Statement of the Assembly for the Defense of Democracy (AFDD)

Reproduced in full, below and with kind permission, is AFDD's statement.

On 2 December 2012, the Council of University Presidents of Thailand (CUPT) issued their fourth statement, accompanied by a proposal from the group of demonstrators, named “The People’s Democratic Reform of Council,” (PDRC), and a group of academics, which called on the Prime Minister and Council of Ministers to take unconstitutional and undemocratic action. In response, and in order to mitigate against the causing of confusion among the people which may lead the political crisis to grow in severity and violence, and to protect against the destruction of the democratic system, we – academics, intellectuals, writers, students, civil servants, and ordinary people – have joined together as the Assembly for the Defense of Democracy (AFDD).  We are compelled to dispute the aforementioned proposal on the following points.

-- 1 --

The Establishment of a “People’s Council” by virtue of Article 3 of the Constitution

1. PDRC and one group of academics claimed that the Parliament and the Government lack legitimacy and are invalid as a result of not accepting the authority of the Constitutional Court.  Therefore, in line with Article 69 of the Constitution, the people have the right to oppose the government. This claim is incorrect and is an untenable stretch of imagination. In other words, the claim that the Parliament or the Government announced that they denied the authority of the Constitutional Court is not backed up by facts. Only the Pheu Thai Party and some Members of Parliament announced that they did not accept the “ruling” of the Constitutional Court regarding the constitutional amendment on the matter of the members of the Senate.

 As for the matter of those who refer to paragraph 5, Article 216 of the Constitution, which stipulates that, “The decision of the Constitutional Court shall be deemed final and binding on the National Assembly, Council of Ministers, Courts and other state organs,” and note that therefore, when the Parliament or the Government does not accept the ruling of the Constitutional Court it then violates the Constitution, and causes the Parliament and Government to lack legitimacy and to be invalid. We, AFDD, think that rulings of the Constitutional Court that are to be held as absolute and binding for state organs must be lawfully decided and in line with Article 197 of the Constitution. These rulings must be a use of authority that is constitutionally-determined, not an unconstitutional or arbitrary use of authority.

In this case, it is apparent that the Constitutional Court accepted and ruled on the petition without the Constitutional basis to do so. Therefore, the Constitutional Court ruling in this case is unconstitutional and cannot be held to be a ruling in the meaning specified in paragraph five, Article 216 of the Constitution. The ruling is meaningless and does not have binding legal consequence on the Parliament, Council of Ministers, Court, or state organs. The claim that this is an instance of the Parliament and the Government not accepting a ruling of the Constitutional Court, and deploying this as a reason to use one’s right to protest, should be disregarded.

2. In addition, PDRC and one group of academics claim further still that once the Government and the Parliament are invalid, the sovereign power must be returned to the people in line with Article 3 of the Constitution. Therefore, the people are then able to use their sovereign power directly in order to establish a People’s Council. If we examine the present-day Constitution, the ways in which the people as the holders of sovereign power can express it directly is by voting in referendums and in elections, as well as accessing power through state organs that is accountable for the people.

Upon examination of Article 3 of the Constitution, it can be seen that the King as the head of state exercises the sovereign power of the people through the Parliament, the Council of Ministers, and the Court in line with the provisions of the Constitution. Therefore, there are no circumstances in which Article 3 can be used for the people to exercise their sovereign power to establish a People’s Council. Also, when the entire Constitution is examined, nowhere is there a measure that provides the people with the power to set up a People’s Council. The aforementioned proposal is therefore a case in which one group of people has seized upon and falsely claimed to be “the people,” in order to themselves establish a People’s Council. This proposal is without a constitutional basis and is an unconstitutional action. If they wish to establish a “People’s Council,” there is only one way it can be done. That is the amendment of the Constitution to provide for a People’s Council.

The attempt to establish a People’s Council by using means other than the amendment of the Constitution is therefore an action in order to create administrative power in the country by a method that is not stipulated in the Constitution, or, a coup d'etat.

3. In terms of the establishment of the People’s Council and its members, even though the aforementioned proposal has not been finalized, the central point is that the Council will not come from elections but from the appointment of individuals from different fields. The proposal for a People’s Council is therefore not in line with democratic principles.

