Pariyawong - A Critique On Thai Democracy and Judicial Review

THREE-COURSE RECIPE FOR THE COURTS COOKERY:
A CRITIQUE ON THAI DEMOCRACY AND J UDICIAL REVIEW

Verapat Pariyawong

Submitted in Partial Fulfillment of the Master of Laws (LL.M.) Degree
Supervised by Professor Michael J . Klarman

Harvard Law School
May 2010

FOR FAMILY, COUNTRY, DEMOCRACY
AND THOSE SELDOM ACKNOWLEDGED


Verapat Pariyawong

TABLE OF CONTENTS
INTRODUCTION ................................................................................................................................ 1
I. SEPARATION OF POWERS AND J UDICIAL REVIEW: A QUESTION OF RECIPE?..............................8
A. Judicial Variety ....................................................................................................................9
B. Cookery: Recipe of First Impression? ...............................................................................12
II. COOKERYS MISSING INGREDIENTS: THREE-COURSE RECIPE .................................................18
A. Rationale ............................................................................................................................19
1. Separation of Powers in the Drafting Process ..............................................................25
2. Legislative Intent .........................................................................................................29
3. Constitutional J urisprudence ........................................................................................36
(a) The 10 Ministers Case ..........................................................................................37
(b) The 3 Legislations Case .......................................................................................41
B. Restraint .............................................................................................................................43
1. The Peoples Values ....................................................................................................46
2. The Democratic Process ..............................................................................................49
C. Rights .................................................................................................................................52
1. Rights and Restraint .....................................................................................................52
2. Rights and Process .......................................................................................................53
III. INSTITUTIONAL CHARACTER ...................................................................................................57
A. Observations ......................................................................................................................58
B. Reactions ............................................................................................................................62
CONCLUSION ...................................................................................................................................64
APPENDICES
A. Constitution of the Kingdom of Thailand Buddhist Era 2550 ...........................................66
B. Thai Constitutional Court decision nos. 12-13/2551 .......................................................115
C. Sovereignty in International Law Making:
Certain Treaties Requiring Parliamentary Approval ......................................................178

Verapat Pariyawong: A Critique on Thai Democracy and J udicial Review Harvard Law School LL.M. Paper
1

Verapat Pariyawong*
_______________________________________________________________________________________

INTRODUCTION
HE KINGDOM OF THAILAND formally advanced from absolute monarchy to
constitutional monarchy in 1932 and has since strived to function as a parliamentary
democracy through 12 effectual coup dtat and at least another dozen failed attempts.
The Thai people have heard of 18 written constitutions, seen 59 cabinets and known 27
prime ministers out of which only one so far managed to complete the 4-year term in
office. In 1997, the promulgation of Thailands 16
th
Constitution
1
brought significant

* LL.M. (Fulbright Scholar) with Master Paper Honors, Harvard Law School. LL.B. (1
st
Class Honors)
Chulalongkorn University. Email: Verapat@gmail.com. I am grateful for guidance from Professor
Michael J . Klarman and his terrific constitutional law class, and thankful for the inspiring civic
participation illustrated by participants at the Thai Political and Public Policy Forum held in February
and April 2010. I am also indebted to the generosity of the two great nations, through the Thailand -
United States Educational Foundation, for funding my studies at Harvard Law School whose institutional
legacy in Thailand from the time of Edward Henry Strobel, J ens Westengard, Francis B. Sayre et al.
continues to drive positive change until today. Views and any errors made here are of the author alone.

1
The Constitution of the Kingdom of Thailand Buddhist Era 2540 (1997), Thai Royal Gazette vol. 124 pt.
27 (kor) (repealed) [hereinafter Thai Constitution (1997)].
Thailands Constitutional Court in September 2008 found that the then incumbent
Prime Minister Samak Sundaravej violated the Thai constitutional ban on outside
employment by hosting a television cookery program for which he was paid, and thus
ruled that he was disqualified from prime ministership. Two months following the
decision, the same Court ruled to disband three political parties including the party
formerly led by Mr. Samak. By focusing on the separation of powers amid the active
state of judicial affairs in Thailand, this paper borrows insights from other legal
systems mainly that of the United States to highlight the significance of the Cookery
decision and critique the Courts approach by presenting an alternative three-course
constitutional analysis involving the deepening of rationale on separation of powers,
the judicial restraint in favor of democratic process and the active empowerment of the
peoples rights. Taken together with brief observations on the Courts institutional
character, the author attempts to illustrate some of the possible legal methodologies
that may allow the clean and powerful branch of government to achieve its fullest
potential in advancing the fragile Thai democracy.
T

2
changes and unsurprisingly one of the principal objectives declared in the preamble was
the improvement of political structure in order to achieve more efficiency and stability.
2

In J anuary 2001, the Thai Rak Thai party led by Thaksin Shinawatra won the first election
governed by the 1997 Constitution. As envisioned in the preamble, Mr. Thaksin became
the only Prime Minister in Thai political history to complete his first term. In February
2005, the Thai Rak Thai party won a second election gaining 374 out of 500 parliamentary
seats giving Mr. Thaksin a sweeping power.
On September 19, 2006, a seemingly military-led coup dtat
3
was instigated
against the Thaksin government which led to the abrogation of the 1997 Constitution
4
as
well as the Thai Constitutional Court that was created by it.
5
In less than 2 weeks, the
coup instigators declared an interim charter
6
which provided for, among other things, an
interim government, the National Legislative Assembly which replaced the House of
Representatives and the Senate, as well as the Constitution Drafting Assembly. The

2
Id. The relevant part of the preamble reads:
[T]he primary substance of this drafted Constitution concerns the promotion and protection of
the rights and liberties of the people, the participation in government by the public and
inspection of the exercise of State power as well as improvement of political structure in order to
achieve more efficiency and stability.

3
Few Thai legal scholars have attempted to decode the complex modern history of Thai politics and the
chronic constitutional disorder, but for one timely exception, see Borwornsak Uwanno, Economic, Crisis
and Political Crisis in Thailand: Past and Present, 4 NTU L. REV. 141 (2009), available at
http://asianforum2009.tw/web/uploads/file/asia2009/Uwanno.pdf. For recent accounts touching on the
coup, see Tom Ginsberg, Constitutional afterlife: The continuing impact of Thailand's postpolitical
constitution, in 7 INTL J . OF CONST. L. 83 (2009); Andrew Harding, Emergency powers with a
moustache: special powers and evolving constitutionalism in Thailand, in EMERGENCY POWERS IN ASIA:
EXPLORING THE LIMITS OF LEGALITY 294, 294 (Victor V. Ramraj & Arun K. Thiruvengadam eds., 2010).
For further background reading, see generally CHATURON CHAISANG, THAI DEMOCRACY IN CRISIS: 27
TRUTHS (2009); DIVIDED OVER THAKSIN: THAILANDS COUP AND PROBLEMATIC TRANSITION (J ohn
Funston ed., 2009); PASUK PHONGPAICHIT & CHRIS BAKER, THAKSIN (2009); TAMADA YOSHIFUMI,
MYTHS AND REALITIES: THE DEMOCRATIZATION OF THAI POLITICS (2008).

4
Council for Democratic Reform under Constitutional Monarchy order no. 3, Sept. 19, 2006, Thai Royal
Gazette vol. 123 pt. 95 (kor).

5
See generally THE CONSTITUTIONAL COURT OF THAILAND (Amara Raksasataya & J ames R. Klein eds.,
2003); Andrew Harding, The Constitutional Court of Thailand, 1998-2006, in NEW COURTS IN ASIA 121,
121 (Andrew Harding & Penelope Nicholson eds., 2010).

6
The Constitution of the Kingdom of Thailand (Interim) Buddhist Era 2549 (2006), Thai Royal Gazette
vol. 123 pt. 102 (kor) (repealed) [hereinafter Thai Interim Constitution (2006)].

3
interim charter also created a Constitutional Tribunal,
7
comprising a new set of justices
from the Supreme Court and the Supreme Administrative Court, to replace the dissolved
Constitutional Court.
In May 2007 while Mr. Thaksin was still out of the country, the Constitutional
Tribunal ruled to disband the Thai Rak Thai party on the ground of electoral corruption.
8

The process imposed by the coup instigators led to the public referendum approving the
current Constitution of the Kingdom of Thailand which came into force in August 2007.
9

The preamble of the 18
th
Constitution, departing from stability and efficiency language
found in the 1997 charter, adopts a different tone for primary objectives including the
scrutiny of the exercise of State powers in concrete ways and equilibrium and efficiency
along the line of the parliamentary system, and underlines the significance of the
judiciary.
10

Despite major changes made to the executive and legislative branches, the 2007
Constitution recreates the Constitutional Court which is essentially an institutional
transition from the Constitutional Tribunal under the 2006 interim charter.
11
At the same
time, politicians associated with the disbanded Thai Rak Thai party founded a new party
called Palang Prachachon, won a general election in December 2007 and formed the first

7
Id. sec. 35.

8
Thai Constitutional Tribunal decision nos. 3-5/2550, May 30, 2007, Thai Royal Gazette vol. 124 pt. 33
(kor).

9
The Constitution of the Kingdom of Thailand Buddhist Era 2550 (2007), Thai Royal Gazette vol. 124 pt.
27 (kor) [hereinafter Thai Constitution (2007)]. See infra Appendix A, for full English text (unofficial).

10
Id. The relevant part of the preamble reads:
The major objectives [of the constitution] are to further promote and protect peoples right and
liberty, encourage peoples roles and participation in the administration of the country,
concretely check and cross-examine the use of the state power; provide the mechanisms of
political institution in both the legislative and administrative branches with well-balanced and
effective under the democratic parliamentary form of administration; support honesty and
impartial operations of courts and independent organizations.

11
Id. sec. 300.

4
government under the 2007 Constitution led by the late veteran politician and former
governor of Bangkok Samak Sundaravej.
12

In September 2008, the Constitutional Court in another landmark case ruled that
the then incumbent Prime Minister Samak, by hosting a television program featuring his
signature tasting while grumbling cookery presentation, committed an act contrary to
the Constitution and was thus disqualified from prime ministership.
13
In deciding Cookery
brought by a group of senators and the electoral commission, the Court whose jurisdiction
was clearly provided
14
applied Section 267 - one of the conflict of interests provisions in
the Constitution
15
- as a provision which forbids the Prime Minister and Ministers from
being an employee of any person in order to ensure the proper execution of their duties
and to prevent any conflict of interest which would cause an unethical status.
16
The Court
explained that such status would lead to a difficult decision of choosing between
pursuing a private interest and public interest. Such conflict between a private interest and
the execution of the power of the office therefore happens in the manner in which the
gaining of private interest comes from the loss of public interest.
17

Mr. Samak, who had already been appearing on the same television show for
several years following the success of his cookery book, argued that after assuming the
Prime Ministership he merely continued to act as an honorary host of the cookery program

12
Mr. Samak later battled cancer and passed away on November 24, 2009 at the age of 74.

13
Thai Constitutional Court decision nos. 12-13/2551, Sept. 9, 2008, Thai Royal Gazette vol. 125 pt. 122
(kor) [hereinafter Cookery Decision]. See infra Appendix B, for the original text of the decision
excluding the separate opinions. The decision notes two programs that Mr. Samak appeared on but
mainly discussed only one of them, see infra note 241. This paper grants him the benefit of the doubt.

14
Thai Constitution (2007), supra note 9, secs. 91, 182 paras. 1(7), 3. The Constitutional Court has the
jurisdiction to determine whether the Prime Minister or a Minister lacks any of the various qualifications
(age, nationality, being free from conflict of interests etc.) which would trigger the individual termination
of office. Such cases may be brought by members of the Parliament or the Electoral Commission.

15
Id. sec. 267. ([Prime Minister and Minister] shall not hold any position in a partnership, a company or
an organisation carrying out business with a view to sharing profits or incomes or be an employee of any
person).

16
Cookery Decision, supra note 13, at 14.

17
Id.

5
and neither had any relevant interests nor held any position in, nor received any salary,
stocks or income division from the television production company. Mr. Samak thus
argued that his conduct as a television host did not amount to a conduct of an employee
according to the definition of relevant civil and commercial law, employment laws and tax
law, and that the television production company was not his employer.
18

The Court, citing a definition of the word employee from a standard Thai
dictionary, responded that the term must be interpreted generally as a person who
accepts to work however that may be called and whether or not there was a written
employment contract, and whether the remuneration was in cash or compensation in other
forms.
19
The Court justified the broad interpretation by placing reliance on the
constitutional intent, finding that Section 267 aims to effectively prevent conflicts of
interests in relation to private parties. The Court explained that the Constitution provides
the ground rules for State functions which can be applied by the State to different
scenarios and situations in accordance with the spirit of the Constitution and that
employee under Section 267 is distinct from employee defined by other laws. The
Court further gave examples how a narrower interpretation would allow former doctors or
lawyers to change from acceptance of hospital or law firm salary to individual fee
payment to avoid being seen as an employee under Section 267.
20

The Court dismissed Mr. Samaks letters to the production company conveying his
refusal to accept any payment after taking office, which the Court found suspicious and
contradictory to other evidence such as Mr. Samaks interview in 2001 discussing his
appearance fee or his recent statements that he merely received transportation
reimbursement. The Court concluded that Mr. Samak continued to receive remuneration

18
Id. at 6-15.

19
Id. at 14-15.

20
Id.

6
from the television production company after taking the office and was employed as the
host of the cookery program,
21
and thus unanimously ruled that Mr. Samak violated a
specific prohibition on conflict of interests which then triggered an automatic
disqualification from office as explicitly provided by the Constitution.
22

By focusing on the recipe instead of the dish, this paper seeks to showcase Cookery
as a sample situation where the Thai judiciary, particularly the Constitutional Court, had
an opportunity to perform its checks and balances functions in a manner which truly
enhances the rule of law and democracy. While it is argued that such opportunity in
Cookery was unrealized, plenty other opportunities still continue to arise in Thailands
constitutional legal arena amid an active state of judicial affairs. Considering the novelty
of the issue and the limited Thai literature on the subject, accounts are drawn from the
experience and insights of other developed legal systems such as that of the United States
America to shed some new lights on the discussions which are divided into 3 parts.
23

Part I briefly explores the issues on separation of powers and judicial review found
in democratic contexts and highlights the concerns presented by Cookery not as an
individual decision but as part of a larger judicial affairs. In Part II, by using Cookery as
an example, the author critiques the Courts methodology and proposes an alternative
three-course analysis involving rationale, restraint and rights. It is argued that such three-

21
Id. at 15-16. The main opinion stated that 6 judges found Mr. Samak to be an employee of the television
production company while 3 other judges considered the relationship as commercial partnership, but see
discussions infra notes 240-41 (noting a contradiction between the main and the separate opinions).
Further it was neither clear if any direct evidence of payment made to Mr. Samak after he took office
was found (aside from transportation reimbursement), nor how much was the amount paid, nor how the
testimony of Ms. Darika who was unidentified in the main opinion was used to rebut Mr. Samaks
evidence (her identity was only later discussed by some of the judges in separate opinions).

22
See supra note14 and accompanying text.

23
Professor Lawrence Tribe nicely summarized the judicious use of global sources of insights in the
United States, see LAWRENCE H. TRIBE, THE INVISIBLE CONSTITUTION 181-88 (2008). The
modernization of Thai law also involved global sources. See TAMARA LOOS, SUBJ ECT SIAM 29-71
(2006). Indeed once for at least a half century, seven out of ten high-level foreign advisers to the King of
Siam (Thailands former name) studied at Harvard Law School. See Kenneth T. Young, The Special
Role of American Advisers in Thailand, 1902-1949, Asia (Asia Society, 1969), 6-11, in J ens Iverson
Westengard Papers, Harvard Law School Library, Box 1, Folder 9, cited in LOOS, supra, at 53-54.

7
course approach allows the Court to further enhance the rule of law and democracy
irrespective of a particular outcome without compromising the balance of powers between
branches of government. In Part III, observations are made on the Courts institutional
character which may help explain the Courts confidence in removing the head of
executive branch without engaging in a detailed course of analysis.
Neither the Courts constitutional power to review a Prime Ministers qualification
nor its political motivation, if any, in rendering the decision is the subject of inquiry here.
Also, reliance on the facts determined by the Court does not negate the authors belief that
its evidentiary standard requires separate and urgent inquiry.
24
Above all, references to the
rules that follow from the decriminalization of the 2006 coup dtat and the subsequent
illegitimate acts, as forced into the Constitution
25
and enforced by the Thai courts,
26
were
made with deep grievance and constant awareness that much serious work on Thai
constitutionalism and its inherited disorder still remains to be fulfilled.
27

24
See supra note 21 and accompanying text.

25
Thai Constitution (2007), supra note 9, sec. 309 (All acts recognized in the Constitution of the
Kingdom of Thailand (Interim), B.E. 2549 (2006) as lawful and constitutional, including acts incidental
thereto whether performed prior to or subsequent to the date of the promulgation of this Constitution,
shall be deemed constitutional...); See also Thai Interim Constitution (2006), supra note 6, sec. 37:
All matters that the Leader and the Council for Democratic Reform, including any related
persons who have been assigned by the Leader or the Council for Democratic Reform or who
have obtained orders from the persons assigned by the Leader or the Council for Democratic
Reform pursuant to the seizure of State administration on 19 September B.E. 2549 (2006) to take
actions prior to or after said date for enforcement of legislative, executive, judicial purposes,
including carrying out punishment and other administrative acts, whether as principal, supporter,
instigator or assigned person, which may be in breach of the law, shall be absolutely exempted
from any wrongdoing, responsibility and liabilities.

26
See e.g. Thai Constitutional Court decision no. 5/2551, J une 30, 2008, Thai Royal Gazette vol. 125 pt.
107 (kor), at 27-28; Thai Supreme Court decision (red case) no. Or Mor 1/2553, Feb. 26, 2010, Thai
Royal Gazette vol. 127 pt. 21 (kor), at 45-56.

27
At least one Supreme Court justice has rejected the legality of the criminal proceedings that originated
from the unlawful change of government. See Thai Supreme Court red decision no. Or Mor 9/2552, Sept.
28, 2009, Thai Royal Gazette vol. 126 pt. 90 (kor) (dissenting opinion by Judge Kirati Kanjanarin):
[W]ere the court to recognize as sovereign power the authority of the person or group that
conducted a revolution or coup dtat, the court would be failing the people by enforcing the
illegitimate power and ignoring the preservation of democracy. The court would also be ignoring
the natural justice which prevents a person from enjoying benefits deriving from his fraud or
crime, and further the court would be encouraging revolution or coup dtat to repeat as a vicious
circle. Moreover, the court would be allowing such person or group to have the law at their
disposal. [trans. by the author].

8
I. SEPARATION OF POWERS AND JUDICIAL REVIEW: A QUESTION OF RECIPE?
The primary structure of modern democracies involves the exercise of various
powers by different but related institutions commonly seen as the executive, the
legislature and the judiciary. The observation that the judicial power in England consists
one main preservative of the public liberty, which cannot subsist long in any state unless
the administration of common justice be in some degree separated both from the
legislative and also from the executive power
28
was linked to the fundamental notion of
the Rule of Law which continues to underpin the British constitutionalism today.
29

Similarly described but in a different national context, the separation of powers
commands and pervades American constitutional law
30
and its principles involve the
very structure of government, and nothing lies close to the core of constitutional
lawthan the system of divided and interlocking powers embodied in the framework of
our government.
31
Embedded not only in many written constitutions around the world,
32

the separation of powers also plays fundamental roles beyond nation-states such as in the
institutionalization of legal and political actors at the regional level.
33

28
1 WILLIAM BLACKSTONE, COMMENTARIES, *269.

29
A.V. DICEY, LAW OF THE CONSTITUTION 273, 380-81 (Liberty Fund 1982); See also T. R. S. ALLAN,
CONSTITUTIONAL J USTICE 59 (2003); cf. TRIBE, supra note 23, at 83-84 (relating separation of powers to
the government of laws and the rule of law in U.S. context).

30
1 LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 124 (3rd ed. 2000); See also ALEXANDER M.
BICKEL, THE LEAST DANGEROUS BRANCH 159-61 (2d ed., 1986) (relating the separation of powers to the
doctrine of delegation); ROBERT H. BORK, THE TEMPTING OF AMERICA 4 (1990) (suggesting that the
separation of powers perhaps guaranteed the liberties more than the Bill of Rights); RONALD DWORKIN,
FREEDOMS LAW 2 (1996) (stressing that political morality is uncertain and the system of government
must decide whose interpretation and understanding is authoritative).

31
Id. at 126.

32
See e.g. Constitucin Poltica del Per art. 43; Constitution of the Democratic Socialist Republic of Sri
Lanka art. 4; Constitution of the Republic of Armenia art. 5; Constitution of the Republic of the Fiji
Islands sec. 21(1); Constitution of Ukraine art. 6; Grundgesetz fr die Bundesrepublik Deutschland art.
20(2) [F.R.G.]; Suomen perustuslaki sec. 3 [Finland]; Thai Constitution (2007), supra note 9, sec. 3.

33
See generally Koen Lenaerts, Some Reflections on the Separation of Powers in the European
Community, 28 COMMON MKT. L. REV. 11 (1991); SERGIO FABBRINI, COMPOUND DEMOCRACY: WHY
THE UNITED STATES AND EUROPE ARE BECOMING SIMILAR (2007).

9
While the principle that there is separation attracts ample agreement, the scope and
extent to which the judicial power is exercised as checks and balances in a democratic
system finds no precise universal formula.

A. Judicial Variety
Studies on the nature and functions of the judiciary in different jurisdictions
suggest that characteristics of their powers are very much dependent on the historical,
constitutional and institutional context, domestically and internationally, within which
they operate.
34
For instance, in the United Kingdom where the Rule of Law performs the
disabling function to constrain the government and parliamentarians without giving the
courts to broad power to render legislations void like in the United States, Thailand or
elsewhere, the courts have attempted to reconcile the sovereignty of the Parliament and
the Rule of Law when possible by presuming that the Parliament intends to abide by the
Rule of Law.
35

34
See e.g. M. J . C. VILE, CONSTITUTIONALISM AND THE SEPARATION OF POWERS 114, 173-74, 215-16 (2d
ed., 1998) (noting the history of judicial review in England, the United States and France); THE GLOBAL
EXPANSION OF J UDICIAL POWER (Neal Tate & Torbjrn Vallinder eds., 1995); compare THEODORE L.
BECKER, COMPARATIVE J UDICIAL POLITICS 204-24 (1987) (discussing English legal heritage on judicial
independence), with J UDICIAL INTEGRITY 1-16 (Andrs Saj ed., 2004) (discussing impartiality and
independence in post-communist contexts); J UDICIAL ACTIVISM IN COMMON LAW SUPREME COURTS 11-
12 (Brice Dickson ed., 2007) (noting that the supreme courts in 9 jurisdictions can be activist in
different ways); RAN HIRSCHL, TOWARDS J URISTOCRACY 223 (2004) (noting mechanisms in 4
jurisdictions which reduced popular opposition to the judiciary, also mentioning that transition towards
judicial empowerment in 19 countries were driven by different social and political struggles); compare
DONALD KOMMERS, THE CONSTITUTIONAL J URISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY
(1997), with ALEC STONE, THE BIRTH OF J UDICIAL POLITICS IN FRANCE (1992) (accounting how the
judiciary in Germany and France adjusted to the political climate after periods of great changes such as
the war time); Compare TOM GINSBERG, J UDICIAL REVIEW IN NEW DEMOCRACIES 247-263 (2003)
(noting that in some Asian jurisdictions depending on the prevailing political at the time courts may be
used as an insurance mechanism to achieve balance of power), and COMPARATIVE STUDIES ON THE
J UDICIAL REVIEW SYSTEM IN EAST AND SOUTH EAST ASIA 253-261 (Yong Zhang ed., 1997) (expressing
the view that the executive branch tends to be stronger in developing countries, still in a developed
country such as J apan the judiciary more often asserts a passive check on the executive), with Harding &
Nicholson, supra note 5, at 20 (noting the issue of Asian culture and Asian-ness); J UDICIAL CONTROL:
COMPARATIVE ESSAYS ON J UDICIAL REVIEW 5 (Rob Bakker et. al eds., 1995) (observing in 1995 the
growing mutual influence between national courts and the rise of European international courts).

35
J effrey Jowell, The Rule of Law Today, in THE CHANGING CONSTITUTION 20, 20 (J effrey J owell & Dawn
Oliver eds., 2009). See also T. R. S. Allan, The Rule of Law as the Foundation of Judicial Review, in
J UDICIAL REVIEW AND THE CONSTITUTION 413, 419 (C. F. Forsyth ed., 2000).

10
One interesting development introduced in 1998 is the judicial power to make a
declaration of incompatibility where the courts cannot simply quash the Parliaments
legislations which violate certain human rights, but can instead issue a declaration which
triggers the possible remedy process to be carried out by the government and the
parliament.
36
At the same time there is indeed a general recognition of an increasing role
of judicial review to guard citizens rights against the abuse of official power,
37
but at the
same time there is also a strong concern regarding the impact on theories of democracy,
38

and the Courts are not hesitant to admit that certain types of review are not amenable to
the judicial process.
39

In the United States, the judicial power to review legislations has long been
recognized for instance in the famous Marbury v. Madison,
40
and even before 1803 when
the decision was rendered.
41
As famous as it may be when one speaks on the issue of
judicial review, the decision by Chief J ustice J ohn Marshall nevertheless caused a
political stir amid the rise of the J effersonian power, not because of the elaboration on
judicial review, but perhaps more due to the assertion of controversial notions suggesting
that the President and the cabinet were subject to judicial process.
42
It was probably the

36
The Human Rights Act, 1998, c.42 Sections 4; See also RICHARD GORDON AND TIM WARD, J UDICIAL
REVIEW AND THE HUMAN RIGHTS ACT 11-12 (2000); AILEEN KAVANAGH, CONSTITUTIONAL REVIEW
UNDER THE UK HUMAN RIGHTS ACT 281 (2009); MARK ELLIOTT, THE CONSTITUTIONAL FOUNDATIONS
OF J UDICIAL REVIEW 197-245 (2001).

37
T. R. S. ALLAN, LAW LIBERTY AND J USTICE 183-210 (1993); HARRY WOOLF, J EFFREY J OWELL AND
ANDREW LE SUEUR, DE SMITHS J UDICIAL REVIEW 6-8 (2007).

38
DAWN OLIVER, CONSTITUTIONAL REFORM IN THE UNITED KINGDOM, 103 (2009); See also Adrienne
Stone, Judicial Review Without Rights: Some Problems for the Democratic Legitimacy of Structural
Judicial Review, 28 O.J .L.S. 1 (2008) (discussing a similar situation faced in Australia).

39
See e.g. Council for the Civil Service Unions v Minister for the Civil Service [1985] 1 A.C. 374, at 418
(Lord Roskill).

40
Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).

41
See e.g. Louise L. J affe & Edith G. Henderson, Judicial Review and the Rule of Law: Historical Origins,
72 L.Q. Review 345 (1956); Michael Klarman, How Great Were the Great Marshall Court
Decisions?, 87 VA. L. REV. 1111-17 (2001).

42
Klarman, supra note 41, at 1116-17.

11
political brilliance of Marshall, in avoiding a political battle with the President and his
supporters in the Congress by declaring the statute granting the Courts jurisdiction
unconstitutional, that made this decision widely recognized. As a constitutional historian
puts it, Marshall boldly lectured the President about his accountability to law, but then
declined to issue any order that might have been defied. J efferson fumed, but had no
direct means of response.
43

The role played by the United States Supreme Court continues to be a subject of
much debate today not only in the realm of legislation review. In the much discussed Bush
v. Gore,
44
the Supreme Court decided that a statewide recount of electoral votes ordered
by the Florida Supreme Court violated the Equal Protection Clause of the Fourteenth
Amendment and thus issued a remedy which arguably decided the general election of
2000. This decision can be seen as a form of judicial review by which the Supreme Court
not only interpreted the constitutionality of the recount ordered by the Florida Supreme
Court, but also in essence the procedural electoral standards and remedy, which can be
argued as both unnecessary and unwise.
45

Critics of Bush v. Gore seem to recognize a clear division between the conservative
and liberal justices,
46
yet when it comes to the separation of powers justices on the same
wing do not always agree. For instance, in Federal Election Commission v. NRA Political
Victory Fund,
47
while J ustice Souter and J ustice Breyer were willing to accept the

43
Id.

44
Bush v. Gore, 531 U.S. 70 (2000) (per curiam).

45
J esse H. Chopper, Why the Supreme Court Should Not Have Decided the Presidential Election of 2000,
18 CONST. COMMENT. 335, 335 (2001).

46
See e.g. Richard A. Epstein, Constitutional Crash Landing: No One Said It Would Be Pretty, in BUSH V.
GORE: THE COURT CASES AND THE COMMENTARY 284, 284 (E.J . Dionne J r. & William Kristol eds.,
2001); Linda Greenhouse, Another Kind of Bitter Split, N.Y. TIMES, Dec. 15, 2000, at 1; Michael S.
Greve, The Real Division in the Court, WEEKLY STANDARD, December 25, 2000, at 28-31.

47
Federal Election Commission v. NRA Political Victory Fund, 513 U.S. 88 (1994).

12
authority of the attorney general in approving cases to be handled by the Federal Election
Commission, J ustice Stevens dissented arguing that the election body should enjoy greater
independence from the executive structure.
48

As the debate continues however, there is a general recognition of the greater
ocean of constitutional law to be explored beyond a specific political sea, as can be seen
in a recent work
49
and a response
50
published in two leading law journals. Both essays
addressed the judicial review of legislation (not of executive acts) and assumed a well
functioning nonpathological democracy as a strict parameter. Nonetheless, Professor
J eremy Waldron, who favored democratic legislatures, suggested that there are other
instances where peculiar pathologies, dysfunctional legislative institutions, corrupt
political cultures may justify an acceptance of judicial review.
51
Professor Richard
Fallon, who argued that the court should have the judicial review powers to safeguard
fundamental rights, similarly accepted that there is a broader domain of constitutional
theory where different inquiries should be made into the existence of judicial review other
than that of the United States.
52

B. Cookery: Recipe of First Impression?
Thailand is one such place where the broader domain of separation of powers can
be explored. J udicial review is indeed nothing new and throughout the long history of
political crises the Thai courts have traditionally been involved in upholding the legality

48
Id. at 100 (Stevens, J ., dissenting).

49
J eremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L. J . 1346 (2006).

50
Richard H. Fallon, J r., The Core of an Uneasy Case Against Judicial Review, 121 HARV. L. REV. 1693
(2008).

51
Id. at 1406.

52
See supra note 50, at 1734; cf. Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV.
633 (2000) (suggesting that constrained parliamentarianism in some countries may serve as better
constitutional model than the American approach).

13
of certain acts stemming out of coup dtat
53
and at the same time exercised the review
power to safeguard the rights and liberties from some unconstitutional applications of
those acts.
54

Still, Cookery and a host of other recent decisions provide new samples of inquiry.
The decision immediately received worldwide media attention; Mr. Samak was found to
have violated a ban on ministers having outside interests by taking money from a private
company to host a TV show reported a British broadcaster,
55
or in the words of an
American press: [t]he court case is another attempt by Samak's opponents who have
thrown everything but the kitchen sink at him.
56
Also widely reported in the Thai media
was a breif comment by a former Yale Law School professor suggesting that Cookery was
the most hilarious decision.
57
In spite of the cheers it brought to certain crowds and wild
puzzlement to others, the decision deserves serious attention in three respects.
First, in terms of subject matter, Cookery tackles the issue that is historically
related to the stability of government. One of the primary justifications used by the
instigators of the 2006 coup dtat was the need to end the systematic corruption during

53
See e.g. Thai Supreme Court decision no. 1662/2505 (1962); Thai Constitutional Tribunal decision no.
tor 1/2513, J an. 5, 1970, Thai Royal Gazette vol. 87 pt. 4; Thai Supreme Court decision no. 1234/2523
(1980).

54
See e.g. Thai Supreme Court decision no. 766/2505 (1962); Thai Supreme Court decision no. 222/2505
(1962); Thai Supreme Court decision no. 225/2505 (1962); Thai Supreme Court decision no. 913/2536
(1993).

