Yingluck’s amendment series

Thaksin's clique returned as soon as elections resumed. His proxies, Samak Sundaravej, and subsequently Somchai Wongsawat, led a fragile government in 2008. They faced massive street protests, hostile senators, and contentious court cases.^[596] The Constitutional Court quickly ousted them through frivolous lawsuits.^[597] Late in 2008, the army brokered a deal to promote Abhisit Vejajiva, the opposition leader and the leader of the royalist Democrat Party, as the new prime minister.

Prior to Yingluck, Samak Sundaravej initiated an amendment campaign, tar­geting the disproportionately harsh party dissolution and the amnesty for the

2006 junta.^[598] But his government collapsed before his efforts materialized. In contrast, Abhisit amended the electoral system but his effort was minimal.^[599] Yingluck ambitiously vowed to replace the whole charter. It was part of her elec­tion campaign, and her government added it to the policy priority list.^[600]

This section will discuss four cases concerning constitutional unamendability in the Constitutional Court. In each case, there are issues of jurisdiction and procedural irregularities, but this section is interested primarily in the topic of unamendability, which was the focus of these judgments.^[601]

9.3.1 A new constitutional drafting council (2012)

In February 2012, the Yingluck cabinet proposed a motion to amend the

2007 Constitution to replace the existing amendment provision with the aim of establishing a constitution drafting council.

Thailand's unamendability 177 MPs, and other right-wing figures. Believing that she was rebuilding Thaksin's political empire, they coordinated to file five petitions to the Constitutional Court asking for the dissolution of PT.

Because an amendment draft was not explicitly under the court's jurisdiction, the Constitutional Court controversially accepted the case under Section 68.^[602] However, Yingluck's opponents directly filed a petition without the Attorney General's approval. The Constitutional Court accepted that circumvention by describing the case as urgent.^[603]

The government defended its proposal that an amendment was not an act to overthrow the democratic government with the king as the head of the state. The government prepared to install a list of procedural safeguards. The procedure adhered to the participatory democratic principle as it would seek approval both from the people's representatives in the council and directly from the national ref­erendum. The council would act independently of the legislature. Finally, there was a substantive guarantee that the Speaker of the House must review the new draft to determine if it would endanger the democratic form of government with the king as the head of the state. The Constitutional Court was not convinced.

The Court referred to the primary constituent power of the 2007 Constitution, which was voted by the people in the 2007 national referendum.^[604] Therefore, the Parliament could not amend the Constitution through the normal legislative process. The Constitutional Court opined that, were the government to draft a new constitution, it should hold another referendum to acquire popular approval of the plan.

The Constitutional Court's innovation, recommending a referendum, was unusual for the judiciary, often known for a conservative, textualist approach to interpretation. However, the Constitutional Court did not find PT had overthrown the democratic government yet. That fear was speculative. The Constitutional Court refused to entertain a request to dissolve PT.

During the trial, it should be noted that four judges tried to withdraw them­selves as they were former drafters or had previously expressed their opinion

regarding the possible constitutional amendment. Jaran Pakdithanakul, the intellectual and moral powerhouse of this conservative bench and one of the 2007 drafters, once remarked publicly that the draft was not really democratic while promising that the people could amend it later. He was allowed to with­draw.^[606] Two judges, Nurak Mapraneet and Suphot Kaimook, who were also 2007 drafters, were told to stay on the bench.

Yingluck and her followers were upset by this setback. They even contem­plated impeaching these judges but eventually they decided to pursue a less ambi­tious path by amending the 2007 Constitution in a piecemeal manner. They would focus on some particular pain points.

9.3.2 A senatorial election (2013)

In March 2013, the government MPs and some friendly senators submitted three proposals to amend the 2007 Constitution to the Parliament.

Since 1997, the Senate has approved candidates to watchdog agencies. Under the 1997 Constitution, when the Senate was elected, it served as an important link between the people and the watchdog agencies, supplying them with demo­cratic legitimacy. Unfortunately, Thaksin had covertly co-opted senators, so there was a good reason to reconsider whether the senate should be elected.^[608] But appointments, too, were vulnerable to secret lobbying.^[609] Only people with con­nections would be chosen. Appointed senators were elitist by nature and inclined to express a negative attitude toward civil politicians. They were coup sympathiz­ers, and their mission was to uphold the undemocratic arrangement.

The Constitutional Court struck down the reintroduction of a fully elected senate for two reasons. On procedural grounds, the House Speaker had deliber­ately allocated too little time for the amendment debate, in effect coercing the

Thailand's unamendability 179 opposition into silence. Some MPs were filmed voting on behalf of their absent friends.^[610]

More interesting is the substantive review of a fully elected senate. First, the Constitutional Court made a reference to the preamble of the 2017 Constitution as the intention of this charter; that every political institution serves with right­eousness, fairness, independence, and honesty for the benefit of all Thais; that the charter does not wish any political institution to usurp any part of the law to enrich itself.^[611]

Then, the Constitutional Court sought to explain what democracy was. The Constitutional Court warned that, despite the principle of majority rule, democracy forbade the majority from abusing its superior status to harass the minority, which would result in the tyranny of the majority.^[612] To prevent such tyranny, separation of powers was installed.

