Taking a Constitutional
In an unprecedented move, the Constitutional Court has demanded that all 15,744,190 voters who chose the Pheu Thai party in the party-list vote in the last election must submit statements to the Court explaining their decision.
The statements must be submitted within 15 days and will be used by the Court in deciding whether parliamentary draft bills to amend the Constitution violate Section 68, which prohibits the overthrow of the democratic system of government with the King as Head of State.
This action follows the Court’s order to each of 416 MPs, Senators and Cabinet Ministers to explain why they voted for the draft bills to amend the Constitution. The draft amendments to Section 282 of the Constitution, which sets out the mechanism for changing the constitution, propose the election of a Constitutional Drafting Assembly and a referendum to ensure that any new constitutional provisions have the support of the majority of the people.
If the Court finds that the draft amendments violate the Constitution, it may order the dissolution of the Pheu Thai Party, the banning of its executives from politics for 5 years and the disenfranchisement of the millions who voted for it.
The Court’s order to Parliament was based on a petition from Maj Gen Chamlong Srimuang, one of the leaders of the People’s Alliance for Democracy. Much legal opinion believes that such petitions must first be vetted by the Office of the Attorney-General, rather than accepted directly to the Court. Nor do legal scholars generally accept that the Court has the power to order parliamentarians to explain themselves to the court, or to suspend parliamentary scrutiny of the bills, which it has also ordered.
The order to voters to explain their votes was in response to another petition filed jointly by the PAD leadership, a person posting on websites with the username ‘i-Pad’, and Akbar Khan, a non-Thai national who claims to be helping the police in lèse majesté prosecutions. Their petition claims that everyone who voted for PheuThai knew in advance that the Party would, once in government, seek to change the mechanism for amending the constitution, which is viewed by anti-government forces as a way of overthrowing the monarchy, exonerating former PM Thaksin Shinawatra and deliberately creating disunity in the land.
‘Pheu Thai voters should come clean and accept that by voting for their party, they were secretly expressing the desire to overthrow the Thai system of democracy with the King as Head of State,’ said a PAD spokesperson. ‘They can deny it all they like, but when the Constitutional Court reads their statements, it will be clear what their true intentions are.’
Legal opinion is even more suspicious of this latest move by the Constitutional Court. One exasperated law professor, requesting anonymity, commented, ‘One, they shouldn’t be accepting petitions like this; two, they have no authority to question citizens about their votes in a secret ballot; and three, how on earth do they think their order can be carried out?’
Many observers have noted that since ballots in Thailand are secret, there should be no way of knowing who the 15,744,190 Pheu Thai voters are. This opens an opportunity for government opponents to masquerade as Pheu Thai voters and ‘confess’ to anti-monarchical motivations.
However, the Constitutional Court has noted that all ballot papers are numbered and this numbered is entered in the electoral records against the name of the voter. Theoretically, therefore, every pro-Pheu Thai vote can be traced back to a voter, although, in addition to taking an inordinate amount of time, this would violate constitutional guarantees of a secret ballot.
In response, the Constitutional Court has commented that some sections of the Constitution are more constitutional than others, and it is the responsibility of the Constitutional Court to decide which these are.
Simply collecting 15,744,190 responses within 15 days is a massive logistical problem. The Court’s order also seems to ignore the fact that an unknown number of these voters may since have died, left the country, abandoned Thai citizenship, been committed to psychiatric institutions, joined the Buddhist clergy or been sent to prison. They may even simply have changed their mind since the election. Many probably don’t even remember how they voted, let alone why.
Others have asked how the Court intends to review 15,744,190 responses and how long this process may delay any decision. The Court has dismissed these concerns. ‘It won’t take us much time at all,’ said a Court spokesperson. ‘After all, we already know what the verdict will be.’