Article 7 of Thailand’s Constitution must be revised to prevent political actors from using it to justify circumventing other articles in the Constitution.
Article 7 of Thailand’s 2007 Constitution reads, “Whenever no provision under this Constitution is applicable to any case, it shall be decided in accordance with the constitutional tradition in the democratic regime of government with the King as Head of State.”
The provision is a favourite among the anti-government protesters that have been campaigning on the streets of Bangkok for more than six months. Their aim is to topple Thailand’s current government and create just the type of political vacuum that, they say, would warrant invocation of Article 7.
Since last November, the anti-government People's Committee for Absolute Democracy with the King as Head of State (PCAD) has successfully pushed Thailand closer and closer to the political abyss its leaders are aiming for: street protests forced then-PM Yingluck Shinawatra to dissolve Parliament in December; PCAD’s interferences with the 2 Feb snap poll resulted in the election’s invalidation a week later; and last Wednesday, the Constitutional court ousted Ms. Yingluck and nine of her cabinet ministers in a verdict that many are calling extremely biased.
According to the PCAD’s firebrand leader, Suthep Thaugsuban, the political vacuum has arrived.
Needless to the say, the 25 Cabinet members that survived the Court’s sword last week disagree with this diagnosis, and have already appointed a senior member from their ranks to take the premiership’s seat. But Mr. Suthep has dismissed what's left of the caretaker government and is now demanding the Senate select a new candidate for Prime Minister and submit the name to His Majesty the King for royal approval.
According to Mr. Suthep, all of this is legal under Article 7.
Article 7 is intended to provide the country with somewhere to turn when a situation not explicitly spelled out in the Constitution arises. It says that in such a case, Thailand must rely on its “constitutional tradition.”
But what exactly does acting in "accordance with the constitutional tradition” mean?
Does it mean the country should mimic how similar predicaments were resolved in the past?
Or, does it mean that conflicts should be resolved in a manner that accords with the spirit of the Constitution? The latter would emphasize finding a solution that best reflects the basic principles of the Constitution, while not violating any of its other provisions.
Today’s anti-government activists have clearly adopted the first interpretation of Article 7, citing past examples of when HM King has stepped in to resolve previous political crises as justification for a royal intervention today.
In 1973, HM King did appoint Thammasat University rector Sanya Thammasak to be Prime Minister after a massive popular uprising against Gen. Thanorm's military dictatorship. However, the incident is virtually a one-time occurrence in the history of Thai democracy, which hardly constitutes the “tradition" that supporters of the Article 7 plan like to claim.
Furthermore, one could easily cite the numerous instances of when HM King has refused to arbitrate political conflicts as evidence for why the monarchy’s nonintervention is actually closer to a “constitutional tradition.”
In fact, when protesters attempting to oust former PM Thaksin Shinawatra in 2006 tried to request a royally-appointed PM via Article 7, HM King responded in a televised address stating that the article did not give him such power.
“Article 7 does not say that the King has that authority. It does not. Look at Article 7. The article does not say that a constitutional monarchy means the King has the authority to make an order," His Majesty the King said on 16 April, 2006.
So what exactly does Article 7 say? Or does it say anything at all?
Thailand’s “constitutional tradition” could mean any number of contradicting things. In regards to the current crisis, it might mean that Ms. Yingluck’s vacated seat should be temporarily filled by her deputy, or because he too was ousted in the court verdict, another senior member from her cabinet. It is common practice in Thailand for a deputy to take charge when a permanent secretary is not in office.
Yet, acting in accordance with Thailand’s “constitutional tradition” could also mean having the Senate, the next closest thing to the House of Representatives (which is currently nonexistent), select a new temporary leader from among its ranks.
It’s impossible to say which of these solutions is more in line with Thailand’s “constitutional tradition” because it’s not at all clear what those two words mean. The fundamental problem with Article 7 is that it can be twisted to justify almost any political action. As a result, its only real function is to grant political actors the ability to invoke it and rewrite the rules as they see fit.
In order to avoid this abuse, Article 7 must be replaced with a carefully-worded provision that elucidates the meaning of “constitutional tradition.” In our opinion, it should be amended to clarify that acting in “accordance with the constitutional tradition” involves resolving conflicts in a manner that best reflects the Constitutions’ core principles – not necessarily the country’s historical precedents.
It can’t possibly be a good idea for a country that has experienced 9 coups and 17 constitutions since 1932 to rely on tradition for solving its present and future crises.
In the present impasse, acting in accordance with the spirit of the law would involve organising new elections as soon as possible. It's clear that the most constitutional way to select the new Prime Minister would be through the ballot box— that is, after all, the process outlined in the Constitution.
The conflict in Thailand, which is already fragile, is alarmingly close to escalating into a full-blown civil war. Pro-government Redshirts have repeatedly warned that they will stage a widespread uprising against any unelected PM. We don't condone violence of any sort, but their resistance to the idea of an unelected Prime Minister is valid.
Mr. Suthep's plan to install an unelected PM will steer Thailand further away from being goverened by basic constitutional practices and guidelines. In our view, this will only deepen the country’s crisis.
Thailand must return to a system of government that can be adequately guided by the Constitution, thereby eliminating the need to invoke the flawed Article 7.
That means returning power to a parliament and Prime Minister that has been elected by the people.
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