On the contrary, upon the examination of the facts of contemporary history and politics, we discover that a people’s council comprised of people from different professions is an idea inherited from fascist corporatism, as it appeared in Italy during the period of the fascist dictatorship of Benito Mussolini. He amended the electoral law in 1928 for the Assembly to be comprised of people from the names proposed by different fields. This Assembly was an important mechanism that ultimately led Italy into a totalitarian dictatorship.

-- 2 --

The Proposal for an “Intermediary” Prime Minister after the Dissolution of Parliament by virtue of Article 7 of the Constitution or by virtue of a Peculiar Interpretation of the Constitution

1. Article 7 of the Constitution provides that, “Whenever no provision of the Constitution is applicable to any case, it shall be decided in accordance with the Constitutional practice in the democratic regime of government with the King as Head of the State.”  A legal provision of this type appeared for the first time in the Administrative Charter of the Kingdom of Thailand of 1959. The Charter was a temporary constitution and was comprised of only 20 articles. A provision of this type was therefore used in order to solve problems that were not addressed by any existing provisions in the Charter.

As for the present-day Constitution, Article 7 is a legal provision that constitutional organizations are able to use in order to safeguard the written Constitution. In other words, if a Constitutional problem arises, and it is not addressed in the written Constitution, the involved organizations are able to use the conventions of democratic rule with the King as the head of state, which in law refers to Constitutional customary laws, to rule on problems that arise.

 The Constitution customary laws are established through actions being carried out over and over again until state organizations and people see that these practices have Constitutional force. The Constitution customary laws that are adopted in line with Article 7 must not be inconsistent with democratic rule with the King as the head of state.

2. Even though Article 7 of the Constitution has the meaning that has been outlined in (1) above, there has been an attempt to have the King appoint a Prime Minister by virtue of the aforementioned article. This attempt has consisted of the proposal to dissolve Parliament in order to terminate the terms of the Members of Parliament and the Council of Ministers. Those who wish to replace the regulatory system with a vacuum have then proposed that the caretaker Council of Ministers should cease to perform its duties. But when there is no longer a Parliament, it means that it not possible to appoint a Prime Minister from among the Members of Parliament. These individuals then think that the King naturally has the power to appoint a Prime Minister by virtue of Article 7 of the Constitution.  Some individuals have proposed that the Senate meet and select an appropriate individual to propose to the King that he appoint to fulfil the duties of the Prime Minister and that the President of the Senate countersign the royal decree.

3. We think that the above proposal is unconstitutional and contravenes many principles of democratic rule as Article 108 of the Constitution stipulates that the dissolution of Parliament must be done via royal decree and that the election day must within no less than 45 days and no more than 60 days from the date of dissolution. Therefore, either dissolution of Parliament without stipulating a date for election or the dissolution of Parliament for a purpose other than having a general election cannot be done. This is an unconstitutional action and will result in the destruction of the Constitution.

4. In addition, Article 181 of the Constitution stipulates that after the dissolution of Parliament, the members of the Council of Ministers who have been relieved of their positions due to the dissolution must continue to carry out their duties until a new Council of Ministers assumes office following the elections. The call for the caretaker Council of Ministers to stop carrying out its duties after the dissolution of Parliament is thus a call for the Constitutional organs, in this case, the caretaker Council of Ministers, to violate their Constitutionally-prescribed duties. This is equivalent to calling on other individuals to act illegally and in contravention to the Constitution.

            5. The proposal for the King to appoint the Prime Minister by virtue of Article 7 is a proposal that calls on the King to carry out action for which there is no royal prerogative.  This is because Article 7 provides for the Constitutional organizations to rule in line with Constitutional conventions on a case-by-case basis on matters not included in the written Constitution. This is not a measure that provides the King with the power to appoint a Prime Minister during the period between the announcement of the royal decree to dissolve the Parliament and the process of holding elections for Parliament.

