Nitirat academic: what most people understand about the charter court's ruling on Yingluck dismissal is likely to be incorrect

Thailand last week was stunned by the Constitutional Court’s ruling to remove Thai Prime Minister Yingluck Shinawatra and some cabinet members from their caretaker positions. The court found them guilty of abuse of power for transferring a senior government official, Thawil Pliensri, without justification. 
 
The caretaker government, led by the Pheu Thai party, whose de facto leader is the self-exiled former Prime Minister Thaksin Shinawatra, quickly responded to the ruling by declaring Niwatthamrong Boonsongpaisal, acting Deputy Prime Minister and Commerce Minister, as the new caretaker Prime Minister. Yingluck Shinawatra, the previous caretaker PM and sister of Thaksin, addressed the Thai people, accepting the ruling, and stepped down.  
 
The ruling came amid an attempt by the pro-establishment People’s Democratic Reform Committee (PDRC), which has been holding street protests for more than 180 days, to create a political vacuum, opening the way for them to establish an unelected People’s Council, to “re-organize” Thai politics. 
 
Prachatai talked to Worachet Pakeerat, a vocal critic of the Constitutional Court and a law academic from the Nitirat group, or Enlightened Jurists, from Thammasat University, about whether this ruling is justifiable. Notably, Worachet pointed out that what most people understand about the ruling is likely to be incorrect. 
 
This interview was first published in Thai on Prachatai. The interview has been edited to suit a non-Thai audience.
Translation of Thailand's 2007 Constitution can be found here
 
 
Worachet Pakeerat (filed photo)
 
 
What do you think of the verdict?
 
The court ruled to have Yingluck and the current acting ministers who were in the first Yingluck cabinet leave their positions. For Yingluck, it’s clear that she has to cease her role but for the others, I doubt if they have to since they are in the fifth cabinet not the first. 
 
Most of the ministers in Yingluck’s first cabinet have already been dismissed from their posts because there have since been several Royal Decrees appointing new ministers. Some ministers left posts in one ministry and became a minister in another. The case of Yingluck is very problematic. She became Defence Minister later in the fifth cabinet. She was appointed to this post after the transfer of Thawil. That means, according to the ruling, she should have not been dismissed from the post of Defence Minister. 
 
 
Didn’t the court rule that only ministers who signed in the cabinet’s resolution to transfer Thawil should be dismissed?
 
No, there are no such signatories. There are the cabinet meetings, and it is assumed the ministers in the first cabinet joined the meeting. The problem arises: which ministers attended that meeting? Should whoever was absent from the meeting also be dismissed? 
 
When the court rules to dismiss someone, it does not bar that person from being re-appointed. This is not a case of banning someone from holding that post again or banning them from holding any political post. Former Prime Minister Samak Sundaravej, who was dismissed from his post for hosting a cooking show, could have been re-appointed as Prime Minister if the parliament wished to do so because there is no rule barring a person from being re-appointed. 
 
The problem is that most of the ministers in Yingluck’s first cabinet had left already their posts after the first cabinet reshuffle. They were now acting ministers because they were re-appointed. How could someone already dismissed from a post be dismissed again?  
 
Currently, there are two ways of understandings of the ruling. The first way is what most people understand, that the persons who were ministers in the first cabinet and who are now in the fifth cabinet, no matter which posts they hold, have to be dismissed. This is what ordinary people understand, and even the Constitutional Court judges may understand it this way. It means banning them from holding a political post later. This is not correct. Article 266 only allows for dismissal. 
 
Secondly, as a lawyer, the ruling to dismiss is not a matter of punishing individuals, but about the posts.  If someone has held a post in the first Yingluck cabinet, then later, there was a royal decree dismissing them from the post and a royal decree re-appointing them as ministers in the Yingluck II, III, IV, and V cabinets, those are new posts. It should not be interpreted as dismissal from the new, current posts. 
 
In my opinion, the ruling should be interpreted only to mean dismissal from the post and not involve the person afterward. That means Yingluck can still hold the acting Defense Minister post. Meanwhile, Chalerm Yoobamrung, who was holding the Interior Minister post in Yingluck’s first cabinet, and was later appointed as Labour Minister in Yingluck’s fifth cabinet, was not dismissed from the acting Labour Minister post, according to the charter court’s ruling.
 
