Charter Court dismisses PM Paetongtarn from office following leaked phone call audio with Hun Sen

The dismissal has also resulted in the Cabinet being removed accordingly, prompting the country to plunge into political chaos as it needs to select a new PM and Cabinet amid fierce competition among political leaders

The Constitutional Court has dismissed PM Paetongtarn Shinawatra from office for her breach of ethics as addressed in the Constitution. The Court yesterday jointly deliberated and, with a majority vote of 6 to 3, ruled that her ministership shall be individually terminated in accordance with Section 170, paragraph 1 (4) of the 2017 Constitution. 

Four judges of the majority found that PM Paetongtarn lacked the qualifications and possessed prohibited characteristics under Sections 160 (4) and (5) of the Constitution. The other two judges found that the PM lacked the qualifications and possessed prohibited characteristics under Section 160 (5) only. 

Section 170, paragraph 1 (4), states that the status of a “Minister” becomes invalidated when lacking qualifications or possessing prohibited characteristics according to Section 160.

Section 160 (4) states that a Minister must have demonstrable honesty and integrity, and Section 160 (5) states that a Minister must have no behaviour that seriously violates or fails to comply with ethical standards. The ethical standards under this section are linked to the Court’s ethical standards applied to members of Parliament and the Cabinet following Section 219 of the Constitution.

This ruling takes effect from the date on which the Constitutional Court ordered the PM to cease her performance of duties as a Prime Minister, or on July 1, the same day that it had decided to take up the case following a petition submitted by a group of senators.

The minority vote of the other three judges, including the President of the Court himself, held that PM Paetongtarn’s conduct concerning the leaked phone call constitutes a non-serious breach of ethical standards. Therefore, her ministership shall not be individually terminated.

Upon the termination of the PM’s ministership following Section 170 paragraph 1 (4), in conjunction with Section 160 (5), the entire Cabinet shall also vacate office accordingly. As addressed under Section 168 paragraph 1 (1) of the Constitution, the Cabinet, however, will continue performing its duty until the new Cabinet takes office.

The petition

On July 1, the Constitutional Court convened and discussed a petition submitted by a group of senators related to the leaked audio clip of the conversation over the phone between PM Paetongtarn and Hun Sen, Cambodia’s President of the Senate and former PM.

Thailand’s Senate President on June 20, two days after the phone call audio was leaked, sent the senators’ petition to the Constitutional Court to rule in accordance with Section 170, paragraph 3 of the Constitution, in conjunction with Section 82, whether the status of Prime Minister Paethongtarn Shinawatra as a minister shall be invalidated in accordance with Section 170, paragraph one (4) of the Constitution, in conjunction with Section 160 (4) and (5) or not.

Section 170, paragraph 3, in conjunction with Section 82, sets up a legitimate process to submit such a petition. Section 170, paragraph 3, states that the provisions of Section 82 shall apply mutatis mutandis to the termination of the status of a “Minister” under Section 170 (2), (4), or (5) or its paragraph 2.

Section 82, paragraph 1, states that members of the House of Representatives or members of the Senate, comprising no less than one-tenth of the total number of members of each House, have the right to submit a petition to their Presidents, stating that the membership of an accused House member shall be terminated as following…and the Presidents shall forward the petition to the Constitutional Court for a decision as to whether or not the membership of that member shall be terminated.

According to the Court, a total of 36 senators had signed this petition to the President of the Senate (petitioner), stating that an audio clip of a conversation between PM Paetongtarn (the accused) and Samdech Hun Sen over the phone was released to the media on June 18, in which she had admitted in a press briefing that it was indeed the audio of her genuine conversation with Samdech Hun Sen.

Although PM Paetongtarn said that it was a private telephone conversation that she tried to conciliatorily negotiate to maintain peace and sovereignty of the country, the petitioner believed that she had shown negligence and had not performed the duty to respond or come up with measures, including firm negotiations and protocols, in accordance with the duties and responsibilities that a Prime Minister should perform.

This was because of her personal relationship and her position sided with Cambodia, apparently, that she was ready to handle the situation as Cambodia wanted all along, the petitioner claimed. As for the commander of the 2nd Army mentioned in the clip, PM Paetongtarn expressed that he “is on the opposite side”.

PM Paetongtarn had not evidently shown honesty and had seriously violated or failed to comply with ethical standards, the petitioner claimed. The Constitutional Court was therefore requested to rule in accordance with Section 170, paragraph 3 of the Constitution, in conjunction with Section 82, that the status of the accused as a minister shall be invalidated in accordance with Section 170, paragraph 1 (4), in conjunction with Section 160 (4) and (5). The petitioner also requested that the Constitutional Court order PM Paetongtarn to stop performing her duty until it has delivered its ruling.

