Court 'did its duty' over charter change

The Constitution Court has done its duty well for Thais in holding an act of the parliament subject to the constitution. In this decision the court has ruled that a majority in parliament may not exercise a willful and unaccountable power over Thai politics.

It is important for Thais to know the Constitution Court's decision is fully consistent with 224 years of US democracy.

Federalist Paper No.78, written by Alexander Hamilton in 1788, considered the role of courts in standing up to "unjust and partial laws" passed by the legislature. He warned that the "spirit of injustice" will "sap the foundations of public and private confidence, and to introduce in its stead universal distrust and distress".

With these simple words, Hamilton predicted the current political crisis facing the Thai people.

The Federalist Papers were newspaper commentaries advocating adoption of the proposed Federal Constitution which had been drafted in 1787. They were written by Alexander Hamilton, James Madison and John Jay.

Federalist Paper No.71, also written by Hamilton, foresaw that legislatures could fail in their duties to act justly. He wrote: "The representatives of the people, in a popular assembly, may sometimes fancy that they are the people themselves, and betray strong symptoms of impatience and disgust at the least sign of opposition from any other quarter; as if the exercise of its rights, by the judiciary, were a breach of their privilege and an outrage to their dignity."

Just so we hear in Thailand today claims that the Constitution Court has no right to intrude into the power of parliament to act as its majority wishes.

Under Thailand's parliamentary system, the legislature and the executive are fused into one branch of government, reducing the separation of powers and undercutting the checks and balances which protect the people against injustice that might come from one political faction.

In the case of the constitutional amendment passed by parliament and just voided by the Constitution Court, the act of parliament was really an act of the executive power.

It was the government which introduced and carried the act.

The House and the Senate gave their consent to an executive decision.

In the US, the courts have long had the power to overrule acts of our presidential executives.

In the Watergate case which drove Richard Nixon to resign, the US Supreme Court ruled the president had no privilege to withhold evidence from the courts which might incriminate him.

The president's lawyers had argued that the courts had no right to intrude into the inner workings of another branch of government. But the Supreme Court held to the contrary that only the courts could exercise the judicial power.

No other branch could step in to tell the courts what to think. The court had the right to interpret the constitution differently from the beliefs of other branches of government.

The rule of law and due process of justice demanded that all the relevant facts be brought before a trial of alleged criminal activity. The president had to obey that rule just as any ordinary citizen had to.

Earlier, the Supreme Court had denied president Harry Truman the right to govern by personal decree _ even during war and even in a national emergency.

To keep up steel production during the Korean War when unions were about to strike over higher wages, President Truman took control of the steel companies.

The Supreme Court held that the war powers provided to the president by the constitution did not extend to civil matters involving labour strikes.

And, much earlier, in the 1866 case of Ex Parte Miligan, the US Supreme Court held that the authority of president Abraham Lincoln did not extend to the establishment of certain military courts to arrest and try citizens who supported the rebellion of the southern states in our Civil War.

The Supreme Court limited executive power in the midst of war saying the president had no mandate to do as he wished as "he is controlled by law".

The court commented that if the protection of the law were to be withdrawn, "the people would be at the mercy of wicked rulers or the clamour of an excited people", noting in addition that "wicked men, ambitious of power, with hatred of liberty and contempt of law, may fill the place once occupied by Washington and Lincoln".

The duty of a constitutional court in the US and in Thailand is to stand between the people and the selfish abuse of power by those in government.

Stephen B Young is former dean and professor of law, Hamline University School of Law, and former assistant dean, the Harvard Law School.

About the author

Writer: Stephen B Young