            6. The proposal for the caretaker Prime Minister to be relieved from acting in the position of Prime Minister, whether by forcing the Prime Minister to cease carrying out her duties or by other means, all have the aim of creating a “vacuum” in the political system in order for the country to become deadlocked.

            There are some academics who have proposed that when the Prime Minister is relieved from acting in her position, and the entire Council of Ministers has been removed, the Senate should select an individual, who does not need to be a member of parliament, to perform the duties instead of the Prime Minister. This proposal has no legal basis for support, because the Constitution does not give this power to the Senate. Also, the position of a person who does the duties of the Prime Minister instead of the Prime Minister is not stipulated in the Constitution. In the case in which an incident arises in which the Prime Minister may be unable to carry out the duties of office, no matter what the reason, a member of the Council of Ministers must assume the position of acting Prime Minister. In the case of an incident arises in which the entire Council of Ministers is unable to function as acting Prime Minister, no matter what the reason, the Permanent Secretary will assume the acting position in order to wait to hold it for the Council of Ministers that came from the Parliament elected by the people to enter to assume the position. The Constitution does not provide an opening to select an individual who is not a member of parliament, or who is called an “intermediary” or an “outsider” to carry out the function of the caretaker Prime Minister.

            7. The Constitution stipulates that a general election for Members of Parliament must be carried out between 45 and 60 days after the dissolution of Parliament. In the period in which there is a not a new Parliament or Council of Ministers yet, the caretaker Council of Ministers carries out only the duties stipulated under the conditions in Article 181 (1) – (4) of the Constitution. The duration of the caretaker position is short, along with the conditions to act only as needed, thus we do not see any need for there to be an “intermediary” or “outsider” to perform the duties of a caretaker Prime Minister or caretaker Council of Ministers.

            The Prime Minister’s decision to dissolve Parliament is a method of solving the problem of political conflict by returning the power to the people. This is a method that is in line with democratic rule and with the Constitution of the Kingdom of Thailand. When the Parliament has been dissolved, there must be a general election of Members of Parliament, in order for there to then in turn be a Parliament and a Council of Ministers. During the interim period, the Council of Ministers must continue to carry out caretaking duties.

            The AFDD thinks that the obstruction of holding elections, or the forcing a slowdown of parliamentary elections, or the creation of a “vacuum” in the political system, no matter the means, opens opportunities for political transformations that are neither constitutional nor democratic. All of the aforementioned actions are entirely devoid of the aim of the Constitution. They destroy the process of building political will through peaceful means in a democracy and they will lead the country to violent crisis.

            Therefore, the AFDD calls on all sides to enter the electoral process and to express their political will through the mechanism of elections. After the general election has been held, the AFDD calls on the elected government to proceed to reform politics, governance, and the constitutional regime to be democratic and in line with the rule of law.

With an unrelenting will towards democracy

Assembly for the Defense of Democracy (AFDD)

10 December 2013

Signed:

1.    Charnvit Kasetsiri.   Former President of Thammasat University

2.    Nidhi Eoseewong.    Independent scholar

3.    Kasian Tejapira.        Thammasat University

4.    Worachet Pakeerut.   Thammasat University

5.    Pasuk Pongpaichit.    Independent scholar

6.    Sriprapha Phetcharasmesree.    Mahidol University

7.    Puangthong Pawakapan.           Chulalongkorn University

8.    Kritaya Archavanichkul.           Mahidol University

9.    Yukti Mukdawijitra.             Thammasat University

10. Pitch Pongsawat.                  Chulalongkorn University

11. Pornsan Liengbunlertchai.   Chulalongkorn University

12. Piyabutr Saengkanokkul.    Thammasat University

13. Jantajira Iammayura            Thammasat University

14. Sawatree Suksri.                  Thammasat University

15. Poonthep Sirinupong.          Thammasat University

16. Teera Suteewarangkul         Thammasat University

17. Viengrat Nethipo                 Chulalongkorn University

18. Niti Pawakapan                    Chulalongkorn University

19. Prajak Kongkirati                 Thammasat University

20. Boonsong Chaisingklanond. Silapakorn University

And a growing list of over 100 additional academics, intellectuals, writers, civil servants, and ordinary people (as of 9 December 2013).