55
BBC News, Court says Thai PM 'must resign', http://news.bbc.co.uk/2/hi/7605838.stm (last visited Apr.
30, 2010); See also Thomas Bell, Thai premier forced to quit over cookery programme, THE DAILY
TELEGRAPH, Sept. 10, 2008, at 16.

56
CNN.com, Thai PM fired over cookery show, http://cnn.com/2008/WORLD/asiapcf/09/09/thailand.pm
(last visited Apr. 30, 2010); See also Seth Mydans, Thai Court Forces Premier From Office Over TV
Cooking Show, N.Y. TIMES, Sept. 10, 2008, at A8.

57
E.g. Thai Parliament News, Former Yale professor laughs at Samaks disqualification,
http://www.parliament.go.th/news/news_detail.php?prid=159466 (last visited Apr. 30, 2010); Matichon
Online (Thail.), 19 Professors oppose Samaks return - Former Yale Prof says absurd,
http://www.matichon.co.th/news_detail.php?newsid=1220965656 (last visited Apr. 30, 2010).

14
Mr. Thaksins time
58
and similar lines of justification were used throughout the long
history of military uprising. Politicians also attacked their opponents in the Parliament by
asking the Constitutional Tribunal under the previous Constitutions to rule on general
qualifications not necessarily related to corruption.
59

In spite of the active history, the available jurisprudence on constitutional conflict
of interests is fairly limited; and Cookery is the first case of its kind making Mr. Samak
the first Prime Minister in the Thai political history to be disqualified by the judiciary on
the ground of conflict of interests. Only one case involving a similar issue was previously
decided by the Court,
60
and another case by its predecessor under the 1997 Constitution,
61

both of which are discussed below.
62
Other cases relating to conflict of interests under the
1997 and the 2007 Constitution mostly concerned the disclosure of assets held by
politicians.
63
At the same time there is a limited amount of Thai legal literature on judicial
review over the executive power on constitutional grounds,
64
let alone in the specific area

58
See supra note 3.

59
See e.g. Thai Constitutional Tribunal petition no. (red) 1/2523, J uly 16, 1980, Thai Royal Gazette vol. 97
pt. 112 (ngor); Thai Constitutional Tribunal decision no. 1/2526, Nov. 29, 1983, Thai Royal Gazette vol.
100 pt. 197 (ngor); Thai Constitutional Tribunal decision no. 1/2528, Feb. 28, 1985, Thai Royal Gazette
vol. 102 pt. 32; Thai Constitutional Tribunal decision no. 1/2529, Oct. 10, 1986, Thai Royal Gazette
vol. 103 pt. 177.

60
Thai Constitutional Court decision no. 10/2551, J uly 2, 2008, Thai Royal Gazette vol. 125 pt. 115 (kor).

61
Thai Constitutional Court decision no. 4/2544, Feb. 6, 2001, Thai Royal Gazette vol. 118 pt. 115 (kor).

62
See infra Part II.A.3.

63
E.g. Thai Constitutional Court decision no. 20/2544, Aug. 3, 2001, Thai Royal Gazette vol. 118 pt. 77
(kor); Thai Constitutional Court decision no. 11/2551, J uly 9, 2008, Thai Royal Gazette vol. 125 pt. 113
(kor).

64
Related to the constitutional legal domain however, there are existing judicial precedents and legal
literature on the review and control of executive power by the judiciary on administrative grounds and
these cases generally fall under the jurisdiction of the Thai Administrative Court. See generally Peter
Leyland, The emergence of administrative justice in Thailand under the 1997 Constitution in
ADMINISTRATIVE LAW AND GOVERNANCE IN ASIA: COMPARATIVE PERSPECTIVES 230, 230 (Tom Ginsburg
and Albert H.Y. eds., 2009); Peter Leyland, Genealogy of the administrative courts and the
consolidation of administrative justice in Thailand, in NEW COURTS IN ASIA 231, 231 (Andrew Harding
and Penelope Nicholson eds., 2010). For a more general critique on Thai legal scholarship, see
discussions infra Part III.B.

15
concerning conflict of interests.
65
Such light amount of jurisprudence coupled with the
long history of political uprising against those unfit politicians therefore makes the
constitutional interpretation in Cookery especially significant.
Second, reactions to Cookery are but a laughing matter that illustrates Thailands
chronic constitutional disorder. Many of those who voted for Mr. Samak and his party
platform were left in awe, if not bored and less willing to participate. Arguably, citizens
would want their Prime Minister to be free from conflict of interests, but at the same time
they also wish not to worry constantly about ambiguous conflicts that can bring down
their next head of government. The brief yet sweeping holding in Cookery has led to
reactions that might be seen as signs of backlash against what the conflict of interests
provisions aim to serve, and thus making its subject matter appear even more political and
legal.
For instance, the decision was used by politicians to further Mr. Samaks argument
that the 2007 Constitution unfairly weakens the executive branch and required
controversial amendments.
66
Political demonstrators tried to overplay the Courts standard
and demand that it be applied to holders of other offices under the Constitution who might
not necessarily perform executive functions.
67
Questions have also been raised, in light of
the broad interpretation of the term employee, with regard to the legitimacy of certain
justices on the Constitutional Court, who might for instance have been paid as honorary

65
See generally J ul-niti Board of Editors, Political Office Holders and Conflict of Interests Actions, J UL-
NITI LAW J OURNAL vol. 5, at 1-23 (2009) (Thail.); THEERAPAT SERIRANGSAN, THAI POLITICIANS:
ETHICS, CONFLICT OF INTERESTS, CORRUPTION: PROBLEMS, CAUSES, IMPACTS AND SOLUTIONS (2006)
(Thail.).

66
Reuters, Thailand's grumpy, food-loving PM defies critics,
http://reuters.com/article/idUKBKK5007420080904 (last visited Apr. 30, 2010).

67
See e.g. ASTV Manager Online (Thail.), Silly Cookery Case Attack on Privy Council President,
http://www.thaisarn.com/th/news_reader.php?newsid=476445 (last visited Apr. 30, 2010).

16
lecturers at educational institutions.
68
Finally, since the Constitution does not ban the
representatives from reconfirming Mr. Samak, his party was confident to defy the Courts
ruling by pushing him to retake the office.
69
It was not clear whether it was Mr. Samaks
health conditions coupled with his fierce temper or the Courts ruling and social pressure
that led to the blocking by coalition parties.
Third and most importantly, the approach of the Court, which is further discussed
in Part II of this paper, raises serious concerns over the judicial place in the separation of
powers and the enforcement of constitutional law as a mean to enhance democratic
political process. This is certainly not a separate concern over an individual case, but a
case that belongs to series of active judicial affairs that have profound impacts on the
political branches.
70
For instance two months prior to Cookery, the Thai Constitutional
Court ruled that the government breached a Constitutional provision when it failed to
submit the joint communiqu signed by the Thai and Cambodian governments to the Thai
parliament for approval,
71
leading to the resignation of the foreign minister which added
awkwardness to the ongoing border disputes between the two governments. Two months
following Cookery, the same Court on the same day ruled to disband 3 political parties,

68
See e.g. Matichon Online (Thail.), Five law professors question qualifications of the Constitutional Court
justices, http://www.matichon.co.th/news_detail.php?newsid=1228045726 (last visited Apr. 30, 2010);
Matichon Online (Thail.), From 'Cookery Case' to 'J arun Pukditanakul' - can a Constitutional Court judge
be an honorary lecturer at a private university?,
http://www.matichon.co.th/news_detail.php?newsid=1221138135 (last visited Apr. 30, 2010).

69
Seth Mydans, supra note 56.

70
The discussions on judicial activism and judicialization have recently attracted attention within the Thai
academic community. See PIYABUTR SAENGKANOKKUL, IN THE NAME OF THE THE KING; DEMOCRACY
AND THE J UDICIARY (2009) (Thail.); Kanongnij Sribuaiam, Summary of Group 3 Judicial review and
judicial activism, discussed at KING PRAJ ADHIPOKS XI CONGRESS CONFLICT, LEGITIMACY AND
GOVERNMENT REFORM: EQUITABLE ALLOCATION OF RESOURCES IN THAI SOCIETY, November 5-7, 2009,
http://www.kpi.ac.th/kpien/dmdocuments/ (then select King Prajadhipoks XI Congress.pdf, at 7); Karn
Vorakul, Judicial Activism in Solving the National Crisis, THAI CONSTITUTIONAL COURT J OURNAL vol.
31, at 25 (2009) (Thail.); Avirut Charnchaikittikorn, Judicial Activism and Political Crisis, DULA-PAHA
LAW J OURNAL vol. 3, at 110 (2009) (Thail.); Pichet Maolanon, Judicial Activism, NEW LAW J OURNAL
vol. 113, at 36 (2009) (Thail.).

71
Thai Constitutional Court decision nos. 6-7/2551, J uly 8, 2008, Thai Royal Gazette vol. 125 pt. 108
(kor).

17
including the Palang Prachachon party once led by Mr. Samak, on similar grounds of
electoral corruption.
72

Subsequently, a new parliamentary coalition was formed in December 2008 and
the former leader of the opposition Abhisit Vejjajiva became the 27
th
Prime Minister. In
April 2010, following the intensified massive protests by the National United Front of
Democracy Against Dictatorship or the red shirts against his government, Mr. Abhisit
declared a State of Severe Emergency in Bangkok and several other provinces followed
by deadly clashes. At the time this paper was written, a new case was submitted to the
Constitutional Court to rule whether Mr. Abhisits party should be disbanded.
73

The above concerns highlight the fact that Thailand, like in many other places, is
still looking for the right judicial recipe in maintaining a functional democracy. What is
the role of the Thai parliament in making legal rules on conflict of interests and how
should such rules be regarded by the Court? Are there constitutional questions that would
be considered unnecessary and unwise for the Court to answer? How would the Court be
perceived in its modern history if it were to lecture the Prime Minister but issue no order?
How do we place the Thai courts in the stream of labels such judicial activism,
judicialization, or juristrocracy given the historical and institutional contexts? What is the
role of the Court in safeguarding the rights and liberties of the people and are these rights
affected by a broad prohibition on certain acts?
These questions emerge at the time when there is a limited body of jurisprudence
that is far outweighed by the ongoing political problems. They require elaborate and
systematic investigation beyond the realm of legal research, and complete answers may

72
Thai Constitutional Court decision no. 18/2551, Dec. 2, 2008, Thai Royal Gazette vol. 126 pt. 16 (kor);
Thai Constitutional Court decision no. 19/2551, Dec. 2, 2008, supra, at 79; Thai Constitutional Court
decision no. 20/2551, Dec. 2, 2008, Thai Royal Gazette vol. 126 pt. 20 (kor).

73
Thomas Fuller, Opposition Appears to Gain in Thai Crisis, N.Y. TIMES, Apr. 13, 2010, at A12; The
Bangkok Post, Democrat Party faces dissolution, http://www.bangkokpost.com/news/politics/174518
(last visited Apr. 30, 2010).

18
not be offered here. Nonetheless in an effort to generate the flow of such investigation, the
following is a modest attempt to use Cookery as a sample of inquiry where answers to
some of these questions may be found.

II. COOKERYS MISSING INGREDIENTS: THREE-COURSE RECIPE
Answering questions concerning the separation of powers, as described by the
Supreme Court of the United States in Baker v. Carr, is itself a delicate exercise in
constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of
the Constitution.
74
The same requirement of delicacy holds true for the Constitutional
adjudication under the Thai Constitution. In this part, the author examines the legal
methodology employed by the Court in Cookery and proposes an alternative approach that
involves three courses of analysis.
First, separation of powers is to be the rationale in interpreting the text and the
spirit of the Constitution and not simply in identifying categories of jurisdictions divided
between branches of the government. Second, provided that inquiry into the separation of
powers rationale does not render a clear answer, judicial restraint is favored where the
Constitution provides the same remedy through another branch which is more politically
accountable. Third, balancing consideration must always be given to any adverse affects
on any guaranteed rights and liberties as a matter of constitutional public order, even
though such rights and liberties were not the primary issues of the case or were not raised
by the litigants. If any rights or liberties are under threat in the case at hand, restraint
should not be favored. In contrast, if the judicial intervention may result in any restriction
of right or liberties, stronger favor is to be accorded to restraint.
Indeed, this is not to say that the Constitutional Court must always undertake such
delicate analysis in order to achieve desirable goals. The author proposes the model as an

74
Baker v. Carr, 369 U.S. 211.

19
alternative methodology for the Court to engage in unclear and controversial cases where
the basic mode of textual and contextual interpretation
75
might be insufficient and yet the
answer may have a substantial impact on separations of powers. If the Court is faced with
a legal issue that, despite the substantial impact, is facially apparent, for instance in a
hypothetical case where it is asked to rule whether an incumbent Prime Minister meets the
qualification requirement on age or nationality,
76
issues of detailed analysis would not
arise. Such issue may arise, for instance, were the Court asked to rule whether a treaty
signed by the executive has extensive impacts on national economic or social security or
generates material commitments in trade, investment or budgets of the country, which if
answered in the affirmative would require the executive to seek parliamentary approval.
77

A. Rationale
The separation of powers principle is reflected by a basic provision of the Thai
Constitution which reads [t]he sovereign power belongs to the Thai people. The King as
Head of the State shall exercise such power through the National Assembly, the Council
of Ministers and the Courts in accordance with the provisions of this Constitution.
78

However, neither the provision nor the principle was referred to in Cookery and the
unanimous Court in did not show much hesitant in subjecting the head of the executive to
such level of judicial process. The same may not be said for the courts in the United States
of America.
Following Marbury v. Madison
79
in which the asserted but unexercised judicial
power to issue mandamus to an executive officer deeply angered the J effersonians,
80

75
See Wat Tingsamit, Tasting while Grumbling Case, NEW LAW J OURNAL vol. 100, at 46 (2008) (Thail.).

76
Thai Constitution (2007), supra note 9, secs. 174, 182.

77
Id. sec. 190; See also supra note 71. For further discussions see infra Appendix C.

78
Id. sec. 3 para. 1.

79
5 U.S. (1 Cranch) 137 (1803).

20
Marshall had an opportunity in United States v. Burr
81
to issue a subpoena to President
J efferson demanding evidence related to a trial of treason. In doing so however Marshall
carefully argued that the President did not enjoy absolute immunity from the court by
distinguishing the President, who is elected by the people and then returns to the mass of
the people after the term office, from a monarch whose crown is heredity and thus under
English law may be protected by the principle that the king can do no wrong.
82
J efferson
nevertheless declared that he voluntarily cooperated with the judicial process but
rejected any legal obligation to do so.
83

Over a century later in United States v. Nixon,
84
the Supreme Court faced the issue
whether the Constitution grants the executive a privilege of immunity from handing over
confidential information required by a criminal prosecution, or to frame more generally,
whether the separation of powers bars judicial activity from certain areas sensitive to the
executive. Chief J ustice Burger writing for the Court responded that separate powers
were not intended to operate with absolute independence
85
nevertheless the Court
remained aware of the need to carefully examine and resolve the competing interests in a
manner that preserves the essential functions of each branch.
86
The Court concluded that
the Presidents assertion of privilege as to subpoenaed materials was based only on the

80
GEORGE L. HASKIN & HERBERT A. J OHNSON, HISTORY OF THE SUPREME COURT OF THE UNITED STATES:
FOUNDATIONS OF POWER: J OHN MARSHALL, 1801-15, at 183-86 (1981).

81
United States v. Burr, 25 F. Cas. 30 (C.C. Va. 1807).

82
Id. at 34.

83
See Paul A. Freund, Foreword: On Presidential Privilege, the Supreme Court, 1973 Term, 88 HARV. L.
REV. 13, 23-28 (1974).

84
United States v. Nixon, 418 U.S. 683.

85
Id. at 708.

86
Id.

21
generalized interest in confidentiality and thus cannot prevail over the fundamental
demands of due process of law in the fair administration of criminal justice.
87

Indeed, the modern clarity of the Thai Constitution on judicial jurisdictions over a
case such as Cookery
88
may leave not much room for issues of executive privilege and
immunity. Nevertheless, the Thai Court can still observe the judicial delicacy required in
resolving the competing interests that lie in the substance of the case. In Youngstown
Sheet & Tube Co. v. Sawyer,
89
the Supreme Court had to consider the challenge against
the executive measures of taking over the major steel mills in the country. President
Truman believed that a strike by the major steel producers would lead to serious problems
for the national economy and also the defense contractors at the time when the United
States were sending troops to South Korea and argued that he was acting within the
aggregate of his constitutional powers as the Chief Executive and the Commander in
Chief. The Court held that President Truman had no power to take such measures which
were not expressly or implicitly authorized by the Constitution or an act of Congress.
But deciding what the President is allowed to do under the Constitution was not a
simple question and members of the Court gave a considerable amount of effort in
distinguishing different types of situations bearing in mind the separation of powers.
J ustice Douglas, concurring, reasoned that the nature of the seizure was a quintessentially
legislative act which the Constitution entrusted to the Congress.
90
Acknowledging the
argument calling for presidential emergency power, Douglas stressed on the intent of the
framers who rejected the alternative arrangement that may lead to political tyranny.
91

87
Id. at 714.

88

89
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

90
Id. at 631.

91
Id. at 634.

22
J ustice J ackson, who in joining the majority had some reservations on the
complicated nature of the separation of powers principle,
92
further delineated 3 categories
of practical situations related to the challenge of presidential powers.
93
The first is a
situation in which the President acts pursuant to an express or implied authorization of
Congress [and] his authority is at its maximum.
94
The second is the one in which the
President acts in absence of either a congressional grant or denial of authority or a zone
of twilight; which to J ackson seemed to be a non-justiciable issue.
95
The final situation is
when the President takes measures incompatible with the expressed or implied will of
Congress, his power is at its lowest ebb, for then he can rely only upon his own
constitutional powers minus any constitutional powers of Congress over the matter and
further noted that such case must be scrutinized with caution, for what is at stake is the
equilibrium established by our constitutional system.
96
It seemed to be in the last
category where J ackson treated the silence of the Congress as an implied denial on the
Presidential power to seize the mills, given that a previous attempt to make such power
into law was unfruitful.
97

Turning to Cookery, a sober and sound legal mind may also recognize a similar
delicacy in rationalizing the ban imposed by Section 267
98
bearing in mind the enormous

92
Id. at 594 (Although the considerations relevant to the legal enforcement of the principle of separation
of powers seem to me more complicated and flexible than may appear from what Mr. J ustice Black has
written, I join his opinion because I thoroughly agree with the application of the principle to the
circumstances of this case.)

93
Id. at 636-39.

94
Id. at 636.

95
Id. at 638 (In this area, any actual test of power is likely to depend on the imperatives of events and
contemporary imponderables rather than on abstract theories of law).

96
Id. at 638-39.

97
Id. at 645-46. This reliance on silence attracted sharp criticisms. See infra pp. 35-36 notes 136-41.

98
Thai Constitution (2007), supra note 9, sec. 267 ([Prime Minister and Minister] shall not hold any
position in a partnership, a company or an organisation carrying out business with a view to sharing
profits or incomes or be an employee of any person).

23
consequence on the separation of powers and the structure of the government. Although
the situation was different from the one in Youngstown, one could nonetheless argue
whether the Thai Constitution or any Act of Parliament explicitly or implicitly prohibits a
Prime Minister from hosting a television cookery show. The Court started its opinion by
speaking of the spirit of the Constitution or the purpose behind Section 267 which is to
ensure the proper execution of Ministers duties by preventing a difficult and unethical
situation of choosing between pursuing a private interest and public interest, but seemed
to abandon from expounding such spirit regarding conflict of interests completely when it
swiftly moved to adopt the definition of employee that it deemed proper
99
and
dismissed the relevance of legal definition of employee under civil and commercial law,
employment law
100
and tax law.
This is not to say that the Thai Constitutional Court does not recognize the
separation of powers as it indeed refers to the principle on some other occasions. For

99
Cookery Decision, supra note 13, at 14. Contra Thai Constitution (2007), supra note 9, sec. 216 para. 4.
The author is concerned with the brevity and generality of the decision of the Court as one judicial
institution, and while it is noted most if not all of the 9 judges discussed the issue in their separate
opinions at greater length both legally and factually, the Courts rationale escapes the author as to why
such individual prudence, if indeed judicially ascertainable, did not seep through the unanimous main
opinion. See e.g. Cookery Decision, supra, at 19-21 (separate opinion of Chief Judge Chat Chonlaworn)
(generally reapting the main opinion), 22-26 (separate opinion of J udge J arun Pukditanakul) (reasoning
that the conflict of interests provisions should be strictly interpreted due to the difficulty of retrospective
investigation); 29-35 (separate opinion of J udge Charoon Intachan) (mentioning the issues of good
governance and propriety of the office, the elements of abuse of power, and discussing the appointment
of a person who sponsored the cookery program to a position in a State-owned company), 37-39
(separate opinion of J udge Chalermpon Ake-uru) (discussing the required quality of a public person
holding a high level public office), 40-42 (separate opinion of J udge Nurak Marpraneet) (analogizing the
income Mr. Samak received from a publishing company), 46-48 (separate opinion of Judge Boonsong
Kulbupar) (analyzing the commercial relationship between Mr. Samak and the television production
company that existed long before the taking of office); 49-52 (separate opinion of J udge Vasan Soi-
phisud) (citing a Supreme Court decision to suggest that the interpretation of employee under public
law is different from the one under private law), 54-58 (separate opinion of Judge Supoj Kaimook)
(noting that the cookery program was aired on a television network that was operated by the Thai Army
at the time when Mr. Samak also held the Defense Ministership), 59-62 (separate opinion of Judge
Udomsak Nitimontri) (discussing the relevance of hire of work and labor employment under Section 267
and also distinguishing the prohibited acts from permissible acts).

100
Cf. Pranee Suksri, Tasting while Grumbling Case: an employee who is not self-insured, BUSINESS LAW
AND HUMAN RESOURCES J OURNAL vol. 71, at 38-44 (2008) (Thail.) (analyzing relevant employment law
and Thai Supreme Court precedents and suggesting that Mr. Samak is not an employee under
employment law).

24
instance in Annual Expenditure,
101
when a group of Senators challenged the
constitutionality of a budgetary amendment made by the executive during a process in
which the annual government statement of expenditure was being considered by the
House of Representative, the Court elaborated how the Constitution assigns certain
budgetary matters to be under the authority and responsibility of the executive branch, and
reserve some to the legislature.
102
Similarly in Economic Stability Decree,
103
when an
executive decree which authorized the Ministry of Finance to take emergency loans to
stabilize the economy was challenged, the Court justified its decision to uphold the decree
by explaining how the separation of powers principle allows the executive branch to enjoy
certain emergency powers while at the same time subjects it to other available means of
checks and balances.
104

The present contention being advanced here however is that the separation of
powers principle should be deemed fundamentally relevant not only when the Court is
faced with the obvious question on the scope of authority or constitutional jurisdiction of
branches of the government, as the Court did in Annual Expenditure or Economic Stability
Decree, but also in the situation where the Court, as one branch of the government,
engages in constitutional construction that substantially affecting another. Hence, in a case
such as Cookery, even though the question concerning the individual qualification of the
Prime Minister does not require the Court to identify any division of authority or
jurisdictions divided between branches of the government, separation of powers is to be
the rationale in interpreting the text of the Constitution, as illustrated below.

101
Thai Constitutional Court decision no. 14/2551, Sept. 29, 2008, Thai Royal Gazette vol. 125 pt. 127
(kor).

102
Id. at 11-14.

103
Thai Constitutional Court decision no. 11/2552, J une 3, 2009, Thai Royal Gazette vol. 126 pt. 77 (kor).

104
Id. at 23-30.

25
1. Separation of Powers in the Drafting Process
There is an unconventional argument to be made regarding the element of
separation of powers not only in the process of the exercising the power under the current
Constitution, but also the process that took place after abrogation of the 1997 Constitution
which led to the 2007 Constitution. Unlike in certain countries where the original drafting
process took place over centuries ago and involved a smaller group of delegates, the
unconventional modern day post coup process experienced in Thailand inevitably
involved the existing personnel from existing institutions belonging to different branches
of the government, which partly reflected the attempt of the coup instigators to draw
supports from the personnel of these branches to preserve their own legitimacy. For
instance, the membership of the National Peoples Assembly
105
, as well as the process that
led to it, which is a body responsible for the partial selection of the members of
Constitutional Drafting Assembly, included ambassadors, bureaucrats, political party
representatives, former legislative members, judges and officers of the Constitutional
organs etc. who were already performing active functions within different branches of
government.
106

Indeed by the order of the coup instigators the Parliament and some organs were
not functioning and their representation to different branches might not be formal, but the
balancing of power in the process that led to the draft Constitution, especially the
alterations and modifications of the provisions of their direct concerns such as the
qualification of the Ministers as seen in Section 267, took place in crude form nonetheless.
Moreover, even though the legitimacy and transparency of the drafting process can be a
subject of separate inquiry, the drafting institution also engaged in the process which

105
Thai Interim Constitution (2006), supra note 6, sec. 21.

106
Notification of the Council for National Security on the Criteria and Process for the Appointment of
Members of the National Peoples Assembly, October 19, 2006 and amended on October 20 2006, Thai
Royal Gazette vol. 123 pt. 177 (kor).

26
included the hearings and deliberation by institutions what was meant to be a
representative body not of the citizens but also arguably among the existing influence with
the branches of government.
Thus, the unconventional argument is, by resorting to the debates and records in
the drafting process, there is not only a value in an attempt to illuminate the text with the
history and original meaning,
107
but also in the peculiar case such as Thailand, one can
also observe the working of powers in play in the drafting process especially for those
provisions concerning the separation of powers.
The framers of the 2007 Constitution were aware of the past difficulties faced by
the Constitutional Court and the litigants in interpreting constitutional provisions due to
the lack of written records on the history and purpose behind the drafting. Thus the
framers of the 2007 Constitution set up a committee to prepare the Record containing the
drafting intent and history behind each section of the Constitution.
108
The Constitutional
Court indeed, albeit without citation, copied a part of the Record noting the intent behind
Section 265 (conflict of interests in case of members of the Parliament), and put it in
Cookery as a general explanation on the notion of conflict of interests in relation to
Section 267.
109
Three observations may be made.
First, the Courts use of the Record in relation to Section 265 is welcomed indeed
as Section 265, while dealing with Parliamentarians, is borrowed by Section 267 and thus
also applies to Prime Minister and Ministers.
The second observation, which concerns the author more, is the fact that the Court
did not refer to another relevant part of the Record that noted the intent behind Section

107
See TRIBE supra note 30, at 47-70.

108
THE SPIRIT OF THE CONSTITUTION OF THE KINGDOM OF THAILAND BUDDHIST ERA 2550, prepared by the
Ad Hoc Committee on Spirit Record, Archive and Meeting Reports Verification of the Constitution
Drafting Assembly, available at http://library2.parliament.go.th/giventake/content_cons50/cons50-
intention.pdf (last visited Apr. 30, 2010).

109
See supra notes 16-17 and the quoted text. See also Id. at 257.

27
267 which was at issue in Cookery. The Record states that Section 267 aims to prevent
the exercise of power for personal gain.
110
The author admits that such broad statement
can be interpreted in different ways and the Court may as well found that statement to be
relevant to certain prohibited acts under Section 267 and not the ban on employment. In
any case, the Record was recently prepared and evidence was readily available for further
investigation. The Court nonetheless made no attempt to clarify the relevance of such
statement which may otherwise suggest that an exercise of any form of executive power
enjoyed by Mr. Samak in appearing on a cookery show forms a basis of conflict of
interests.
111

There are without doubt certain situations that manifestly purport to an
unacceptable conflict of interests, for instance in a convenient hypothetical situation
where the Prime Minister is employed as an advisor by a catering company whose
business involves the provision of catering services to governmental and state agencies
which require the selection and approval by the executive authority. In such convenient
case the Prime Minister might exercise the power to select and approve a catering
business in order to gain benefit for his employer and himself, and thus there is a conflict
of interests. Even in the Cookery situation where the interpreting the definition of
employee is less than obvious, there are still rooms to investigate into the relationships
between the governmental agencies, the television production company, the television
network and affiliates, the sponsors of the program which might range from family-run
cooking oil companies to a national player in agricultural sector.
The third observation concerns the issue of original understanding. Such ban which
appears as Section 267 today originally appeared as Section 143 of the Thai Constitution

110
Id. at 258. Interestingly the notes in the Record seem to mention some elements of power being exercised
both in relation to Section 265 and Section 267.

111
The Courts predecessor under the 1997 Constitution discussed this issue in a similar case, see infra Part
II.A.3(a) at p. 37.

28
of 1949.
112
Professor Dr. Yut Saeng-uthai, who was the Secretary-General of the Council
that drafted the 1949 Constitution, explained in his commentary published in 1950 that
such ban was included for two reasons, the first being that it would be simply improper
for the Ministers of His Majesty the King to be working for a private party, and the second
reason being that any outside employment may take away the concentration and the time
of the Minister that should be devoted to the public office,
113
however the 1949
Constitution did not contained any provision that allowed the judiciary to intervene.
114

The Court in Cookery did not discuss such original understanding which was
neither refuted nor reaffirmed in the Record, however it would be possible, and helpful,
for the Court to distinguish the meaning of Section 267 under the current Constitution
which is a fresh product of the coup dtat against Thaksin Shinawatra government from
the text in 1949 where the Constitutional Court was not in existence, and try to delineate
to what extent has the rationale in 1949 remained the same.
The author has expressed concerns elsewhere on the questionable nature of the
statements of high generality contained in the Record,
115
but ultimately it is up to the
Constitutional Court to use the statements contained therein as one of the available tools
of interpretation given a specific situation of the case at bar, and not as the decisive
indication of the content of constitutional law itself. Here the Court was silent on the
constitutional baseline of the term conflict of interests, which it said to be the purpose of
the provision in the first place. Indeed the text of Section 265 is very precise in the level

112
The Constitution of the Kingdom of Thailand Buddhist Era 2492 (1949) (repealed), Thai Royal Gazette
vol. 66 pt. 17, sec. 143.

113
YUD SAENG-UTHAI, COMMENTARY ON THE CONSTITUTION OF THE KINGDOM OF THAILAND 550-552
(Uthai Printing House 1950).

114
Id. (explaining further that violation of such ban has no direct remedy but political process such as the
vote of confidence in the House of Representatives).

115
See Verapat Pariyawong, Sovereignty in International Law Making: Certain Treaties Requiring
Parliamentary Approval, on THAILAND PUBLIC LAW NETWORK WEBSITE (Nantawat Boramanand ed.),
http://www.pub-law.net/publaw/view.asp?PublawIDs=1214 (last visited Apr. 30, 2010). See infra
Appendix C for the full text.

29
of details which may explain the generality of the note behind of Section 265 in the
Record, unlike the text of Section 267 which is more general and cannot be easily read in
the same way.
More importantly, when due regard is given to elements of the separation of
powers in the drafting process, by quoting a general statement in the Record on Section
265, which applies to the legislature and neglecting the part provided for Section 267
dealing with the executive, the Court was engaging in a dangerous enterprise of blurring
the applicability of Constitutional rules on which it then relied to make a swift conclusion
on the broad definition of employee and thus disqualified Mr. Samak from office. The
Court was therefore in effect asserting a statement of high generality with little
qualification that enters the constitutional legal system as a binding law
116
that bans a
wide range of relationship of interests even though it remains unclear if such ban was
even contemplated by either the original framers or members of the branches that were
involved in the drafting process.

2. Legislative Intent
In addition to the drafting process and original understanding of the Constitution,
the intent of the representatives also plays a vital role. While the Constitution makes the
Constitutional Court the ultimate arbiter on constitutional law, it nonetheless reserve some
powers to the legislature by specifically providing for certain Acts of the Parliament to be
the Constitutional Organic Acts which spell out the details of the issues fundamentally
related to the Constitution such as election, political parties and public referendum.
117
One
of such Organic Acts is the Organic Act on Countering Corruption passed by the

116
Thai Constitution (2007), supra note 9, sec. 216 para. 5 (providing that is decision of the Constitutional
Court is final and binding on the parliament, the council of ministers and other State organs).

