Charter change: Just the FAQs

By Nattaya Chetchotiros and Mongkol Bangprapa
Bangkok Post

Baffled by the ongoing debate over constitutional amendment? Here are answers to some of the frequently asked questions.

Question: Usually, laws that have been amended are not applied retroactively. Will this be the case with the proposed amendment to the 2007 constitution and does this mean that if the charter is changed so that parties can't be disbanded, the Constitution Court will have to abolish the pending cases of Chart Thai, Matchimathipataya and People's Power party?

Answer: According to Seri Suwanpanont, vice chairman of the Constitution Drafting Assembly, which came up with the 2007 charter, if Section 237 is rewritten so that only individuals can be punished, the court can thus judge the case according to the amendment.

A retroactive application means the change would be applied to cases that are closed. If the cases are being deliberated, a change made to the section that exonerates the crime being tried can mean that the court will no longer need to consider it.

Q Between the constitutional amendment and the party dissolution cases, which one will be done first?

A There is a race there.

The Chart Thai and Matchimathipataya party dissolution cases have been sent to the Office of the Attorney General on April 24. The law states that the office must send the case to the Constitution Court within 30 days, or by May 24.

The Constitution Court can take as long as it wants to pursue the cases. The similar petition to disband the Thai Rak Thai and Democrat parties, also filed in May two years ago, took more than six months to finish. In summary, the dissolution cases of Chart Thai and Matchimathipataya should be finalised in early August as the earliest, or late December as the latest.

The People's Power party dissolution case depends on whether the Supreme Court will agree with the EC's handing out of the red card to the party's executive Yongyuth Tiyapairat or not. That can take up to 3 months.

If the Supreme Court confirms Yongyuth's guilt, the process towards the PPP party dissolution can take between 3 to 6 months. So, for the PPP, the dissolution case won't be done until October or January next year as the latest.

The PPP's legal team earlier aimed to propose the draft amendment to the parliament on May 10. It should be accepted in principle on May 14 or 15. The draft should be vetted in the middle of June - the examination should take about two months. The third reading is scheduled for July. It should be up for final approval on September 30.

If all goes as planned, the amendment should be ready to be presented for endorsement by His Majesty the King on October 10.

The party said it might not meet the May 10 deadline. But the whole process should still be within this framework.

Q How is the amnesty to 111 banned executives of the disbanded Thai Rak Thai party related to the charter change?

A Since the Constitution Tribunal ruling that suspended the political rights of its 111 executives was based on the Council for National Security's Announcement No 17, an abolition of Section 309, which recognised all the CNS's actions and orders as lawful and constitutional, could be interpreted as essentially nullifying the ban.

Q What else will be affected by the abandoning of Section 309?

A The Assets Scrutiny Committee will be hardest hit.

The ASC was established by the CNS's order No 30. Since its mission is temporary - the ASC's life expires in June - its status is not recognised as lawful by the interim constitution of 2006 or the current one, unlike the other independent bodies such as National Counter Corruption Commission or the Election Commission or Constitution Court whose status were recognised in the transitory provisions of the current charter.

If the change includes an abolition of the whole Section 309, the ASC's status could be made unlawful, so would the cases they have handled and prosecuted. The plaintiffs in the corruption cases could use this as ground for dismissal of the charges against them.

As for the cases already accepted by the court such as the Ratchadapisek land or SC Assets, if the ASC made their cases based on the CNS's order, the argument would become contrary to the constitution if Section 309 is lifted.

A precedent was made when former minister Montree Pongpanich, whose assets were seized by the National Peace Keeping Council which staged a coup in 1991 against Gen Chatichai Choonhavan, had all of them returned on the grounds that the assets seizure committee was not legally entitled to pursue such a case against him.

Parinya Thewanaruemitkul of Thammasat University said a lot would depend on whether people who seek to change the charter would write the transitory provision - how far they intend the cancellation to go back.

"If they put in a specific transitory provision that seeks to cancel all the work of the ASC, then it would be clear that the amendment is only for self-interest."

Q What would be the effect of amending Section 237 so that only individuals caught with wrongdoing are punished?

A If the party's leader and members of the executive board are not held responsible for election fraud, it is likely that Thai politics would revert to the same old form of money politics. Vote buying will be rampant. Cabinet ministers will come from those who have the highest number of members of parliament in their control, not because of their ability.

Q How about the proposal to simply bring back the People's Charter of 1997? What are the pros and cons of this option?

A The 1997 constitution does not have anything like Section 309. If it's brought back, it's an automatic cancellation of Section 309. Also, the 1997 constitution allows a dissolution of a political party only on the ground that it acts as an enemy of democracy. It's more lenient than Section 237 in the current constitution.

Q What can MPs do if their party is disbanded?

A They have to find a party to affiliate with within 180 days.

Q Section 237 and Section 309 of the 2007 constitution are often cited as central to the amendment. What do they say?

A Section 237: In the case where any candidate in an election commits any act or instigates or aids and abets the commission of any act which violates the Organic Act on the Election of Members of the House of Representatives and the Acquisition of Senators or the Rule or Notification of the Election Commission and thereby results in an election not proceeding in an honest and fair manner, such person shall have his or her right to vote revoked under the Organic Act on the Election of Members of the House of Representatives and the Acquisition of Senators.

If, in the commission of the act by the person under paragraph one, there has appeared convincing evidence that any Leader of a political party or any member of the executive committee of a political party has connived at or allowed the commission thereof or, having known of the commission thereof, failed to prevent or take remedial action in order to render the election to proceed in an honest and fair manner, it shall be deemed that such political party has committed an act with a view to acquiring the power to rule the country by any means which is not in accordance with the modes provided in this Constitution under section 68, and in the case where the Constitutional Court has delivered an order dissolving that political party, there shall be revoked the right to vote of the Leader of such political party and members of its executive committee for the period of five years as from the date of the dissolution order.

Section 309: All acts recognised in the Constitution of the Kingdom of Thailand (Interim), B.E. 2549 (2006) as lawful and constitutional, including acts incidental thereto whether performed prior to or subsequent to the date of the promulgation of this Constitution, shall be deemed constitutional under this Constitution.