charter amendment move was not constitutional, there would be chaos. Even if the verdict led to the dissolution of the ruling party, Pheu Thai,  the scale of the problem would be even larger than the court could handle, given the public mood and the political responsibility for subsequent events,  Mr Likhit said.

“Whoever is behind the request for the court to intervene acted unwisely. The spiralling conflict will lead to a call for intervention and hence a civil war. In a democracy, there is no other court doing this,” the retired Thammasat law professor said.

The fact that former prime minister Thaksin Shinawatra could now travel freely, including to the US, and that Prime Minister Yingluck Shinawatra has accepted an invitation by United States Secretary of State Hillary Clinton to address a US business forum in Phnom Penh on Friday shows that this government is internationally accepted. Anything undermining the elected administration might not be regarded as good for the country, Mr  Likhit said.

“Thai political problems are rooted in confrontation, the emerging new versus the old traditional power. Some 65 million people have to bear the fruit of the conflict between only a few people from the two main groups. This is a very grave situation in Thai contemporary politics,” he said.

Which ever way the verdict goes on Friday, this chronic conflict would not end easily, he said.

Verapat Pariyawong, an independent legal expert, said there were weak points in the case from both sides. The plaintiffs appeared by be drawing a plot to overthrow the monarchy out of thin air, while the accused, particularly the parliament president, had yet to come up with an explicit commitment that if any parliamentarian has an arguement about a draft constitution he would submit it to the parliament and not deal with it single-handledly.

The petition claims the move to amendments to the constitution would breach Article  68 of the charter, which provides 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 state under this constitution”.

The House speaker should guarantee the court and other doubters that whoever is the speaker after 240 days (after the third reading’s passage) would agree that it is not the speaker alone who decides future bills like this,  said Mr Verapat, a Harvard law graduate.

He said he foresaw the following possibilities:

1. The petition was voided due to the wrong process (not filed by the attorney-general);

2. Nullified because it was an exercise of duty not rights and liberty (the court could not trespass on  legislature authority);

3. The amendment was stipulated in Article 291 and the court could not confuse it with the Article 68;

4. The court rules that it involves rights and liberty, but it was in the petitioner’s imagination and there was already a preventive mechanism, so the petition is nullified;

5. The court rules that the charter amendment move was wrong, but since the damage had not yet occurred and since proccedings were instituted by the whole parliament, not by the political parties, it would not lead to a party dissolution;

6. The court rules that the charter amendment move is covered by Article 68 and the parties would be dissolved.

End of Quote

I’m particularly surprised by the fact that no one since then has remarked that the Court in accepting this case went again its previous practice and I’m not sure how this will be viewed by all those following Thai politics.

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Originally posted 2012-07-10 20:00:03.