King and the Constitution

Throughout the 60 years of his enlightened reign, His Majesty King Bhumibol Adulyadej of Thailand has not only always followed the Ten Principles of Kingship, but has also strictly adhered to the Constitution

By BOWORNSAK UWANNO

This is the third in a continuing series of articles on the Ten Principles of Kingship by Dr Borwornsak Uwanno, in commemoration of His Majesty the King's 60th year on the throne.

If we look at His Majesty's constitutional conduct over the period of his reign, we will see that he has always strictly adhered to the Constitution and followed the convention of the constitution in accordance with democratic values, as stated in his remarks that he (has) never issued any orders without basing them on directives of the provisions of the Constitution or the laws.

When a political conflict emerged between the government led by Thaksin Shinawatra and those opposing his government, it was proposed that the prime minister resign and a new one be royally-appointed; it was argued that it was within the Royal prerogative to appoint a prime minister and that when there was no sitting House of Representatives, it would be within the Royal prerogative to decide on anyone as prime minister. The proponents of this proposal cited Section 7 of the Constitution which stipulates that: ''Whenever no provision under this Constitution is applicable to any case, it shall be decided in accordance with the constitutional practice in the democratic regime of government with the King as Head of the State.''

In fact, the proponents realised that had the King exercised his Royal prerogative, a number of other sections of the Constitution would have to be exempted. These included, among others, paragraph 2 of Section 201, which states that the prime minister must be appointed from members of the House of Representatives or persons who have been members of the House of Representatives whose membership has terminated under section 118 (7) during the term of the same House, and Sections 202 and 203 regarding the approval of the appointment of prime minister by the House of Representatives. In addition, Section 201 might have to be exempted as well so as to allow the president of the Senate to countersign the Royal Command appointing the prime minister instead of the president of the House of Representatives whose terms had been terminated due to the dissolution of the House of Representatives.

Finally, paragraph 2 of Section 215 and Section 211 would also have to be exempted in order to allow the outgoing Council of Ministers to leave office without having to carry out their constitutional duties, and to allow the Council of Ministers to assume the administration of State affairs without having to state its policies before the National Assembly beforehand (because there was no National Assembly in place), respectively.

All of the above served as a basis for the Royal statement that ''I am very concerned that whenever a problem arises, people just call for a royally-appointed prime minister, which would not be democratic. If you cite Section 7 of the Constitution, it is an incorrect citation. Section 7 cannot be cited. Section 7 has only two lines which says that whenever no provision under this Constitution is applicable to any case, it shall be decided in accordance with the constitutional practice, and that (I) affirm that Section 7 does not empower the King to do anything He wishes.''

The King also spoke about the appointment of Prime Minister Sanya Dharmasakti after the incident of Oct 14, 1973: These words refer to the government under Prime Minister Sanya Dharmasakti. ''Then, I did not overstep the prerogative of the King. At that time, we had a National Legislative Assembly as well as President and Vice-Presidents of the National Legislative Assembly. The counter-signer of the Royal Command was Vice-President of the National Legislative Assembly, Mr Tawee Rangkam.

''It was based on the rules. The Sapha Sanam Ma [the National Electoral Collage_added by the author] did not breach the laws because the Prime Minister, Mr Sanya Dharmasakti, countersigned the Royal Command on it. Hence, I was content that everything was in accordance with the Constitution's guidelines.''

Those interested in Thai political history may recall that during the time of the incident of Oct 14, 1973, Thailand was using the Constitution of 1972 and when the crisis erupted, Field Marshal Thanom Kittikachorn resigned as prime minister and Sanya Dharmasakti was appointed by Royal Command as prime minister in accordance with Section 14 of that Constitution, which stipulated that: ''The King appoints a prime minister and an appropriate number of ministers as recommended by the prime minister constituting the Council of Minister having duties to carry out the administration of the State affairs.''

Tawee Rangkam, vice-president of the National Legislative Assembly, acting on behalf of the Assembly's President, countersigned the Royal Command in accordance with Section 18 of the Constitution, which stipulated that: ''For the appointment of the prime minister, the president of the National Assembly shall countersign the Royal Command.''

The appointment of Sanya Dharmasakti was therefore in full compliance with Section 14 and paragraph 2 of Section 18 of the 1972 Constitution, and no provisions were exempted.

The dissolution of the National Legislative Assembly and the appointment of the members of a new Assembly during that same crisis were also consistent with the Constitution. In late November and early December 1973, most of the 299 members of the National Legislative Assembly, royally appointed upon the recommendation of Field Marshal Thanom Kittikachorn, resigned and only 11 members remained in office. Hence, on Dec 10, 1973, the King issued a Royal Command appointing 2,347 persons as members of a National Electoral College.

