Understanding Thai Constitutional court ruling

Seeing that the Thai Constitutional court ruled saying that the makeup of the Senate could not be changed, and based on the level of controversy surrounding that ruling, we decided to have our own look. This entry will look at the wording of the Constitution and provide a very basic assessment that uses common sense and logic. But to cut to the quick of it, it all comes down to just one word in the Constitution that anyone can understand.

First off we must make a disclaimer. Nobody on the Connecting the Dots team has any type of legal degree. Our strength is in highly accurate predictions of what will happen next with our score being correct on average 78% of the time. We look at things with logic and understand human behavior. So we decided to have a look at this and come to our own conclusions as much of the future behavior surrounding this ruling will lead Thailand down the same path it has been on Since 2005. That behavior includes violence and general unrest.

Ruling History

So to start off we need to place a few dots down from past rulings of the Constitutional court. Perhaps the most significant blanket ruling is that changes to the Constitution can be made if the problem is troublesome and will increase ease of government.

Our take on that is if it isn’t broken, don’t try to fix it. Much of the Constitution is designed to keep people from consolidating power as Thaksin was doing prior to the 2006 Coup that sent him packing. Seeing that the proposed changes in the Senate would work to consolidate power, there is already conflict brewing.

The Thai Senate presently consists of half the senators being appointed. The reason for that is to keep power away from any one person. Thaksin did not like that and also knowing he would sooner or later get around to wanting to change that, the drafters of the Constitution built a stop gap measure into the Constitution that was included in several articles.

Controversial ruling

The Constitutional court cited section 68 paragraph 2 that it had the power to rule.

Section 68. 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 or to acquire the power to rule the country by any means which is not in accordance with the modes provided in this Constitution.

In the case where a person or a political party has committed the act under paragraph one, the person knowing of such act shall have the right to request the Prosecutor General to investigate its facts and submit a motion to the Constitutional Court for ordering cessation of such act without, however, prejudice to the institution of a criminal action against such person.

In the case where the Constitutional Court makes a decision compelling the political party to cease to commit the act under paragraph two, the Constitutional Court may order the dissolution of such political party.

In the case where the Constitutional Court makes the dissolution order under paragraph three, the right to vote of the President and the executive board of directors of the dissolved political party at the time the act under paragraph one has been committed shall be suspended for the period of five years as from the date the Constitutional Court makes such order.

So that is simple enough for everyone to understand that the court did have the authority and direction under the Constitution to rule.

Cutting straight to the heart of the matter section 291 is the meat of the ruling.

Section 291. An amendment of the Constitution may be made only under the rules and procedure as follows:

(1) a motion for amendment must be proposed either by the Council of Ministers or members of the House of Representatives of not less than one-fifth of the total number of the existing members of the House of Representatives or members of both Houses of not less than one-fifth of the total number of the existing members thereof or persons having the right to votes of not less than fifty thousand in number under the law on the public submission of a bill;

A motion for amendment which has the effect of changing the democratic regime of government with the King as Head of State or changing the form of State shall be prohibited;

(2) a motion for amendment must be proposed in the form of a draft Constitution Amendment and the National Assembly shall consider it in three readings;

(3) the voting in the first reading for acceptance in principle shall be by roll call and open voting, and the amendment must be approved by votes of not less than one-half of the total number of the existing members of both Houses;

(4) in the consideration section by section in the second reading, consultation with the people who submit a draft Constitution Amendment shall be held;

The voting in the second reading for consideration section by section shall be decided by a simple majority of votes;

(5) at the conclusion of the second reading, there shall be an interval of fifteen days after which the National Assembly shall proceed with its third reading;

(6) the voting in the third and final reading shall be by roll call and open voting, and its promulgation as the Constitution must be approved by votes of more than one-half of the total number of the existing members of both Houses;

(7) after the resolution has been passed in accordance with the above rules and procedure, the draft Constitution Amendment shall be presented to the King, and the provisions of section 150 and section 151 shall apply mutatis mutandis.

So in the most simple understanding and using a dictionary to assist, the paragraph below and in particular one single word ‘Form’ is what it all comes down to.

A motion for amendment which has the effect of changing the democratic regime of government with the King as Head of State or changing the form of State shall be prohibited;

Relevant dictionary entry:

a. The shape and structure of an object.
b. The body or outward appearance of a person or an animal considered separately from the face or head; figure.
a. The essence of something.
b. The mode in which a thing exists, acts, or manifests itself; kind: a form of animal life; a form of blackmail.
a. Procedure as determined or governed by regulation or custom.
b. A fixed order of words or procedures, as for use in a ceremony; a formula.
4. A document with blanks for the insertion of details or information: insurance forms.
a. Manners or conduct as governed by etiquette, decorum, or custom.
b. Behavior according to a fixed or accepted standard: Tardiness is considered bad form.
c. Performance considered with regard to acknowledged criteria: a good jump shooter having an unusual form.
a. Proven ability to perform: a musician at the top of her form.
b. Fitness, as of an athlete or animal, with regard to health or training.
c. The past performance of a racehorse.
d. A racing form.
a. Method of arrangement or manner of coordinating elements in literary or musical composition or in organized discourse: presented my ideas in outline form; a treatise in the form of a dialogue.
b. A particular type or example of such arrangement: The essay is a literary form.
c. The design, structure, or pattern of a work of art: symphonic form.
a. A mold for the setting of concrete.
b. A model of the human figure or part of it used for displaying clothes.
c. A proportioned model that may be adjusted for fitting clothes.
9. A grade in a British secondary school or in some American private schools: the sixth form.
a. A linguistic form.
b. The external aspect of words with regard to their inflections, pronunciation, or spelling.
a. Chiefly British A long seat; a bench.
b. The resting place of a hare.
12. Botany A subdivision of a variety usually differing in one trivial characteristic, such as flower color.
v. formed, forming, forms

So again in the most simple terms, changing the Senate from being half appointed to fully elected changes the form and makeup. The form in the Senate is to keep power from being consolidated, and no degree in Thai law or in any law is needed to understand that.

So based on that simple layman’s description, anyone who is open minded and not pre-loaded with preadjust or has some sort of political agenda can see the court made the correct ruling in the context of the Constitution.

Hopefully this common sense entry will lend itself to keeping things from getting out of control in Thailand.

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