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Thai Court Ruling Risks Constitution Showdown: Southeast Asia

Thai Prime Minister Yingluck Shinawatra
Yingluck Shinawatra, Thailand's prime minister. Photographer: Dario Pignatelli/Bloomberg

Thailand’s political calm hangs in the balance as Prime Minister Yingluck Shinawatra’s ruling party decides whether to defy the nation’s highest court and proceed with an overhaul of a military-influenced constitution.

The Constitutional Court on July 13 called for a referendum before rewriting the charter ratified after a 2006 coup that ousted former leader Thaksin Shinawatra, Yingluck’s brother. Lawmakers “must take responsibility for their next move” if they proceed with a vote to redraft the constitution, court spokesman Pimon Thammaphitakphong told reporters.

Moving forward without a nationwide vote could “invite more explosive protests from the other side,” Somjai Phagaphasvivat, a political science lecturer at Thammasat University in Bangkok, said by phone. “Tensions remain high and this will be the situation for months and years to come.”

The battle over changing the constitution threatens political stability in Southeast Asia’s second-biggest economy, where street protests since 2006 have killed more than 100 people and led to takeovers of the airports and central business district. Thaksin’s allies want to reduce the power of appointed bodies they say are undermining elected governments to serve the interest of royalists who backed the coup.

While the eight judges ruled unanimously that a proposal to create a 99-member assembly to rewrite the constitution didn’t breach Article 68, which restricts attempts “to overthrow the democratic regime of government with the King as Head of State,” they said a complete overhaul would require the consent of Thailand’s 67 million people.

Referendum Fight

The 2007 constitution “came from a referendum,” Judge Nurak Mapraneet said in the ruling. “So the public should hold another referendum to decide whether they want a new draft. If the parliament wants to amend it, it can do by each article.”

The referendum requirement appears nowhere in Article 291 of the current charter, which grants parliament the right to change the constitution. Yingluck’s party had proposed changing that article to allow for a complete constitution rewrite that would need to be approved in a referendum after it was drafted.

The court’s insistence that a nationwide vote is required before rewriting the charter amounts to a threat against the government and parliament because the judiciary is asserting powers that aren’t granted in the constitution, according to Kanin Boonsuwan, a law lecturer at Chulalongkorn University who submitted testimony in favor of the amendment.

“If the government and parliament yield to this threat, it means this country is not democratic,” Kanin said. “Next time there is no need to have an election. Just let the court be the ruling party.”

Court Powers

The court’s determination that it has the authority to accept petitions directly from the public instead of solely from the Attorney-General, as occurred in this case, also represents an expansion of the court’s powers, Kanin said.

Prosecutors declined to forward the petitions to the Constitutional Court, saying last month that the amendment process is valid. A committee formed by the previous administration warned the court last month to undertake a “strict interpretation” of the law to maintain public confidence in the judiciary and help prevent violence.

Yingluck campaigned on changing the constitution to make leaders more accountable to the public before her party’s majority win in elections a year ago and included plans for a drafting assembly in a policy statement. Deputy Prime Minister Chalerm Yoobamrung called the ruling “fair” and said Yingluck would decide how to proceed with changing the constitution.

Lawsuits, Protests

The opposition Democrat party views the court’s call for a referendum as binding, according to spokesman Chavanond Intarakomalyasut. He warned that proceeding with a vote to rewrite the constitution could lead to more lawsuits and urged the ruling party to focus more on solving economic problems.

“If they go ahead with it, there’s going to be a problem, whether it’s a protest or people filing charges against them again,” Chavanond said by phone. “We don’t want to see that. Why doesn’t the ruling Pheu Thai party just follow the court’s direction and not stir any conflict?”

Investors cheered the court ruling because it appeared to avert an immediate showdown. Thailand’s SET Index gained 1.4 percent to 1,210.29 on July 13, the highest close since May 8, and rose 0.3 percent today. The baht strengthened 0.5 percent to 31.66 per dollar on July 13, and was unchanged as of 4:47 p.m. local time, according to data compiled by Bloomberg.

“The court ruling has helped calm sentiment after fears of violence earlier,” Banthoon Lamsam, chief executive officer and president of Kasikornbank Pcl, Thailand’s second biggest by market value, told reporters. “Still, the unclear rules and drafting of new rules remain key questions for Thai society.”

Post-Coup Constitution

In the coup against Thaksin, the country’s 10th power seizure since absolute monarchy ended in 1932, the generals discarded the 1997 constitution that mandated a fully elected parliament. A military-appointed assembly wrote a new version that granted generals amnesty for the coup, made it easier to dissolve political parties, and gave judges a role picking members of a half-appointed Senate and other bodies overseeing elected officials. That passed in a nationwide vote in late 2007.

The increased responsibilities for judges followed a speech by King Bhumibol Adulyadej five months before the coup in which he called on them to resolve a pending constitutional crisis. Since then, courts have voided an election won by Thaksin’s party, disbanded two parties linked to him, disqualified about 200 of his allies, sentenced him to jail and seized 46 billion baht ($1.45 billion) of his wealth.

King Bhumibol, 84, took the throne in 1946 and serves as head of state. Insulting him can lead to a 15-year jail sentence. The monarch appoints all the country’s judges, according to the constitution.

Thaksin Amnesty

Thaksin has lived away from Thailand since fleeing a 2008 jail sentence stemming from charges brought by a military-appointed panel after the coup. His supporters have denounced the judiciary as biased against the former leader and his allies, and several bills proposed in parliament earlier this year called for a broad amnesty for political crimes that would include the self-exiled billionaire.

The Constitutional Court’s intervention in parliamentary affairs sets “a very dangerous precedent” that could lead to a “more explosive crisis” in the future, according to Chris Baker, a Bangkok-based political analyst and historian who has co-authored several books on Thailand.

“This whole incident has probably shown that Thaksin cannot return too soon,” he said. “This is just a small step in a long process.”

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