Given the large number of its members, the Royal Turf Club (or Nang Lerng Horse Race Course) was used to inaugurate the National Electoral College's convention, in order to select members of the National Legislative Assembly; hence, the National Electoral College got its nickname Sapha Sanam Ma (Horse Race Course Assembly).

In the Royal Command appointing the National Electoral College, it was stated that ''(His Majesty the King) commands to announce that whereas recognising that the present situation remains unpredictable and the political foundation of the Kingdom before the enactment of the Constitution has not yet been securely established, and desirous that the people be involved in building that foundation from the beginning, there is an utmost need to appoint members of a new National Legislative Assembly in line with the current situation. As it is the Royal aspiration that the National Legislative Assembly should comprise persons representing the broadest spectrum of interest groups, professions, knowledge and political views and thinking, His Majesty the King hereby graciously appoints a National Electoral College comprising the persons whose names are attached to this Royal Command and directs the National Electoral College to convene with a view to selecting qualified candidates from amongst its members and recommending them for Royal appointment as members of the National Legislative Assembly''.

The above Royal Command was countersigned by Prime Minister Sanya Dharmasakti in accordance with paragraph 1 of Section 18 of the 1972 Constitution, which stipulated that all laws, Royal Rescripts and Royal Commands relating to State affairs must be countersigned by the prime minister or a minister.

Then, on Dec 16, 1973, Prime Minister Sanya Dharmasakti presented a Royal Decree to dissolve the existing National Legislative Assembly and countersigned the Royal Command to that effect. In the Royal Decree, it was stated that ''Whereas many members of the National Legislative Assembly have shown intention to resign, and whereas the remaining members cannot constitute a quorum, it is deemed that the National Legislative Assembly be dissolved so that new members shall be appointed in line with the current situation.''

After the National Electoral College which convened on Dec 19, 1973 selected among themselves 299 qualified candidates for the National Legislative Assembly, the prime minister presented the name-list to the King and the King subsequently appointed all of the 299 candidates as members of the National Legislative Assembly, with the prime minister countersigning the Royal Command in accordance with paragraph 1 of Section 18 of the 1972 Constitution and the principles of democracy with a constitutional monarchy.

Even during the Black May incident of 1992, in which serious confrontation between those opposing the government and the government's supporters turned violent and led to much loss of life, His Majesty the King remained steadfast in his role as a constitutional monarch. He did not intervene or make any political decisions. Instead, he summoned Major-General Chamlong Srimuang and General Suchinda Kraprayoon, the two main protagonists of the conflict, along with the President of the Privy Council, Sanya Dharmasakti, and Privy Councillor General Prem Tinsulanonda, at about 8pm on May 20, 1992, and gave his caution, exercising the right to warn, to both sides as follows:

''It should not surprise you why I summoned both of you here. All of us know very well how messy the situation is and that such a situation can destroy the nation. What might surprise you is probably why I have summoned General Suchinda Kraprayoon and Major-General Chamlong Srimuang because there are also other actors. But I have summoned the two of you because you two have been the ones confronting each other from the beginning, and now the struggle or confrontation has spread. That is why I have summoned the two of you.

''When the confrontation started, the objectives of both sides were quite clear. But some 10 days afterwards, we can see that that confrontation has drastically transformed so that whatever the outcome will be, we will all lose. It has caused loss of lives of quite a number of people. There have been material losses to both government and private properties, accounting for high value. There have also been immeasurable spiritual loss and economic losses. So, to let the situation continue, for whatever reasons or whatever causes because the reasons have already changed, but to let this confrontation go on would ruin the nation. It would turn Thailand , which all of us have nurtured for a long time, into a country without meaning or with a negative reputation. Such an outcome is looming. So the situation must be resolved by looking at the disputes and trying to resolve each one of them. There are problems every day, and in the past few days the problems have changed. The problems are no longer about politics or positions. They are about the degradation of the nation. So we must help one another resolve them.

''Many people have sent letters suggesting ways to resolve the situation. There are hundreds of letters both from within the country and from overseas. There are many suggestions on what we should do. Initially, it was suggested that the situation be resolved by dissolving the Parliament. But when the Parliament, which comprises 11 political parties, was consulted, the majority said we should not dissolve the Parliament, and only one party said we should. So this suggestion had to be dropped.

''There are also petitions suggesting various ways, and these have been proposed through the normal channel: when a petition is received, it will be sent to the Secretariat of the Cabinet or the Office of the Prime Minister. But the situation still could not be resolved. So, now there are, on the one hand, the dissolution of the Parliament and, on the other, the amendment of the Constitution to meet the desired objectives, meaning the objectives before the confrontation.