The Constitutional Court said it had considered the facts of the petition and the documents attached and found that the case complied with Section 170, paragraph 3 of the Constitution, in conjunction with Section 82, paragraph 1, and the Organic Act on the Procedures of the Constitutional Court B.E. 2018, Section 7 (9). The Court unanimously resolved to accept the petition for consideration and adjudication, notify the petitioner, and order the accused to submit a statement in defence of her actions within 15 days.

It also resolved with a majority vote, 7 to 2, that there were reasonable grounds to suspect that PM Paetongtarn had the issue as requested. So, it had ordered her to stop performing her PM duty since July 1, following Section 82 paragraph 2.

The leaked phone call

In the late morning of June 18, two versions of the audio clip of PM Paetongtarn’s telephone conversation with Mr. Hun Sen were released, nine minutes in length, and the full version of 17 minutes in length.

According to Mr. Hun Sen, in the evening of June 15, he had a telephone conversation with PM Paetongtarn that lasted 17 minutes and 6 seconds. His close aide, Khleang Huot, served as the interpreter. As is customary, Mr. Hun Sen claimed that to avoid any misunderstanding or misrepresentation in official matters, it was necessary to record the conversation for “the sake of transparency, including for internal Cambodian purposes”.

He said he had since shared the audio recording of the conversation between himself and PM Paetongtarn with approximately 80 individuals, including members of the party’s standing committee, Senate working groups, National Assembly teams, the foreign affairs task force, education and outreach units, border affairs groups, and members of the armed forces. Among these individuals, he cited, someone might have disapproved of the Thai Prime Minister, suggesting that he or she was the one who had released the clip.

Mr. Hun Sen added that a few hours after the conversation, the Thai PM publicly accused the Cambodian leadership of conducting “unprofessional” politics and engaging in political activity via Facebook, an action which he viewed as contradicting her words.

“Regarding the leaked audio, I have noticed that only around nine minutes of it have been posted publicly. Therefore, if the Thai side wishes to have the full recording, I am prepared to release the entire 17-minute and 6-second audio in its entirety,” Mr. Hun Sen said of the second clip in his Facebook post.

The leaked audio clip then prompted strong sentiments against PM Paetongtarn and former Cambodian leader Hun Sen. Later in the afternoon, PM Paetongtarn rushed to hold a press briefing at Government House to try to clarify the leaked audio clip. She admitted that it’s authentic, and it’s the negotiation she tried to pacify the confrontation between Thailand and Cambodia.

l PM Paetongtarn rushed to hold a press briefing at Government House to try to clarify the leaked audio clip. Credit: Thai PBS

In the leaked 9-minute audio clip, which appeared on social media platforms in the late morning and heard by Bangok Tribune, the issue in the conversation between PM Paetongtarn and former Cambodian PM Hun Sen via an interpreter was centred around Thailand’s border control measures and countermeasures imposed afterwards by Cambodia including the cessation of purchases of electricity and internet from Thailand, the ban on Thai dramas, and a latest ultimatum to ban imports of Thai fruits and vegetables. 

Mr. Hun Sen was heard to want the Thai government to remove the measures first, including the closure of the checkpoints, a point which PM Paetongtarn denied as being untrue because the government at that time had not implemented them yet. PM Paetongtarn, on the other hand, wanted both sides to step back from their measures and normalise the situation by announcing the opening of the checkpoints together.

In the first clip before it ended, Mr. Hun Sen was firm on declining the Thai PM’s proposal, saying the Thai military had started it first and that Thailand had to make the first move. He was also firm on his stance that this was not a bilateral negotiation, suggesting it was Cambodia’s sole demand that Thailand must pay heed to.

As revealed by the second clip, which was released in the evening, PM Paetongtarn finally agreed with Mr. Hun Sen’s terms, saying she would bring the matter to discuss with the Thai security and let him know the result, also adding that she trusted she could manage the matter for him and would issue an order accordingly.

In some parts of the conversation, she was heard mentioning the 2nd Army Region Commander and portraying him as aligning with “the opposite side”, and thus his orders on the border measures should not be worth listening to. She was heard aligning herself with Mr. Hun Sen, calling them as “us”. She also spoke in a soft-toned voice and called Mr. Hun Sen as “Uncle” and presented herself as a niece.

PM Paetongtarn said at the press briefing that the conversation was private and should not have been released publicly. She said it’s just the “tactics” in the conversation, and she would no longer discuss the issue in private with Cambodian leaders as there was an issue of trust. PM Paetongtarn offered the public a light version of an “apology” (Khor Aphai in Thai) the next day, but by then, the public sentiments against her had grown, and subsequently, the case was submitted to the Court.