117
Id. sec. 138.

30
Parliament in 1999
118
pursuant to the 1997 Constitution, but continues to remain in force
as an Organic Act for the purpose of the current Constitution.
119
The 1999 Act which is
primarily executed by the National Counter Corruption Commission contains a specific
chapter dealing with Conflicts between Personal Interest and Public Interest
120
detailing
a list of prohibited conducts
121
applicable to State officials which also covers the Prime
Minister and Ministers.
122

While there is no specific prohibition on a private conduct as an honorarium,
Section 100 (3) of the Organic Act prohibits State officials from certain employment and
is especially relevant. It establishes a three-prong test.
(1) The official shares interests in the capacity as a director, counsel,
representative, official or employee in a private business.
(2) Such private business is supervised, controlled or examined by the State agency
to which such State official is attached or where such State official performs
duties in the capacity as State official.

118
The Constitutional Organic Act on the Prevention and the Suppression of Corruption B.E. 2542 (1999),
Thai Royal Gazette vol. 116 pt. 114 (kor) [Hereinafter Organic Act].

119
Thai Constitution (2007), supra note 9, sec. 302 para. 1(2).

120
Organic Act, supra note 118, Ch. IX.

121
Id. sec. 100 para. 1. It prohibits any State official from carrying out the following acts:
(1) being a party to or having interest in a contract made with a Government agency where such
State official performs duties in the capacity as State official who has the power to conduct
supervision, control, inspection or legal proceedings;
(2) being a partner or shareholder in a partnership or company which is a party to a contract made
with a Government agency where such State official performs duties in the capacity as a State
official who has the power to conduct supervision, control, inspection or legal proceedings;
(3) being a concessionaire or continuing to hold a concession from the State, State agency, State
enterprise or local administration or being a party to a contract of a directly or indirectly
monopolistic nature made with the State, a Government agency, State agency, State enterprise or
local administration, or being a partner or shareholder in a partnership or company which is a
concessionaire or a contractual party in such manner;
(4) being interested in the capacity as a director, counsel, representative, official or employee in a
private business which is under supervision, control or audit of the State agency to which such
State official is attached or where such State official performs duties in the capacity as State
official, provided that the nature of the interest of the private business may be contrary to or
inconsistent with public interest or the interest of the Government service or may affect the
autonomy in the performance of duties of such State official.

122
Organic Act, supra note 118, sec. 1.

31
(3) The nature of the interest belonging to such private business may be contrary to
or inconsistent with the public interest or the government service, or may affect
the autonomy of such State official in performing his or her duties.
The above test can provide a reasonable room of inquiry for the Court for instance
to determine whether a television program host, if not considered as an employee, can
satisfy the first prong as a representative figure of the program, or whether it must pertain
to an agency relationship. The Court could also interpret the nexus or level of connection
in determining whether a television production company is supervised, controlled or
examined by any departments or agencies who report to the Prime Minister. More
importantly, the Court would be able to inquire whether such relationship with the
television production business was contrary to or inconsistent with public interest or the
interest of the government service, or affected the autonomy of Mr. Samak.
Notably, such inquiry especially on the third prong of the test may show some
relevance exercise of power requirement stated in the drafting Record of the 2007
Constitution, and it may be argued that there is a common point reflected by relevant legal
principles on conflict of interests that there must be an abuse of State power.
123
In what
manner should such test should be applied to Cookery is indeed up to the Court of law, if
such test is indeed applicable in the first place. What concerns the author however is the
fact that the Organic Act was not discussed at all in the decision even though several
relevant arguments can be made for and against the adoption of the three-prong test to
Cookery.
The first argument in support of the adopting the test is the explicit provision by
the Constitution making the 1999 Organic Act one of its organic laws, for the purpose of

123
See also Pornson Liengboonlertchai, Cracking the Constitional Court Court decision no. 12-13/2551
(The case of television program hosted by Mr. Samak Sundaravej), on THAILAND PUBLIC LAW NETWORK
WEBSITE (Nantawat Boramanand ed.), http://www.pub-law.net/publaw/view.asp?PublawIDs=1280 (last
visited Apr. 30, 2010).

32
expounding certain fundamental issues related to the provisions of the Constitution as
explained above. The text of Section 267 of the 2007 Constitution which governs the
conflict of interests in case of Prime Minister and Ministers is almost identical to the one
under the 1997 Constitution,
124
and thus the 1999 Organic Act which was enacted
pursuant to the 1997 Constitution should reflect the same principle of conflict of interests
as adopted by the 2007 Constitution.
However, one may also argue that the 1999 Organic Act is a product of the 1997
Constitution which aimed to empower the political branches whereas the 2007
Constitution aims to increase the level of scrutiny as illustrated in the preamble,
125
as seen
in other relevant conflict of interests provisions which employ a stricter language.
126

Further the 1999 Organic Act, in its current form, is only intended to be enforced for a
limited time given that the 2007 Constitution contains a transitional clause requiring that it
be updated according to the provisions of the current Constitution.
127

124
Compare Thai Constitution (1997), supra note 1, sec. 208:
A Minister shall not hold a position or perform any act provided in section 110, except the
position required to be held by the operation of law, and shall not hold any position in a
partnership, a company or any organisation carrying out business with a view to sharing profits or
incomes or be an employee of any person.

with Thai Constitution (2007), supra note 9, sec.267:
The provisions of section 265 shall also apply to the Prime Minister and Ministers, save in the
case of holding office or taking action by operation of law, and such persons shall not hold any
position in a partnership, a company or an organisation carrying out business with a view to
sharing profits or incomes or be an employee of any person.

125
See supra note 10.

126
Compare Thai Constitution (1997), supra note 1, sec. 110 (2)
(2) receive any concession from the State, a State agency or State enterprise, or become a party to
a contract of the nature of economic monopoly with the State, a State agency or State enterprise,
or a become partner or shareholder in a partnership or company receiving such concession or
becoming a party to the contract of that nature

with Thai Constitution (2007), supra note 9, sec. 265 para. 1(2):
(2) receive, interfere with or intervene in any concession from the State, a Government agency, a
State agency or a State enterprise, or become a party to a contract of a monopolistic nature with
the State, a Government agency, a State agency or a State enterprise, or a become partner or a
shareholder in a partnership or a company receiving such concession or becoming a party to the
contract of that nature, whether directly or indirectly

127
Thai Constitution (2007), supra note 9, sec. 302, para. 2.

33
Nevertheless, such counter argument can still be rebutted by the fact that the
updated version of the 1999 Organic Act which appeared as a draft amendment that was
approved by the National Legislative Assembly
128
in December 2007 (4 months after the
2007 Constitution was promulgated), did not alter the three-prong test on employment
prohibition,
129
and thus further evidenced that such test even in light of the 2007
Constitution remains unchanged. This argument faced a procedural twist however since
the draft amendment never became law as it was struck down by the Constitutional Court
in February 2008 on the ground that there was a lack of quorum during the preliminary
vote to adopt the draft, and thus the proper votes that followed became invalid.
130
As the
Constitution still requires the 1999 Organic Act to be updated, a number of draft
amendments were subsequently presented to the current Parliament for another round of
legislative approval, and notably the currently proposals do not alter the three-prong test.

131

In addition to the 1999 Organic Act and subsequent amendments that followed, in
November 2007 the National Legislative Assembly also approved a draft legislation titled
The Act on Offense on the Conflict between Private Interest and Public Interest and
Section 5 of the bill included as the definition of conflict of interests, inter alia, the three-

128
Id. sec. 293. This provision allows the National Legislative Assembly, which performed the legislative
functions under the 2006 Interim Charter following the abrogation of the House of Representatives and
the Senate as a result of the 2006 coup dtat, to function as the Parliament during the transitional period.

129
Verbatim Report of the National Legislative Assembly of Thailand Meeting no. 71/2550 (December 13,
2007), at 205.

130

131
See e.g. Letter from President of the National Counter Corruption Commission no. Por Chor 0022/052
(J une 13, 2008), http://202.122.40.26/ewtadmin/ewt/parliament_parcy/main.php?filename=law17
(presenting the draft Amendment to the 1999 Organic Act to the President of the Parliament) (last visited
Apr. 30, 2010); Letter of the President of the Senate no. Sor Wor 0007/5714 (Nov. 26 2009),
http://www.senate.go.th/jeab/admin/files/prb/1490/68_1.pdf (delivering the revised draft Amendment to
the 1999 Organic Act to the President of the Parliament) (last visited Apr. 30, 2010).

34
prong test adopted by Section 100 of the 1999 Organic Act.
132
Nevertheless before the bill
became law it was also struck down by the Constitutional Court a year later on procedural
issues relating to lack of quorum.
133

Another argument in support of the adoption of the test under the 1999 Organic
Act is the need for the judicial institution to maintain a consistent legal interpretation on
the same subject matter of jurisprudence. Under the 2007 Constitution, the National
Counter Corruption Commission can bring a case involving violations of the 1999
Organic Act to the Thai Supreme Court,
134
and such case includes the prohibited
employment. At the same time, the Constitution also allows senators and the electoral
commission to bring a case before the Constitutional Court to determine the qualification
to hold the office as seen in Cookery. Therefore it may be argued that there is a need for
the judiciary, including both the Supreme Court and the Constitutional Court, to interpret
the law in a consistent manner and since the Supreme Court is clearly bound by the test
under the 1999 Organic Act, the Constitutional Court should also take such test into
account.
On the other hand, one could argue that the three-prong tests adopted by the 1999
Organic Act is aimed to serve as the basis for the criminal prosecution of holders of
political offices, which falls under the jurisdiction of the Thai Supreme Court who can
enforce criminal sanctions based on the investigation conducted by the National Counter
Corruption Commission, and thus the law provides for a higher standard of scrutiny. The
Constitutional Court in contrast does not enforce criminal sanction on a disqualified
minister. Unlike in case of criminal sanction, the Constitution does not contain any

132
Verbatim Report of the National Legislative Assembly of Thailand Meeting no. 54/2550 (September 27,
2007), at 34 and Verbatim Report of the National Legislative Assembly of Thailand Meeting no. 64/2550
(September 27, 2007), at 64.

133

134

35
explicit prohibition on the return of the same Prime Minister by the vote of the House of
Representatives, or the return of the same Minister by the appointment of the Prime
Minister and the disqualification sanction is arguably political in nature i.e. the public
removal from office, and thus the level of scrutiny is different.
135

It is useful to note that while the Thai Court in Cookery did not discuss the 1999
Organic Act, the draft amendments or the conflict of interests bill which may have
significant relevance, the United States Supreme Court when faced with the separation of
powers question of what the President is permitted to do in Youngstown Sheet & Tube Co.
v. Sawyer
136
indeed engaged in an analysis of the intent of the Congress based on what the
Congress decided not to include in a relevant legislation.
In Youngstown, J ustice Black noted that when Congress considered the Taft-
Hartley Act, which deals with the settling labor disputes, Congress rejected an amendment
which would have authorized the governmental to seize property in cases of
emergency.
137
J ustice Clark, concurring, not only emphasized that when the Act was
passed, Congress specifically rejected a proposal to empower the President to seize the
property, even if in his judgment, the work stoppage would harm the public health or
security,
138
but also analyzed the governments non-compliance with the procedures
established by relevant laws which make them inapplicable to the situation.
139
The
dissenting opinion by Chief J ustice Vinson, joined by J ustice Reed and J ustice Milton,
also discussed the legislative history not only of the Taft-Hartley Act but also other

135
See Verbatim Report of the National Legislative Assembly of Thailand Meeting no. 54/2550 (September
27, 2007), at 47 (explanation by Professor Borwornsak Uwanno on different levels of conflict of
interests).

136
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579.

137
Id. at 587.

138
Id. at 664.

139
Id. at 666.

36
relevant labor management laws and found that the legislative creation of a new
procedure for dealing with defense disputes negatives any notion that Congress intended
the earlier and discretionary Taft-Hartley procedure to be an exclusive procedure and that
the President had exhausted the procedures for settlement available to him.
140

While the justices in Youngstown went to discuss the relevance of related
legislations at great length, an eminent scholar observing the less than precise ruling still
noted that there is a danger when the Court chooses to evaluate the power of the executive
not against a constitutional default rule regarding the scope of executive power for which
the Court takes clear responsibility but through an earpiece that purports to discern just
what Congress meant by what it failed to say, and such danger is the erosion of
democratic accountability.
141

The democratic accountability is also at question here where the Court in Cookery
ignored the 1999 Organic Act and the draft legislations concerning conflict of interests
and missed the opportunity to engage in a meaningful inquiry whether it should adopt or
differentiate the definition of conflict of interests under the Constitution from the
definition offered by the peoples representatives. This issue is further elaborated in Part
II.B below.
3. Constitutional Jurisprudence
The 2007 Constitution provides that [t]he decision of the Constitutional Court
shall be deemed final and binding on the National Assembly, Council of Ministers, Courts
and other State organs.
142
Such binding nature of the constitutional interpretation by the
Constitutional Court was also provided by the 1997 Constitution in the exact same

140
Id. at 708.

141
See TRIBE, supra note 30, at 204-05; See also TRIBE, supra note 23, at 159-60.

142
Thai Constitution (2007), supra note 9, sec. 216 para. 5.

37
words.
143
When the Constitution makes one branch the arbiter of the very law that governs
the separation of powers, the appropriate preservation of consistency and predictably of
the law essentially becomes the preservation of the legitimate expectations of the different
branches. In spite of the possible quality of the Cookerys Court in being original, the
author discusses below the judicial decisions which bear some precedential value on
conflict of interests and separation of powers.

(a) The 10 Ministers Case
In 2001, the court under the 1997 Constitution heard a case where 10 cabinet
Ministers were alleged to have breached the conflict of interests provision because they
continued to hold either directorship or partnership in commercial entities after taking
office and were thus asked to be disqualified.
144
Although this case did not involve any
alleged employment, the prohibited directorship or partnership forms an integral part of
the conflict of interests provision under the 1997 Constitution which was almost identical
to the current Section 267.
145

Before proceeding to substantive analysis, noted is the argument that 10 Ministers
bear no precedential value because all the binding nature of the decisions of the
Constitutional Court under the 1997 Constitution disappeared together with the
constitutional abolishment following the 2006 coup dtat. This however is an overly
simplistic positivist argument which can be rebutted firstly by the resemblance of the text
of the two Constitutions dealing with conflict of interests, taken together with the
constitutional provisions ensuring the transfer of the pending cases from the

143

144
Thai Constitutional Court decision no. 4/2544, Feb. 6, 2001, Thai Royal Gazette vol. 118 pt. 115 (kor)
[hereinafter 10 Ministers Case].

145
See supra note 124.

38
Constitutional Court before the 2006 coup dtat to the Constitutional Tribunal,
146
and
then to the current Court,
147
and also the general principle of consistency and coherence of
law.
Moreover, the current Constitutional Court when applying a provision of the
current Constitution also often make references to the resembling provisions under the
1997 Constitution
148
and indeed relies on the legal interpretation by its predecessor to
justify its decision.
149

Two legal rules expounded by the court in 10 Ministers are worthy of observation
in relation to Cookery. First, the court in 10 Ministers recognized that although the 1997
Constitution prohibited Prime Minister and Ministers from holding directorship or
partnership, it does not contain any specific provisions on the entering into or the
termination of such directorship or partnership, and thus due consideration on issues of
directorship and partnership must be given to the relevant civil and commercial law. The
Court in Cookery indeed faced a closely similar situation. Section 267 forbids a Prime
Minister and Ministers from being employed by any other person, but no provision of the
Constitution specified what employment means, and Mr. Samak raised the defense by
presenting the legal definition of employee under relevant laws. The Court however

146
Thai Interim Constitution (2006), supra note 6, sec. 35.

147
Thai Constitution (2007), supra note 9, sec. 300.

148
See e.g. Thai Constitutional Court decision no. 13/2550, Sept. 26, 2007, Thai Royal Gazette vol. 125 pt.
16 (kor), at 11; Thai Constitutional Court decision no. 9/2551, J uly 9, 2008, Thai Royal Gazette vol. 125
pt. 113 (kor), at 10; See also Thai Constitutional Court decision no. 12/2552, Dec. 2, 2009, Thai Royal
Gazette vol. 126 pt. 91 (kor), at 4-5 (noting the general resemblance of the provisions under the 1997 and
2007 Constitutions).

149
See e.g. Thai Constitutional Court decision no. 6-7/2551, 8 J uly 2008, Thai Royal Gazette vol. 125 pt.
108 (kor), at 21 (referring to the definition of treaty given by its predecessor court in 1999 and 2000); but
see Pariyawong, supra note 115 (analyzing the constitutional courts problematic decisions in 1999 and
2000 in relation to the treaty clause). See also Thai Constitutional Court decision no. 14/2551, Sept. 29,
2008, Thai Royal Gazette vol. 125 pt. 127 (kor), at 30, 36, 47 (separate opinions of three justices
referring to a principle on executive authority over budgetary matters declared by its predecessor in
2000).

39
rejected such arguments by relying on the supremacy of the Constitution and made a
general claim that other laws of lower hierarchy were irrelevant to the case.
150

Such position taken in Cookery is problematic. The court in 10 Ministers seemed to
recognize that the supremacy of the Constitution does not preclude the constitutional
interpretation which takes into account other legal provisions in the Thai legal system.
Indeed a specific term such as partnership, directorship or employment were used by the
framers who realized that the definition of these legal terms can be found in other parts of
the legal system, and to depart from such existing definition one would assume that such
indication be made in the Constitution, or that there is an extraordinary incompatibility of
interpretation which was not clearly illustrated in Cookery, at least absent the
rationalization of the history and the intent of the representatives. It is left to be seen how
the Court will address the coherence within the Thai legal system given the generality of
the rule,
151
not only with regards to employee under other laws, but also other terms
used by the Conflict of Interests provisions such as partner or director.
Second, the court in 10 Ministers provided a useful clarification on the notion of
conflict of interests. Interestingly the court which decided the case in 2001 used the
wording that is quite similar to drafting note found in the Record of the 2007
Constitution.
152
The court said that Section 208 of the 1997 Constitution aims to prevent
the conflict between public interest and private interest by forbidding the Ministers from
using the office power to gain personal interests or to facilitate the benefits for the
partnership or company in which one may have interests or hold position, as well as to
ensure that the ministers dedicate their time and energy to the administration of public

150
See supra notes 19-20.

151
See supra note 123.

152
See supra note 108, at 258.

40
affairs.
153
The separate opinions of the judges also discussed in similar ways the element
of the abuse of power to provide unlawful interests to private entities.
154
One justice
however went further to suggest that given the level of risks associated with the abuse of
power not only by the high ranking officials himself by also by his subordinates, any
positional relationship in private commercial entities should be strictly forbidden.
155

The standard involving the prevention of the abuse of power by the ministers as
interpreted by the court in 10 Ministers is a useful basis for the consideration in Cookery
for the Court to justify its ruling. On the one hand the Court can adopt a narrow reading
on the abuse of power and find no ground to disqualify Mr. Samak given that the cookery
show does not involve any exercise of power that may be in conflict. On the other hand it
could interpret that Section 267 aims to prevent potential circumstance of abuse of power
before it actually happens by elaborating on what kind of circumstance would the Prime
Minister be abusing his power for the benefits of the television production company, the
program sponsors and other parties associated with it. A similarly inquiry can also be
made with regards to the need to ensure the dedication of the time and energy for the
public office.
The Court however did not elaborate on these useful roadmaps of inquiry on issues
of coherence and elements of power laid down more delicately by its predecessor, but
instead altered the constitutional dynamics understood by the other branches of
government.

153
10 Ministers Case, supra note 144, at 36-37.

154
Id. at 69-70 (separate opinion of Chief J udge Prasert Nasakul), 77 (separate opinion of J udge Kramol
Thongthammachart), 101 (separate opinion of J udge J ul Adirek), 152 (separate opinion of J udge Phun
Chandarapan), 171 ((separate opinion of Judge Mongkol Saratan), 190 (separate opinion of Judge Suchit
Bunbongkarn), 203 (separate opinion of Judge Suchinda Yongsunthon), 229 (separate opinion of Judge
Suwit Theerapong).

155
Id. at 254 (Separate opinion of J udge Amorn Raksasat).

41
(b) The 3 Legislations Case
In addition to the 10 Ministers decision by its predecessor, the current
Constitutional Court also rendered a decision bearing jurisprudential significance on
conflict of interests which came out less than 2 months prior to Cookery. In 3
Legislations, the Court was asked to determine whether 3 pieces of legislations which
provide for the appointment of certain members of the Parliament to certain positions in
other State entities violate the constitutional provisions on conflict of interests applicable
the members of the Parliament.
156
Section 265 of the Constitution provides a list of
prohibited conducts that amount to conflict of interests, one of which is of [to hold] any
position or assume any duty in any Government agency, State agency or State
enterprise
157
subject to certain exceptions including where such position is appointed in
the course of the administration of the State affairs.
158

Since all the 3 legislations concerned the appointment of members of the
Parliament to Government or State agencies, the Court had to interpret the scope and
meaning of the administration of the State affairs exception. In doing so, the Court like
in Cookery identified the prevention of conflict of interests as the purpose of the
Constitution, but went on further to explain that such conflict of interests must be
considered in light of the principle of the separation of powers so that the legislatures,
who are responsible for the control of State administration, do not hold positions in the
executive or judicial branch or constitutional organs which would otherwise make the
person exercising control and the person being controlled the same, resulting in a
prohibited conflict of interests. Thus, a member of the Parliament cannot enjoy the the

156
Thai Constitutional Court decision no. 10/2551, 22 J uly 2008, Thai Royal Gazette vol.125 pt. 115 (kor)
[hereinafter 3 Legislations Case].

157
Thai Constitution (2007), supra note 9, sec. 265 para. 1(1).

158
Id. sec. 265 para. 2.

42
administration of the State affairs exception if such administration is executive or judicial
in nature.
159
The justices also further discussed the significance of the separation of
powers doctrine in interpreting the Constitution in their separate opinions by similarly
stressing the need to ensure the balance between the powers of different branches by
preventing the officials from intervening or acting in favor of themselves in the execution
of duties and powers given to them.
160

Here the Court had another opportunity to inquire into the context of conflict of
interests prevention in the situation involving the executive. The Court could delineate
Cookery from 3 Legislations by clarifying whether or not the element of intervention or
abuse of power by one branch for the benefit of another is applicable in the context
involving a high ranking executive and private party. An analogy can be drawn, for
instance, that just as Section 265 aims to prevent a situation where one person uses his
capacity as a legislature to influence benefit for himself in another capacity as an
executive or judiciary, Section 267 also aims to prevent an employment in which a
Minister can use his executive power for the benefit of the private party he is associated
with.
The Court could as well, on the other hand, apply a narrow reading of 3
Legislations so that the issue under Section 265 was purely the separation of powers
between different branches of government, and the fact that the Constitution chooses to
deal with conflict of interests of Prime Minister and Ministers separately under Section
267 suggests that there is a level of scrutiny distinct from the one imposed on members of
the Parliament under Section 265. Unfortunately, not only was the Court silent on the very

159
3 Legislations Case, supra note 156, at 14-15.

160
Id. at 22-23 (separate opinion of Chief Judge Chat Chonlaworn), 34-35 (separate opinion of Judge
Charoon Intachan), 42-43 (separate opinion of Judge Chalermpon Ake-uru), 47(separate opinion of
J udge Nurak Marpraneet), 47 (separate opinion of J udge Vasan Soi-phisud), 59-60 (separate opinion of
J udge Supoj Kaimook), 63-64 (separate opinion of J udge Udomsak Nitimontri).

43
issue it discussed less than 2 months before it decided Cookery, the Court also seemed to
be less concerned with the general principle of the separation of powers which was
mentioned nowhere in Cookery even though the judiciary was in fact removing the head
of the executive branch.

B. Restraint
The author argues in the preceding section how the missing elements of legal
rationale in Cookery such as original understanding, legislative intent and existing
jurisprudence pertaining to separation of powers can provide useful room of inquiry for
the Court. Here, it is further argued that in case the rationalization does not lead the Court
to a clear answer on how it should deal with a matter that substantially effects another
branch of government, restraint should be favored whenever the Constitution provides an
alternative way for the same remedy to be offered by a different branch of government
that is more politically accountable.
For the purpose of developing this argument, assuming that the Court in Cookery
after inquiring into the separation of powers rationale behind the text and context of
Section 267 was unable to find a clear ground for disqualification of Mr. Samak, the Court
should consider whether there are alternatives to the same remedy, i.e. disqualification, by
another branch of government. If the Constitution leaves the question to be determined
exclusively by the judiciary, then the Court is obligated to apply the law by also taking
into account the rights and liberties being affected
161
to the best of its judicial judgment.
However in the context such as Cookery, alternatives can be observed as follows.
The Thai Constitution lists the grounds on which the Prime Ministership or an
individual Ministership is terminated. Such grounds include
162
(1) death; (2) resignation;

161
See discussions infra Part II.C.

162
Thai Constitution (2007), supra note 9, sec. 182 para.1.

44
(3) being sentenced to imprisonment;
163
(4) impeachment by a vote of no-confidence by
the House of Representatives;
164
(5) lacking certain specified qualifications (e.g.
nationality, age, health, financial status);
165
(6) removal by the King (according to Prime
Ministers recommendation);
166
(7) having breached conflict of interests provisions
167
and
(8) impeachment by a resolution of the Senate.
168

By applying a separation of powers rationale, the table below illustrates how the
Constitution entrusts different branches of government with the power to terminate an
individual Ministership.

Separation of powers in terminating a individual ministership (Section 182)
Executive Legislative J udiciary
(2) resignation;

(6) Removal (recommended
by the Prime Minister)
(4) impeached by a vote of
no-confidence by the House
of Representatives;

(8) impeached by a
resolution of the Senate.
(3) being sentenced to
imprisonment;

(7) having breached conflict
of interests provisions

163
Such judgment is irrespective of the finality of the case or a suspension of the punishment, except for a
non-final case or a suspension of the punishment in an offence committed through negligence or a petty
offence or an offence of defamation.

164

165
Id. sec. 174.

166
Id. sec. 183.

167
Id. secs. 267, 268, 269.

168
Id. sec. 274.

45
Considering the above scheme of separation of powers, the disqualification remedy
is made available by the Constitution not only through the judiciary, and indeed if the text
and the rationale do not explicitly guide the Court to act, the exercise of restraint by
leaving the disqualification to be decided by another branch is to be favored. The same
analysis can be applied to other cases of constitutional adjudication such as the issue on
whether a treaty must be approved by the Parliament
169
since the Parliament has the
means to politically force the executive to submit the treaty for its approval. The analysis
here, however, cannot be applied to cases where the remedy at issue can only be provided
by the judiciary, for instance in the case of disbanding political parties or the criminal
prosecutions of political officers.
In arguing for such restraint, the author is fully aware of the arguments, usually
facially persuasive and at times forcibly authoritative, that in the Thai parliamentary
system where the representatives and the executive are more dependent and closely
associated, and where there has been a long history of corruption that roots deeply within
the political branches, it is necessary for the people to place their reliance on the noble few
to guard them from political tyranny. Such notion are usually tied to the problem of vote
buying which are no longer transacted by delivery of hidden money but obvious
implementation of populist policies. Generalizations such as the lack of education and
culture of patronage are also often offered as extra layers of sympathy.
The author reiterates that the analysis here need not be applied to cases where
violations and wrongdoings are facially apparent. Indeed as J ames Bradley Thayer pointed
out, the judiciary has an important role to ensure the constitutionality of the legislation not
when the legislature make a mistake, but a very clear one that is not open to rational

169
See supra note 77.

46
question.
170
As will be illustrated below, the author adopts the same view when it comes
to ensuring that the executive and the legislature act within the limits of the Constitution.
But more importantly, it is the very presumption of distrust by certain members of the
Thai ruling class that fundamentally undermines the democratic learning experience of the
seldom acknowledged people who to their eyes made poor choices on election days, if
there were indeed better choices in the first place.
In translating such debatable democratic philosophy into a legal discourse, the
author acknowledges as a general premise some developed arguments supporting the limit
on judicial review of legislations. These arguments principally surrounds the notion that
judicial review counters the majoritarian rule in a democratic system and creates
democratic deficits by placing the task of value judgment in the hands of a small
unrepresentative group of judges.
171
The problem with leaving subjective value-based
questions to judges, in the simple words of J ustice Scalia, is that people know that their
value judgments are quite as good as those taught in any law schoolmaybe better.
172

While such arguments primarily focus on issues concerning rights, here the author intends
to apply the logic of these arguments to the broader Thai constitutional context involving
separation of powers by raising two contentions.

1. The Peoples Values
First, when the Thai Court is faced with unclear issues which are closely related to
the executive or the legislative domain, there is also no guarantee that judges would know

170
J ames B. Thayer, The Origin and Scope of the American Doctrine of Constitutional Law, 7 HARV. L.
REV. 129, 144 (1893); See also TRIBE, supra note 23, at 50.

171
See e.g. BICKEL supra note 30, at 16-23; LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR
CONSTITUTIONALISM AND J UDICIAL REVIEW (2004); IAN SHAPIRO, DEMOCRATIC J USTICE (1999); MARK
TUSHNET, TAKING CONSTITUTION AWAY FROM THE COURTS (1999); Waldron, supra note 49, at 1346;
See also TRIBE, supra note 23, at 47-50 (distinguishing the issue of judicial supremacy from judicial
review, and preferring a relatively robust form of the latter). Cf. DWORKIN, supra note 30, at 15-20
(arguing that when majoritarian institutions becomes defective, democracy does not object alternative
procedures). For critiques on ideas put forth by leading scholars, see BORK, supra note 30, at 187-221.

172
Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 1000-01 (1992) (Scalia, J ., dissenting).

47
better than the electorates. As seen in Cookery, although the review of constitutional
qualifications of a Prime Minister or a Minister is not the same function as the review of
legislature, the author argues that there is a similar contention when it comes to a value-
judgment by the judiciary which bears strong impacts on other branches of the
government.
An analogy may be drawn from the history behind the impeachment provisions in
the Constitution of the United States which originally involved much debate on the role of
the judiciary.
173
The present text of the Constitution is explicit that the House of
Representatives can commence the impeachment proceeding of a President and certain
Officers who is then tried by the Senate,
174
but the original proposal at the Philadelphia
Convention was that the impeachment of national officers be heard and determined by the
national judiciary.
175
Such proposal by Edmund Randolph which was presented as a part
of the Virginia Plan were met by different reactions from delegates at the Convention
who debated on the dependency between branches of government to the loyalty judges
may have to the presidents who appointed them etc., but eventually the delegates settled
on the option to have the Senate as the only trial court for impeachment.
176

One of the arguments for the role of the Senate made by Alexander Hamilton, who
originally supported the role of the judiciary but would not let the issue jeopardize the
adoption of the federal Constitution, was that unlike in general civil or criminal
proceedings, there are some unique aspects of impeachment trials that make it less

173
See PETER CHARLES HOFFER & N.E.H. HULL, IMPEACHMENT IN AMERICA 1635-1805, at 96-106 (1984);
MICHAEL J . GERHARDT, THE FEDERAL IMPEACHMENT PROCESS 3-17 (2d ed., 2000).

174
U.S. CONST. art. I 2-3, art. II 4.

175
2 MAX FERRAND, RECORDS OF THE FEDERAL CONVENTION 22 (Yale University Press 1966).

176
See HOFFER & HULL, supra note 173, at 98-100; GERHARDT, supra note 173, at 5-7.

48
appropriate for the trial body to be tied down by strict rules.
177
Indeed the scope of
impeachable high Crimes and Misdemeanors is understood as not only those legally
indictable offenses but also the political misconducts that abuse or violate public trust.
178

The trial of impeachment may therefore be more suited to a politically accountable body
that is more acquainted to areas of public policy or political judgment such as the Senate
rather than precise legal rules often engaged by the judges.
179
Michael J . Gerhardt further
observed a complicated situation in which the public trust has been violated but the
electorate or the Senate was fully informed of the misconduct and still elected or
confirmed the officer, and suggested that Congress would need to take into account the
public knowledge of such conduct at the time of election or confirmation.
180

The same logic applies to a less than precise situation such as Cookery and
underlines the need for the Court to rationalize the baseline of conflict of interests. The
Thai Court could either justify the appropriate occasion to apply the legal standard
legitimately deriving from the separation of powers doctrine under the Thai Constitution,
or on the other hand recognize the ambiguity of the conduct of Mr. Samak which should
be left for the House or the Senate to decide. Further, Mr. Samak already gained his public
fame from his cookery book and television program before he became the Prime Minister
and a public opinion poll suggested that his success as a television chef was among his
most recognized achievements.
181
The trust that the public had for Mr. Samak could thus

177
THE FEDERALIST 65, at 397 (Alexander Hamilton) (Clinton Rossiter ed., 1999).

178
Id. at 396. See also 1 J AMES WILSON, J AMES WILSON WORKS 426 (Robert G. McCloskey ed., 1967);
J OSEPH STORY, COMMENTARIES ON THE CONSTITUTION 272-273 (R. Rotunda and J . Nowak eds., 1987).

