(May 21, 2013) On April 7, 2013, the Thai Parliament voted to approve three bills in furtherance of the government’s plan to amend the Constitution. The bills were submitted separately, because there are three very different subjects addressed by the amendments: the authority to conclude treaties, the senators, and the “overthrow of the democratic regime.”
The bill that has received the most public attention is the one that proposes amending section 68 of the Constitution on the overthrow of the government. The bill was proposed by Somsak Kiartsuranon, the President of the Parliament, along with 311 coalition MPs. (Enacting a Bill to Amend Article 68, Political Divisions Heating Up [in Thai], DAILY NEWS (Apr.7, 2013).)
Proposed Changes to Section 68
Section 68 of the Constitution currently states in paragraphs 1 and 2:
No person shall exercise the rights and liberties prescribed in the Constitution to overthrow the democratic regime of government with the King as Head of the State under this Constitution or to acquire the power to rule the country by any means which is not in accordance with the modes provided in this Constitution.
In the case where a person or a political party has committed the act under paragraph one, the person knowing of such act shall have the right to request the Prosecutor General to investigate its facts and submit a motion to the Constitutional Court for ordering cessation of such act without, however, prejudice to the institution of a criminal action against such person. (Constitution of the Kingdom of Thailand B.E. 2550 (2007), Senate of Thailand website.)
The bill on the proposed amendment of section 68 includes the following two changes.
The first change is to replace “in the Constitution” in section 68, paragraph 1, with “under Chapter 3 (Rights and Liberties of the Thai People) of the Constitution.” The government has said that they want this section to be clearer. The change would mean that a person would be penalized for an act to overthrow the democratic regime only if the act falls under the categories of proscribed acts set forth in Chapter 3, rather than if the act violates any part of the whole Constitution, as is currently the case. (Section 68 [in Thai], DAILY NEWS (Apr.15, 2013).)
The second proposed amendment would make it clear that the Prosecutor General has the sole authority to decide whether to move a motion to the Constitutional Court. The underlined part would be added to paragraph 2 of section 68:
… have the right to request the Prosecutor General to investigate its facts. After the Prosecutor General examines and agrees that the act is designed to overthrow the democratic regime or acquire the power to rule the country by any means not in accordance with the modes provided in this Constitution, then the Prosecutor General can submit a motion to the Constitutional Court for ordering cessation of such act…” (Id.; underlining added by author.)
However, the People’s Alliance for Democracy, an alliance of protesters against Thaksin Shinawatra, the former Prime Minister of Thailand, has taken issue with the government proposal. The group states that the politicians who support the bill are intentionally narrowing the rights of the people by preventing direct submission of a motion by an individual citizen to the Constitutional Court under section 68, by requiring that such a motion can only be made if it concerns the individual person’s rights and liberties (under Chapter 3 of the Constitution). The Alliance believes that the provision does not need to be changed. (The People’s Alliance for Democracy (PAD) Makes a Statement Against the Changes to the Constitution [ in Thai], MANAGER ONLINE (Apr. 4, 2013.)
Reasons Behind Amendment of Article 68
The currently effective Constitution originated from a coup d’etat in 2006 led by the Council for Democratic Reform. The Council had been established by the former military regime headed by Army Commander General Sonthi Boonyaratglin, which had governed Thailand after ousting Prime Minister Thaksin Shinawatra.
Due to the coup d’etat withdrawal of the previous 1997 Constitution, the current Constitution of Thailand was established by the military junta. The Constitution thus did not come from the people, which the current government, elected in 2011, views as unjust. (Enacting a Bill to Amend Article 68, Political Divisions Heating Up, supra.)
The government is purportedly trying to amend section 68 because this section had been used against the government when it had tried to amend section 291, on amendment of the Constitution itself. The opposition party had claimed that the government’s plan to amend section 291 could be viewed as an attempt to overthrow the democratic regime and should be stopped by virtue of section 68. (Constitutional Court Dismissed the Motion on Overthrowing the Democratic Regime [in Thai], DAILY NEWS (July 13, 2012).) The government claimed that under section 68, paragraph 2, the Court does not have the power to accept an opposition party motion before the motion has been submitted to the Prosecutor General. (Constitution Amendment [in Thai], DAILY NEWS (Mar.28, 2013).)
Therefore the arguments on the amendment of section 291 had brought into play the applicability of article 68, and particularly whether the Prosecutor General or the Constitutional Court has the authority to accept a motion for the Court to issue an order to stay acts to overthrow the regime or unconstitutionally acquire power, and whether the Court can accept the motion directly or must go through the Prosecutor General first. (Amendment of Section 68 a Game of Confiscation of the Power of the Constitutional Court [in Thai], DAILY NEWS (Mar.19 2013).)
The Stance of the Constitutional Court
The Constitutional Court ruled on July 13, 2012, that it has the authority under section 68, paragraph 2, to directly accept motions and that the Prosecutor General’s authority is only to check the facts and file a motion with the Court. The Court also ruled that, after the opposition party has proposed the motion to the Prosecutor General, the party had the right to file a petition with the Constitutional Court directly. (Constitutional Court Decision No. 18-22/2555 [in Thai], Constitutional Court of the Kingdom of Thailand website (last visited Apr. 25, 2013).)
On May 8, 2013, the committee responsible for the current bill reached the conclusion to include in a third paragraph the following phrasing:
the Prosecutor General has to check all the facts as set forth in the second paragraph within 30 days from the day of receipt of the motion. If the Prosecutor General cannot do it in that period of time, the person who proposed the motion can directly submit it to the Constitutional Court, but must do so within 30 days from the day the Prosecutor General fails to submit the report. (Committee Responsible for the Amendment of Section 68 Concluded That the Motion Has to Be Submitted Through the Prosecutor General Only, DAILYNEWS (May 8, 2013).)
The amendments have not yet become law. After the committee meeting the proposed amendments were sent back to the Parliament for a second and third reading. (Constitution of the Kingdom of Thailand B.E. 2550, § 291.)
Written by Nichaya Soothipan, Intern, Law Library of Congress, under the guidance of Sayuri Umeda, Senior Foreign Law Specialist.