Update: Constitution Court says "unconstitutional"

In a harshly worded verdict, the Constitution Court said the process behind the passing of an amendment to require all senators be elected was badly flawed and the amendment itself was unconstitutional. No punishment was given, however.

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Security will be extremely tight at the Constitution Court tomorrow as opposing groups are likely to come out in large numbers. APICHIT JINAKUL

Wednesday, 14:15

Supporters gather near the Constitution Court to hear the ruling. THITI WANNAMONTHA

Constitution Court rules amendment calling for elected senate violates constitution

The Constitution Court has just finished reading its verdict on the amendment passed by parliament that would require all senators to be elected. The court decided that the complaints against the amendment had merit and by a 6-3 margin declared that the amendment process was badly flawed, unfair and dishonest and by a narrow 5-4 margin that the content itself went against the current constitution. It did not accept, however, that the wrongdoing required the dissolution of political parties supporting the amendment.

At the outset, the Court disagreed with MPs and senators who asserted it did not have the authority to consider the complaints since it dealt with amending the constitution which is clearly a right of parliament. It did have jurisdiction, the Court said.

Then, using harsh language at times, the Court proceeded to find fault with the amendment process and the content of the amendment itself. First, the documentation submitted in parliament was shoddy and inconsistent with improper changes inserted.

Secondly, the debate was cut short, giving opponents of the draft amendment inadequate time to voice their objections.

Finally, the vote involved blatant cheating, with one MP, seen clearly in video clips, using a stack of parliament IDs cards to vote many times.

As for the content of the amendment, the Court found fault with the lax qualifications required for senatorial candidates, particularly allowing spouses and other family members of MPs to stand for election. This would weaken the independence of the Senate and destroy the system of checks and balances.

The did not, however, agree with the complaintants, that these acts required that the political parties supporting the amendment be dissolved or the politicians voting for them be impeached.

Tuesday

Here is some background on what the court was considering. This was published yesterday, so today is the actual decision day.

What is the Constitution Court deciding tomorrow?

When the Thai Parliament voted to amend the section of the constitution dealing with how senators are chosen, it seemed simple enough and very democratic.

In the future all senators would be elected by ordinary citizen voters. There would no longer be any appointed senators chosen by a committee consisting of judges and high government officials.

The proposed amendment was quickly challenged, however, by groups of opposition Democrats and senators who petitioned the Constitution Court to decide if it was constitutional, i.e., that it followed the rules of the present constitution.

The complaints were varied, but the Court decided to combine them into one case and will announce its ruling tomorrow. This could be a very, very important decision. It could help to calm the current political tensions or it could make them worse.

The Constitution Court has ardent supporters...THITI WANNAMONTHA

...and vocal opponents. APICHART JINAKUL

Let's take a quick look at what the court is considering. Two of the complaints deal with the concept of "checks and balances," first that the Senate limits the power of House through it ability to scrutinise, delay or suggest changes to legislation and, secondly, the parliament as a whole limits the power of the executive branch of government, the prime minister and his/her cabinet.

If the Senate is fully elected, the complaints go, a political party could end up controlling the House, the Senate and the executive branch.

The court will rule on the issue of fairness. Is it fair, for example, to abruptly end the terms of the current appointed senators, but not the elected senators.

Many of the other complaints allege that rules were violated during the consideration of the draft amendment. The court must decide whether the debate was improperly limited and whether the opposition was prevented from fully airing their reservations.  And was there cheating during the vote? Did some MPs cast votes for MPs who were not present? And did the House Speaker have the right to propose the amendment draft to His Majesty the King through the prime minister and bypass the Senate?

Finally, the Court will also consider whether the Senate Speaker, an elected senator, acted impartially during the consideration of the amendment.

There has been lots of speculation on how the Court might rule, but we can wait another day to find out.

The ruling Phue Thai party, however, seems in no mood to wait for the verdict. Yesterday, Apiwan Wiriyachai, a member of Pheu Thai's strategic committee, said his party will not accept the Constitution Court's ruling no matter if it is positive for the party, rejecting the complaints, or negative, agreeing that the constitution was violated or that rules were broken.  

The Parliament has the constitutional right to amend the charter and the Court, therefore, has no authority to rule on the case and by doing so it will interfere in the legislative branch, Mr Apiwan said.

One thing is for certain. The Court's ruling tomorrow will be watched closely by groups calling the government's ouster and opposing groups angry at what they see are attempts to illegally remove a democratically-elected government.

Adapted from stories in the Bangkok Post over the past two days.

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