Thailand's NACC ruling: Why it happened and what it means

Originally published at Siam Voices on January 8, 2014 Thailand's National Anti-Corruption Commission (NACC) will charge 308 lawmakers, most from interim Prime Minister Yingluck Shinawatra's Pheu Thai Party, for proposed amendments to the country's constitution adding more uncertainty over its candidates for the upcoming federal election on February 2.

The proposed changes would have changed the Senate into a fully-elected chamber with 200 members, whereas currently only 76 elected and 74 appointed senators make up the 150-strong upper House (Article 111 of the Constitution). The amendments would have also affected passages that bar direct relatives of MPs, political party members and recently retired MPs to run for Senate (Articles 115.5, 115.6 and 115.7, respectively) and would have done away the one-term limit of six years (Article 117). The draft passed both the House and the Senate in all three readings.

In November, the Constitutional Court quashed the draft amendments and declared them unconstitutional, citing a violation of Article 68 of the Constitution stating that a fully-elected senate would “overthrow the democratic regime of government with the King as Head of State,”  and insisting that all these changes would enable "a domination of power" by both chambers. Additionally, the Court noted irregularities (some Pheu Thai MPs were caught using their colleagues' voting ID cards) and discrepancies (the original draft is not the same that was later submitted to parliament, mainly regarding Article 117) in the parliamentary process.

However, the Court stopped short of dissolving the Pheu Thai Party. Instead, the opposition Democrat Party (whose MPs and like-minded appointed senators had originally brought this case to Constitutional Court) asked the NACC to investigate the 383 MPs and senators - including Prime Minister Yingluck Shinawatra and the presidents of the House and the Senate - that have proposed and voted in favor of the amendments, seeking their impeachment.

The NACC announced on Tuesday that after a 7:2 decision it will press charges against 308 lawmakers - 293 of them have proposed and voted in favor in all three readings, while 15 did so in one of the readings. The key reason is this discrepancy:

"The NACC [at this point] based its decision on the Constitution Court's ruling which also covers the part about the falsified draft charter amendment, (...) Basically, the 308 MPs and senators were involved in proposing the draft, so they should be aware that the draft was fake and they should be responsible for their actions," [NACC member Vicha Mahakhun] said.

"NACC to charge 308 lawmakers", Bangkok Post, 8 January, 2014

They also decided to dismiss charges against 73 lawmakers, including interim Prime Minister Yingluck Shinawatra, finding their part in the process to be "insufficient" and protected by Article 130 of the Constitution, which sets out an MPs' or senator's right "in giving statements of fact or opinions or in casting the vote by any member" to be "absolutely privileged".

65 of these lawmakers voted in favor in the third and final reading, while only eight did in the first and/or the second, but none of them actually proposed the amendments. Two other lawmakers have been dropped from the complaints.

Also, in a separate case, the NACC will charge Parliament President Somsak Kiatsuranont and his deputy, Senator Nikom Wiratpanij, for their roles in passing the proposed amendments, accusing both of abusing their power. Both men will hear their charges Friday.

The big questions now are what will happen next and what impact it could have for the upcoming elections on February 2, as many of the 308 lawmakers are running for office? As of now, the legislators are asked to testify to the NACC in the next two weeks and can remain in their positions until then. The NACC will then decide on their cases and whether or not the MPs and senators will face impeachment. In that case, Article 272 of Constitution applies here, which states that if the NACC finds "that the accusation has a prima facie case (evident to be true until proven otherwise)," the accused should "not perform his or her duties until the Senate has passed its resolution".

Amidst the ongoing anti-government and anti-election street protests (with protesters set to up the ante again on January 13 with a city-wide "shutdown" in the capital Bangkok) aimed at suspending electoral democracy indefinitely in favor of an appointed "People's Assembly", fears of a coup of some sort have increased. Comments by army chief General Prayuth Chan-ocha on a military coup (“Don’t be afraid of things that haven’t yet happened ... But if they happen, don’t be frightened. There are [coup] rumours like this every year.”) have done very little to calm things down.

A "judicial coup" has become a little more likely with the NACC's decision to press charges against hundreds of lawmakers from Pheu Thai,  Thailand's most electorally successful political party, and their fate will be decided in two weeks - just days before election day on February 2.