179
GERHARDT, supra note 173, at 13

180
Id. at 109.

181
Voranai Vanijaka, Open your eyes to the real Samak, THE BANGKOK POST,
http://www.bangkokpost.com/opinion/opinion/28298/ 29/11/2009 (last accessed Apr. 30, 2010) (citing
Suan Dusit Poll suggesting Mr. Samak's greatest accomplishment in his 40 years in politics was hosting
his TV cooking show Chim Pai Bon Pai or Tasting while Grumbling).

49
be better verified by members of the House or and at least not less than half of the elected
members in the Senate who unlike the Court are directly politically accountable to the
electorates. It was unfortunate that by declaring a broad prohibition without engaging in a
detailed rationalization on the notion of conflict of interests, one can only hopefully
assume that the Court felt no need to involve the peoples representatives in the process
only for the reason of public convenience and not their judgment-making capacity.

2. Democratic Process
Second, as an underlying rationale of the above argument, there is a political
process inherent in a constitutional legal order that the Thai judiciary and any organs of
the State are bound to promote and protect. In Baker v. Carr,
182
where the United States
Supreme Court decided that reapportionment (the change in the way voting districts are
organized) presented justiciable questions, J ustice Frankfurter dissented that such question
was political in nature and was unfit for judicial action.
183
Similarly, J ustice J ackson,
when faced with the question of military necessity as claimed by General DeWitt in
Korematsu,
184
found it inappropriate for the Court to engage in a question that may lead
people to rely on the Court to exercise judgments as if the justices were the military
commanders, and stressed that the proper restraint on the real commanders is their
responsibility to the political judgments of their contemporaries and to the moral
judgments of history.
185
He later eloquently reminded the Congress in Youngstown
186
by
suggesting that while that the Presidents emergency power is subject to the limitations

182
Baker v. Carr, 369 U.S. 186 (1962).

183
Id. at 331 (Frankfurter, J ., dissenting).

184
Toyosaburo Korematsu v. United States, 323 U.S. 214 (1944).

185
Id. at 249 (J ackson, J ., dissenting).

186
343 U.S. 579 (1952).

50
imposed by the Constitution and the representative lawmakers,
187
the President is also the
focus of public hopes and expectations and only Congress itself can prevent power from
slipping through its fingers
188
by responding to the need of the people wisely and timely.
The author is not suggesting that the questions presented to the Constitutional
Court such as the one in Cookery are political questions, as the modern text clearly
provides for judicial adjudication. Neither is it denied that in a fragile democracy
189
where
there is a long history of corruption, a manifest conflict of interests should be subject to
judicial control. The argument in favor of restraint here is based on the notion that when
the judiciary faces unclear constitutional questions that may bear substantial impacts on a
different branch of government, by leaving the answer to be decided by the people
through available democratic mechanisms, the judiciary is performing a democratic duty
in marking the place for aroused popular conscience that sears the conscience of the
peoples representatives.
190

The argument is in line with J ohn Hart Elys participation-oriented and
representation-reinforcing argument that the open-ended provisions in the United States
Constitution cannot be regarded as self-contained and exhaustive
191
and thus the
Constitution should be interpreted to police the process of representation such as by
promoting access to government through the focus on certain rights such as the right to
vote.
192
The author argues here that when a provision such as Section 267 is unclear and

187
Id. at 646-47 (J ackson, J ., concurring).

188
Id. at 654-55 (J ackson, J ., concurring).

189
See Samuel Issacharoff, Fragile Democracies, 120 HARV. L. REV. 1405 (2007).

190
69 U.S. 186, 271 (Frankfurter, J ., dissenting).

191
J OHN HART ELY, DEMOCRACY AND DISTRUST 11-41 (1980).

192
Id. at 73-104; J OHN HART ELY, ON CONSTITUTIONAL GROUNDS 6-9 (1996); Cf. TRIBE, supra note 23, at
190-97 (challenging that the Elys argument underestimates the connection between value judgment and
self-government and is insufficiently addresses invisible parts of the U.S. Constitution).

51
the Thai Constitution makes available the option to leave the question decided by the
representatives of the people, to ignore such option in a culture where the people are still
struggling to act through their representatives simply means to police against them. A
relevant support can be drawn from Thayers sharp observation that if judicial review is
exercised so broadly to offer expansive corrections, the next time a problem arises the
representatives of the people may simply feel that the court will correct it.
193

The Thai people are capable of choosing their own political course and it is only
from their own experience in the process that they learn the profound meaning of their
choice. If a Prime Minister violated their trust by committing a conduct not explicitly
banned by the Constitution, it is the will of the people and the responsibilty of their
representatives to deploy available political means to address the problem. The failure to
address the problem and any undesirable situations that follow are the most direct mean to
hold the people themselves accountable to their decisions; and through time allow them to
gain wisdom from learned mistakes. Such participatory consequences of a political
process, as Ronald Dworkin puts it, must flow from the distribution of political
activity.
194
It comes from the encouragement on members of the community to be aware
of the consequence of their expressed values and opinion which reinforces the motivation
for them to participate in decision making process. The same holds true for the value or
morality the Thai people expect from their Prime Ministers, as well as the reflection they
may have on their decisions. If delicate legal rationale dictates the Court that a violation is
unclear, there is no place for the Court to stand in the way of the peoples process left
open by the Constitution.

193
Thayer, supra note 170, at 15556 (1893).

194
RONALD DWORKIN, SOVEREIGN VIRTUE: THE THEORY AND PRACTICE OF EQUALITY 187 (2000); See also
ELY, supra note 191, at 74-75 (elaborating on the notion of participation values).

52
C. Rights
The final course of analysis is to ensure the role of the judiciary in promoting and
protecting the rights and liberties of the people against any adverse effect of legal
application lacking necessity and proportionality. The author argues that in all cases of
Constitutional adjudication, balancing consideration must be given to any adverse affects
on any guaranteed rights and liberties as a matter of constitutional public order, even
though such rights and liberties are not the primary issues of the case or are not raised by
the litigants. If any rights or liberties are under threat in the case at hand, restraint should
not be favored. In the contrary, if the judicial intervention may result in any restrictive
interpretation on rights or liberties, stronger favor is to be accorded to restraint and leave
the question decided by the politically accountable branches of government.

1. Rights and Restraint
It should be noted that this analysis does not contradict the restraint analysis above,
first because while the rights analysis is a general balancing test that should be applied in
all cases, the restraint analysis operates on the specific assumption that the rationalization
on the separation of powers does not render the text a clear meaning and that the same
judicial remedy and can be provided by a more politically accountable branch of
government.
More importantly, this rights analysis finds strong support in the text of the Thai
Constitution. The Thai judiciary just like the legislature, the executive and other State
organs are bound by the rule of law to ensure human dignity, rights, liberties and
equality,
195
and the Constitution guarantees that rights and liberties can be invoked and
remedies can be demanded by a Thai individual before a court of law.
196
The

195
Thai Constitution (2007), supra note 9, secs. 3-4, 26.

196
Id. sec. 28.

53
Constitutional Court in particular plays a vital role as the Thai Constitution not only
recognizes and guarantees the protection of those rights and liberties provided explicitly
and implicitly in the text, but also those that are recognized by the decisions of the
197

Above all, the lengthy provisions on rights and liberties in the Thai Constitution
some of which include references to parliamentary legislations,
198
unlike provisions such
as Section 267 dealing an undefined termed such as employee, provides a sufficient
level of details on the scope and nature of rights that should substantially limit the room
for the Court to assert subjective moral value or personal judgment in interpreting the
provisions. Ronald Dworkin who endorses a result-drive approach argues that in order to
achieve desirable results judicial engagement in moral questions is unavoidable when the
provisions of the United States Constitution on rights and liberties are stated in abstract
terms.
199
The provisions of the Thai Constitution arguably are less abstract and with
references to the limits and conditions imposed by legislature, the judicial engagement is
properly needed. As will be illustrated below, the rights analysis in the context of
sufficiently enumerated rights indeed reinforces the goal of the restraint analysis in the
context of ambiguous separation of powers questions.

2. Rights and Process
The rights analysis is important to the separation of powers that belong to the
people not only because it is constitutional duty of the judiciary to protect the rights and
liberties but also because it promotes the awareness of their status as the true owner of the
powers. By requiring the judges to speak on rights and liberties, citizens no longer thinks

197
Id. sec. 27.

198
See e.g. id. secs. 32 paras. 1-3, 33 para. 2, 35 para. 3, 40 para. 1(5), 42 para. 1; 47 para. 2; 64 para. 2.

199
DWORKIN, supra note 30, at 8.

54
of democracy as the arrangement between the officers, representatives, senators and
judges, but as an active connection, or to borrow the words of J ustice Steven Breyer, the
connections of this kind between the people and their government - connections that
involve responsibilty, participation and capacity.
200

Putting the analysis into context, the Court in Cookery in addition to enforcing the
conflict of interests provisions of the Constitution was also in essence interpreting the
limits of some rights and liberties guaranteed by the Constitution. Mr. Samak by turning
his cookery book into a television program was exercising his right to express his
opinions
201
on culinary matters, and if he was indeed employed as the Court said, he was
enjoying his economic liberty.
202
Indeed rights are subject to limits, and although this was
not a case dealing with a legislation forbidding free speech or certain commerce, it was
nonetheless a case where the people can see in real terms how the rights and liberties can
be restricted under the Constitution, what they can expect for the people chosen to
represent them in exercising such rights and liberties, and what they can expect for
themselves or someone they admire if they ever choose to volunteer or nominate someone
to participate directly or more closely in the political process.
The United States Supreme Court in 1995 faced a somewhat similar issue in
United States v. National Treasury Employees Union.
203
The National Treasury
Employees Union challenged the constitutionality of certain provisions of the Ethics in
Government Act of 1978,
204
as amended by the Ethics Reform Act of 1989, which
prohibits federal and government employees as well as Congressional members from

200
STEPHEN BREYER, ACTIVE LIBERTY : INTERPRETING OUR DEMOCRATIC CONSTITUTION 16 (2006).

201

202

203
United States v. National Treasury Employees Union, 513 U.S. 454.

204
5 U.S.C. App.

55
accepting an honorarium for making an appearance, speech, or writing an article even
when no connection between the employee's official duties and the subject matter of the
speech or article or the person or group paying for it can be established.
205
The issue was
whether such wide honorarium ban constituted an unconstitutional abridgement of the
freedom of speech protected by the First Amendment.
206

J ustice J ohn Paul Stevens writing for the 6 members of the majority held that such
flat ban violated freedom of speech and the government cannot rely on impropriety if
there is no connection between the job of the employee and the subject matter of the
speech or the party that is paying for the speech. In reaching the conclusion the Court
carefully considered the justifications and arguments raised by the litigants and applied a
balancing test between the benefits of the ban and the burden on speech restriction, and
found that the speculative benefits the honoraria ban may provide the Government are
not sufficient to justify this crudely crafted burden on respondents freedom to engage in
expressive activities.
207
Indeed in addition to guaranteeing the freedom of speech, the
Court was conscious of the separation of powers principle and noted that [the Courts]
obligation to avoid judicial legislation also persuades [the Court] to reject the
Government's second suggestion - that we modify the remedy by crafting a nexus
requirement for the honoraria banthe Court of Appeals properly left to Congress the
task of drafting a narrower statute.
208

In Cookery, the Thai Court stated that one of the purposes of the Constitution is to
establish and guarantee the status of institutions as well as rights and liberties of the

205
5 U.S.C. App. 502(b).

206
Although the issue was not related to the limitations on payments the Court was sensitive to the overall
effect of the statute. See 513 U.S. 454, 468 (noting that its prohibition on compensation unquestionably
imposes a significant burden on expressive activity).

207
Id. at 477.

208
Id. at 479.

56
citizens
209
however it was not clear how such principle was translated into action. It
should be observed that the Thai Constitution provides useful criteria for the Court to
determine how a legal restriction on the one hand should be enforced against the
competing interests of rights and liberties on the other. First, any invocation of rights and
liberties cannot be in contrary to the Constitution and good morals of the public
210
and
indeed the rights and liberties can be subjected to necessary limitations as provided by law
of the representatives.
211
The Constitution also makes an explicit exception that the State
or Government officials by default enjoy the same rights and liberties except such
enjoyment is restricted by law or by-law issued by virtue of the law specifically enacted in
regard to politics, efficiency, disciplines or ethics.
212

The Thai Court thus had the opportunity to apply these criteria and engage in a
balancing analysis of the need to protect certain rights and liberties for all individuals
including Mr. Samak on the one hand, and the need to safeguard political disciplines and
ethics as well as good public morals, such as the prioritization by a public officer of public
interests over personal interests, on the other. Analysis can be drawn from the legal
provisions that subject particular State officials to specific restrictions, such as the 1999
Organic Act.
213
At the same time, the Court could also inquire into the impacts on the
liberty of the public in engaging in a fair competition considering the time slot on a state-
owned television being assigned to a public figure.
Irrespective of the outcome, such balancing test not only would have further
justified the Court in reaching its decision but also allowed the Court to communicate to
the public how their rights and liberties are indeed recognized by one of the principal

209

210
Thai Constitution (2007), supra note 9, sec. 28 para. 1, sec. 43 para. 2, sec. 45 para. 2.

211
Id. sec. 29.

212
Id. sec. 31.

213
See discussions supra Part II.A.2.

57
guardians. The record provided by the Court does not indicate that issues of rights and
liberties were raised, and regrettably the Court treated such matter of constitutional public
order with silence.

III. INSTITUTIONAL CHARACTER
If one looks at the experience of the United States Supreme Court in its early days,
the Court was indeed conscious, and cautious, of possible political retaliation. Marbury v.
Madison
214
was an excellent example of a decision that came amid a strong tension
between the Federalists such as Marshall on one hand, and the J effersonians on the other
who were taking control of the executive and legislative. At the time of deep-cutting
revolution, the federal judiciary was regarded by the mass Republicans as a principal part
of the untrustworthy and hated system created by the once dominant Federalists, and
Marbury can be seen as Marshalls strategic avoidance of war with the armies of
J effersonian legislators.
215
Marshall would not have avoided issuing judicial order to the
executive branch had the compliance by J efferson and Madison seemed more likely.
216

Similarly, in Stuart v. Laird,
217
historical accounts suggest that Marshall and the court
decided not to uphold the constitutional challenge against the 1802 Repeal Bill, even
though Marshall and at least J ustice Samuel Chase believed it to be unconstitutional,
because they fear political retaliation against the court such as impeachment.
218

The Cookery decision entails the removal of the Prime Minister who came into
office after the promulgation of the new constitution by promising the voters to fight
against the unconstitutional process which led to the coup dtat that removed Mr.

214
5 U.S. (1 Cranch) 137 (1803).

215
See BICKEL supra note 30, at 2; EDWARD S. CORWIN, J OHN MARSHALL AND THE CONSTITUTION 70, at
56-57 (1919); HASKIN & J OHNSON, supra note 80, at 406.

216
See Klarman, supra note 41, at 1123-24.

217
Stuart v. Laird, 5. U.S. (1 Cranch) 299 (1803).

218
Id. at 1124-25.

58
Thaksin after landslide election victory. The brevity of the reasoning in Cookery which
lacks several elements of legal elaboration as illustrated in Part II of this paper begs the
question as to why the Thai Constitutional Court was confident enough to disqualify a
Prime Minister whose political platform was clearly associated with the leader of the party
disbanded by the Constitutional Tribunal that became the Court.
219

A. Observations
Indeed a quick response would be the appreciation of the Courts ethical qualities
and independence from political pressures, which no doubt should be preserved. However
in the spirit of academic inquiry, the discussions below do not suggest that the Court is
politically motivated in anyway; in contrast the point being inquired is whether such
confidence evidences a barrier shielding the Court from positive pressure to an extent that
caution is warranted. Such confidence may be traced back to the following.
First, the Thai judiciary has maintained a mostly non-political position throughout
the history of modern crises since 1932. The Thai public generally holds the judiciary in
high regard as the clean and independent branch of power that provides a clear contrast to
the executive and the legislature who are widely seen as corrupt and only interested to
fight to gain control of the government.
220
Although Thai courts had traditionally been
involved in upholding certain acts stemming out of coup dtat
221
and at times exercised
review power to safeguard rights and liberties,
222
only until recently has the Thai judiciary
been involved, for an ongoing period of time, in issues regarded as highly political.

219
BBC News, Obituary: Samak Sundaravej, http://news.bbc.co.uk/2/hi/asia-pacific/7212682.stm (last
accessed Apr. 30, 2010) (reporting that Mr. Samak continued the same policy pursued by Mr. Thaksin
and received supports for Mr. Thakins supporters); CNN.com, Ousted PM's supporters to take control,
http://www.cnn.com/2007/WORLD/asiapcf/12/23/thailand.election (last accessed Apr. 30, 2010)
(reporting that Mr. Samak intends to see a new parliament controlled by Palang Prachachon Party pass
an amnesty law and amend the constitution to allow Mr. Thaksin to eventually return to politics).

220
See e.g. C. Neal Tate, The Philippines and Southeast Asia, in THE GLOBAL EXPANSION OF J UDICIAL
POWER 463, 464 (C. Neal Tate & Torbjrn Vallinder eds., 1995).

221
See e.g. supra note 53.

222
See e.g. supra note 54.

59
Moreover, the Constitutional Tribunal that existed before the 1997 Constitution did not
have the broad review power to engage in cases such as Cookery,
223
not to mention the
disbanding of political parties. Indeed, it was the Prime Minister himself who could ask
the Constitutional Tribunal to rule on the qualifications of the members of the cabinet,
224

which otherwise would be much less complicated if the Prime Minster chose to exercise
his alternative power to reshuffle the cabinet.
225

The Constitutional Court under the 1997 Constitution started to hear cases that
widely generated political interests, but many of them involved the challenge on
constitutionality of statutes and general disclosure of assets by politicians. It wasnt until
the 2006 coup dtat when the judiciary started to attract much greater public attention and
controversies.
226
The respect of the judiciary is also reinforced by the traditional notion,
written as a clause of the Constitution
227
and stated on the first page of each judicial
decision, that judges decide cases in the name of the King, who is overwhelmingly
revered by the Thais.
228
Naturally, the fact that the majority of the Constitutional justices
are nominated by and from among the Supreme Court and Supreme Administrative Court
justices
229
may have helped carry the confidence to the Constitutional Court today.
Second, the Courts confidence may relate to the difficulty of removing a judge
from office. The Thai Constitution provides 8 causes of the termination of office
holding:
230
(1) death; (2) reaching the term limit of 9 years; (3) being of seventy years of

223
Constitution of the Kingdom of Thailand Buddhist Era 2534 (1991), Thai Royal Gazette vol. 108 pt. 126.
224
Id. sec. 170.
225
Id. sec. 171.
226
See supra note 70.
227
Thai Constitution (2007), supra note 9, sec. 197.
228
See generally KOBKUA SUWANNATHAT-PIAN, KINGS COUNTRY AND CONSTITUTIONS, (2003); The King
has made significant remarks, often to judges, on the monarchs role in democracy, see Uwanno, supra
note 3, at 157-58. There are also broader scholarships on the subject that are seldom discussed in
Thailand. See e.g. LOOS, supra note 23, 13-24, 179-85.
229
Id. sec. 204.

230
Id. sec. 209.

60
age; (4) resignation; (5) lacking any specified qualifications (e.g. nationality and
minimum age requirements etc.) or violation of constitutional prohibitions (e.g. becoming
a member of the parliament, bankrupt, mentally disordered etc.); (6) violation of conflict
of interest provisions (e.g. becoming an employee of a state enterprise or private
companies etc.); (7) impeachment by a Senate resolution; and (8) having been sentenced
by a judgment to a term of imprisonment, except for a non-final case or a suspended
punishment in negligence or a petty offence or an offence of defamation.
Out of these cases, impeachment by the Senate is the only case that directly
involves another branch, the legislative. The impeachment requires at least three-fifth of
the senators
231
on the broad grounds that the justice is under the circumstance of unusual
wealth, or purports to commit corruption, malfeasance in office, malfeasance in judicial
office or an intentional exercise of power contrary to the provisions of the Constitution or
law, or gravely violates or fails to observe ethical standards.
232
What is even more
relevant is perhaps the institutional design of not only the Court but also the Senate as
adopted by the current Constitution. The Senate comprises 150 members, 76 of which are
elected, and 74 are appointed by a special committee of 7 members, 3 of which come from
the Constitutional Court, the Supreme Court and the Supreme Administrative Court, and 4
of which are the heads of independent organs whose nomination and selection process
also significantly relied on the input from judiciary.
233
These factors coupled with the fact
that the term of office of a Constitutional Court justice is 9 years
234
whereas for a Senator
is 6 years
235
make it possible for the judiciary as an institution to assert its influence over
the selection of at least 74 members of the Senate whose term might potentially lapse with

231
Id. sec. 274.

232
Id. sec. 270.

233
Id. secs. 113, 206, 207, 231, 243, 248.

234
Id. sec. 208.

235
Id. sec. 117.

61
the term of the Court, and it wouldnt be too far to suggest that such Senators are likely to
have positive views towards the exercise of judicial power and thus make it even more
difficult for the impeachment to take place, if to be worried at all.
The third explanation may be traced to the overall limited exposure to other forms
of general pressure. The decisions of the Court are final, binding and there are no
mechanisms to appeal the legal ruling like in other courts of law. The Thai Constitution
does not provide a specific process for the parliament to undo the legal effect of the ruling
by the Constitutional Court except to amend the Constitution. At the same time, the
tradition of critical legal scholarship in Thailand can be seen as still developing and a part
of reason may owe to the way the Court writes the opinion. Although the Constitution
requires the decision of the Constitutional Court to consist of at minimum the background
or the allegation concerned, a summary of facts obtained from hearings, reasons for the
decision on questions of fact and questions of law and the provisions of the Constitution
and the law invoked and resorted to,
236
the Court has not maintained a practice of
disclosing legal authority that, while not necessarily controlling in any way, informs their
reasoning even when the Court engages in abstract principles of constitutional law.
237

Apart from references to its own precedents and general doctrinal pronouncements,
citations to other authorities are rare, and as seen in Cookery the Court did not indicate its
usage of a passage from the preparatory record prepared by the framers of the
Constitution,
238
and also mentioned only a name of a witness to rebut Mr. Samaks
evidence without indicating the content of her statement.
239
The decision also mentions
two television programs but only mainly discussed evidence related to one of them

236
237
But there are indeed individual jurists whose separate opinions usually provide examples of
jurisprudential richness. See e.g. 10 Ministers Case, supra note 144, at 106-17. (separate opinion by
J udge Preecha Chalermwanit) (expounding the principle of separation of powers with sources cited).

238
See supra note 108.

239

62
without making clear whether the banned conflict of interests exist in both cases.
240
Other
inconsistencies also appear for instance, the main part of the opinion states that 6 judges
found Mr. Samak to be an employee and 3 judges found Mr. Samak to be in a partnership
with the television production company and none of them felt the need to examine the
other contended status of Mr. Samak since either employment or partnership would satisfy
the disqualification ground under Section 267.
241
Nevertheless, one judge indeed stated in
his separate opinion that the evidence was insufficient to make Mr. Samak and employee,
and Mr. Samak was found to have held a position in the television production company,
but it was not mentioned that the relationship between Mr. Samak and the television
production company amounted to a partnership.
242
Such overall nature of decision writing
makes it harder for the academic community and other well-meaning critics to examine
the works of the Court which might serve as an additional form of constructive pressure.
B. Reactions
At least a brief response is warranted for each of the above three observations.
First, considering the generally untainted record of the judiciary in Thai political history
given its previous constitutional mandates, it is not a surprise that the Court maintains
moral legitimacy, recognized integrity and public trust when it starts to exercise its
broader powers under the current Constitution. As time goes by such perception however
might be withered by the growing social force which starts to question the Courts clarity
and reasoning in rendering decisions, a case in point being Cookery as illustrated above.
Second and more importantly, the structural relationship between the judiciary and
the Senate as institutions of checks and balances must be reexamined whether or not the

240

241
Id. at 15-16. The decision mentions Mr. Samaks appearance on Chim Pai Bon Pai program as well as
Yok Ka Yong Hok Mong Chow program, both produced by the same company, but mainly discussed
evidence pertaining to the former, and then established the employment relationship without clarifying
any distinctions between the relationship stemming out of the two programs as evidenced by the facts.

242
Id. at 55-57 (separate opinion of J udge Supoj Kaimook).

63
Senate has become more or less a comfort zone for the judiciary. The author indeed
recognizes that it is the trust in the clean judiciary in the first place which led the
framers to agree to the current institutional design; such trust nevertheless must be met
with caution in order to preserve the balance of power separation to ensure the faithful
constitutional and legal interpretation, which is as important as its integrity.
Finally, the approach of the Court in conducting its legal discourse to the public
and the academic community can benefit from a practice which clearly and consistently
reveals factual and legal analysis and sources of legal authority, with precise statement of
dispositive in relation to the established facts and law. The status quo reflects a root
problem in the Thai legal system where legal research and writing components are
insufficiently provided at the educational institutions in the first place, due to fundamental
constraints such as the lack of both capital and human resource.
243
The judiciary,
especially the Constitutional Court, can help to improve the discourse by, for instance,
initiating attractive, selective and rigorous judicial clerkship programs where law students
work closely and directly with the judges in legal research and drafting of opinions.
244

243
See Tithiphan Chuerboonchai & Pareena Srivanit (revised by Sakda Thanitcul), ASEAN Charter and the
Legal Education in Thailand, a paper presented at ASEAN LAW ASSOCIATION 10TH GENERAL
ASSEMBLY, http://www.aseanlawassociation.org/10GAdocs/Thailand1.pdf (admitting that research and
writing skills are not sufficiently trained in Thai law schools due to basic constraints such as lack of
funding and incentives to attract human capital). The author adds that traditional social norms of being
emotionally attached to the prestige of State institutions, despite the lower academic compensation
compared to private universities, have not only led to human resource distribution problem that
regenerates the prestige problem in the first place, but also leave many of the academics with the
incentives to conduct research paid by organizations and agencies many of which belong to the State and
sometimes the Courts, as a more concrete mean of finding extra income rather than pursuing their
independent academic agenda which may otherwise more timely address the need of the society.

244
While the proposal is being considered by the Thai Supreme Court, currently there is no established
culture of such judicial clerkship, however there are training programs where students are assigned to
work in different offices of the courts which may only involve some general research and secretarial
works. One related activities where the Court and the educational institutions can work on is the
development of legal advocacy not only through the expansion of moot court competitions for students,
but also at the actual court proceedings, by changing the status quo, where judges mostly listen to
counsel and then deliberate among themselves, to where the judges are encouraged to have a richer
engagement with the counsel not only in terms of oral advocacy, but by concrete and argumentative
reference to the documents of the proceedings.

64
CONCLUSION
One Constitution, bearing the same essence as any other, contemplates that
practice will integrate the dispersed powers into a workable government. It enjoins upon
its branches separateness but interdependence, autonomy but reciprocity.
245
Such
workable government in a young and fragile Thai democracy, this paper argues, is more
likely to be achieved when there is a higher level of judicial consciousness on the
separation of powers. One possibility proposed here is to apply a three-course analysis of
unclear provisions of the Constitution where a judicial application can render substantive
impacts on the branches of government.
First, the text and the structure must be rationalized by examining the drafting
history that involved the elements of power expressed informally through contemporary
actors of different branches, then taken together with the intent of the representatives of
the people that speak on the same subject, with due regard given to judicial precedents
recognizing the delicacy of interdependence in different cases that deserve fine and
sophisticated distinctions. Such rationalization should bring about the coherence of
constitutional interpretation that earns from and adds to the legitimate expectations of all
branches of the government.
Second, when such delicate legal rationale yields no obvious answers, which is but
a natural occurrence in any evolving society, solutions are to be found not in deepest logic
of the wisest few, but in the acquired experience of the people in placing their trust on the
right and more accountable representatives. Democracy is to be seen as a process
facilitated by the Constitution, and there is no greater danger but the foreclosure of such
process through impositions of values not clearly pronounced neither by the text nor the
public conscience. Indeed the safe and permanent road towards reform is that of

245
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. at 635 (J ackson, J ., concurring).

65
impressing upon our people a far stronger sense than they have of the great range of
possible harm and evil that our system leaves open, and must leave open, to the
legislaturesso that responsibility may be brought sharply home where it belongs.
246

Finally, any impact from constitutional adjudication on rights and liberties is to be
treated as a constitutional public order which is not only for the parties to raise in a case at
bar but also for the judges to be mindful of the constitutional duties impressed upon them.
The judiciary has a role to ensure that the people are reminded of the connection that
exists between them and their government, which is best seen when their rights are
exercised, challenged, and defended according to the restrictions put in place by the
Constitution. It is such promotion of awareness that will also further strengthen their
participation in the process where judicial restraint is to be accorded.
The above analysis targeting at the Courts methodology, the author hopes, is more
tangible but not any less significant than the vocabulary of democratic reform so often
used in Thailand such as values (conscience, ethics, morality etc.), education,
responsibility, awareness, participation, appreciation, tolerance etc. The outcome of
Cookery and other cases could have turned out the very same way but through a different
approach that absorbs greater legitimacy and disperses far stronger democratic spirit. The
current political struggles, social injustice and economic disparity have led the Thai
society to place great hopes on the clean branch of the government, and it is in such
moment where the Courts jurisprudence and institutional character is best put to the test.
Greatness is hardly measured in easy times, and no exception is granted for the judiciary.

246
Thayer, supra note 170, at 156.

66
Appendix A
THE CONSTITUTION OF THE KINGDOM OF THAILAND BUDDHIST ERA 2550
Thai Royal Gazette vol. 124 pt. 27 (kor)

The English content that follows the table below is a translation by Assistant Professor
Dr. Pinai Nanakorn which was made available to the public by the Constitution
Drafting Commission of the Constitution Drafting Assembly, and published by the
Bureau of Printing Services, the Secretariat of the House of Representatives in
November 2007. The translation is included here for the purpose of convenient
reference and the original Thai text should always be consulted.

