Phuttipong Pong-anakekul, a second-year law student at Ramkhamhaeng University, wrote an article in Prachatai in response to what Surapon Nitikraipot, Rector of Thammasat University, said at a public forum on 25 Jan. 

Surapon (quoted by Phuttipong): ‘It is often said that democratic countries don’t allow coups.  I ask those who say that the 2007 Constitution came from a coup by the Council of National Security, whether the 1997 Constitution, which was claimed to be the best and the people’s charter, did not come from the National Peace Keeping Council, which staged a coup to topple Gen Chatichai Choonhavan’s government in 1991.’

Phuttipong wrote that Surapon should admit that the 1997 Constitution came into existence through a process which involved the amendment and abrogation of the previous 1991 charter [which was put in place by the NPKC – Prachatai].  And that was very different from the CNS tearing up the 1997 Constitution and replacing it with the 2007 Constitution.

Surapon: ‘I can say that in the history of Thai constitutions, there were no other constitutions that went through a referendum process.  Although it is said that the people were fooled, the referendum was the voice of the people, wasn’t it?’

Phuttipong argued that the 2007 Constitution was not established by the people, but, according to Section 32 of the interim 2006 charter, was promulgated by the monarch as the final step.  So, theoretically speaking, Surapon should have said that the power to establish all Thai constitutions has always belonged to the monarch, never the people, Phuttipong said.

And Surapon should have known better that one principle of a referendum is not to control the voting by any means.  The referendum for the 2007 Constitution was dominated by a state-funded campaign to vote for it.

Furthermore, according to Section 32 of the interim 2006 charter, if where the people had rejected the draft charter in the referendum, the CNS and the Cabinet would have had a joint meeting in 30 days to select and amend one of the previous charters.  

So Surapon should have been brave enough to admit that the referendum was seriously in violation of this principle.

Surapon: ‘I’d like to ask people who say they are for democracy and against military rule.  If they don’t accept coups, I ask whether we could accept the revolution in 1932, which seized power from the king.’

Phuttipong said Surapon, who is a professor on public law, should have blushed to make such a comparison. 

Technically, Phuttipong said, the 1932 revolution might be called a coup, but it was totally different from the 2006 coup.

The People’s Party seized power in 1932 to make way for the rule of law and political and legal equality, the fundamentals of democracy.  They broke the law under a dictatorial regime, but did not violate the rule of law and did not trample on the rights of the people.

Once the People’s Party established a constitutional regime, which brought about the rule of law and the power of the people, to seize power through a coup is in violation of the supremacy of the constitution and the rule of law.

Surapon: ‘If this [Democrat] government came from the coup… The Abhisit government took office following the Samak and Somchai governments.  I ask where the Samak and Somchai governments came from.  Now we tend to overlook some issues for certain interests.’ 

Phuttipong said that the Abhisit government did come from the [2006] coup, as it was established by the mechanisms of the coup.  Surapon should have admitted the fact that the ‘judicial activism’ which ran wild after the 19 Sept 2006 coup played a key role in ousting the Samak and Somchai governments.

Surapon: ‘The case of Samak Sundaravej being removed from office due to his TV cooking show is just looking for an issue.  Personally, I admit that it was a surprise.  In my opinion, Samak just ‘worked for hire’, and was not an employee.  But the Constitutional Tribunal took a strict interpretation.  Legal circles are keeping their eyes on how the Constitutional Tribunal will decide the pending cases.  It will have to make the same decision.  I’m waiting for the decision on the second case.  As of now, there is only one standard, which is very strict.  As regards Samak’s case, there has yet to be another case to compare it with.  I’m waiting for verdicts in other cases.’

Phuttipong said that Surapon’s description of the Constitutional Tribunal’s verdict as a ‘strict interpretation’ was ridiculous.  If Surapon was honest in his profession, he would have said that the verdict was totally absurd.

Even if the tribunal interpreted Samak’s activity as that of an employee, that would fall into the category of ‘forbidden attributes’, according to the constitution.  Samak should have been notified as such to refrain from such activity, but should not have been removed from office.

Furthermore, if Surapon regarded this as a case of a conflict of interest, he should have pointed out how this conflict of interest would affect Samak’s decisions [as Prime Minister - Prachatai].

Phuttipong said that the ‘crisis of conservative judicial activism’, which was initiated after the 2006 coup, was a challenge to all public law professionals.  They have to prove themselves amidst the ‘swings’ of political tastes.  Any distortion of the principles of public law will affect the overall system of power.

He condemned judges and public law experts who served the agenda of the junta.  And Prof Dr Surapon Nitikraipot was one of them.