The Constitutional Court is likely to rule on the caretaker PM Yingluck Shinawatra’s status this month in a transfer row, which could result in her being thrown from office. We speak to the Pheu Thai Party and Democrat Party lawyers about what to expect
Bhokin: Public will rise up
Bhokin Bhalakula, legal specialist and deputy chairman of the Pheu Thai Party's internal affairs committee:
The Constitutional Court will be tearing up the charter if it rules against the caretaker prime minister.
Section 181 of the charter says the prime minister and cabinet are required to act as caretakers until a new government takes office.
Ms Yingluck's actual status as prime minister has been terminated following the House dissolution and so has the cabinet's term on the same basis.
If the court rules against the prime minister and cabinet over the case, we have to raise a serious question.
We have to ask: how can a terminated prime minister or cabinet be terminated again?
It really would amount to being the world's strangest court ruling ever.
In a previous case, the Constitutional Court dismissed a petition seeking a ruling on the parliamentary status of Democrat Party leader Abhisit Vejjajiva after the House dissolution.
The court argued Mr Abhisit is no longer an MP so there was no cause for the court to consider the petition.
Legally speaking, the court cannot rule to terminate their status. However, in a situation like this, anything can happen.
So the question is why a ruling is being sought. The answer is because they want the entire cabinet to leave office.
If the court hands down a negative ruling as many believe it is likely to do, it should affect only the cabinet members that endorsed the removal order.
If 20 members of the current 36-member caretaker cabinet were involved in Mr Thawil's transfer order, there would be 16 members left and they would continue to function.
There is no other way to rule. If the court rules all 36 members must go, no one will accept that.
If the court rules the cabinet cannot assume a caretaker role either, the court would be tearing up Section 181 and using its ruling as a law. It will be rewriting the charter.
The petition seeking the court's ruling is also uncommon, and raises concerns on our side.
It is apparently asking the court to say the nomination of the next prime minister should be made by the Senate in lieu of the House of Representatives.
That is impossible. By law, a prime minister must be an MP and must be selected in the House only.
If the court opts to tear up the charter with its ruling, chaos will ensue. The people will not accept it.
If the court rules along these lines, the Pheu Thai Party will take a stand.
We will cite Section 69 to fight the ruling.
Section 69 says that "a person shall have the right to resist peacefully any act committed for the acquisition of power to rule the country by a means which is not in accordance with the modes provided in this constitution".
The Constitutional Court could also face a criminal charge for abuse of authority under Article 157 of the Criminal Code if it makes such a rash decision.
There is no section in the constitution that empowers the Senate to act as the House of Representatives.
Invoking Section 7 of the charter means the institution of the monarchy will be asked to intervene, which is worse than a military coup.
- Aekarach Sattaburuth
Wirat Kalayasiri, head of the Democrat Party's working group for legal affairs.
The Constitutional Court is likely to issue its ruling this month on the caretaker prime minister status of Yingluck Shinawatra after she unlawfully replaced Thawil Pliensri as the secretary-general of the National Security Council (NSC).
The Administrative Court and the Supreme Administrative Court have already ruled against the transfer of Mr Thawil, which suggests the Constitutional Court will not need long to make a ruling.
Wirat: PM has no hope
If the court considers Ms Yingluck's transfer as interfering with the work of government officials for her personal benefit in accordance with those rulings, Ms Yingluck's status as the prime minister will end immediately. The Administrative Court earlier found the transfer of Mr Thawil, in September 2011, was unlawful.
Mr Thawil was replaced as NSC secretary-general by Pol Gen Wichean Potephosree, the then national police chief. Pol Gen Wichean's successor as national police commissioner was Ms Yingluck's relative, Pol Gen Priewpan Damapong.
The court found the transfer violated Section 266 of the constitution which prohibits an MP from making any transfer of a government official for personal gain.
Pol Gen Priewpan is an elder brother of Khunying Potjaman na Pombejra, an ex-wife of former prime minister Thaksin Shinawatra, who is Ms Yingluck's elder brother.
So Ms Yingluck could be considered to have made the transfer for her own family's gain.
If Ms Yingluck's status as prime minister ends, following the Constitutional Court's ruling, the status of her cabinet and their caretaker roles will also end as well.
Ms Yingluck claims she stopped being prime minister when the House was dissolved, so the court can hardly remove her from office.
In fact, Ms Yingluck has remained in office in a caretaker capacity so the court could still remove her.
If she is removed from office, the House will select a new prime minister for appointment under Sections 172 and 173.
As the House was dissolved last December, the Senate Speaker would have to nominate the next prime minister for royal approval.
As Senate Speaker Nikhom Wairatpanich was indicted by the NACC for his alleged wrongdoing regarding the charter amendment bill on the composition of the Senate - a process which the Constitutional Court has ruled was unconstitutional - he is suspended from duty while the impeachment proceedings against him take place.
As a result, the deputy senate speaker, acting as Senate Speaker, could take over the responsibility and nominate the next prime minister instead.
The next prime minister is expected to be an interim one whose interim government should make plans for national reform ahead of the next general election.
The process to form an interim government could be finished by the middle of next month.
The interim government should take four months to issue executive decrees for national reform and the nation spends four following months to hold a referendum on the reform.
The country can hold an election and return to a normal administrative system in a year.
- Manop Thip-osod