The Constitutional Court enraged football fans around the country by telling the National Broadcasting and Telecommunications Commission to rescind its order to TrueVisions to carry the Euro 2012 football championships.
The UEFA rights to show the games in Thailand had been won by GMM Grammy, which had then made deals with upcountry satellite channels and the free-to-air channels, but not with TrueVisions, which has a virtual monopoly on satellite TV in and around Bangkok.
TrueVisions, however, already carries the free-to-air channels, but had been told to black out these channels when the European Championship games were on. Viewers either had to resurrect an old antenna and take their chance on signal quality, or buy a Grammy set-top box.
The NBTC then stepped in and told TrueVisions to prevent national unrest by screening the matches when they appear on the free-to-air channels, in line with existing agreements between them.
But Grammy, following the example of the Democrat Party, then petitioned the Constitutional Court directly, by-passing the Attorney-General’s Office and ignoring the fact that the NBTC is neither a political party nor a person. It argued that the NBTC order threatened to overthrow the democratic form of government with the monarch as head of state and thus contravened Section 68 of the Constitution.
In their petition, Grammy noted that Section 83 (1) of the Constitution requires the state to ‘encourage a free economic system through market forces’, and that this is an essential component of a democracy. Grammy had won the TV rights by normal free-market capitalist business practices, which had been usurped by the NBTC order. This, they alleged, would lead to a ‘command economy’, which is incompatible with a democratic form of government.
The Constitutional Court judges, by a vote of 8-1, agreed to accept the petition and ordered TrueVisions to blank their screens until the Court gave its ruling on 1 July. There should be no protests, said a Court spokesperson, because the Court hasn’t yet given a verdict. It may decide on 1 July to allow the broadcasts, he said.
The Euro 2012 Final is scheduled for 1 July.
Almost immediately a second petition was submitted to the Supreme Court, again using the now well-established route that ignores the Attorney-General’s Office. Drafted by a hitherto unknown Royalist United Football Fans Independent Association of the Nation, whose shirts are a fetching if complicated compilation of the all the team shirts at Euro 2012, the petition claimed that in depriving viewers of watching the teams from the Netherlands, Denmark, Spain, Sweden and England, all of which are democracies with a monarch as head of state, the Constitutional Court was in violation of Section 68 of the Constitution.
The Court argued that the reason given by the RUFFIANs was insufficient, since many other teams in the competition had no monarch and some could barely be described as democracies. The Court said that the words ‘in Thailand’ had to be assumed to be part of Section 68, making the affairs of foreign countries irrelevant.
Critics noted that this linguistic sleight of hand opened opportunities for excessively wide interpretations of the Constitution, since it was now based not on what it said, but also on what was not said. In an unusual press conference to counter these criticisms, the Court said that their interpretation was perfectly clear if one consulted the Dutch, Danish, Spanish, Swedish and English translations of the Constitution; however linguists capable of reading Dutch, Danish, Spanish, Swedish and English said the wording looked exactly the same as the definitive Thai version.
It was also noted that the decision to reject the petition, by 8-3, was arithmetically creative as well, there being only 9 judges. Apparently some double voting had passed unnoticed.
A third petition, by TrueVisions within a matter of hours, was successful in being accepted by the Court. This was based on much the same arguments as the Grammy petition.
If the Constitution required a free market economy and this was a necessary component of a democracy, it said, then monopoly rights, such as Grammy had bought from UEFA, being the opposite of a free market, were therefore unconstitutional.
In their decision, the Court noted that they had to take into account not just the law, and not just what the law didn’t say but they knew it should say, but also the political context of their decision. This was thought to refer to the widespread riots of frustrated football fans and the severe loss to the economy from the billions of baht that would not now be spent on gambling on the results.
The Court, by a 13-4 decision, ordered TrueVisions to show the matches in their feeds from the free-to-air channels.
When the Court was asked how it was going to reconcile its order to TrueVisions not to broadcast the games with it later order to do just that, the Court said that it could not be expected to do everything. Its mandate was strictly defined by the Constitution and sorting out legal messes was not part of it.
Creating them, though, …