Parts Starts at

PREAMBLE

CHAPTER I: General Provisions ..................................................................................................... Section 1

CHAPTER II: The King ................................................................................................................... Section 8

CHAPTER III: Rights and Liberties of the Thai People
Part 1 General Provisions .......................................................................................................... Section 26
Part 2 Equality ........................................................................................................................... Section 30
Part 3 Personal Rights and Liberties ......................................................................................... Section 32
Part 4 Rights in the Administration of Justice .......................................................................... Section 39
Part 5 Rights in Property ........................................................................................................... Section 41
Part 6 Rights and Liberties in Occupation ................................................................................ Section 43
Part 7 Liberties in Expression of Persons and Mass Media ..................................................... Section 45
Part 8 Rights and Liberties in Education .................................................................................. Section 49
Part 9 Rights to Public Health Services and Welfare from the State ....................................... Section 51
Part 10 Rights in connection with Information and Complaints ................................................ Section 56
Part 11 Liberties in connection with Assembly and Association ............................................... Section 63
Part 12 Community Rights .......................................................................................................... Section 66
Part 13 Rights to Protect the Constitution ................................................................................... Section 68

CHAPTER IV: Duties of the Thai People ..................................................................................... Section 70

CHAPTER V: Directive Principles of Fundamental State Policies
Part 1 General Provisions ........................................................................................................... Section 75
Part 2 Directive Principles on National Security ........................................................................ Section 77
Part 3 Directive Principles on the Administration of the State Affairs ...................................... Section 78
Part 4 Directive Principles on Religions, Social Affairs, Public Health,
Education and Cultural Affairs ......................................................................................... Section 79
Part 5 Directive Principles on Legislation and the Administration of J ustice ........................... Section 81
Part 6 Directive Principles on Foreign Affairs ........................................................................... Section 82
Part 7 Directive Principles on Economy ..................................................................................... Section 83
Part 8 Directive Principles on Land, Natural Resources and the Environment ......................... Section 85
Part 9 Directive Principles on Science, Intellectual Property and Energy ................................. Section 86
Part 10 Directive Principles on Public Participation .................................................................. Section 87

67
Parts Starts at

CHAPTER VI: The National Assembly
Part 1 General Provisions ........................................................................................................... Section 88
Part 2 The House of Representatives .......................................................................................... Section 93
Part 3 The Senate ....................................................................................................................... Section 111
Part 4 Provisions Applicable to Both Houses ........................................................................... Section 122
Part 5 J oint Sittings of the National Assembly ......................................................................... Section 136
Part 6 Enactment of Organic Acts ............................................................................................. Section 138
Part 7 Enactment of Acts ........................................................................................................... Section 142
Part 8 Scrutiny of Unconstitutionality of Enactment ................................................................ Section 154
Part 9 Scrutiny of Administration of the State Affairs ............................................................. Section 156

CHAPTER VII: Direct Political Participation by the People.................................................... Section 163

CHAPTER VIII: Fiscal Affairs, Finance and Budget ................................................................ Section 166

CHAPTER IX: The Council of Ministers .................................................................................... Section 171

CHAPTER X: The Courts
Part 1 General Provisions ......................................................................................................... Section 197
Part 2 Constitutional Court ........................................................................................................ Section 204
Part 3 Courts of J ustice .............................................................................................................. Section 218
Part 4 Administrative Courts ..................................................................................................... Section 223
Part 5 Military Courts ................................................................................................................ Section 228

CHAPTER XI: Constitutional Organs
Part 1 Constitutional Independent Organs
1. Election Commission ......................................................................................................... Section 229
2. Ombudsmen ...................................................................................................................... Section 242
3. National Counter Corruption Commission ...................................................................... Section 246
4. State Audit Commission .................................................................................................... Section 252
Part 2 Other Constitutional Organs
1. Public Prosecutors ............................................................................................................. Section 255
2. National Human Rights Commission ............................................................................... Section 256
3. National Economic and Social Council ............................................................................ Section 258

CHAPTER XII: Scrutiny of the Exercise of State Powers
Part 1 Proprietary Scrutiny ....................................................................................................... Section 259
Part 2 Action Amounting to a Conflict of Interests .................................................................. Section 265
Part 3 Removal from Office ...................................................................................................... Section 270
Part 4 Criminal Proceedings Against Persons Holding Political Positions .............................. Section 275

CHAPTER XIII: Ethics of Holders of Political Positions and State Officials ......................... Section 279

CHAPTER XIV: Local Government ............................................................................................ Section 281

CHAPTER XV: Amendment of the Constitution ...................................................................... Section 291