Confrontation between the two countries intensified, and border clashes eventually erupted on July 24 and lasted until July 28, when the two sides agreed to a ceasefire mediated by the US and ASEAN. (Read: Thailand and Cambodia agree on ceasefire arrangements and unprecedented ASEAN Observer Team formation/“Immediate and unconditional” ceasefire takes effect from midnight: Anwar)

The clashes resulted in more than 300,000 people on the Thai side alone being evacuated. More than 50 civilian casualties, children included, were registered along with nearly 300 military casualties. This is not yet to mention the damage to hundreds of civilian and public properties, including hospitals. (Read: Troop clashes break out as Cambodia opens fire and launches rockets towards Thai forces and civilians)

l The Court’s ruling. Credit: Thai PBS

The Court’s justifications

The Court confirmed its jurisdiction to deliberate on the case, reasoning that it’s about the qualifications and prohibited characteristics of a “Minister” addressed in the Constitution, not political or administrative matters that it should not intervene.

The Court also examined the legitimacy of the leaked audio clip and confirmed that it could be used as evidence in this case, despite being acquired unlawfully and without the consent of the accused. The Court cited that there was no specific law that prohibited the use of such a material. It also stated that it had given an opportunity to the accused to defend the point. PM Paetongtarn, however, did not express any objection to the audio clip. On the contrary, she had publicly admitted that it’s authentic. The audio clip, the Court noted, was critical evidence that would help reveal the facts in this case, so it would be used by the Court as such.

There were two points subject to the Court’s deliberation: whether PM Paetongtarn breached Section 160 (4), which states that a Minister must have demonstrable honesty and integrity, and Section 160 (5), which states that a Minister must have no behaviour that seriously violates or fails to comply with ethical standards.

In relation to Section 160 (4), which addresses the qualifications of a Prime Minister, the Court looked into the facts in the case to see whether she was dishonest by having perverted the country’s interests or not. The Court viewed that her actions in this case did not yet demonstrate that she was “evidently dishonest”, as she, as a leader of the country, was not indifferent to the issue but tried to negotiate with her counterpart. 

Neither PM Paetongtarn had accepted the terms set by her counterpart. They did not affect the position of the Second Army Area Commander and the opening of the checkpoints as demanded by her counterpart. Hence, the accusation of dishonesty against her did not carry enough weight, the Court noted.

However, PM Paetongtarn was found guilty of violating Section 160 (5), which addresses the prohibition against behaviours or actions contradictory to the ethical standards applied from the Court’s version as addressed in the Constitution under Section 219. Among the critical ones involve the integrity of the country and of a Prime Minister as well as the interests of the country.

The Court rejected her defence regarding the informality and tactics used in the negotiation, saying she, as the country’s leader, must still be held accountable while also having to uphold the standards as well as Section 3 and 164 (1) regarding the PM’s duties to the country and for the people.

The negotiation, the Court said, was conducted without prudence to protect the country’s and the people’s interests. The tactics to push the Second Army Area Commander to be on “the opposite side” to exclude him from the issue, instead, allowed the counterpart to detect the country’s internal weakness that it could use to interfere with the country’s affairs, the Court pointed out.

Her submissive discussions suggested that she was more concerned about the impacts on herself as Prime Minister and on her government’s popularity and stability than on the country, the Court further pointed out.

All these, the Court said, demonstrated that she took her own interests as the priority rather than the country’s. This undermined the country’s integrity and hers and demonstrated that she did not protect it as well as the country’s interests as required.

The Court therefore ruled that she had violated or failed to comply with the standards addressed under Section 160 (5). She, therefore, shall be terminated following Section 170 (4) in conjunction with Section 160 (5), as such, according to the Court.

Vying for votes

Shortly after the dismissal of PM Paetongtarn’s premiership, political leaders have been fiercely vying for votes in the House as a new PM must be selected following Section 158, 159 in the Constitution and the new government must be formed. 

Bhumjaithai Party, led by former Deputy PM and Interior Minister in the government coalition, Anutin Charnvirakul, approached the largest opposition party with 143 MPs, People’s Party, a few hours after the dismissal. His party left the government coalition shortly after the leaked phone call on June 18 and has become part of the opposition with 69 MPs since. 

Bhumjaithai accepted the terms set by the People’s Party, including a House dissolution in a short timeframe of four months and the preparations for a referendum and a major amendment of the Constitution. More coalition parties and groups also left the Pheu Thai-led coalition shortly afterwards to help him form a new government in competition with Pheu Thai, further shaking the stability of the Pheu Thai-led coalition. 

Pheu Thai, meanwhile, has also been trying to counter the move by trying to negotiate with the People’s Party to win its backing. The two parties are widely considered as having similar ideologies, but separated when the People’s Party, which won the most votes in the country in the last election two years ago, lost in forming the government due to a lack of support from fellow parties, especially Pheu Thai.

The ongoing competition among the political leaders to win the top seat of the new government is now plunging the country into political chaos as nobody is certain where the country is heading.