''In fact, I spoke of this latter solution, if you can recall, on Dec 4, 1991, before an audience of thousands of well-wishers. It seemed to be well-received because its underlying reasons might resolve some of the problem. Now I wish to stress why I said that if we can either amend before promulgating or promulgate and then amend, and everyone knows what I am talking about: the Constitution. At that time, an amendment with a broader scope than the previous amendment could be made to the Constitution any time. Before speaking at Dusitalai Pavilion, I met with General Suchinda. So let me recount to you that, when I met General Suchinda, he agreed that we should enact this Constitution and then amend it later. This could be done. And now, General Suchinda still confirms that it can be amended. So, it can be amended gradually into what we call democratic. So, I spoke many months ago about how to solve the problems.

''The important point is why the Constitution should be enacted even though it was not yet complete. It is because the Constitution is better in quality and application than the transitional constitutional law which had been in use for almost a year. The latter had some dangerous provisions and was not complete to apply in the administration of State affairs. Therefore, if things can be done as I said on Dec 4, 1991, then it will mean going back to review the old problem but not the problem of today.

''Today's problem is not about enacting or amending the constitution. It is about safety and morale of the people. These days, the general public everywhere lives in fear of danger and fear that the country would fall apart without simple recourse. From what I heard from abroad, as my son and my daughter are abroad, both of them know the situation very well and have tried to tell people in those countries that Thailand will be able to resolve the situation. But that idea will be somewhat an overestimation if we cannot end the situation as has happened during the past three days. Therefore, I ask you, especially General Suchinda and Major-General Chamlong, to help each other think. Get together and do not confront each other because this country does not belong to one or two persons. It belongs to everyone. So get together, do not confront, and resolve the problems. Danger exists when people turn aggressive and use violence against one another. Then they forget themselves, and in the end, they do not know what they were fighting about and what problems they intended to solve. They only think of winning. But who will win? There are no winners. It is all dangerous. There are only losers. Everyone loses. Those who confront each other also lose. The one that loses the most is the country. The people are everyone in the country and not just those in Bangkok . If Bangkok is ruined, then the whole country will be affected. Then, what use is there for those who think they win when there are only ruins everywhere?

''So, I have summoned both of you here. Do not confront each other but get together. Both of you represent many sides, not just two sides. All sides confronting one another should together help solve today's problem, which is the violent situation. When the problem can be cured, then talk and consult one another on how to restore this country. This is why I have summoned you. I believe both of you understand that to be the ones to rebuild the country from a shambles will be the merit that you have done.

''How to resolve the situation is up to you to consult. Here is an observation. The President of the Privy Council and Privy Councillor Prem are senior citizens who are ready to give advice and consult with impartiality and loyalty to the country in order to enhance the progress of the country. So, help one another rebuild the country.''

The King's Royal statement cautioned everyone to reconcile and use peaceful means and urged all concerned to consult among themselves as to what to do. Subsequently, the National Assembly convened on June 25, 1992, to make amendments to the Constitution, and Gen Suchinda Kraprayoon resigned as prime minister on June 24, 1992. For both of these actions, the persons making the decisions were the National Assembly and Gen Suchinda. The prime minister contemplated the Royal advice and did his duty in accordance with the Constitution and was himself politically and legally accountable. Particularly, with regard to amending the Constitution, it was the Royal advice given to the organs with authority to decide, and the National Assembly could have chosen not to proceed accordingly. However, the National Assembly and the government at the time could risk severe criticism from society. In this regard, the Royal advice held such high social status that none could ignore. The King granted the Royal advice in his capacity as Supreme Arbitrator and Conciliator of the Nation, who was nonpartisan and whose advice has never overstepped the Constitution.

When Gen Suchinda resigned, the various political parties voiced their support for Air Chief Marshal Somboon Rahong to become the next prime minister. However, Arthit Urairat, president of the House of Representatives, presented a recommendation to the King to appoint Anand Panyarachun as prime minister, and countersigned the Royal Command to that effect. This action was in accordance with Section 159 of the Constitution of 1991, which stipulated that: ''The King appoints the prime minister and not more than 48 other ministers to constitute the Council of Ministers having the duties to carry out the administration of State affairs. The president of the House of Representatives shall countersign the Royal Command appointing the prime minister.''

Hence, the King's conduct during the Black May incident of 1992 was in strict compliance with the Constitution as well as all of the conventions of the constitution.

Dr Borwornsak Uwanno is Professor Emeritus at Chulalongkorn University 's Faculty of Law.