TRANSITORY PROVISIONS ..................................................................................................... Section 292
CONSTITUTION
OF THE KINGDOM OF THAILAND
__________________
SOMDET PHRA PARAMINTHARAMAHA
BHUMIBOL ADULYADEJ
SAYAMMINTHARATHIRAT BOROMMANATTHABOPHIT
Enacted on the 24
th
Day of August B.E. 2550 (2007);
Being the 62
nd
Year of the Present Reign.
May there be virtue. Today is the eleventh day of the
waxing moon in the ninth month of the year of the Pig under the
lunar calendar, being Friday, the twenty fourth day of August under
the solar calendar, in the 2550
th
year of the Buddhist Era.
Phrabat Somdet Phra Paramintharamaha Bhumibol
Adulyadej Mahitalathibet Ramathibodi Chakkri Narubodin
Sayammintharathirat Borommanatthabophit is graciously pleased
to proclaim that the President of the National Legislative Assembly
has informed that Thailands democratic regime of government
with the King as Head of the State has progressed with the passage
of over seventy five years and over the years there have been, on
a number of occasions, the promulgation, repeal and amendment
of constitutions so as to be appropriate to attending circumstances
of the country as well as temporal changes; and whereas the
Constitution of the Kingdom of Thailand (Interim), B.E. 2549
(2006) made provision for the establishment of the Constituent
Assembly and the Constitution Drafting Commission in charge of
preparing an entirely new draft constitution as guidance for the
government of the country, in a manner allowing members of the
Published in the Government Gazette, Vol. 124, Part 27a,
government of the country, in a manner allowing members of the
public to have participation and express opinions extensively at
every stage and taking those opinions into particular account in
preparing the draft and considering submitted motions on a
continued basis.
This newly prepared draft constitution makes provision
for achieving common intentions of the Thai people in connection
with the upholding of national independence and security, the nurture
of all religions, the upholding of the King as Head of the State and
as the revered centre of national morale, the adherence to the
democratic regime of government with the King as Head of the
State as a means to rule the country, the protection of rights and
liberties of the people, the provision of public roles and participation
in the government and in the scrutiny of the exercise of State powers
in concrete ways, the formulation of mechanisms for ensuring that
political institutions, both in the Legislature and the Executive, shall
achieve the equilibrium and efficiency along the line of the
parliamentary system and also that the judicial institution and other
independent organs shall perform duties in an honest and fair
manner.
Having completed the preparation of the draft
constitution, the Constituent Assembly publicised the draft and
caused to be conducted a referendum for approving the draft
constitution in toto. It has been apparent from the referendum
that a majority of people having the right to vote, who were present
at the referendum, gave approval to this new draft constitution.
The President of the National Legislative Assembly therefore
presented the draft constitution to the King for His Royal signature
in order to promulgate it as the Constitution of the Kingdom of
Thailand. The King has deemed it expedient to grant His Royal
assent in accordance with the resolution of the people.
Be it, therefore, commanded by the King that the
Constitution of the Kingdom of Thailand be promulgated to
replace, as from the date of its promulgation, the Constitution of
the Kingdom of Thailand (Interim), B.E. 2549 (2006) promulgated
on 1
st
October B.E. 2549 (2006).
May the Thai people unite in observing, protecting and
upholding the Constitution of the Kingdom of Thailand in order to
maintain the democratic regime of government and the sovereign
power derived from the Thai people, and to bring about happiness,
prosperity, and dignity to His Majestys subjects throughout the
Kingdom according to the will of His Majesty in every respect.
CHAPTER I
General Provisions
Section 1. Thailand is one and indivisible Kingdom.
Section 2. Thailand adopts a democratic regime of
government with the King as Head of the State.
Section 3. The sovereign power belongs to the Thai
people. The King as Head of the State shall exercise such power
through the National Assembly, the Council of Ministers and the
Courts in accordance with the provisions of this Constitution.
The performance of duties of the National Assembly,
the Council of Ministers, the Courts, and the constitutional organs
as well as State agencies shall be under the Rule of Law.
Section 4. The human dignity, rights and liberties and
equality of the people shall be protected.
Section 5. The Thai people, irrespective of their origins,
sexes or religions, shall enjoy equal protection under this
Constitution.
Section 6. The Constitution is the supreme law of the
State. The provisions of any law, rule or regulation, which are
contrary to or inconsistent with this Constitution, shall be
unenforceable.
Section 7. 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.
Verapat Pariyawong: A Critique on Thai Democracy and Judicial Review Harvard Law School LL.M. Paper (Appendix A)
68
CHAPTER II
The King
Section 8. The King shall be enthroned in a position of
revered worship and shall not be violated.
No person shall expose the King to any sort of accusation
or action.
Section 9. The King is a Buddhist and Upholder of
religions.
Section 10. The King holds the position of Head of the
Thai Armed Forces.
Section 11. The King has the prerogative to create
titles and confer decorations.
Section 12. The King selects and appoints qualified
persons to be the President of the Privy Council and not more
than eighteen Privy Councillors to constitute the Privy Council.
The Privy Council has a duty to render such advice to
the King on all matters pertaining to His functions as He may consult,
and has other duties as provided in this Constitution.
Section 13. The selection and appointment or the
removal of a Privy Councillor shall depend entirely upon the Kings
pleasure.
The President of the National Assembly shall countersign
the Royal Command appointing or removing the President of the
Privy Council.
The President of the Privy Council shall countersign the
Royal Command appointing or removing other Privy Councillors.
Section 14. A Privy Councillor shall not be a member
of the House of Representatives, senator, Election Commissioner,
Ombudsman, member of the National Human Rights Commission,
judge of the Constitutional Court, judge of an Administrative Court,
member of the National Counter Corruption Commission, member
of the State Audit Commission, Government official holding a
permanent position or receiving a permanent salary, official of a
State enterprise, other State official or holder of other position of
member or official of a political party, and must not manifest loyalty
to any political party.
Section 15. Before taking office, a Privy Councillor
shall make a solemn declaration before the King in the following
words:
I, (name of the declarer), do solemnly declare that I
will be loyal to His Majesty the King and will faithfully perform my
duties in the interests of the country and of the people. I will also
uphold and observe the Constitution of the Kingdom of Thailand
in every respect.
Section 16. A Privy Councillor vacates office upon
death, resignation or removal by a Royal Command.
Section 17. The appointment and removal of officials
of the Royal Household and of the Royal Chief Aide-de-Camp
shall depend entirely upon the Kings pleasure.
Section 18. Whenever the King is absent from the
Kingdom or unable to perform His functions for any reason
whatsoever, the King will appoint a person Regent, and the
President of the National Assembly shall countersign the Royal
Command therefor.
Section 19. In the case where the King does not appoint
a Regent under section 18, or the King is unable to appoint a
Regent owing to His not being sui juris or any other reason
whatsoever, the Privy Council shall submit the name of a person
suitable to hold the office of Regent to the National Assembly for
approval. Upon approval by the National Assembly, the President
of National Assembly shall make an announcement, in the name
of the King, to appoint such person as Regent.
During the expiration the term of the House of
Representatives or the dissolution thereof, the Senate shall act as
the National Assembly in giving an approval under paragraph one.
Section 20. While there is no Regent under section 18
or section 19, the President of the Privy Council shall be Regent
pro tempore.
In the case where the Regent appointed under section
18 or section 19 is unable to perform his or her duties, the President
of the Privy Council shall act as Regent pro tempore.
While being Regent under paragraph one or acting as
Regent under paragraph two, the President of the Privy Council
shall not perform his or her duties as President of the Privy Council.
In such case, the Privy Council shall select a Privy Councillor to
act as President of the Privy Council pro tempore.
Section 21. Before taking office, the Regent appointed
under section 18 or section 19 shall make a solemn declaration
before the National Assembly in the following words:
will be loyal to His Majesty the King (name of the King) and will
faithfully perform my duties in the interests of the country and of
the people. I will also uphold and observe the Constitution of the
Kingdom of Thailand in every respect.
During the expiration of the term of the House of
the National Assembly under this section.
Section 22. Subject to section 23, the succession to
the Throne shall be in accordance with the Palace Law on
Succession, B.E. 2467 (1924).
The Amendment of the Palace Law on Succession, B.E.
2467 shall be the prerogative of the King. At the initiative of the
King, the Privy Council shall draft the Palace Law Amendment
and shall present it to the King for His consideration. When the
King has already approved the draft Palace Law Amendment and
put His signature thereon, the President of the Privy Council shall
notify the President of the National Assembly for informing the
National Assembly. The President of the National Assembly shall
countersign the Royal Command, and the Palace Law Amendment
shall have the force of law upon its publication in the Government
Gazette.
the National Assembly in acknowledging the matter under
paragraph two.
Section 23. In the case where the Throne becomes
vacant and the King has already appointed His Heir to the Throne
under the Palace Law on Succession, B.E. 2467, the Council of
Ministers shall notify the President of the National Assembly. The
President of the National Assembly shall convoke the National
Assembly for the acknowledgement thereof, and the President of
the National Assembly shall invite such Heir to ascend the Throne
and proclaim such Heir King.
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In the case where the Throne becomes vacant and the
King has not appointed His Heir under paragraph one, the Privy
Council shall submit the name of the Successor to the Throne
under section 22 to the Council of Ministers for further submission
to the National Assembly for approval. For this purpose, the
name of a Princess may be submitted. Upon the approval of the
National Assembly, the President of the National Assembly shall
invite such Successor to ascend the Throne and proclaim such
Successor King.
the National Assembly in acknowledging the matter under
paragraph one or in giving an approval under paragraph two.
Section 24. Pending the proclamation of the name of
the Heir or the Successor to the Throne under section 23, the
President of the Privy Council shall be Regent pro tempore.
In the case where the Throne becomes vacant while the Regent
has been appointed under section 18 or section 19 or while the
President of the Privy Council is acting as Regent under section
20 paragraph one, such Regent, as the case may be, shall continue
to be the Regent until the proclamation of the name of the Heir or
the Successor to ascend the Throne as King.
In the case where the Regent who has been appointed
and continues to be the Regent under paragraph one is unable to
perform his or her duties, the President of the Privy council shall
act as Regent pro tempore.
In the case where the President of the Privy Council is
the Regent under paragraph one or acts as Regent pro tempore
under paragraph two, the provisions of section 20 paragraph three
shall apply.
Section 25. In the case where the Privy Council will
have to perform its duties under section 19 or section 23 paragraph
two, or the President of the Privy Council will have to perform his
or her duties under section 20 paragraph one or paragraph two or
section 24 paragraph two, and during that time there is no President
of the Privy Council or the President of the Privy Council is unable
to perform his or her duties, the remaining Privy Councillors shall
elect one amongst themselves to act as President of the Privy
Council or to perform the duties under section 20 paragraph one
or paragraph two or section 24 paragraph three, as the case may
be.
CHAPTER III
Rights and Liberties of the Thai People
Part 1
General Provisions
Section 26. In exercising powers of all State authorities,
regard shall be had to human dignity, rights and liberties in
accordance with the provisions of this Constitution.
Section 27. Rights and liberties recognised by this
Constitution expressly, by implication or by decisions of the
Constitutional Court shall be protected and directly binding on the
National Assembly, the Council of Ministers, Courts, constitutional
organs and State agencies in enacting, applying and interpreting
laws.
Section 28. A person can invoke human dignity or
exercise his or her rights and liberties in so far as it is not in violation
of rights and liberties of other persons or contrary to the
Constitution or good morals.
A person whose rights and liberties recognised by this
Constitution are violated can invoke the provisions of this
Constitution for the purpose of exercising rights through the medium
of the Court or defending himself or herself in the Court.
A person may have a recourse to the Court for directly
enforcing the State to comply with provisions in this Chapter.
Where the exercise of any particular right or liberty as recognised
by this Constitution is a subject-matter of the existing law, such
right and liberty shall be exercisable as provided by law.
A person shall have the right to receive from the State
promotion, support and assistance as needed for the exercise of
right in accordance with the provisions of this Chapter.
Section 29. The restriction of such rights and liberties
as recognised by the Constitution shall not be imposed on a person
except by virtue of provisions of the law specifically enacted for
the purpose determined by this Constitution and to the extent of
necessity and provided that it shall not affect the essential
substances of such rights and liberties.
The law under paragraph one shall be of general
application and shall not be intended to apply to any particular
case or person; provided that the provision of the Constitution
authorising its enactment shall also be mentioned therein.
The provisions of paragraph one and paragraph two shall
also apply mutatis mutandis to by-laws issued by virtue of
provisions of law.
Part 2
Equality
Section 30. All persons are equal before the law and
shall enjoy equal protection under the law.
Men and women shall enjoy equal rights.
Unjust discrimination against a person on the grounds of
the difference in origin, race, language, sex, age, disability, physical
or health condition, personal status, economic or social standing,
religious belief, education or constitutionally political view, shall
not be permitted.
Measures determined by the State in order to eliminate
obstacles to or to promote persons ability to exercise their rights
and liberties in the same manner as other persons shall not be
deemed as unjust discrimination under paragraph three.
Section 31. Members of the armed forces or the police
force, Government officials, other State officials and officials or
employees of State agencies shall enjoy the same rights and liberties
under the Constitution as those enjoyed by other persons, unless
such enjoyment is restricted by law or by-law issued by virtue of
the law specifically enacted in regard to politics, efficiency,
disciplines or ethics.
Part 3
Personal Rights and Liberties
Section 32. A person shall enjoy the right and liberty in
his or her life and person. A torture, brutal act, or punishment by a
cruel or inhumane means shall not be permitted; provided, however,
that punishment in execution of a judgment of the Court or as
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provided by law shall not be deemed the punishment by a cruel or
inhumane means under this paragraph.
No arrest or detention of person shall be made except
by an order or a warrant of the Court or upon other causes as
provided by law.
A search of a person or an act affecting the right and
liberty under paragraph one shall not be made unless upon such
causes as provided by law.
In the case where there occurs an act affecting the right
and liberty under paragraph one, the injured person, the Public
Prosecutor or any other person, in the interest of the injured person,
has the right to file an application to the Court for an order stopping
or revoking such act, and, for this purpose, there may be
determined appropriate means or remedies for injury sustained.
Section 33. A person shall enjoy the liberty of dwelling.
A person is protected for his or her peaceful habitation in and for
possession of his or her dwelling place.
An entry into a dwelling place without consent of its
possessor or a search of a dwelling place or a private place shall
not be made except by an order or a warrant of the Court or upon
other causes as provided by law.
Section 34. A person shall enjoy the liberty of travelling
and the liberty of making the choice of his or her residence within
the Kingdom.
The restriction on such liberties under paragraph one
shall not be imposed except by virtue of the law specifically enacted
for the security of the State, public order, public welfare, town
and country planning or welfare of the youth.
No person of Thai nationality shall be deported or
prohibited from entering the Kingdom.
Section 35. A persons family rights, dignity, reputation
and the right of privacy shall be protected.
The assertion or circulation of a statement or picture in
any manner whatsoever to the public, which violates or affects a
persons family rights, dignity, reputation or the right of privacy,
shall not be made except for the case which is beneficial to the
public.
A person shall have the right to be accorded protection
against undue exploitation of personal data related to his or her
individuality, as provided by law.
Section 36. A person shall enjoy the liberty of
communication by lawful means.
The censorship, detention or disclosure of
communications between persons including any other act disclosing
information in the communication between persons shall not be
permitted except by virtue of the provisions of the law specifically
enacted for maintaining the security of the State or maintaining
public order or good morals.
Section 37. A person shall enjoy full liberty to profess a
religion, a religious sect or creed, and observe religious principles
or religious precepts or exercise a form of worship in accordance
with his or her belief; provided that it is not contrary to his or her
civic duties, public order or good morals.
In exercising the liberty referred to in paragraph one, a
person is protected from any act of the State, which is derogatory
to his or her rights or detrimental to his or her due benefits on the
grounds of professing a religion, a religious sect or creed or
observing religious principles or religious precepts or exercising a
form of worship in accordance with his or her different belief from
that of others.
Section 38. Forced labour shall not be imposed except
by virtue of the law specifically enacted for the purpose of averting
imminent public calamity or by virtue of the law which provides
for its imposition during the time when the country is in a state of
war or armed conflict, or when a state of emergency or martial
law is declared.
Part 4
Rights in the Administration of Justice
Section 39. No person shall be inflicted with a criminal
punishment unless he or she has committed an act which the law in
force at the time of commission provides to be an offence and
imposes a punishment therefor, and the punishment to be inflicted
on such person shall not be heavier than that provided by the law
in force at the time of the commission of the offence.
The suspect or the accused in a criminal case shall be
presumed innocent.
Before the passing of a final judgement convicting a
person of having committed an offence, such person shall not be
treated as a convict.
Section 40. A person shall have the following rights in
the administration of justice:
(1) the right to have easy, expeditious, speedy and
comprehensive access to justice;
(2) the fundamental rights in legal proceedings, in respect
of which fundamental assurances must be accorded as to the
openness of trial, adequate opportunities to receive information
and examine documents, the submission of facts, arguments and
evidence, the challenge of judges, trial by judges of a duly constituted
quorum and reasoned decisions, judgments or orders;
(3) a person has the right to have his or her case tried in
a correct, speedy and fair manner;
(4) the injured person, the suspect, the plaintiff, the
defendant, the party, the interested person or the witness has the
right to proper treatment in the administration of justice, including
the right to correct, speedy, fair inquiries and the right not to make
statements incriminating himself or herself;
(5) the injured person, the suspect, the accused and the
witness in a criminal case has the right to receive necessary and
appropriate protection and aids from the State, provided that
necessary remuneration, compensation and expenses shall be as
provided by law;
(6) the children, the youth, women the elderly or the
disabled or persons of infirmity have the right to be accorded
protection with regard to appropriate trials and have the right to
receive proper treatment in cases related to sexual violence;
(7) in a criminal case, the suspect or the accused has the
right to correct, speedy and fair inquiries or trials, adequate
opportunities to defend himself or herself and to examine or be
informed of evidence as necessary, legal assistance from an attorney
and a provisional release;
(8) in a civil case, a person has the right to receive
appropriate legal aids from the State.
Part 5
Rights in Property
Section 41. The property right of a person is protected.
The extent and the restriction of such right shall be in accordance
with the provisions of the law.
The succession is protected. The right of succession of
a person shall be in accordance with the provisions of the law.
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Section 42. The expropriation of immovable property
shall not be made except by virtue of the law specifically enacted
for State affairs dedicated to public utilities, necessary national
defence, exploitation of national resources, town and country
planning, promotion and preservation of the quality of the
environment, agricultural or industrial development, land reform,
conservation of ancient places and sources of historical value or
other public interests, and fair compensation shall be paid in due
time to the owner thereof as well as to all persons having the rights
thereto, who suffer loss by such expropriation, as provided by
law.
The amount of compensation under paragraph one shall
be fairly assessed with due regard to the normal market price,
mode of acquisition, nature and location of the immovable
property, losses suffered by the person whose property or right
thereto is expropriated and benefits which the State and the person
whose property or right thereto is expropriated obtain through the
use of the expropriated immovable property.
The law on expropriation of immovable property shall
specify the purpose of the expropriation and shall clearly determine
the period of time to fulfil that purpose. If the immovable property
is not used to fulfil such purpose within such period of time, it shall
be returned to the original owner or his or her heir.
The return of immovable property to the original owner
or his or her heir under paragraph three and the claim of
compensation paid shall be in accordance with the provisions of
the law.
Part 6
Rights and Liberties in Occupation
Section 43. A person shall enjoy the liberties to engage
in an enterprise or an occupation and to undertake fair and free
competition.
The restriction on such liberties under paragraph one
shall not be imposed except by virtue of the law specifically enacted
for maintaining the security and safety of the State or economy of
the country, protecting the public in regard to public utilities,
maintaining public order and good morals, regulating the
engagement in an occupation, consumer protection, town and
country planning, preserving natural resources or the environment,
public welfare, preventing monopoly, or eliminating unfair
competition.
Section 44. A person has the right to security in respect
of safety and welfare at work, including security in the living both
during the working life and upon leaving the state of employment.
Part 7
Liberties in Expression of Persons and Mass Media
Section 45. A person shall enjoy the liberty to express
his or her opinion, make speeches, write, print, publicise, and make
expression by other means.
The restriction on the liberty under paragraph one shall
not be imposed except by virtue of the provisions of the law
specifically enacted for the purpose of maintaining the security of
the State, safeguarding the rights, liberties, dignity, reputation, family
or privacy rights of other persons, maintaining public order or
good morals or preventing the deterioration of the mind or health
of the public.
The closure of a newspaper or other mass-media
business in deprivation of the liberty under this section shall not be
made.
The prohibition of a newspaper or other mass-media
business from presenting information or expressing opinions in
whole or in part or imposition of interference by any means in
deprivation of the liberty under this section shall not be made except
by virtue of the law enacted under paragraph two.
The censorship by a competent official of news or articles
before their publication in a newspaper or other mass media shall
not be made except during the time when the country is in a state
of war; provided that it must be made by virtue of the law enacted
under paragraph two.
The owner of a newspaper or other mass-media business
shall be a Thai national.
No grant of money or other properties shall be made by
the State as subsidies to private newspapers or other mass media.
Section 46. Officials or employees of privately-owned
newspaper, radio or television broadcasting or other mass-media
businesses shall enjoy their liberties to present news and express
their opinions under the constitutional restrictions without any
mandate of any Government agency, State agency, State enterprise
or the owner of such businesses provided that it is not contrary to
their professional ethics, and have the right to establish organisations
protecting rights, liberties and fairness and establish self-regulatory
mechanisms within professional agencies.
Government officials, officials or employees of a
Government agency, a State agency or a State enterprise engaging
in a radio or television broadcasting business or any other mass-
media business shall enjoy the same liberties as those enjoyed by
officials or employees of privately-owned businesses under
paragraph one.
Any act of a person holding a political position, a State
official or a business owner which, whether directly or indirectly
done, impedes or interferes with the presentation of news or the
expression of opinions on a public issue by persons under
paragraph one or paragraph two shall be deemed as an intentionally
undue exercise of powers and duties and shall be of no effect,
unless done in compliance with the law or professional ethics.
Section 47. Transmission frequencies for radio or
television broadcasting and telecommunication are national
communication resources for public interests.
There shall be an independent regulatory agency having
the duty to allocate the frequencies under paragraph one and
exercise supervision over the operation of radio or television
broadcasting businesses and telecommunication businesses as
provided by law.
In carrying out the act under paragraph two, regard shall
be had to optimal benefits of the people at national and local levels
in education, culture, State security, other public interests and free
and fair competition, provided that public participation in the
operation of public mass media shall also be encouraged.
In exercising supervision over the operation of businesses
under paragraph two, there shall be measures for preventing any
merger, cross right-holding or market dominance amongst mass
media businesses or by any other person, which has the effect of
impeding the liberty of the public in perceiving information or of
obstructing public access to a diversity of information.
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Section 48. A person holding a political position shall
not own or hold shares in a newspaper, radio or television
broadcasting or telecommunication business, whether in his or her
own name or through his or her nominee or through other direct
or indirect means enabling the management of such business in a
way akin to owning or holding shares in such business.
Part 8
Rights and Liberties in Education
Section 49. A person shall enjoy an equal right to receive
education for the duration of not less than twelve years which shall
be provided by the State thoroughly, up to the quality, and without
charge.
The indigent, the disabled, persons of infirmity or persons
suffering a state of difficulty shall be accorded the right under
paragraph one and entitled to such support from the State as to
enable them to receive education comparable to that received by
other persons.
The provision of education by professional organisations
or the private sector, alternative education by the people, self-
tuition and life-long learning shall be protected and promoted by
the State as appropriate.
Section 50. A person shall enjoy an academic freedom.
Education, training, learning, teaching, researching and
disseminating such research according to academic principles shall
be protected; provided that it is not contrary to his or her civic
duties or good morals.
Part 9
Rights to Public Health Services and Welfare
from the State
Section 51. A person shall enjoy an equal right to receive
public health services which are appropriate and up to the quality,
and the indigent shall have the right to receive free medical treatment
from public health centres of the State.
A person has the right to receive public health services
from the State, which shall be provided thoroughly and efficiently.
A person has the right to be appropriately protected by
the State against harmful contagious diseases, and to have such
diseases eradicated, without charge and in a timely manner.
Section 52. Children and the youth have the right of
survival and the right to receive physical, mental and intellectual
development in accordance with their potential in a suitable
environment, having prime regard to their participation.
Children, the youth, women and family members shall
have the right to be protected by the State against violence and
unfair treatment and shall also have the right to receive rehabilitation
in the event of such circumstances.
Imposition of any interference with, and restriction on,
rights of children, the youth or family members shall not be made
except by virtue of the law specifically enacted for preserving and
maintaining the status of the family or optimal benefits of such
persons.
Children and the youth with no guardian shall have the
right to receive appropriate care and education from the State.
Section 53. A person who is over sixty years of age
and has insufficient income for the living shall have the right to
receive such welfare and public facilities as suitable for his or her
dignity as well as appropriate aids to be provided by the State.
Section 54. The disabled or persons of infirmity shall
have the right to have access to and use public welfare and
conveniences as well as appropriate aids to be provided by the
State.
Persons of unsound mind shall be appropriately assisted
by the State.
Section 55. Homeless persons with insufficient income
for the living shall have the right to receive appropriate aids from
the State.
Part 10
Rights in connection with Information and Complaints
Section 56. A person shall have the right to know and
have access to public data or information in possession of a
Government agency, a State agency, a State enterprise or a local
government organisation, unless the disclosure of such data or
information shall affect the security of the State, public safety or
interests of other persons which shall be protected or purport to
be personal data, as provided by law.
Section 57. A person shall have the right to receive
data, explanations and reasons from a Government agency, a State
agency, a State enterprise or a local government organisation prior
to the approval or the operation of any project or activity which
may affect the quality of the environment, health and sanitary
conditions, the quality of life or any other material interest concerning
such person or a local community and shall have the right to
express his or her opinions to agencies concerned, for assisting
further consideration of such matters.
In planning social, economic, political and cultural
development, or in undertaking expropriation, town and country
planning, zoning and making by-laws likely to have impacts on
essential interests of the public, the State shall cause to be held
comprehensive public hearings prior thereto.
Section 58. A person shall have the right to participate
in the decision-making process of State officials in the performance
of administrative functions which affect or may affect his or her
rights and liberties.
Section 59. A person shall have the right to present a
petition and to be informed of the result of its consideration without
delay.
Section 60. A person shall have the right to file a lawsuit
against a Government agency, a State agency, a State enterprise,
a local government organisation or other State authority which is a
juristic person to be liable for an act or omission done by its
Government official, official or employee.
Section 61. The right of a person as a consumer shall
be protected in respect of the acquisition of rightful information
and a person as such shall have the right to make a complaint for
a remedy of loss suffered as well as the right to assemble in an
endeavour to protect rights of consumers.
There shall be an organisation for the protection of
consumers, to be established as an entity independent from State
agencies and consisting of representatives of consumers, which
shall have the duties to give opinions for assisting considerations
73
of State agencies in connection with the making and enforcement
of laws and by-laws, give opinions in connection with the
determination of measures for consumer protection and examine
as well as report the performance or omission of acts protecting
consumers. In this connection, the State shall also provide
budgetary support to the operation of such independent
organisation.
Section 62. A person shall have the right to monitor
and make a request for an examination of the performance of
duties of persons holding political positions, State agencies and
State officials.
The person who bona fide provides to an agency
responsible for the scrutiny of the exercise of State powers or to a
State agency information in connection with the performance of
duties of persons holding political positions, State agencies or State
officials shall be protected.
Part 11
Liberties in connection with Assembly and Association
Section 63. A person shall enjoy the liberty to assemble
peacefully and without arms.
The restriction on such liberty under paragraph one shall
not be imposed except by virtue of the law specifically enacted
for the case of public assembling and for securing public
convenience in the use of public places or for maintaining public
order during the time when the country is in a state of war, or
when a state of emergency or martial law is declared.
Section 64. A person shall enjoy the liberty to unite and
form an association, a union, a league, a co-operative, a farmers
group, a private organisation, a private development organisation
or any other group.
Government officials and State officials shall have the
liberty to assemble like other people provided that their assembly
shall not affect the efficiency of public administration and the
continuity of the provision of public services, as provided by law.
The restriction on such liberty under paragraph one and
paragraph two shall not be imposed except by virtue of the law
specifically enacted for protecting the common interest of the
public, maintaining public order or good morals or preventing
economic monopoly.
Section 65. A person shall enjoy the liberty to unite and
form a political party for the purpose of making political will of the
people and carrying out political activities in fulfilment of such will
through the democratic regime of government with the King as
Head of the State as provided in this Constitution.
The internal organisation, management and regulations
of a political party shall be consistent with fundamental principles
of the democratic regime of government with the King as Head of
the State.
Members of the House of Representatives who are
members of a political party, members of the Executive Committee
of a political party, or members of a political party, of not less
than the number prescribed by the Organic Act on Political Parties
shall, if of the opinion that their political partys resolution or
regulation on any matter is contrary to the status and performance
of duties of a member of the House of Representatives under this
Constitution or contrary to or inconsistent with fundamental
principles of the democratic regime of government with the King
as Head of the State, have the right to refer it to the Constitutional
Court for decision thereon.
In the case where the Constitutional Court decides that
such resolution or regulation is contrary to or inconsistent with
fundamental principles of the democratic regime of government
with the King as Head of the State, such resolution or regulation
shall lapse.
Part 12
Community Rights
Section 66. Persons so assembling as to be a
community, a local community or a traditional community shall
have the right to conserve or restore their customs, local
knowledge, good arts and culture of their community and of the
nation and participate in the management, maintenance,
preservation and exploitation of natural resources, the environment
and the biological diversity in a balanced and sustainable fashion.
Section 67. The right of a person to give to the State
and communities participation in the conservation, preservation
and exploitation of natural resources and biological diversities and
in the protection, promotion and preservation of the quality of the
environment for regular and continued livelihood in the environment
which is not hazardous to his or her health and sanitary condition,
welfare or quality of life, shall be protected as appropriate.
Any project or activity which may seriously affect the
community with respect to the quality of the environment, natural
resources and health shall not be permitted, unless, prior to the
operation thereof, its impacts on the quality of the environment
and on public health have been studied and assessed and a public
hearing process has been conducted for consulting the public as
well as interested persons and there have been obtained opinions
of an independent organisation, consisting of representatives
from private organisations in the field of the environment and
health and from higher education institutions providing studies
in the field of the environment, natural resources or health.
The right of a community to bring a lawsuit against a
Government agency, a State agency, a State enterprise, a local
government organisation or other State authority which is a juristic
person for the performance of duties under this provision shall be
protected.
Part 13
Rights to Protect the Constitution
Section 68. No person shall exercise the rights and
liberties prescribed in the Constitution to overthrow the democratic
regime of government with the King as Head of the State under
this Constitution or to acquire the power to rule the country by
any means which is not in accordance with the modes provided in
this Constitution.
In the case where a person or a political party has
committed the act under paragraph one, the person knowing of
such act shall have the right to request the Prosecutor General to
investigate its facts and submit a motion to the Constitutional Court
for ordering cessation of such act without, however, prejudice to
the institution of a criminal action against such person.
In the case where the Constitutional Court makes a
decision compelling the political party to cease to commit the act
under paragraph two, the Constitutional Court may order the
dissolution of such political party.
In the case where the Constitutional Court issues an
order dissolving the political party under paragraph three, the right
to vote of the dissolved political partys leader and executive
committee members at the time of the commission of the offence
74
under paragraph one shall be suspended for the period of five
years as from the date of such order of the Constitutional Court.
Section 69. A person shall have the right to resist
peacefully any act committed for the acquisition of the power to
rule the country by a means which is not in accordance with the
modes provided in this Constitution.
CHAPTER IV
Duties of the Thai People
Section 70. Every person shall have a duty to protect
and uphold the Nation, religions, the King and the democratic
regime of government with the King as Head of the State under
this Constitution.
Section 71. Every person shall have a duty to defend
the country, safeguard national interests and obey the law.
Section 72. Every person shall have a duty to exercise
his or her right to vote at an election.
The person who attends an election for voting or fails to
attend an election for voting without notifying a reasonable cause
of such failure shall acquire or lose such rights as provided by law.
The notification of the cause of failure to attend an election
and the provision of facilities for attendance thereat shall be in
accordance with the provisions of the law.
Section 73. Every person shall have a duty to serve in
armed forces, render assistance in the prevention and alleviation
of public hazards, pay taxes and duties, render assistance to the
official service, receive education and training, safeguard, protect
and pass on national arts, culture and local knowledge and conserve
natural resources and the environment, as provided by law.
Section 74. A Government official, official or employee
of a Government agency, a State agency, a State enterprise or
other State official shall have a duty to act in compliance with the
law in order to protect public interests, and provide convenience
and services to the public in accordance with the good governance
principle.
In performing the duty and other acts relating to the
public, the persons under paragraph one shall be politically
impartial.
In the case where the persons under paragraph one
neglect or fail to perform the duties under paragraph one or
paragraph two, the interested person shall have the right to request
the persons under paragraph one or their superiors to give
explanations and reasons and request them to act in compliance
with the provisions of paragraph one or paragraph two.
CHAPTER V
Directive Principles of Fundamental State Policies
Part 1
General Provisions
Section 75. The provisions in this Chapter indicate the
will of the State in enacting legislation and determining policies for
the administration of State affairs.
In declaring policies to the National Assembly, the
Council of Ministers which is due to assume the administration of
the State affairs shall make clear statements as to activities, and
timeframes therefor, intended to be pursued in order to achieve
the directive principles of fundamental State policies and shall
prepare a report indicating results of their implementation, including
problems and obstacles pertinent thereto, for submission to the
National Assembly at least once a year.
Section 76. The Council of Ministers shall prepare plans
for the administration of the State affairs in order to put on view
measures and details embodying guidance on the discharge of
official duties for each year, which must be consistent with the
directive principles of fundamental State policies.
In the administration of the State affairs, the Council of
Ministers shall cause to be prepared a legislative plan as necessary
for the implementation of the policies and the plans for the
administration of the State affairs.
Part 2
Directive Principles of State Policies
in relation to National Security
Section 77. The State shall protect and uphold the
institution of monarchy, independence, sovereignty and integrity
of the territorial jurisdiction of the State and shall provide such
armed forces, military weapons and technology as are modern,
necessary and sufficient for protecting and upholding the
independence, sovereignty, national security, the institution of
monarchy, national interests and the democratic regime of
government with the King as Head of the State and for the
development of the country.
Part 3
in relation to the Administration
of the State Affairs
Section 78. The State shall pursue directive principles
of State policies in relation to the Administration of the State Affairs,
as follows:
(1) to carry out the administration of the State affairs in
the direction of facilitating social and economic development and
national security in a sustainable fashion, provided that the
implementation of the self-sufficiency economy philosophy shall
be promoted and prime regard shall be had to overall national
interests;
(2) to organise the central, provincial and local
administration to the effect of achieving boundaries, powers and
duties and responsibilities that are clear and well suited to the
national development, and enable a province to have a plan and a
budget for its development in the interest of local residents;
(3) to carry out decentralisation under which local
government organisations may attain self-dependence and self-
determination, to promote local government organisations
participation in the implementation of directive principles of
fundamental State policies, to develop the economy of the localities
and public utilities as well as facilities systems and information
infrastructure of the localities thoroughly and equally throughout
the country, and also develop into a large-sized local government
organisation a province which is ready for such purpose, having
regard to the will of the people in that province;
(4) to develop the working system in the public sector
with particular emphasis on the development of the quality,
conscience and ethics of State officials in tandem with the
75
improvement of patterns and methods of work in order to achieve
efficiency of the administration of the State affairs, and to promote
the application of the good governance principle amongst State
agencies;
(5) to organise the bureaucracy and other affairs of the
State to the effect that the provision and delivery of public services
can be undertaken with rapidity, efficiency, transparency and
accountability, having regard to public participation;
(6) to take action enabling law agencies which have legal
duties to give opinions on the operation of the State and scrutinise
the law-making of the State to perform their duties independently
to ensure that the administration of State affairs shall be in
compliance with the Rule of Law principle;
(7) to put in place a plan for political reform and to bring
into existence an independent Political Reform Council for
monitoring strict compliance with such plan;
(8) to take action enabling Government officials and State
officials to receive appropriate fringe benefits.
Part 4
in relation to Religions, Social Affairs,
Public Health, Education and Cultural Affairs
Section 79. The State shall provide patronage and
protection to Buddhism, which is the religion long practised by the
majority of the Thai people, and other religions and shall promote
good understanding and harmony amongst followers of all religions
and encourage the application of religious precepts for the purpose
of fostering conscience and developing the quality of life.
of State policies in relation to Social Affairs, Public Health,
Education and Cultural Affairs, as follows:
(1) to protect and develop children and the youth,
encourage their up-keep and primary education, promote the
equality between women and men, foster and develop solidarity
of the institution of family and the community as well as provide
aids and welfare to the elderly, the indigent, the disabled, persons
of infirmity and persons suffering a state of difficulty to enable their
better quality of life and self-dependence;
(2) to promote, support and develop the health system
based upon the fostering of health that leads to a sustainable state
of happiness of the people, provide and promote public health
services that meet the standard thoroughly and efficiently, promote
participation by private individuals and communities in the
development of health and the provision of public health services,
provided that persons who, under the duty to provide such
services, have performed the duty in accordance with the
professional standard and ethics, shall be protected;
(3) to develop the quality and standard of the provision
of education at all levels and in all forms in harmony with economic
and social changes, bring into existence the national educational
plan and the law aimed at the development of national education,
provide the development of the quality of teachers and educational
personnel to ensure such advancement as to keep pace with
changes in the world community and instill into learners awareness
of Thai values, disciplines, concerns for public interests and
adherence to the democratic regime of government with the King
as Head of the State;
(4) to promote and support decentralisation in order to
enable local government organisations, communities, religious
organisations and private individuals to provide, and participate in
the provision of, education with a view to developing the
educational standard and quality comparable to and in line with
directive principles of fundamental State policies;
(5) promote and support studies and research in various
branches of sciences and disseminate information and results of
the studies and research works undertaken under financial
sponsorship from the State;
(6) promote and support fraternality and learning and
implant attentiveness about and disseminate arts, culture and
traditions and customs of the nation, including decent tastes and
local knowledge.
Part 5
in relation to Legislation and
the Administration of Justice
of State policies in relation tolegislation and the administration of
justice, as follows:
(1) to ensure compliance with and enforcement of the
law in a correct, speedy, fair and comprehensive manner, promote
the provision of legal aids and dissemination of legal knowledge to
the public, organise the bureaucracy and other affairs of the State
in the sphere of the administration of justice to meet efficiency,
whereby the public and professional organisations may have due
participation in the administration of justice and the provision of
legal aids to the public;
(2) to protect rights and liberties of the people against
violation by State officials and other persons, provided that the
administration of justice shall be offered to all people on the basis
of equality;
(3) to bring into existence the law establishing an
independent law reform agency to be in charge of the revision and
development of law of the country, including the revision of laws
in the implementation of the Constitution, provided that opinions
of those affected from such laws shall also be heard;
(4) to bring into existence the law establishing an
independent justice-administration reform organisation to be in
charge of revision and development of the operation of agencies
concerned with the administration of justice;
(5) support the operation of organisations in the private
sector providing legal aids to the public, in particular to those
affected by family violence.
Part 6
in relation to Foreign Affairs
Section 82. The State shall promote relations and co-
operation with other countries and shall adhere to the equal
treatment principle and comply with treaties related to human rights
to which Thailand becomes a party as well as international
obligations made with other countries and international
organisations.
The State shall promote trade, investment and tourism
with other countries and accord protection to and take care of
interests of the Thai people in foreign countries.
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Part 7
in relation to Economy
Section 83. The State shall promote and give support
to the implementation of the self-sufficiency economy philosophy.
of State policies in relation to economy, as follows:
(1) to promote a free and fair economy based upon
market force and encourage sustainable economic development
through repealing and refraining from enacting business-controlling
laws and regulations which do not correspond to the economic
necessity, and not to engage in an enterprise which is, in essence,
in competition with the private sector unless it is necessary for the
purpose of maintaining national security, safeguarding public
interests or providing public utilities;
(2) to promote the application of righteousness, ethics
and good governance in tandem with the operation of business;
(3) to ensure the application of fiscal and financial
disciplines with a view to promoting economic and social stability
and security of the country and revise taxation systems to achieve
fairness and in conformity with changes in economic and social
conditions;
(4) to provide savings for the people and State officials
for their living at the old age;
(5) to oversee the operation of businesses and ensure
their free and fair competition, prevent direct and indirect
monopolies and protect consumers;
(6) to ensure fair distribution of income, protect, promote
and expand opportunities for businesses of the people with a view
to economic development, promote and encourage the
development of local knowledge and Thai wisdom for use in the
production of goods, services and the handling of the occupation;
(7) to promote jobs for the working-age population,
protect child and woman labour, organise labour relations and the
tripartite system under which employees may elect their
representatives, organise the social security system and provide
protection to the effect that employees doing the work of the same
value should receive fair remuneration, fringe benefits and welfare
without discrimination;
(8) to protect and maintain interests of farmers in the
production and marketing, promote agricultural products towards
achieving highest prices and promote the association of farmers in
the form of farmers councils for making planning on farming and
preserving common interests of farmers;
(9) to promote, support and protect co-operatives
systems so as to achieve autonomy and do so with respect to the
occupational or professional association as well as the association
of people for undertaking economic affairs;
(10) to provide basic public utilities necessary for the
livelihood of the public in the interest of maintaining national security
in the economic dimension and take action to prevent basic public
utilities necessary for the livelihood of the public from being
monopolised by private individuals in a manner likely to cause
detrimental effects on the State;
(11) any act causing a State-owned infrastructure
or a basic network of basic public utilities necessary for the
livelihood of the public or for national security to be owned by
private individuals or to be owned in a proportion of less than fifty
one percent shall not be permitted;
(12) to promote and provide support to the maritime
business, rail carriage as well as transportation logistics, both
domestically and internationally;
(13) to promote and provide support to private
