Why Prayut, or any living PM, has not reached tenure limit

Amorn Wanichwiwatana

Special to The Nation

So, what if things will not go that way? Of course, I only have to be direct and sincere that my stance is simply a legal opinion shared by many other legal experts. It could either perfectly match the eventual court verdict or go the other way.

In our country, we used to mess up the one ballot system and its calculation method by which we elected both party-list and constituency representatives. This ended up with us having several representatives, especially from small parties, who won the seat despite getting lesser votes than the ideal vote numbers. For instance, the law prescribes 70,000 votes for one MP, but some small parties could have an MP despite getting less than 30,000 votes, due to the “every vote counted” principle.

I have already challenged in many forums that the Constitution allows the Election Commission to find the proper calculation method by interpreting the law's intent. I, personally, have always support the principle of “every vote counted”, but once we have already made a short-list of all candidates, this means their votes had already been taken into account and counted! Thus, anyone who got votes less than the prescribed votes calculated by law, must be ousted with no questions asked. Then we need to recalculate the votes of parties that failed to reach the ideal vote numbers and pass on the votes to top-ranked parties on the short-list. Some might agree or disagree with this kind of thinking, but it is fair enough. It is very similar to the way a Constitutional Court recently ruled 5:4 to suspend General Prayut from duty. Does anyone think that the 5 votes are more correct than the other 4 votes? No, we are not doing things that way, for sure! This is not only about legal opinion as I earlier mentioned, it is also the importance of majority rule and minority rights concept.

The same thing happened when the US Supreme Court, in a 6:3 ruling, overturned Roe v Wade, ending the right to abortion guaranteed for decades. I do not think anyone will say “the three judges are weaker or less intelligent than the majority six”. These are all about legal matters, there is no absolute wrong or right, especially in dealing with socio-legal issues.

I still remember current Deputy Prime Minister Prof Wissanu Krea-ngam saying at the time he met the president of the Constitutional Drafting Commission (CDC), Prof Meechai Ruchuphand, me and other members on day one following the inception of the CDC in 2015. He said: “In the previous years, we have had too many lawyers assisting the country in drafting a number of laws. As of now, we do need some socio-legal experts to share societal viewpoints and perspectives on social and humanity domains. Otherwise, we will always see things from the same direction.”

Thailand is currently administered by code law but is also influenced by the common law in many areas. Civil law or code law mainly focuses on the written legal facts that appear in the law, unlike the common law which may vary at the discretion of judges or jurors.

I found it really difficult when I had to participate in a B.CL. reading class in Oxford due to the large number of “case laws”. I needed to read similar cases which might differ from one another in terms of the court ruling.

As a spokesperson and a former commissioner in the CDC, it seems to be boastful to say that I am confident in my knowledge of the Constitution and all organic laws in which I got involved. This includes “the constitutional intent” that I also participated in, sharing my views in the committee presided over by Prof Supachai Yavaprapas, the former dean of political science at Chulalongkorn Unversity. I also raised questions if need be and am very proud to have been a part of the CDC, and that its president, Prof Meechai, is a democratic leader, who is open-minded and patiently listened tirelessly to all members’ arguments.

In the case of General Prayut, he had to be suspended from duty because the court procedure allows judges to use their discretion to do so for the sake of the majority interest. The court has not yet ruled on whether Prayut has to step down or for how long he can remain in power. We need to wait and see. I disagree, however, with those who apply the temporary clause (Article 264) in the Constitution to convince us that he must be expelled on the 24th of August. This is due to the intent of that article simply wanting to have the former government, prior to the new Constitution coming into effect, officially have the same duties and responsibilities as the government under the newly written Constitution should do. We all know well that a general election was not held at the time. We cannot interpret the law that General Prayut, or for that matter any of the living former prime ministers, have reached their term limits. Nevertheless, the court will have the final say and we all have to respect the court’s verdict no matter what.

Amorn Wanichwiwatana, DPhil (Oxon), is a political scientist at Chulalongkorn University.