Was a fully elected senate intended to overthrow democracy? According to the Constitutional Court, the 2007 Constitution had revised senatorial selection to ensure its independence from the House, as the senate served as a check-and- balance mechanism within the legislature.^[616] The Court foresaw that a senato­rial election would collapse this mechanism and the principle of bicameralism. It would result in two crony houses full of friends and family members, learing to the loss of public trust.^[617] It would, in other words, promote dynastic politics. Therefore, the Court held that the amendment was unconstitutional: it consti­tuted an act to overthrow a democratic regime with the king as the head of state, which was part of the Constitution’s unamendable core.

9.3.3 The treaty-making procedure (2014)

By late 2013, Bangkok was experiencing another mass protest when Yingluck Shinawatra pushed for an amnesty law that would allow Thaksin’s return to

Thailand. The anti-amnesty bill protest escalated into calls for a coup. In response to the protest, Yingluck dissolved the House and called for an election but the protesters demanded that she resign, suspend the constitution partially, and appoint an interim national government.

The 2007 Constitution subjected treaty-making, once principally within the executive’s power, to more stringent legislative oversight.^[619] A treaty that had an adverse social or economic impact needed to obtain legislative approval prior to and after the negotiation. The Constitutional Court was empowered rule if a particular treaty had such an impact. However, “adverse social or economic impact” was an ambiguous and subjective standard. In 2008, when the Thai government was about to sign the Thai-Cambodia Joint Communique on the Preah Vihear Temple along the border, anti-Thaksin elements launched a sense­less nationalist campaign which triggered massive unrest and jeopardized this foreign relationship. The Constitutional Court, with benefit of hindsight, cited that incident as the reason to blame the government and invalidate the signing of the Joint Communique, which led to a criminal case against the foreign minis­ter.^[620] Yingluck proposed an amendment which would require legislative approval only for a treaty with an obvious social or economic impact. This was the cabi­net’s attempt to retake control over foreign affairs from the legislature and the Constitutional Court.

In January 2014, the Constitutional Court asserted itself as the guardian against the usurpation of the 2007 Constitution and the rule of law. Here, the Constitutional Court once again reiterated that democracy was not simply the rule of the majority and that Thailand was still under the rule of law.^[621] Thus, it was capable of reviewing the amendment despite a clear written constitutional mandate.

Similar to the 2013 decision, the Constitutional Court referred to the pream­ble to claim that power must be exercised with righteousness, independence, and honesty, for the collective benefit of all Thais, without conflict of interest, abuse of power, or total monopoly of politics.^[622] Also, the Constitution did not allow a political body to abuse any law to support its unlawful gains.^[623] Were the govern­ment to ignore the rule of law, it would corrupt democracy into majoritarian dictatorship.^[624] Thus, separation of powers and checks and balances were necessary

Thailand's unamendability 181 to prevent such abuse that would lead to ignorance and greed by those in power who would ruin the country. Again, the Constitutional Court described the rule of law as a pure and unprejudiced morality superior to the written text.^[625]

The Constitutional Court ruled that the substance of the amendment was unconstitutional. Treaty-making power was of utmost importance so it had to be exercised with transparency and prudence.^[626] The Constitutional Court pos­ited that the Constitution, therefore, designed the treaty-making procedure to achieve a balance among the executive, legislative, and members of civil soci­ety who may participate in public hearings on particular treaties.^[627] The amend­ment that limited the public's access to the treaty-making procedure, the Court held, was unconstitutional as it was considered an act to overthrow a democratic regime with the king as the head of state.

9.3.4 Party dissolution (2014)

In March, the Constitutional Court delivered the final decision in the series. The fourth amendment bill aimed to amend, first, Section 68 itself, and second, Section 237, the party dissolution provision. This bill was clearly aimed to retali­ate against the judiciary. Section 68 allowed the judiciary to interfere with the amendment plan while the problematic Section 237 was repeatedly used to dis­solve PT's predecessor and allies. The same group of anti-government senators and activists filed a complaint to the Court under Section 68.

By May 2014, the political protest reached a dead end. The February elec­tion was blocked by anti-democratic protesters and later invalidated by the Constitution. But Yingluck remained at the head of an interim government, nei­ther resigning nor leaving the country as protesters demanded. In any event, the demonstrations were losing steam. The shutdown of the government com­plex and the business district caused much inconvenience to commuters. Finally, General Prayuth Chan-ocha staged a coup and abolished the 2007 Constitution. The case was then rendered moot, so the Constitutional Court dismissed it. But it is highly likely that, were the case not moot, the Constitutional Court would have also ruled that these two sections were unamendable as well.

In summary, the 2007 Constitution set a low bar for amendment but, through a series of decisions, the Constitutional Court significantly raised that bar. Despite the absence of an obvious mandate, the Constitutional Court expanded its jurisdiction to review amendment proposals. In the first case, where the gov­ernment intended to allow a special assembly to rewrite the whole charter, the Constitutional Court differentiated between replacement and amendment and concluded that, for the first category of constitutional change, a normal amend­ment procedure was inadequate. Here, it invoked the idea of constituent power

and controversially suggested gathering public input. In this sense, it resembled the national referendum that approved the 2007 Constitution despite the absence of a written requirement. In the cases that followed, the Constitutional Court arbitrarily expanded implicit unamendability under the claim that these changes would contradict the original purpose of the constitution, which emphasized strong checks and balances. The amendment procedure became extremely rigid.

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