 
Do you think the ruling has a hidden political agenda?
 
I don’t know if they intended it to have political consequences, but the ruling does have political repercussions. It does not overthrow the whole cabinet, but the remaining cabinet members are few in number. 
 
In this ruling, the charter court has established its new role, namely deciding the qualifications of persons holding a government post, even though that person has already left the post. 
 
Politically speaking, the charter court is meddling with the authority of the administrative side in transferring and appointing a civil servant. It can also dismiss cabinet members from their posts.
 
Do you think this ruling is justifiable? 
 
I don’t think it is. There are several issues that should be criticized. Some contradict the ruling of the Supreme Administrative Court which was also cited in the charter court’s ruling. 
 
The focus of the Supreme Administrative Court is Mr. Thawil, while the focus of the charter court is Priewpan Damapong. While the charter court focused on Priewpan, they should also consider whether Priewpan’s rise to National Police Chief is justifiable. Also, how much was the Prime Minister involved in this and was it a matter of the PM alone or the whole cabinet who ordered this transfer? 
 
This is an issue of appointment and promotion.  We can consider this issue from several angles. This is not an appointment of someone, a relative, who is not eligible for the post at all, but a relative who is eligible to be promoted to the post. How can we say that this is absolutely about nepotism? I think the charter court judges did not consider this issue. Moreover, we have to see if Priewpan was affected by the 2006 coup d’état in terms of promotion. So should he receive remedy? 
 
Another issue is that the court did not consider that the cabinet has the authority to transfer civil servants. The court only pointed out that Priewpan is a brother of the ex-wife of ex-PM Thaksin Shinawatra and that Priewpan is the uncle of Yingluck’s nieces and nephews (Thaksin’s sons and daughters). 
 
Moreover, as the court dismissed everyone in Yingluck’s first cabinet, how could we know who joined the meeting and who did not? What’s more, these ministers did not have any chance to testify to the court at all. When they were in the meeting, what did they say about the transfer? In other words, they were barred from the right to testify in the court. This is absolutely incorrect. 
 
So is Thai politics now in a vacuum? 
 
No it’s not. Even though the ruling was interpreted as punishing the person, there are still several others to comprise an acting cabinet. There’s no vacuum yet. 
 
The next step is an election. Speaking of a political reform, it is inevitable that the charter court must be reformed as Nitirat has proposed the abolition of the charter court. 
 
The effect of the interpretation is that the court has extended its authority to be the constitution itself -- repeatedly. People usually cite the fifth paragraph of Article 216 that all state agencies are bound by their rulings. But I think we have to also consider whether a ruling is constitutional. If the charter court clearly gives an unconstitutional ruling, the ruling should not have the effect as in Article 216. It is up to the state agencies whether they will accept the rulings.
 
For example, regarding the latest ruling, the caretaker government -- the Pheu Thai Party -- seems to accept it because the ruling does not remove all the cabinet members. I’m not saying that this ruling is good, but because the political organization does not want to make an issue of it, they accept the ruling. If the court ruled to remove all the cabinet members, the political organization may not have accepted it and may have said that the ruling breached Article 197 of the Constitution and was intended to create a political vacuum. Therefore, when someone claims that all state agencies are bound by charter court rulings, they must also understand that the ruling itself must be in accordance with the constitution. If you ask who is to tell if a ruling is constitutional or not, it’s the state agencies, not the court. The political organizations can use their political power to refute a ruling. However, there has been no such refutation yet, but that doesn’t mean it can’t be done. 
 
The PDRC repeatedly claims that since this current government refuted the charter court’s ruling [on the charter amendment on the origin of the Senate], that makes this government unconstitutional and illegitimate. What do you think about this claim?
 
The PDRC’s claim makes the charter court equal to the charter itself. I’ve said before that the charter court’s rulings are not the constitution. I have proposed to the government that they have to respect the constitution. If the government sees that the charter court has breached the constitution, the government, as a political organization, must uphold the constitution. When they see that the charter court has issued an unconstitutional ruling, they must not be bound by that ruling. This is something normal, in my opinion.