organisations in the economic sphere at national and local levels
with a view to their strength;
(14) to promote the agricultural-product processing
industry to generate economic added values.
Part 8
in relation to Land, Natural Resources
and the Environment
of State policies in relation to land, natural resources and the
environment, as follows:
(1) to prescribe rules on land use which cover areas
throughout the country, having regard to the consistency with natural
surroundings, whether land areas, water surfaces, ways of life of
local residents, and the efficient preservation of natural resources,
and prescribe standards for sustainable land use, provided that
residents in areas affected by such rules on land use shall also
have due participation in the decision-making;
(2) to distribute land holding in a fair manner, enable
farmers to have ownership or rights in land for farming purposes
thoroughly through land reform or otherwise, and provide water
resources for sufficient use of water by farmers in a manner suitable
for farming;
(3) to provide town and country planning and carry out
the development and action in the implementation of town and
country plans in an efficient and effective manner in the interest of
sustainable preservation of natural resources;
(4) to provide a plan for managing water resources and
other natural resources systematically and in a manner generating
public interests, provided that the public shall have due participation
in the preservation, maintenance and exploitation of natural
resources and biological diversity in a balanced fashion;
(5) promote, maintain and protect the quality of natural
resources in accordance with the sustainable development
principle, control and eradiate polluted conditions affecting health,
sanitary conditions, welfare and the quality of life of the public,
provided that members of the public, local residents and local
government organisations shall have due participation in determining
the direction of such work.
Part 9
in relation to Science, Intellectual Property
and Energy
of State policies in relation to science, intellectual property and
energy, as follows:
(1) to promote the development in various branches of
science, technology and innovation by bringing into existence
specific law for this purpose, providing budgets in support of studies
and research, putting in place institutions dedicated to studies and
development and putting forth the utilisation of results of studies
and development, efficient transfers of technology and the
appropriate development of personnel, and disseminate modern
knowledge in science and technology as well as encourage the
public to apply scientific principles to their livelihood;
(2) to promote inventions or discoveries leading to new
knowledge, preserve and develop local knowledge and Thai
wisdom and protect intellectual property;
77
(3) to promote and lend support to research and
development and make use of alternative energy that is naturally
acquired and advantageous to the environment in a continued and
systematic manner.
Part 10
in relation to Public Participation
of State policies in relation to public participation, as follows:
(1) to promote public participation in the determination
of policies and plans for economic and social development at both
national and local levels;
(2) to promote and lend support to public participation
in political decision-making, the planning of economic and social
development and the provision of public services;
(3) to promote and lend support to public participation
in the scrutiny of the exercise of the State powers at all levels in
the form of varying professional organisations or occupational
groups or in other forms,
(4) to promote political strength of the public, put forth
the law establishing a civic fund for political development for
assisting the operation of public activities of localities and lend
support to the operation of civic groups forming networks in all
forms in order for those groups to be able to express opinions and
propose demands of localities in their areas;
(5) to promote and provide to the public education on
political development and the democratic regime of government
with the King as Head of the State and promote honest and fair
voting by the public at an election.
Public participation under this section is founded upon
the consideration of close proportion between men and women.
CHAPTER VI
The National Assembly
Part 1
General Provisions
Section 88. The National Assembly consists of the
House of Representatives and the Senate.
Joint or separate sittings of the National Assembly shall
be in accordance with the provisions of this Constitution.
No person shall be a member of the House of
Representatives or a senator simultaneously.
Section 89. The President of the House of
Representatives is President of the National Assembly. The
President of the Senate is Vice-President of the National Assembly.
In the case where there is no President of the House of
Representatives, or the President of the House of Representatives
is not present or is unable to perform his or her duties, the President
of the Senate shall act as President of the National Assembly in his
or her place.
The President of the National Assembly shall have the
powers and duties as provided in this Constitution and shall
conduct the proceedings of the National Assembly at joint sittings
in accordance with the rules of procedure.
The President of the National Assembly and the person
who acts as President of the National Assembly in his or her place
shall be impartial in the performance of duties.
The Vice-President of the National Assembly shall have
the powers and duties as provided in this Constitution and as
entrusted by the President of the National Assembly.
Section 90. An organic law bill or a bill may be enacted
as law only by and with the advice and consent of the National
Assembly and, when signed or deemed to have been signed by
the King under this Constitution, shall be published in the
Government Gazette for further entry into force as law.
Section 91. Members of the House of Representatives
or senators of not less than one-tenth of the total number of the
existing members of each House have the right to lodge with the
President of the House of which they are members a complaint
asserting that the membership of any member of such House has
terminated under section 106 (3), (4), (5), (6), (7), (8), (10) or
(11) or section 119 (3), (4), (5), (7) or (8), as the case may be,
and the President of the House with whom the complaint is lodged
shall refer it to the Constitutional Court for decision as to whether
the membership of such person has terminated.
When the Constitutional Court has made a decision, it
shall notify the President of the House with whom the complaint is
lodged under paragraph one of such decision.
In the case where the Election Commission is of the
opinion that the membership of any member of the House of
Representatives or of any senator has terminated under paragraph
one, it shall refer the matter to the President of the House of which
such member is a member, and the President of that House shall
refer the matter to the Constitutional Court for a decision under
paragraph one and paragraph two.
Section 92. The vacation of the office of a member of
the House of Representatives or a senator after the day on which
his or her membership terminates or the day on which the
Constitutional Court decides that the membership of any member
terminates does not affect any act done by such member in the
capacity as member including the receipt of emolument or other
remuneration by such member before he or she vacates office or
the President of the House of which such person is a member has
been notified of the decision of the Constitutional Court, as the
case may be, except that in the case of the vacation of office on
the ground of his or her being elected or selected in violation of
the Organic Act on the Election of Members of the House of
Representatives and the Acquisition of Senators, emolument and
other remuneration received from being in office shall be returned.
Part 2
The House of Representatives
Section 93. The House of Representatives consists of
four hundred and eighty members, four hundred of whom are from
the election on a constituency basis and eighty of whom are from
the election on a proportional representation basis.
The election of members of the House of Representatives
shall be by direct suffrage and secret ballot and, for this purpose,
one ballot card shall be used for each category of members of the
House of Representatives.
Rules and procedures for the election of members of the
House of Representatives shall be in accordance with the Organic
Act on the Election of Members of the House of Representatives
and the Acquisition of Senators.
In the case where the office of a member of the House
of Representatives becomes vacant for any reason and an election
78
of a member of the House of Representatives has not been held to
fill the vacancy, the House of Representatives shall consist of the
existing members of the House.
Subject to section 109 (2), in the case where there
occurs, during the term of the House of Representatives, any
cause resulting members elected from the election on a proportional
representation basis being less than eighty in number, members
from the election on a proportional representation basis shall consist
of the existing members.
In the case where, in any general election, there occurs
any event resulting in members of the House of Representatives
being less than four hundred and eighty in number but being not
less than ninety five percent of the total number of members of the
House of Representatives, it shall be deemed that members in
such number duly form the House of Representatives, provided
that action shall be taken for achieving such number of member of
the House of Representatives as provided in this Constitution within
one hundred and eighty days and such members shall hold office
for the remaining term of the House or Representatives.
Section 94. In the election of members of the House of
Representatives on a constituency basis, the person having the
right to vote in a given constituency shall have the right to cast
ballot for such number of candidates as the number of members
of the House of Representatives allowable for that constituency.
The calculation of the number of members of the House
of Representatives for which each constituency shall have and the
determination of constituencies shall be as follows.
(1) The ratio of the number of inhabitants to one member
shall be calculated by reference to the division of such number of
inhabitants throughout the country as evidenced in the census
announced in the year preceding the year of election by the number
of four hundred members of the House of Representatives;
(2) Any province with inhabitants below the number of
inhabitants per one member under (1) shall have one member of
the House of Representative. Any province with more inhabitants
than the number of inhabitants per one member shall have an
additional member of the House of Representatives for every such
number of inhabitants as representing the number of inhabitants
per one member.
(3) Upon the number of members of the House of
Representatives of each province being obtained under (2), if the
number of members of the House of Representatives so calculated
is still less than four hundred, any province with the largest fraction
remaining from the determination under (2) shall have an additional
member of the House of Representatives and the addition of the
members of the House of Representatives in accordance with such
procedure shall be made to provinces in respective order of
fractions remaining from the determination under (2) until the
number of four hundred members of the House is obtained;
(4) The determination of a constituency shall be made in
the following manner. Where any province is entitled to not more
than three members of the House of Representatives, the area of
that province shall be regarded as a constituency. But if any
province is entitled to more than three members of the House of
Representatives, the area of that province shall be divided into
constituencies to the effect that each constituency shall have three
members of the House of Representatives;
(5) In the case where it is impossible to divide
constituencies in a particular province to the effect that every
constituency shall have three members of the House of
Representatives, constituencies shall be divided in a manner of
each constituency having three members of the House of
Representatives first provided that the remaining constituencies
shall have not less than two members. If any province is entitled
to four members of the House of Representatives, constituencies
shall be divided into two constituencies each of which shall have
two members of the House of Representatives;
(6) In a province which is divided into more than one
constituency, the boundary of each constituency shall be adjoining
and the number of inhabitants in each constituency must be closely
apportioned.
The counting of votes shall be conducted at a polling
station and the result of the vote-counting of that polling station
shall be furnished altogether to a constituency for the counting of
the entire votes. Thereafter, the result of the vote-counting shall
be announced publicly at any single place in that constituency as
designated by the Election Commission, except that in the case
where necessity arises in a particular locality, the Election
Commission may determine that the vote-counting, the summation
of the vote-counting and the announcement of the result of the
vote-counting shall be conducted otherwise, in accordance with
the Organic Act on the Election of Members of the House of
Representatives and the Acquisition of Senators.
Section 95. The election of members of the House of
Representatives on a proportional representation basis shall be
conducted by reference to party-lists prepared by political parties
and, for this purpose, a voter in any constituency shall have the
right to cast only one vote for a political party having prepared the
list of candidates in that constituency.
Each political party may send candidates, in the election
on a proportional representation basis, for all constituencies or for
only some constituencies.
With respect to a list of candidates standing in the election
on a proportional representation basis as submitted by a political
party, if it appears that, prior to or on the election day, there exists
any cause whatsoever resulting in the list of that political party
having the number of candidates standing in the election on a
proportional representation basis being less than the number having
been submitted by that political party, it shall be deemed that the
list of that political party has the existing number of candidates
standing in the election on a proportional representation basis,
and in this case, it shall be deemed that the House of
Representatives consists of existing members.
Section 96. The determination of constituencies for the
election of members of the House of Representatives on a
proportional representation basis shall be as follows:
(1) the area of the entire country shall be divided into
eight groups of provinces, provided that each group of provinces
shall be regarded as a constituency and each constituency shall
have ten members of the House of Representatives;
(2) in grouping provinces, those provinces of adjoining
areas shall be in the same group and every group shall have a
close total number of inhabitants as evidenced in the census
announced in the year preceding the year of election, provided
that the entire province shall fall within one constituency.
Section 97. The preparation of a list of candidates of a
political party for the election of members of the House of
Representatives on a proportional representation basis shall be as
follows.
(1) A list of candidates in each constituency shall contain
names of candidates in a full number equal to the number of
members of the House of Representatives on a proportional
79
representation basis allowable for each constituency, such names
being placed in a numerical order, and the list shall then be
submitted to the Election Commission prior to the opening date
for receiving applications for candidacy in the election on a
constituency basis.
(2) The names of persons listed under (1) shall not be
duplicated by names of candidates both in the constituency category
and in the proportional representation category of any political
party and regard shall be had to appropriate opportunities and
proportions as well as the equality between men and women.
Section 98. In calculating the proportion in which
candidates in a list of each political party shall be elected in each
constituency, all votes which each political party has obtained in
that constituency shall be summed up altogether and shall be
calculated in order to have the number of elected candidates for
each political party in direct proportion to the votes hitherto summed
up, the votes obtained by each political party and the number of
members of the House of Representatives on a proportional
representation basis allowable for that constituency. For this
purpose, the candidates whose names are listed in the list of each
political party shall be elected in accordance with the votes so
calculated and the numerical order in which they are placed in the
list of that political party, provided that all this shall be in accordance
with the rules and procedures provided in the Organic Act on the
Election of Members of the House of Representatives and the
Acquisition of Senators.
The provisions of section 94 paragraph three shall
apply to the counting of votes in the election of members of the
House of Representatives on a proportional representation basis
mutatis mutandis and, for this purpose, the Election Commission
may direct that a preliminary summation of the result of the
vote-counting be first conducted at a Province.
Section 99. A person having the following qualifications
has the right to vote at an election:
(1) being of Thai nationality; provided that a person who
has acquired Thai nationality by naturalisation must hold the Thai
nationality for not less than five years;
(2) being not less than eighteen years of age on 1
st
January
of the year of the election; and
(3) having his or her name appear on the house register
in the constituency for not less than ninety days up to the election
day.
A voter who has a residence outside the constituency
within which his or her name appear in the house register, or who
has his or her name appear in the house register in the constituency
for the period of less than ninety days up to the election day, or
who has a residence outside the Kingdom of Thailand shall have
the right to cast ballot in an election in accordance with rules,
procedures and conditions provided by the Organic Act on the
Acquisition of Senators.
Section 100. A person under any of the following
prohibitions on the election day is disfranchised:
(1) being a Buddhist priest, novice, monk or clergy;
(2) being under suspension of the right to vote;
(3) being detained by a warrant of the Court or by a
lawful order;
(4) being of unsound mind or of mental infirmity.
Section 101. A person having the following
qualifications has the right to be a candidate in an election of
members of the House of Representatives:
(1) being of Thai nationality by birth;
(2) being not less than twenty five years of age on the
election day;
(3) being a member of any and only one political party
for a consecutive period of not less than ninety days up to the
election day, except that in the case where a general election takes
place as a consequence of the dissolution of the House of
Representatives such person must be a member of any and only
one political party for a consecutive period of not less than thirty
days up to the election day;
(4) a candidate in an election on a constituency basis
shall also possess any of the following qualifications:
(a) having his or her name appear in the house register
in a province where he or she stands for election for a consecutive
period of not less than five years up to the date of applying for
candidacy;
(b) being born in a province where he or she stands
for election;
(c) having studied in an educational institution situated
period of not less than five academic years;
(d) having served in the official service or having
had his or her name appear in the house register in a province
where he or she stands for election for a consecutive period of not
less than five years.
(5) a candidate in an election on a proportional
representation basis shall also possess any of the following
qualifications under (4), provided that any of such qualification
which refers to a province shall refer to a group of provinces;
(6) other qualifications as provided in the Organic Act
on the Election of Members of the House of Representatives and
the Acquisition of Senators.
Section 102. A person under any of the following
prohibitions shall have no right to be a candidate in an election of
members of the House of Representatives:
(1) being addicted to drugs;
(2) being a bankrupt or having been a fraudulent bankrupt;
(3) being disfranchised under section 100 (1), (2) or
(4);
(4) being sentenced by a judgment to imprisonment and
being detained by a warrant of the Court;
(5) having been discharged for a period of less than five
years on the election day after being sentenced by a judgment to
imprisonment except for an offence committed through negligence
or a petty offence;
(6) having been expelled, dismissed or removed from
the official service, a State agency or a State enterprise on the
ground of dishonest performance of duties or corruption;
(7) having been ordered by a judgement or an order of
the Court that his or her assets devolve on the State on the ground
of unusual wealthiness or an unusual increase of his or her assets;
(8) being a Government official holding a permanent
position or receiving a permanent salary except a political official;
(9) being a member of a local assembly or a local
administrator;
(10) being a senator, or having been a senator with
membership having terminated for not more than two years;
(11) being an official or employee of a Government
agency, a State agency, a State enterprise or other State official;
80
(12) being a judge of the Constitutional Court, an Election
Commissioner, an Ombudsman, a member of the National Counter
Corruption Commission, a member of the State Audit Commission
or a member of the National Human Rights Commission;
(13) being under the prohibition from holding a political
position under section 263;
(14) having been removed from office by the resolution
of the Senate under section 274.
Section 103. A political party sending candidates to
stand for election in any constituency shall send candidates in a
complete number of members of the House of Representatives
allowable for that constituency and it is not permitted to send
candidates in excess of such number.
When any political party has sent candidates to stand
for election in the complete number under paragraph one, if for
any reason such number subsequently diminishes and fails to meet
the complete number, it shall be deemed that that political party
has sent candidates to stand for election in the complete number.
When any political party has sent candidates to stand
for election, that political party or the candidate for that political
party may not withdraw candidacy or change candidates.
Section 104. The term of the House of Representatives
is four years from the election day.
During the term of the House of Representatives, there
shall not be any merger political parties having members who are
members of the House of Representatives.
Section 105. Membership of the House of
Representatives commences on the election day.
Section 106. Membership of a member of the House
of Representatives terminates upon:
(1) expiration of the term or dissolution of the House of
Representatives;
(2) death;
(3) resignation;
(4) being disqualified under section 101;
(5) being under any prohibition under section 102;
(6) acting in contravention of any prohibition under
section 265 or section 266;
(7) resignation from membership of his or her political
party or his or her political party passing a resolution, with the
votes of not less than three-fourths of the joint meeting of the
Executive Committee of that political party and members of the
House of Representatives belonging to that political party,
terminating his or her membership of the political party. In such
case, his or her membership shall be deemed to have terminated
as from the date of the resignation or the resolution of the political
party except where such member of the House of Representatives
appeals to the Constitutional Court within thirty days as from the
date of the resolution of the political party for raising an objection
that such resolution is of such nature as specified in section 65
paragraph three. If the Constitutional Court decides that the said
resolution is not of the nature as specified in section 65 paragraph
three, his or her membership shall be deemed to have terminated
as from the date of the decision of the Constitutional Court. If the
Constitutional Court decides that the said resolution is of such
nature as specified in section 65 paragraph three, that member of
the House of Representatives may become a member of another
political party within thirty days as from the date of the decision of
the Constitutional Court;
(8) loss of membership of the political party in the case
where the political party of which he or she is a member is dissolved
by an order of the Constitutional Court and he or she is unable to
become a member of another political party within sixty days as
from the date on which the Constitutional Court issues its order.
In such case, his or her membership shall be deemed to have
terminated as from the day following the date on which such period
of sixty days has elapsed;
(9) the Senate passing a resolution under section 274
removing him or her from office or the Constitutional Court having
a decision terminating his or her membership under section 91 or
the Supreme Court of Justice having an order under section 239
paragraph two. In such case, his or her membership shall be
deemed to have terminated as from the date on which the Senate
passes a resolution or the Court has a decision or an order, as the
case may be;
(10) having been absent for more than one-fourth of the
number of days in a session the length of which is not less than
ninety days without permission of the President of the House of
Representatives;
(11) having been sentenced by a final judgment to a term
of imprisonment irrespective of a suspension of the punishment,
except for a suspension of the punishment in an offence committed
through negligence or a petty offence or an offence of defamation.
Section 107. Upon the expiration of the term of the
House of Representatives, the King will issue a Royal Decree
calling for a general election of members of the House of
Representatives in which the election day must be fixed within
forty five days as from the date of the expiration of the term of the
House of Representatives and the election day must be the same
throughout the Kingdom.
Section 108. The King has the prerogative to dissolve
the House of Representatives for a new election of members of
the House.
The dissolution of the House of Representatives shall be
made in the form of a Royal Decree in which the day for a new
general election must be fixed within the period of not less than
forty five days but not more than sixty days as from the date of the
dissolution of the House of Representatives and such election day
must be the same throughout the Kingdom.
The dissolution of the House of Representatives may be
made only once under the same circumstance.
Section 109. When the office of member of the House
of Representatives becomes vacant for any reason other than the
expiration of the term or the dissolution of the House of
Representatives, the following actions shall be taken:
(1) in the case where the vacancy is that of the office of
a member of the House of Representatives elected from the election
on a constituency basis, an election of a member of the House of
Representatives to fill the vacancy shall be held within forty five
days as from the date of the vacancy unless the remainder of the
term of the House of Representatives is less than one hundred and
eighty days;
(2) in the case where the vacancy is that of the office of
a member of the House of Representatives elected from the election
on a proportional representation basis, the President of the House
of Representatives shall, by publication in the Government Gazette
within seven days as from the date of the vacancy, elevate the
person whose name in the list of that political party is placed in the
next order to be a replacing member of the House of
Representatives, except that in the case where there remains no
name in the list for the purpose of such elevation, the number of
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members of the House of Representatives in the proportional
representation category shall be that of the existing members.
Membership of the replacing member of the House of
Representatives under (1) shall commence as from the day on
which the election to fill the vacancy is held, while membership of
the replacing member of the House of Representatives under (2)
shall commence as from the day following the date of the
publication of the name of the replacing member, and the replacing
member of the House of Representatives may serve only for the
remainder of the term of the House.
Section 110. After the Council of Ministers has assumed
the administration of the State affairs, the King will appoint as
Leader of the Opposition in the House of Representatives a
member of the House who is the leader of the political party having
its members holding no ministerial positions and having the largest
number of members amongst the political parties having their
members holding no ministerial positions, provided that such
number must not be less than one-fifth of the total number of
members of the House of Representatives at the time of the
appointment.
In the case where no political party in the House of
Representatives meets the condition as prescribed under paragraph
one, the leader of the political party, who receives a majority of
supporting votes from the members of the House who belong to
the political parties having their members holding no ministerial
positions, shall be the Leader of the Opposition in the House. In
case of an equality of supporting votes, it shall be decided by lot.
The President of the House of Representatives shall
countersign the Royal Command appointing the Leader of the
Opposition in the House of Representatives.
The Leader of the Opposition in the House of
Representatives shall vacate office upon being disqualified as
specified in paragraph one or paragraph two, and section 124
paragraph four shall apply mutatis mutandis, and in such case,
the King will appoint a new Leader of the Opposition in the House
of Representatives to fill the vacancy.
Part 3
The Senate
Section 111. The Senate shall consist of one hundred
and fifty members to be elected from each province, one member
being elected from each province, and to be selected in the number
equivalent to the total number hitherto stated deducted by the
number of elected senators.
In the case of an increase or decrease of the number of
provinces during the term of office of elected senators, the Senate
shall consist of the remaining senators.
In the case where the office of the senator becomes
vacant for any reason whatsoever and an election or a selection,
as the case may be, of a senator to fill the vacancy has not yet
been held, the Senate shall consist of the remaining senators.
In the case where there occurs any event resulting in the
number of senators being lower than that specified in paragraph
one but not lower than ninety five percent of the total number of
senators, it shall be deemed that the Senate consists of such number
of senators, provided that there shall be an election or selection in
order to acquire the complete number of senators under paragraph
one within one hundred and eighty days as from the date of such
event, and the newly acquired senators shall hold office for the
remaining term of the Senate.
Section 112. In an election of senators in each province,
the area of the province shall be regarded as a constituency and
there shall be one senator in each province; for this purpose, the
person having the right to vote may cast one vote by direct suffrage
and secret ballot.
For the purpose of an election of senators, candidates
may conduct a campaign only in connection with the performance
of duties of senators.
Rules, procedures and conditions for an election and a
campaign of senators shall be in accordance with the Organic Act
on the Election of Members of the House of Representatives and
the Acquisition of Senators.
Section 113. There shall be a Senators Selection
Committee, consisting of the President of the Constitutional Court,
the Chairman of the Election Commission, Chairman of the
Ombudsmen, President of the National Counter Corruption
Commission, the Chairman of the State Audit Commission, a
judge in the Supreme Court of Justice holding office not lower in
rank than Judge of the Supreme Court of Justice as entrusted by
the general assembly of the Supreme Court of Justice and a
judge of the Supreme Administrative Court as entrusted by the
general assembly of judges of the Supreme Administrative
Court, as members, to be in charge of selecting persons under
section 114 within thirty days as from the date of receipt of the
list from the Election Commission and notifying the result of the
selection to the Election Commission for announcing the selected
persons as senators.
The members under paragraph one shall elect one
member amongst themselves as Chairman of the Committee.
In the case where there is no member in any particular
office or there is one but the person holding such office is unable
to performduties the Senators Selection Committee shall if the
remaining members are not less than one half in number, consist of
the remaining members.
Section 114. The Senators Selection Committee shall
select suitable persons from those nominated by organisations in
the academic sector, the public sector, the private sector, the
professional sector and other sectors, who are of value to the
performance of duties of senators as senators in the number equal
to that to be achieved as specified in section 111 paragraph one.
In the selection of persons under paragraph one,
particular regard shall be had to the knowledge, expertise or
experience beneficial to the performance of duties of senators,
and regard shall also be had to factors in relation to persons with
varying knowledge and capability in varying fields, sexual
opportunities and equality, a close proportion of persons in each
sector under paragraph one, and the provision of opportunities to
the socially underprivileged persons.
Rules, procedures and conditions for the selection of
senators shall be in accordance with the Organic Act on the Election
of Members of the House of Representatives and the Acquisition
of Senators.
Section 115. A person having the following qualifications
and not being under the following prohibitions has the right to be a
candidate in an election of senators or to be nominated for the
selection of senators:
(2) being of not less than forty years of age on the date
of applying for candidacy or the date of nomination;
(3) having graduated with not lower than a Bachelors
degree or its equivalent;
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(4) a candidate for an election of senators shall also have
any of the following qualifications:
(a) having his or her name appear in the house register
period of not less than five years up to the date of applying for
candidacy;
(b) being born in a province where he or she stands
for election;
(c) having studied in an educational institution situated
period of not less than five academic years;
(d) having served in the official service or having
had his or her name appear in the house register in a province
where he or she stands for election for a consecutive period of not
less than five years;
(5) not being an ascendant, a spouse or a son or daughter
of a member of the House of Representatives or a person holding
a political position;
(6) not being a member or a holder of any position of a
political party, or having been a member or a holder of any position
of a political party, with membership or office having terminated
for a period of not more than five years up to the date of applying
for candidacy or the date of nomination;
(7) not being a member of the House of Representatives,
or having been a member of the House of Representatives with
membership having terminated for the period of not more than
five years up to the date of applying for candidacy or the date of
nomination;
(8) being disfranchised under section 102 (1), (2), (3),
(4), (5), (6), (7), (8), (9), (11), (12), (13) or (14);
(9) not being a Minister or a person holding a political
position other than a member of a local assembly or a local
administrator, or having held such position and having vacated
office for a period of not more than five years.
Section 116. A senator shall not be a Minister, a holder
of other political position or a holder of a position in a constitutional
independent organ.
The person having held office of senator with
membership having terminated for not more than two years, shall
not be a Minister or a holder of other political position.
Section 117. Membership of an elected senator
commences on the election day and membership of a selected
senator commences on the date of the publication by the Election
Commission of the result of the selection.
Membership of a senator shall be for a term of six years
as from the election day or the date of the publication by the
Election Commission of the result of the selection, as the case
may be. A senator may not hold office for more than one term
consecutively.
The senators whose membership terminates at the
expiration of the term shall continue to be in office to perform
duties until new senators are acquired.
Section 118. Upon expiration of the term of elected
senators, the King will issue a Royal Decree calling for a new
general election of senators in which the election day must be fixed
within thirty days as from the date of the expiration of the term of
elected senators and the election day must be the same throughout
the Kingdom.
Upon expiration of the term of selected senators, the
Election Commission shall announce the date of commencement
of the selection and the period for the selection of senators, which
must be completed within sixty days as from the date of the
expiration of the term of selected senators.
Section 119. Membership of a senator terminates upon:
(1) expiration of the term of the Senate;
(2) death;
(3) resignation;
(4) being disqualified or being under any of the
prohibitions under section 115;
(5) acting in contravention of any of the prohibitions under
section 116, section 265 or section 266;
removing him or her from office or the Constitutional Court having
a decision terminating his or her membership under section 91 or
the Supreme Court of Justice having an order under section 239
paragraph two or section 240 paragraph three; in such case, his
or her membership shall be deemed to have terminated as from
the date of the resolution of the Senate or of the decision or the
order of the Court, as the case may be;
(7) having been absent for more than one-fourth of the
number of days in a session the length of which is not less than one
hundred and twenty days without permission of the President of
the Senate;
(8) having been sentenced by a final judgment to a term
of imprisonment irrespective of a suspension of the punishment,
except for a suspension of the punishment in an offence committed
through negligence or a petty offence or an offence of defamation.
Section 120. When the office of senator becomes vacant
by reason of any circumstance under section 119, the provisions
of section 112, section 113, section 114 and section 118 shall
apply to an election or selection of senators in such case, and the
replacing senator may serve only for the remainder of the term of
the replaced senator, except that if the remainder of the term of
the senator whose office becomes vacant is less than one hundred
and eighty days, the election or selection may be omitted.
Section 121. In considering any person for appointment
to any position in accordance with the provisions of this
Constitution, the Senate shall appoint a committee to be in charge
of examining personal records, behaviours and ethical conduct of
the person nominated for holding such position and gathering
necessary facts and evidence for further reporting to the Senate
and thereby assisting in its consideration.
The performance of activities of the committee under
paragraph one shall be in accordance with procedures prescribed
in Rules of Procedure of the Senate.
Part 4
Provisions Applicable to Both Houses
and senators are representatives of the Thai people without being
bound by any mandate, entrustment or dominance, and shall
honestly perform the duties for common interests of the Thai people
without any conflict of interests.
Section 123. Before taking office, a member of the
House of Representatives and a senator shall make a solemn
declaration at a sitting of the House of which he or she is a member
in the following words:
I, (name of the declarer), do solemnly declare that
I will perform my duties in accordance with the honest dictates of
my conscience for the benefits of the country and the people.
83
I will also uphold and observe the Constitution of the Kingdom
of Thailand in every respect.
Section 124. The House of Representatives and the
Senate shall each have one President and one or two Vice-
Presidents who are appointed by the King from the members of
such House in accordance with its resolution.
The President and the Vice-Presidents of the House of
Representatives hold office until the expiration of the term or the
dissolution of the House.
The President and the Vice-Presidents of the Senate hold
office until the day preceding the date of the election of the new
President and Vice-Presidents.
The President and the Vice-Presidents of the House of
Representatives and the President and the Vice-Presidents of the
Senate vacate office before the expiration of the term of office
under paragraph two or paragraph three, as the case may be,
upon:
(1) loss of membership of the House of which he or she
is a member;
(2) resignation;
(3) holding a position of Prime Minister, Minister or other
political official;
(4) having been sentenced by a judgment to a term of
imprisonment irrespective of the finality of the case or a suspension
of the punishment, except for a non-final case or a suspension of
the punishment in an offence committed through negligence or a
petty offence or an offence of defamation.
During office, the President and Vice-President of the
House of Representatives may not be a member of an executive
committee or hold any position in a political party simultaneously.
Section 125. The President of the House of
Representatives and the President of the Senate shall have the
powers and duties to carry out the business of each House in
accordance with its rules of procedure. The Vice-presidents have
the powers and duties as entrusted by the President and act on
behalf of the President when the President is not present or unable
to perform his or her duties.
The President of the House of Representatives, the
President of the Senate and the persons who act on behalf of the
President shall be impartial in the performance of duties.
When the President and the Vice-Presidents of the House
of Representatives or the President and the Vice-Presidents of
the Senate are not present at any sitting, the members of each
House shall elect one amongst themselves to preside over such
sitting.
Section 126. At a sitting of the House of Representatives
or the Senate, the presence of not less than one-half of the total
number of the existing members of each House is required to
constitute a quorum, except that in the case of considering the
agenda on an interpellation under section 156 and section 157,
the House of Representatives and the Senate may otherwise
prescribe a quorum in the rules of procedure.
A resolution on any issue shall be made by a majority of
votes, unless it is otherwise provided in this Constitution.
In casting a vote, each member has one vote. In case of
an equality of votes, the presiding member shall have an additional
vote as a casting vote.
The President of the National Assembly, the President
of the House of Representatives and the President of the Senate
shall cause the voting of each member to be recorded and disclose
such record in a place where the public entry for its inspection is
possible, except for the case of the voting by secret ballot.
The casting of votes to elect or give approval to a person
for holding office shall be by secret ballot, unless otherwise
provided in this Constitution, and members shall have autonomy
and shall not be bound by resolutions of their political parties or
any other mandate.
Section 127. The National Assembly shall, within thirty
days as from the date of the election of members of the House of
Representatives, be summoned for the first sitting.
Each year, there shall be a general ordinary session and
a legislative ordinary session.
The day on which the first sitting under paragraph one is
held shall be considered as the first day of the general ordinary
session, and the first day of the legislative ordinary session shall be
fixed by the House of Representatives. In the case where the first
sitting under paragraph one has less than one hundred and fifty
days up to the end of a calendar year, the legislative ordinary session
may be omitted in that year.
During the legislative ordinary session, the National
Assembly shall hold a sitting only in such cases as prescribed in
Chapter 2 or in cases of the consideration of organic law bills or
bills, the approval of an Emergency Decree, the approval of the
declaration of war, the hearing of explanations and the approval
of a treaty, the election or approval of a person for holding office,
the removal of a person from office, the interpellation and the
amendment of the Constitution, unless the National Assembly has
passed a resolution, by the votes of more than one-half of the total
number of the existing members of both Houses, for considering
other matters.
An ordinary session of the National Assembly shall last
one hundred and twenty days but the King may prolong it.
An ordinary session may be prorogued before the end
of one hundred and twenty days only with the approval of the
National Assembly.
Section 128. The King convokes the National
Assembly, opens and prorogues its session.
The King may be present to perform the opening
ceremony of the first general ordinary session under section 127
paragraph one or may command the Heir to the Throne who is
sui juris or any person to perform the ceremony as His
Representative.
When it is necessary for the interests of the State, the
King may convoke an extraordinary session of the National
Assembly.
Subject to section 129, the convocation, the prolongation
of session and the prorogation of the National Assembly shall be
made by a Royal Decree.
Section 129. Members of both Houses or members of
the House of Representatives of not less than one-third of the
total number of the existing members of both Houses have the
right to present their petition to the King for the issuance of a
Royal Command convoking an extraordinary session of the
National Assembly.
The petition referred to in paragraph one shall be lodged
with the President of the National Assembly.
The President of the National Assembly shall present
the petition to the King and countersign the Royal Command.
84
Section 130. At a sitting of the House of Representatives
or the Senate or at a joint sitting of the National Assembly, words
expressed in giving statements of fact or opinions or in casting the
vote by any member are absolutely privileged. No charge or action
in any manner whatsoever shall be brought against such member.
The privilege under paragraph one does not extend to a
member who expresses words at a sitting which is broadcast
through radio or television if such words appear out of the precinct
of the National Assembly and the expression of such words
constitutes a criminal offence or a wrongful act against any other
person, who is not a Minister or member of that House.
In the case of paragraph two, if the words expressed by
the member cause damage to other person who is not a Minister
or member of that House, the President of that House shall cause
explanations to be published as requested by that person in
accordance with the procedure and within the period of time as
prescribed in the rules of the procedure of that House, without
prejudice to the persons right to bring the case before the Court.
The privilege provided in this section extends to printers
and publishers of the minutes of sittings in accordance with the
rules of procedure of the House of Representatives, the Senate or
the National Assembly, as the case may be, and to persons
permitted by the presiding member to give statements of fact or
opinions at such sitting as well as to persons who broadcasts the
sitting through radio or television with the permission of the
President of such House mutatis mutandis.
Section 131. No member of the House of
Representatives or senator shall, during a session, be arrested,
detained or summoned by a warrant for an inquiry as the suspect
in a criminal case unless permission of the House of which he or
she is a member is obtained or he or she is arrested in flagrante
delicto.
In the case where a member of the House of
Representatives or a senator has been arrested in flagrante
delicto, it shall be forthwith reported to the President of the House
of which he or she is a member and such President may order the
release of the person so arrested.
In the case where a criminal charge is brought against a
member of the House of Representatives or a senator, whether
the House is in session or not, the Court shall not try the case
during a session, unless permission of the House of which he or
she is a member is obtained or it is a case concerning the Organic
Act on the Election of Members of the House of Representatives
and the Acquisition of Senators, the Organic Act on Election
Commission or the Organic Act on political parties; provided that
the trial of the Court shall not hinder such member from attending
the sitting of the House.
The trial and adjudication of the Court conducted before
it is invoked that the accused is a member of either House are
valid.
If a member of the House of Representatives or a senator
is detained during the inquiry or trial before the beginning of a
session, when the session begins, the inquiry official or the Court,
as the case may be, must order his or her release as soon as the
President of the House of which he or she is a member has so
requested.
The order of release shall be effective as from the date
of such order until the last day of the session.
Section 132. During the expiration of the term or the
dissolution of the House of Representatives, the Senate shall not
hold its sitting except in the following cases:
(1) a sitting at which the Senate shall act as the National
Assembly under section 19, section 21, section 22, section 23
and section 189, and the votes taken shall be based on the number
of senators;
(2) a sitting at which the Senator shall make a
determination placing a person to any office in accordance with
the provisions of this Constitution;
(3) a sitting at which the Senate shall consider and pass
a resolution removing a person from office.
Section 133. A sitting of the House of Representatives
and of the Senate and a joint sitting of the National Assembly are
public under the conditions stipulated in the rules of procedure of
each House. A sitting in camera shall be held at the request of the
Council of Ministers or members of not less than one-fourth of the
total number of the existing members of each House or of both
Houses, as the case may be.
Senate have the power to make the rules of procedure governing
the election and performance of duties of the President, Vice-
Presidents, matters or activities which are within the powers and
duties of each standing committee, the performance and quorum
of committees, sittings, the submission and consideration of organic
law bills and bills, the submission of motions, the consultation,
debates, the passing of a resolution, the recording and disclosure
of the passing of a resolution, the interpellation, the initiation of a
general debate, the observance of rules and orders and other
relevant matters, and shall also have the power to make the rules
of procedure governing codes of ethics of members and committee
members and other matters for the execution of this Constitution.
Senate have the power to select and appoint members of each
house to constitute a standing committee and have the power to
select and appoint persons, being or not being its members, to
constitute an ad hoc committee in order to perform any act, inquire
into or study any matter within the powers and duties of the House
and report its findings to the House. The resolution appointing
such ad hoc committee must specify the activity or the matter
concerned clearly and without repetition or duplication.
The committee under paragraph one has the power to
issue an order demanding documents from any person or
summoning any person to give statements of fact or opinions on
the act undertaken or on the matter under its inquiry or study, and
such order shall have a binding force as provided by law, but such
order shall not apply to judges performing duties in relation to trial
and adjudication of cases or personnel administration of each court
and shall not apply to Ombudsmen or members of constitutional
independent organs who directly perform official duties in each
organ in accordance with the provisions of the Constitution or in
accordance with an Organic Act, as the case may be.
In the case where the person under paragraph two is a
Government official, official or employee of a Government agency,
a State agency, a State enterprise or a local government
organisation, the Chairman of the committee shall notify the Minister
who supervises and controls the agency to which such person is
attached in order to instruct him or her to act as prescribed in
paragraph two, except that, in the case of the safety or benefit of
importance to the State, it shall be deemed as a ground of an
exemption to the compliance with paragraph two.
The privileges provided in section 130 shall also extend
to the persons performing their duties under this section.
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The number of members of a standing committee
appointed solely from members of the House of Representatives
shall be in proportion to or in close proportion to the number of
members of the House of Representatives of each political party
or group of political parties in the House of Representatives.
In the absence of the rules of procedure of the House of
Representatives under section 134, the President of the House of
Representatives shall determine the proportion under paragraph
five.
Part 5
Joint Sittings of the National Assembly
Section 136. The National Assembly shall hold a joint
sitting in the following cases:
(1) the approval of the appointment of the Regent under
section 19;
(2) the making of a solemn declaration by the Regent
before the National Assembly under section 21;
(3) the acknowledgment of an amendment of the Palace
Law on Succession, B.E. 2467 under section 22;
(4) the acknowledgment or approval of the succession
to the Throne under section 23;
(5) the passing of a resolution for the consideration by
the National Assembly of other matters during a legislative ordinary
session under section 127;
(6) the approval of the prorogation of a session under
section 127;
(7) the opening of the session of the National Assembly
under section 128;
(8) the making of the rules of procedure of the National
Assembly under section 137;
(9) the approval of the consideration of an organic law
bill or a bill under section 145;
(10) the reconsideration of an organic law bill or a bill or
under section 151;
(11) the approval of the further consideration of a
Constitution Amendment, an organic law bill or a bill under section
153 paragraph two;
(12) the announcement of policies under section 176;
(13) the holding of a general debate under section 179;
(14) the approval of the declaration of war under section
189;
(15) the hearing of explanations and approval of a treaty
under section 190;
(16) the amendment of the Constitution under section
291.
Section 137. At a joint sitting of the National Assembly,
the rules of procedure of the National Assembly shall apply. While
