03 April 2014

“Acts of the prime minister that are unconstitutional...”

Democracy Monument

It seems increasingly likely that Yingluck Shinawatra will become the third prime minister affiliated with Thaksin Shinawatra to be disqualified by the Constitutional Court. (Samak Sundaravej and Somchai Wongsawat were both dismissed in 2008. The court disqualified Thaksin himself in 2007, though he had already been removed by a military coup.)

Twenty-seven senators signed a petition asking the Constitutional Court to rule on Yingluck’s removal of Thawil Pliensri as head of the National Security Council. The court accepted the petition yesterday, and Yingluck now has fifteen days to defend herself against a charge of violating the constitution. Thawil claims that his transfer “involves acts of the prime minister that are unconstitutional”.

Yingluck demoted Thawil in 2011, replacing him with the chief of police, and then appointed Priewpan Damapong as the new police chief. Thawil was secretary of the Council for the Resolution of the Emergency Situation (which launched the military massacre in 2010), and Priewpan is Thaksin’s brother-in-law, thus the court petition argues that Thawil’s replacement was politically motivated. The constitution prohibits “the recruitment, appointment, reshuffle, transfer... of a Government official” if such action is performed “for personal benefits or for the benefits of others or of a political party” (article 266).

If the Constitutional Court finds Yingluck guilty, she will automatically face dismissal as PM. This scenario is highly likely, as the Central Administrative Court has already ruled that Thawil’s replacement was unconstitutional. That verdict was upheld last month by the Supreme Administrative Court, and Thawil has now been reinstated to comply with the forty-five day deadline imposed by the court.

The constitution states that, if a prime minister leaves office, the new PM must be a member of parliament: “The Prime Minister shall be a member of the House of Representatives” (article 171). Furthermore, the prime minister must be selected by a majority parliamentary vote: “the appointment of a person as Prime Minister shall be passed by the votes of more than one-half of the total number of the existing members of the House of Representatives” (article 172). If a majority vote is not reached within thirty days, “the person who has received the highest votes” must be selected (article 173). However, the Constitutional Court’s nullification of the election means that a prime minister cannot be proposed or voted for, as there are no sitting MPs.

The People’s Alliance for Democracy and People’s Democratic Reform Committee have both called for a royally-appointed prime minister, citing article seven of the constitution, though article seven merely affirms “the democratic regime of government with the King as Head of State”. In fact, the King unequivocally ruled out an appointed prime minister in 2006, saying: “Article seven does not empower the King to make a unilateral decision... If the King made a decision, he would overstep his duty and it would be undemocratic”.

The status of the caretaker cabinet would also be in question following the Prime Minister’s dismissal. According to the constitution, the cabinet must remain until the next parliament is in place: “The outgoing Council of Ministers shall remain in office for performing duties until the newly appointed Council of Ministers takes office” (article 181). However, the constitution also states that the cabinet must resign following the prime minister’s disqualification: “Ministers vacate office en masse upon... the termination of ministership of the Prime Minister” (article 180).

The Constitutional Court is likely to be one of the primary arbiters in these cases, and in the absence of legal precedents, much will depend on the court’s own interpretation of the constitution. Ominously, the court declared the election illegal on 21st March despite having declared it legal on 12th February; and it ruled that the election could be postponed, citing the 2006 election as a precedent, though the 2006 election was not postponed.

Yingluck is not the only prime minister to be found guilty of inappropriately transferring government officials. Abhisit Vejjajiva has been convicted of two such cases: he demoted Piraphon Tritasawit in 2009, and ignored the Administrative Court’s verdict requiring reinstatement; and the Court ruled last month that Abhisit’s 2009 dismissal of Patcharawat Wongsuwan was also unlawful. However, neither case reached the Constitutional Court, unlike Yingluck’s transfer of Thawil.

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