the rules of procedure of the National Assembly have not yet been
issued, the rules of procedure of the House of Representatives
shall apply mutatis mutandis.
The provisions applicable to both Houses shall apply
mutatis mutandis to the joint sitting of the National Assembly,
except that, for the appointment of a committee, the number of
committee members appointed from the members of each House
must be in proportion to or in close proportion to the number of
members of each House.
Part 6
Enactment of Organic Acts
Section 138. There shall be the following Organic Acts:
(1) Organic Act on the Election of Members of the House
of Representatives and the Acquisition of Senators;
(2) Organic Act on the Election Commission;
(3) Organic Act on Political Parties;
(4) Organic Act on Referendum;
(5) Organic Act on Procedure of the Constitutional Court;
(6) Organic Act on Criminal Procedure for Persons
Holding Political Positions;
(7) Organic Act on Ombudsmen;
(8) Organic Act on Counter Corruption;
(9) Organic Act on State Audit.
Section 139. An organic law bill may be introduced
only by:
(1) the Council of Ministers;
(2) members of the House of Representatives of not less
than one-tenth of the total number of its existing members, or
members of the House of Representatives and senators of not
less than one-tenth of the total number of existing members of
both Houses; or
(3) the Constitutional Court, the Supreme Court of
Justice or a constitutional independent organ, where the President
of such Court and the President of such independent organ has
charge and control of the execution of such Organic Act.
Section 140. The consideration of an organic law bill
by the House of Representatives and by the Senate shall be
conducted in three readings, as follows:
(1) the voting in the first reading for acceptance in
principle and in the second reading for consideration section by
section shall be decided by a majority of votes;
(2) the voting in the third reading must be approved, for
promulgation as Organic Act, by votes of more than one-half of
the total number of the existing members of each House.
The provisions of Chapter VI Part 7 Enactment of Acts
shall apply to the consideration of an organic law bill mutatis
mutandis.
Section 141. Upon its approval by the National
Assembly, an organic law bill shall be, prior to its presentation to
the King for signature, referred to the Constitutional Court for
determining its constitutionality, provided that such determination
shall be completed within thirty days as from the date of its receipt.
In case of a decision of the Constitutional Court that any
organic law bill contains a provision contrary to or inconsistent
with the Constitution, such provision shall lapse. In the case of a
decision that such provision forms an essential part or that an organic
law bill is enacted in derogation of the provisions of the Constitution,
such organic law bill shall lapse.
In the case where the decision of the Constitutional Court
results in the provision that is contrary to or inconsistent with the
Constitution lapsing under paragraph two, such organic law bill
shall be referred back to the House of Representatives and the
Senate for consideration in respective order. In such case, the
House of Representatives or the Senate shall consider amendment
in order for the bill not to be contrary to or inconsistent with the
Constitution, provided that a resolution making amendment thereto
shall be supported by votes of more than one-half of the total
number of existing members of each House and, thereafter, the
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Prime Minister shall further proceed in accordance with section
90 and section 150, or section 151, as the case may be.
Part 7
Enactment of Acts
Section 142. Subject to section 139, a bill may be
introduced only by:
(1) the Council of Ministers;
(2) not less than twenty members of the House of
Representatives;
(3) the Court or a constitutional independent organ, only
in respect of the law that is concerned with institutional organisation
and the law the execution of which the President of such Court
and the President of such organ has charge and control; or
(4) persons having the right to vote of not less than ten
thousand in number, who lodge a petition for introducing the law
under section 163.
In the case where a bill introduced under (2), (3) or (4)
purports to be a money bill, its introduction may be made only
with the endorsement of the Prime Minister.
In the case where any bill has been introduced by the
people under (4), if the person under (1) or (2) has introduced a
bill with a principle identical to that of such earlier bill, the provisions
of section 163 paragraph four shall also apply to the consideration
of such bill.
A bill shall be first submitted to the House of
Representatives.
A bill introduced under paragraph one shall also be
accompanied by an explanatory note summarising essential
contents of the bill.
A bill introduced to the National Assembly shall be open
to the public and details thereof shall be made publicly accessible
in a convenient manner.
Section 143. A money bill means a bill with provisions
dealing with any of the following matters:
(1) the imposition, repeal, reduction, alteration,
modification, remission, or regulation of taxes or duties;
(2) the allocation, receipt, custody, payment of the State
funds, or transfer of expenditure estimates of the State;
(3) the raising of loans, a guarantee, redemption of loans,
or action binding upon the property of the State;
(4) currency.
In case of doubt as to whether a bill is a money bill which
requires the endorsement of the Prime Minister or not, it shall be
the power of a joint sitting of the President of the House of
Representatives and Presidents of all its standing committees to
make a decision thereon.
The President of the House of Representatives shall hold
a joint sitting to consider the case under paragraph two within
fifteen days as from the date such case occurs.
The resolution of the joint sitting under paragraph two
shall be decided by a majority of votes. In case of an equality of
votes, the President of the House of Representatives shall have an
additional vote as a casting vote.
Section 144. In the case where any bill as introduced
by members of the House of Representatives was not, at the stage
of the adoption of its principle, a money bill but was subsequently
amended by the House of Representatives and, in the opinion
of the President of the House, such amendment has rendered
it to exhibit the characteristic of a money bill, the President of
the House shall suspend the consideration of such bill and, within
fifteen days as from the day on which such case occurs, shall refer
it to a joint sitting of the President of the House of Representatives
and Presidents of all its standing committees to make a decision
thereon.
In the case where the joint sitting under paragraph one
decides that the amendment resulted in such bill exhibiting the
characteristic of a money bill, the President of the House shall
refer it to the Prime Minister for endorsement. In the case where
the Prime Minister does not endorse it, the House of Representative
shall amend it so as to prevent it from being a money bill.
Section 145. When a bill which has been specified by
the Council of Ministers, in its policies stated to the National
Assembly under section 176, as necessary for the administration
of the State affairs is not approved by a resolution of the House of
Representatives and the votes disapproving it are less than one-
half of the total number of the existing members of the House, the
Council of Ministers may request the National Assembly to hold a
joint sitting for passing a resolution on another occasion. If it is
approved, the National Assembly shall appoint the persons, being
or not being its members, in such an equal number as proposed
by the Council of Ministers, to constitute a joint committee of the
National Assembly for considering such bill, and the joint committee
of the National Assembly shall prepare a report thereon and submit
the bill which it has already considered to the National Assembly.
If such bill is approved by the National Assembly, further
proceedings under section 150 shall be taken. If it is not approved,
such bill shall lapse.
Section 146. Subject to section 168, when the House
of Representatives has considered a bill submitted under section
142 and passed a resolution approving it, the House of
Representatives shall submit such bill to the Senate. The Senate
must finish the consideration of such bill within sixty days; but if it
is a money bill, the consideration thereof must be finished within
thirty days; provided that the Senate may, as an exceptional case,
pass a resolution extending the period for not more than thirty
days. The said period shall mean the period during a session and
shall be counted as from the day on which such bill reaches the
Senate.
The period referred to in paragraph one shall not include
the period during which the bill is under the consideration of the
Constitutional Court under section 149.
If the Senate has not finished the consideration of the bill
within the period referred to in paragraph one, it shall be deemed
that the Senate has approved it.
In the case where the House of Representatives submits
a money bill to the Senate, the President of the House of
Representatives shall also advise the Senate that the bill so submitted
is a money bill. The advice of the President of the House of
Representatives shall be deemed final.
In the case where the President of the House of
Representatives does not advise the Senate that the bill is a money
bill, such bill shall not be deemed a money bill.
Section 147. Subject to section 168, after the Senate
has finished the consideration of a bill,
(1) if it agrees with the House of Representatives, further
proceedings under section 150 shall be taken;
(2) if it disagrees with the House of Representatives,
such bill shall be withheld and returned to the House of
Representatives;
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(3) if there is an amendment, the amended bill or the
amended organic law bill shall be returned to the House of
Representatives. If the House of Representatives approves such
amendment, further proceedings under section 150 shall be taken.
In other cases, each House shall appoint persons, being or not
being its members, in such an equal number as may be fixed by
the House of Representatives, to constitute a joint committee for
considering the bill and the joint committee shall prepare a report
thereon and submit the bill which it has already considered to both
Houses. If both Houses approve the bill already considered by
the joint committee, further proceedings under section 150 shall
be taken. If either House disapproves it, the bill shall be withheld.
The joint committee has the power to demand documents
from any person or summon any person to give statements of fact
or opinions in respect of the consideration of the bill or the organic
law bill and the privileges provided in section 130 shall also extend
to the person performing his or her duties under this section.
At a meeting of the joint committee, the presence of the
members of the joint committee appointed by both Houses of not
less than one-half of the total number of its members is required to
constitute a quorum and the provisions of section 137 shall apply
mutatis mutandis.
If the Senate does not return the bill to the House of
Representatives within the time under section 146, it shall be
deemed that the Senate has approved such bill and further
proceedings under section 150 shall be taken.
Section 148. A bill withheld under section 147 may be
reconsidered by the House of Representatives only after the lapse
of one hundred and eighty days as from the date the bill is returned
to the House of Representatives by the Senate in case of withholding
under section 147 (2) and as from the date either House
disapproves it in case of withholding under section 147 (3). In
such cases, if the House of Representatives resolves to reaffirm
the bill considered by the joint committee by the votes of more
than one-half of the total number of the existing members of the
House of Representatives, such bill shall be deemed to have been
approved by the National Assembly and further proceedings under
section 150 shall be taken.
If the bill withheld is a money bill, the House of
Representatives may forthwith proceed to reconsider it. In such
case, if the House of Representatives resolves to reaffirm the bill
considered by the joint committee by the votes of more than one-
half of the total number of the existing members of the House of
Representatives, such bill shall be deemed to have been approved
by the National Assembly and further proceedings under section
150 shall be taken.
Section 149. While a bill is being withheld under section
147, the Council of Ministers or members of the House of
Representatives may not introduce a bill having the same or similar
principle as that of the bill so withheld.
In the case where the House of Representatives or the
Senate is of the opinion that the bill so introduced or referred to
for consideration has the same or similar principle as that of the
bill being withheld, the President of the House of Representatives
or the President of the Senate shall refer the said bill to the
Constitutional Court for decision. If the Constitutional Court
decides that it is a bill having the same or similar principle as that
of the bill so withheld, such bill shall lapse.
Section 150. After a bill has already been approved by
the National Assembly, the Prime Minister shall present it to the
King for signature within twenty days as from the date of the receipt
of such bill from the National Assembly, and it shall come into
force upon its publication in the Government Gazette.
Section 151. If the King refuses His assent to a bill and
either returns it to the National Assembly or does not return it
within ninety days, the National Assembly must redeliberate such
bill. If the National Assembly resolves to reaffirm the bill with the
votes of not less than two-thirds of the total number of existing
members of both Houses, the Prime Minister shall present such
bill to the King for signature on another occasion. If the King
does not sign and return the bill within thirty days, the Prime Minister
shall cause the bill to be promulgated as an Act in the Government
Gazette as if the King had signed it.
Section 152. In considering a bill the substance of which
is decided by the President of the House of Representatives to be
concerned with children, the youth, women, the elderly, the disabled
or persons of infirmity, if the House of Representatives does not
consider it by its full committee, the House of Representatives
shall appoint an ad hoc committee consisting of representatives,
from private organisations concerned with the respective types of
persons, of not less than one-third of the total number of members
of the committee, provided that it shall be represented by a close
number of men and women.
Section 153. In the case where the term of the House
of Representatives expires or the House of Representatives is
dissolved, the draft Constitution Amendment or all bills to which
the King has refused His assent or which have not been returned
by the King within ninety days shall lapse.
In the case where the term of the House of
Representatives expires or where the House of Representatives is
dissolved, the National Assembly, the House of Representatives
or the Senate, as the case may be, may, after a general election of
members of the House of Representatives, continue the
consideration of the draft Constitution Amendment or the bill which
has not yet been approved by the National Assembly if the Council
of Ministers which is newly appointed after the general election so
requests within sixty days as from the first sitting day of the National
Assembly after the general election and the National Assembly
approves it. If the Council of Ministers does not so request within
such period of time, such draft Constitution Amendment or bill
shall lapse.
The further consideration of the draft Constitution
Amendment or the bill under paragraph two shall be in accordance
with the rules of procedure of the House of Representatives, the
Senate or the National Assembly, as the case may be.
Part 8
Scrutiny of Unconstitutionality of Enactment
Section 154. After any bill has been approved by the
National Assembly, then, before the Prime Minister presents it to
the King for signature under section 150; or after any bill has been
reaffirmed by the National Assembly under section 151, then,
before the Prime Minister presents it to the King for signature on
another occasion:
(1) if members of the House of Representatives, senators
or members of both Houses of not less than one-tenth of the total
number of the existing members of both Houses are of the opinion
that the said bill contains provisions that are contrary to or
inconsistent with this Constitution or is enacted contrary to the
provisions of this Constitution, they shall submit their opinion to
the President of the House of Representatives, the President of
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the Senate or the President of the National Assembly, as the case
may be, and the President of the House receiving such opinion
shall then refer it to the Constitutional Court for decision and,
without delay, inform the Prime Minister thereof;
(2) if the Prime Minister is of the opinion that the said bill
contains provisions that are contrary to or inconsistent with this
Constitution or is enacted contrary to the provisions of this
Constitution, the Prime Minister shall refer such opinion to the
Constitutional Court for decision and, without delay, inform the
President of the House of Representatives and the President of
the Senate thereof.
During the consideration of the Constitutional Court, the
Prime Minister shall suspend the proceedings in respect of the
promulgation of the bill until the Constitutional Court gives a
decision thereon.
If the Constitutional Court decides that the provisions of
such bill are contrary to or inconsistent with this Constitution or
enacted contrary to the provisions of this Constitution and that
such provisions of the bill form the essential part thereof, such bill
shall lapse.
If the Constitutional Court decides that the provisions of
such bill are contrary to or inconsistent with this Constitution
otherwise than in the case specified in paragraph three, such
conflicting or inconsistent provisions shall lapse and the Prime
Minister shall proceed further in accordance with section 150 or
section 151, as the case may be.
Section 155. The provisions of section 154 shall apply
mutatis mutandis to draft rules of procedure of the House of
Representatives, draft rules of procedure of the Senate and draft
rules of procedure of the National Assembly which have already
been approved by the House of Representatives, the Senate or
the National Assembly, as the case may be, but remain unpublished
in the Government Gazette.
Part 9
Scrutiny of Administration of the State Affairs
Section 156. Every member of the House of
Representatives or senator has the right to interpellate a Minister
on any matter within the scope of his or her authority, but the
Minister has the right to refuse to answer it if the Council of
Ministers is of the opinion that the matter should not yet be
disclosed on the ground of safety or vital interest of the State.
Section 157. In the administration of the State affairs
on any matter which involves an important problem of public
concern, affects national or public interests, or requires urgency, a
member of the House of Representatives may notify the President
of the House of Representatives in writing prior to the
commencement of the sitting of the day that the member will
interpellate the Prime Minister or the Minister responsible for the
administration of the State affairs on that matter without specifying
the question, and the President of the House of Representatives
shall place such matter on the agenda of the meeting of that day.
The interpellation and the answer to the interpellation
under paragraph one may be made once a week, and a verbal
interpellation by a member of the House of Representatives on a
matter involving the administration of the State affairs may be made
not exceeding three times on each matter in accordance with the
rules of procedure of the House of Representatives.
of not less than one-fifth of the total number of the existing members
of the House have the right to submit a motion for a general debate
for the purpose of passing a vote of no-confidence in the Prime
Minister. Such motion must nominate the suitable next Prime
Minister who is also a person under section 171 paragraph two
and, when the motion has been submitted, the dissolution of the
House of Representatives is not permitted, except that the motion
is withdrawn or the resolution is passed without being supported
by the vote in accordance with paragraph three.
In the submission of the motion for a general debate
under paragraph one, if it is concerned with the behaviour of the
Prime Minister, which involves a circumstance of unusual
wealthiness, exhibits a sign of malfeasance in office or amounts to
an intentional violation of the provisions of the Constitution or law,
it shall not be submitted without the petition under section 271
having been presented. Upon the submission of the petition under
section 271, it may be proceeded with without awaiting the
outcome of the proceedings under section 272.
If the general debate is concluded without a resolution
passing over the agenda of the general debate, the House of
Representatives shall pass a vote of confidence or no-confidence.
Voting in such case shall not take place on the date of the conclusion
of the debate. The vote of no-confidence must be passed by
more than one-half of the total number of the existing members of
the House of Representatives.
In the case where a vote of no-confidence is passed by
not more than one-half of the total number of the existing members
of the House of Representatives, the members of the House of
Representatives who submit the motion for the general debate
shall no longer have the right to submit another motion for a general
debate for the purpose of passing a vote of no-confidence in the
Prime Ministers throughout the session.
In the case where a vote of no-confidence is passed by
the House of Representatives, the President of the House of
Representatives shall submit the name of the person nominated
under paragraph one to the King for further appointment and
section 172 shall not apply.
of not less than one-sixth of the total number of the existing members
of the House of Representatives have the right to submit a motion
for a general debate for the purpose of passing a vote of no-
confidence in an individual Minister, and the provisions of section
158 paragraph two, paragraph three and paragraph four shall apply
mutatis mutandis.
A Minister who vacates original office but remains a
Minister in different office subsequent to the date of the motion
submitted by members of the House of Representatives under
paragraph one shall remain subjected to the debate for the purpose
of passing a vote of no-confidence.
The provisions of paragraph two shall also apply mutatis
mutandis to a Minister who has vacated original office for a period
not longer than ninety days prior to the date of the motion submitted
by members of the House of Representatives under paragraph
one but remains a Minister in different office.
Section 160. In the case where the number of members
the House of Representatives who are not members of the parties
of which any members are Ministers does not reach the number
determined for submission of a motion for a general debate under
section 158 or section 159, members of the House of
Representatives of more than one-half of such existing members
shall have the right to submit a motion for a general debate for the
89
purpose of passing a vote of no-confidence in the Prime Minister
or an individual Minister under section 158 or section 159 after
the Council of Ministers has carried out administration of the State
affairs for more than two years.
Section 161. Senators of not less than one-third of the
total number of the existing members of the Senate have the right
to submit a motion for a general debate in the Senate for the
purpose of requesting the Council of Ministers to give statements
of fact or explain important problems in connection with the
administration of the State affairs without a resolution to be passed.
The motion for the general debate under this section may
be submitted only once in each session.
Section 162. In the case where there is a sitting of the
House of Representatives or the Senate for an interpellation on
any matter in connection with work under official duties or for a
debate of no-confidence against the Prime Minister or any Minister,
it shall be the duty of the Prime Minister or that Minister to attend
the sitting of the House of Representatives or the Senate for giving
explanations or answering the interpellation on that matter
personally, except where there exists an inevitable necessity
preventing attendance, provided that the President of the House
of Representatives or the Senate shall be informed thereof before
or on the date of the sitting with regard to such matter.
Members of the House of Representatives shall be
independent from any resolutions of political parties in respect of
an interpellation, a debate and the passing of a vote in a debate of
no-confidence.
CHAPTER VII
Direct Political Participation by the People
Section 163. The persons having the right to vote of
not less than ten thousand in number have a right to submit a petition
to the President of the National Assembly to consider a bill as
prescribed in Chapter 3 and Chapter 5 of this Constitution.
A bill must be attached to the petition referred to in
paragraph one.
The rules and procedures for the petition and the
examination of names of petitioners shall be in accordance with
the provisions of the law.
In considering a bill under paragraph one, the House of
Representatives and the Senate shall provide representatives of
the petitioners introducing the bill with opportunities of explaining
the principle thereof, and the ad hoc committee to be appointed
for considering the bill shall also consist of representatives of the
petitioners introducing such bill in the number of not less than one
third of the total number of members of the committee.
Section 164. The persons having the right to vote of
not less than twenty thousand in number have the right to lodge
with the President of the Senate a complaint in order to request
the Senate to pass a resolution under section 274 removing the
persons under section 270 from office.
The said request under paragraph one shall clearly itemise
circumstances in which such persons have allegedly committed
the act.
The rules, procedures and conditions for the lodging of
the complaint by the persons having the right to vote under paragraph
one shall be in accordance with the Organic Act on Counter
Corruption.
Section 165. The persons having the right to vote have
the right to a referendum.
A referendum may be conducted in the following
circumstances:
(1) in the case where the Council of Ministers is of the
opinion that any issue may affect national or public interests, the
Prime Minister, with the approval of the Council of Ministers, may
consult the President of the House of Representatives and the
President of the Senate for the purpose of publishing in the
Government Gazette calling for a referendum;
(2) in the case where a referendum is required by the
law.
A referendum under (1) or (2) may be conducted in order
to achieve a final determination, by a majority of votes cast by
persons having the right to vote at a referendum, on a problematic
issue to which the referendum relates, or may be conducted for
giving advice to the Council of Ministers, except specifically
provided by law.
A referendum shall be conducted for voting for or against
the matter to which the referendum relates and shall not be
conducted on an issue contrary to or inconsistent with the
Constitution or relating to any individual person or group of
persons.
Prior to a referendum, the State shall take steps in
providing adequate information and providing proponents and
opponents of the matter concerned with equal opportunities of
expressing their opinions.
The rules and procedures for voting in a referendum shall
be in accordance with the Organic Act on Referendum, which
shall, at least, prescribe details as to the method of the referendum,
timeframes therefor and the number of votes required for a final
determination.
CHAPTER VIII
Fiscal Affairs, Finance and Budget
Section 166. The expenditure estimates of the State
shall be made in the form of an Act. If the Annual Appropriations
Act for the following fiscal year is not enacted in time, the law on
annual appropriations for the preceding fiscal year shall apply for
the time being.
Section 167. An annual appropriations bill to be
introduced shall be accompanied by clear supporting documents,
including income estimates as well as objectives, activities, action
plans and projects in each item of expenditure, and shall also
indicate the fiscal and financial status of the country in connection
with the overall outlook of the economy emanating from
expenditure and procurement of revenues, benefits and revenue
deficiency from various forms of specific tax exemption, the need
to set appropriations with commitment across the year, debt
burdens and debt creation of the State and the financial status of
State enterprises, for the year in which appropriations are to be
submitted for approval and the preceding year.
If no budget can directly be appropriated to any item of
expenditure of a Government agency, a State enterprise or any
other State agency, the budget therefor shall be listed in the
expenditure items of the Central Budget, provided that reasons
and necessity for the determination thereof shall also be specified.
There shall be the law on fiscal affairs and finance of the
State setting out a framework for fiscal and financial disciplines,
including rules with regard to short-term fiscal planning,
procurement of revenues, the determination of directions for the
preparation of appropriations of the State, the administration of
fiscal affairs and assets, accounting, public funds, the creation of
90
debts or the operation binding on assets or fiscal burdens of the
State and rules with regard to the determination of the amount of
reserved funds to be expended in the case of emergency or
necessity and other relevant activities, which form a framework
for the procurement of revenues and the oversight of expenditure
in accordance with the principles of maintaining stability, sustainable
economic development and fairness in society.
Section 168. The House of Representatives must
complete the analysis and consideration of an annual appropriations
bill, a supplementary appropriations bill and a transfer of
appropriations bill within one hundred and five days as from the
date the bill reaches the House of Representatives.
If the House of Representatives has not finished the
consideration of the bill within the period referred to in paragraph
one, such bill shall be deemed to have been approved by the House
of Representatives and shall be submitted to the Senate.
In the consideration of a bill by the Senate, the Senate
must approve or disapprove it without any amendment within
twenty days as from the date the bill reaches the Senate. Upon
the lapse of such period, such bill shall be deemed to have been
approved; in such case and in the case where the Senate approves
it, further proceedings under section 150 shall be taken.
If the Senate disapproves the bill, the provisions of section
148 paragraph two shall apply mutatis mutandis.
In the consideration of the annual appropriations bill, the
supplementary appropriations bill and the transfer of appropriations
bill, a member of the House of Representatives shall not submit a
motion adding any item or amount to the bill, but may submit a
motion reducing or abridging the expenditures which are not
expenditures according to any of the following obligations:
(1) money for payment of the principal of a loan;
(2) interest on a loan;
(3) money payable in accordance with the law.
In the consideration by the House of Representatives,
the Senate or a committee, any proposal, submission of a motion
or commission of any act, which results in direct or indirect
involvement by members of the House of Representatives, senators
or members of a committee in the use of the appropriations, shall
not be permitted.
In the case where members of the House of
Representatives or senators of not less than one-tenth of the total
number of the existing members of each House are of the opinion
that the violation of the provisions of paragraph six has occurred,
they shall refer it to the Constitutional Court for decision and the
Constitutional Court shall decide it within seven days as from the
date of its receipt. In the case where the Constitutional Court
decides that the violation of the provisions of paragraph six has
occurred, such proposal, submission of the motion, or commission
of the act shall be ineffective.
The State shall provide adequate budgetary
appropriations for the independent operation of the National
Assembly, the Constitutional Court, Courts of Justice, the
Administrative Courts and constitutional organs.
In considering budgetary appropriations of the National
Assembly, the Courts and agencies under paragraph eight, such
agency may, if it is of the opinion that the budgetary appropriation
for it is insufficient, directly submit a motion to the committee.
Section 169. The payment of State funds shall be made
only when it has been authorised by the law on appropriations,
the law on budgetary procedure, the law on transfer of
appropriations or the law on treasury balance, except that it may
be prepaid in the case of urgent necessity under the rules and
procedures provided by the law. In such case, the expenditure
estimates for the reimbursement of the treasury balance must be
set aside in the Transfer of Appropriations Act, the Supplementary
Appropriations Act, or the Annual Appropriations Act for the
following fiscal year, provided that sources of revenues for
reimbursing expenditure already made out of the treasury balance
shall also be specified.
In the case where the country is in a state of war or
armed conflict, the Council of Ministers has the power to transfer
or relocate the expenditure determined for any Government agency
or State enterprise for use in a different item from that previously
determined in the Annual Appropriations Act forthwith and shall
report it to the National Assembly without delay.
In the case of a transfer or relocation of the expenditure
in any item of the pre-determined appropriations for use in a
different item of a Government agency or a State enterprise, the
Government shall report it to the National Assembly for information
at every interval of six months.
Section 170. In the case where a revenue of any State
agency is not required to be submitted as the State revenue, that
State agency shall prepare a report on the receipt and disbursement
thereof for submission to the Council of Ministers at the end of
each fiscal year, and the Council of Ministers shall prepare a report
thereon for further submission to the House of Representatives
and the Senate.
The disbursement of the revenue under paragraph one
shall also be subject to the framework for fiscal and financial
disciplines under this Chapter.
CHAPTER IX
The Council of Ministers
Section 171. The King appoints the Prime Minister
and not more than thirty-five other Ministers to constitute the
Council of Ministers having the duties to carry out the administration
of the State affairs in accordance with the collective responsibility
principle.
The Prime Minister must be a member of the House of
Representatives appointed under section 172.
The President of the House of Representatives shall
countersign the Royal Command appointing the Prime Minister.
The Prime Minister shall not hold office for a consecutive
period of more than eight years.
Section 172. The House of Representatives shall
complete its consideration and approval of the person suitable to
be appointed as Prime Minister within thirty days as from the day
the National Assembly is convoked for the first sitting under section
127.
The nomination of a person who is suitable to be
appointed as Prime Minister under paragraph one shall be endorsed
by members of the House of Representatives of not less than one-
fifth of the total number of the existing members of the House.
The resolution of the House of Representatives approving
the appointment of a person as Prime Minister shall be passed by
the votes of more than one-half of the total number of the existing
members of the House of Representatives. The passing of the
resolution in such case shall be by open votes.
Section 173. In the case where the period of thirty
days as from the date the National Assembly is convoked for the
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first sitting of members of the House of Representatives has elapsed
and no one has been approved for appointment as Prime Minister
under section 172 paragraph three, the President of the House of
Representatives shall, within fifteen days as from the lapse of such
period, present the matter to the King for the issuance of a Royal
Command appointing the person who has received the highest
votes as Prime Minister.
Section 174. A Minister must possess the qualifications
and must not be under any of the prohibitions as follows:
(2) being not less than thirty five years of age;
(4) not being under any of the prohibitions under section
102 (1), (2), (3), (4), (6), (7), (8), (9), (11), (12), (13) or (14);
(5) having been discharged for a period of less than five
years before the appointment after being sentenced by a judgment
to imprisonment, except for an offence committed through
negligence or a petty offence;
(6) not being a senator or having been a senator whose
membership has terminated for not more than two years up to the
date of the appointment as Minister.
Section 175. Before taking office, a Minister must make
a solemn declaration before the King in the following words:
will be loyal to the King and will faithfully perform my duties in the
interests of the country and of the people. I will also uphold and
observe the Constitution of the Kingdom of Thailand in every
respect.
Section 176. The Council of Ministers which will assume
the administration of the State affairs must, within fifteen days as
from the date it takes office, state its policies to the National
Assembly and explain its operations in accordance with the directive
principles of fundamental State policies under section 75, provided
that no vote of confidence shall be passed, and must thereafter
prepare plans for the administration of the State affairs for the
purpose of determining guidance on the discharge of official duties
for each year under section 76.
Before stating policies to the National Assembly under
paragraph one, if there occurs a case of importance and necessary
urgency which, if left delayed, will affect material benefits of the
State, the Council of Ministers which has taken office may, for the
time being, carry out such acts in so far as it is necessary.
Section 177. A Minister has the right to attend and give
statements of fact or opinions at a sitting of the House and, in the
case where the House of Representatives or the Senate passes a
resolution requiring attendance at a sitting for any matter, is obliged
to attend thereat, and privileges as provided in section 130 shall
apply mutatis mutandis.
At a sitting of the House of Representatives, if any
Minister is simultaneously also a member of the House, that Minister
shall not cast a vote on a matter connected with the holding of
office, the performance of duties or the having of any interest in
such matter.
Section 178. Ministers shall carry out the administration
of the State affairs in accordance with the provisions of the
Constitution, laws and the policies stated under section 176, and
shall be responsible individually to the House of Representatives
for the performance of their duties and also be responsible
collectively to the National Assembly for general policies of the
Council of Ministers.
Section 179. In the case where there is an important
problem in the administration of the State affairs in regard to which
the Council of Ministers deems it advisable to take opinion of
members of the House of Representatives and senators, the Prime
Minister may give a notice to the President of the National Assembly
requesting that a general debate be held at a joint sitting of the
National Assembly. In such case, no resolution shall be passed
by the National Assembly on the issue put in the debate.
Section 180. Ministers vacate office en masse upon:
(1) the termination of ministership of the Prime Minister
under section 182;
(2) the expiration of the term or the dissolution of the
House of Representatives;
(3) the resignation of the Council of Ministers.
In the case where the ministership of the Prime Minister
terminates under section 182 (1), (2), (3), (4), (5), (7) or (8), the
procedure under section 172 and section 173 shall apply mutatis
mutandis.
Section 181. The outgoing Council of Ministers shall
remain in office for performing duties until the newly appointed
Council of Ministers takes office; but, in the case of the vacation
of office under section 180 (2), the Council of Ministers and
Ministers may perform duties only to the extent of necessity, subject
to the following conditions:
(1) there shall not be taken any act which is, in nature,
the exercise of the power to appoint or transfer Government officials
holding permanent positions or receiving permanent salaries or
officials of State agencies, State enterprises or undertakings of
which the majority of shares are held by the State or dismiss such
persons from the performance of duties or from office or instruct
others to perform duties in replacement, unless upon prior approval
by the Election Commission;
(2) there shall not be taken any act which has the effect
of approving any disbursement of reserved funds available for
cases of emergency or necessity, unless upon prior approval by
the Election Commission;
(3) there shall not be taken any act which has the effect
of approving any work or project or of creating binding
commitment upon the subsequent Council of Ministers;
(4) there shall not be any exploitation of State resources
or State personnel for any act having impacts on an election and
there shall not be committed any act which is, in nature, a violation
of prohibitions in accordance with the rules prescribed by the
Election Commission.
Section 182. The ministership of an individual Minister
terminates upon:
(1) death;
(2) resignation;
petty offence or an offence of defamation;
(4) the passing of a vote of no-confidence by the House
of Representatives under section 158 or section 159;
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(6) the issuance of a Royal Command removing
ministership under section 183;
(7) having done an act prohibited by section 267, section
268 or section 269;
(8) being removed from office by a resolution of the
Senate under section 274.
Apart from the circumstances resulting in the termination
of the ministership in an individual capacity under paragraph one,
the ministership of the Prime Minister also terminates upon the
expiration of the time under section 171 paragraph four.
The provisions of section 91 and section 92 shall apply
to the termination of the ministership under (2), (3), (5) or (7) or
paragraph two and, for this purpose, the Election Commission
may refer the matter to the Constitutional Court for decision
thereon.
Section 183. The King has the prerogative to remove
a Minister from his or her office upon the advice of the Prime
Minister.
Section 184. For the purpose of maintaining national
or public safety or national economic security, or averting public
calamity, the King may issue an Emergency Decree which shall
have the force as an Act.
The issuance of an Emergency Decree under paragraph
one shall be made only when the Council of Ministers is of the
opinion that it is the case of emergency and necessary urgency
which is unavoidable.
In the next succeeding sitting of the National Assembly,
the Council of Ministers shall submit the Emergency Decree to the
National Assembly for its consideration without delay. If it is out
of session and it would be a delay to wait for the opening of an
ordinary session, the Council of Ministers must proceed to
convoke an extraordinary session of the National Assembly in
order to consider whether to approve or disapprove the Emergency
Decree without delay. If the House of Representatives disapproves
it or approves it but the Senate disapproves it and the House of
Representatives reaffirms its approval by the votes of not more
than one-half of the total number of the existing members of the
House, the Emergency Decree shall lapse; provided that it shall
not affect any act done during the enforcement of such Emergency
Decree.
If the Emergency Decree under paragraph one has the
effect of amending or repealing any provisions of any Act and
such Emergency Decree has lapsed in accordance with paragraph
three, the provisions of the Act in force before the amendment or
repeal shall continue to be in force as from the day the disapproval
of such Emergency Decree is effective.
If the House of Representatives and the Senate approve
the Emergency Decree, or if the Senate disapproves it but the
House of Representatives reaffirms its approval by the votes of
the House, such Emergency Decree shall continue to have the
force as an Act.
The Prime Minister shall cause the approval or
disapproval of the Emergency Decree to be published in the
Government Gazette. In case of disapproval, it shall be effective
as from the day following the date of its publication in the
Government Gazette.
The consideration of an Emergency Decree by the House
of Representatives and the Senate in case of reaffirmation of the
Emergency Decree must take place at the first opportunity when
such Houses hold their sittings.
Section 185. Before the House of Representatives or
the Senate approves an Emergency Decree under section 184
paragraph three, members of the House of Representatives or
senators of not less than one-fifth of the total number of the existing
members of each House have the right to submit an opinion to the
President of the House of which they are members that the
Emergency Decree is not in accordance with section 184
paragraph one or paragraph two, and the President of that House
shall then, within three days as from the receipt thereof, refer it to
the Constitutional Court for decision. After the Constitutional Court
has given a decision thereon, it shall notify its decision to the
President of the House referring such opinion.
When the President of the House of Representatives or
the President of the Senate has received the opinion from members
of the House of Representatives or senators under paragraph one,
the consideration of such Emergency Decree shall be deferred
until the decision of the Constitutional Court under paragraph one
has been notified.
In the case where the Constitutional Court decides that
any Emergency Decree is not in accordance with section 184
paragraph one or paragraph two, such Emergency Decree shall
not have the force of law ab initio.
The decision of the Constitutional Court that an
Emergency Decree is not in accordance with section 184
paragraph one or paragraph two must be given by votes of not
less than two-thirds of the total number of members of the
Section 186. If, during a session, it is necessary to have
a law on taxes, duties or currency, which, in the interests of the
State, requires an urgent and confidential consideration, the King
may issue an Emergency Decree which shall have the force as an
Act.
The Emergency Decree issued under paragraph one must
be submitted to the House of Representatives within three days as
from the day following the date of its publication in the Government
Gazette, and the provisions of 184 shall apply mutatis mutandis.
Section 187. The King has the prerogative to issue a
Royal Decree which is not contrary to the law.
Section 188. The King has the prerogative to declare
and lift the martial law in accordance with the conditions and manner
under the Martial Law.
In the case where it is necessary to declare the martial
law in a certain locality as a matter of urgency, the military authority
may do so under the Martial Law.
Section 189. The King has the prerogative to declare
war with the approval of the National Assembly.
The approval resolution of the National Assembly must
be passed by votes of not less than two-thirds of the total number
of the existing members of both Houses.
During the expiration of the term or the dissolution of the
House of Representatives, the Senate shall perform the function
of the National Assembly in giving the approval under paragraph
one, and the resolution shall be passed by votes of not less than
two-thirds of the total number of the existing senators.
Section 190. The King has the prerogative to conclude
a peace treaty, armistice and other treaties with other countries or
international organisations.
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A treaty which provides for a change in the Thai territories
or extraterrotorial areas over which Thailand has sovereign rights
or has jurisdiction in accordance therewith or in accordance with
international law or requires the enactment of an Act for the
implementation thereof or has extensive impacts on national
economic or social security or generates material commitments in
trade, investment or budgets of the country, must be approved by
the National Assembly. For this purpose, the National Assembly
shall complete its consideration within sixty days as from the receipt
of such matter.
Prior to taking steps in concluding a treaty with other
countries or international organisations under paragraph two, the
Council of Ministers shall provide information and cause to be
conducted public hearings and shall give the National Assembly
explanations on such treaty. For this purpose, the Council of
Ministers shall submit to the National Assembly a framework for
negotiations for approval.
When the treaty under paragraph two has been signed,
the Council of Ministers shall, prior to the declaration of intention
to be bound thereby, make details thereof publicly accessible and,
in the case where the implementation of such treaty has impacts
on the public or operators of small- or medium-sized enterprises,
the Council of Ministers shall take steps in rectifying or remedying
the impacts suffered by aggrieved persons in an expeditious,
appropriate and fair manner.
There shall be the law on the determination of procedures
and methods for the conclusion of treaties having extensive impacts
on national economic or social security or generating material
commitments in trade or investment and the rectification and
remedying of impacts suffered by persons in consequence of the
implementation of such treaties, having regard to justice to persons
benefited and persons aggrieved by the implementation thereof as
well as to general members of the public.
In the case where there arises a problematic issue under
paragraph two, the power to make the determination thereon shall
be vested in the Constitutional Court and, for this purpose, the
provisions of section 154 (1) shall apply mutatis mutandis to the
referral of the matter to the Constitutional Court.
Section 191. The King has the prerogative to grant a
pardon.
Section 192. The King has the prerogative to remove
titles and recall decorations.
Section 193. The King appoints and removes officials
in the military service and civil service who hold the positions of
Permanent Secretary of State, Director-General and their
equivalents except in the case where they vacate office upon death.
Section 194. A Government official and a State official
holding a permanent position or receiving a permanent salary and
not being a political official shall not be a political official or hold
other political position.
Section 195. All laws, Royal Rescripts and Royal
Commands relating to the State affairs must be countersigned by
a Minister unless otherwise provided in this Constitution.
All laws which have been signed or deemed to have
been signed by the King shall forthwith be published in the
Government Gazette.
Section 196. Emoluments and other remuneration of
Privy Councillors, the President and Vice-Presidents of the House
of Representatives, the President and Vice-Presidents of the
Senate, Leader of the Opposition in the House of Representatives,
members of the House of Representatives and senators shall be
prescribed by the Royal Decree, wherein no payment shall be
made before the date of taking office.
Gratuities, pensions or other remuneration of Privy
Councillors who vacate their office shall be prescribed by the Royal
Decree.
CHAPTER X
The Courts
Part 1
General Provisions
Section 197. The trial and adjudication of cases are
the powers of the Courts, which must be proceeded in a manner
serving justice in accordance with the Constitution and the law
and in the name of the King.
Judges are independent in the trial and adjudication of
cases in a correct, expeditious and fair manner in accordance with
the Constitution and the law.
The transfer of a judge without his or her prior consent
shall not be permitted except in the case of termly transfer as
provided by law, promotion to a higher position, being under a
disciplinary action or becoming a defendant in a criminal case,
negative impacts on the administration of justice in the trial and
adjudication, or a force majeure event or any other inevitable
cause of necessity, as provided by law.
Judges shall not be political officials or hold political
positions.
Section 198. All Courts may be established only by
Acts.
A new Court for the trial and adjudication of any
particular case or a case of any particular charge in place of an
ordinary Court existing under the law and having jurisdiction over
such case shall not be established.
A law having an effect of changing or amending the law
on the organisation of Courts or on judicial procedure for the
purpose of its application to a particular case shall not be enacted.
Section 199. In the case where there is a dispute on
the competent jurisdiction amongst the Court of Justice, the
Administrative Court, the Military Court or any other Court, it
shall be decided by a committee consisting of the President of the
Supreme Court of Justice as Chairman, the President of the
Supreme Administrative Court, the President of such other Court
and not more than four qualified persons as provided by law as
members.
The rules for the submission of the dispute under
paragraph one shall be as provided by law.
Section 200. The King appoints and removes judges
except in the case of removal from office upon death.
The appointment and removal from office of a judge of
any Court other than the Constitutional Court, the Court of Justice,
the Administrative Court and the Military Court as well as the
adjudicative jurisdiction and procedure of such Courts shall be in
accordance with the law on the establishment of such Courts.
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Section 201. Before taking office, a judge shall make a
solemn declaration before the King in the following words:
I, (name of the declarer) do solemnly declare that I will
be loyal to His Majesty the King and will faithfully perform my
duties in the name of the King without any partiality in the interest
of justice, of the people and of the public order of the Kingdom. I
will also uphold and observe the democratic regime of government
with the King as Head of the State, the Constitution of the Kingdom
of Thailand and the law in every respect.
Section 202. Salaries, emoluments and other benefits
of judges shall be as provided by law; provided that the system of
salary-scale or emoluments applicable to civil servants shall not
be applied.
The provisions of paragraph one shall apply to Election
Commissioners, Ombudsmen, members of the National Counter
Corruption Commission and members of the State Audit
Commission mutatis mutandis.
Section 203. No person may simultaneously become a
member, whether an ex officio member or a qualified member, of
the Judicial Commission of the Courts of Justice, of the
Administrative Court or of any other Court under the law on a
particular matter.
Part 2
Constitutional Court
Section 204. The Constitutional Court consists of the
President and eight other judges of the Constitutional Court to be
appointed by the King upon advice of the Senate from the following
persons:
(1) three judges in the Supreme Court of Justice holding
a position of not lower than Judge of the Supreme Court of Justice
and elected at the general assembly of the Supreme Court of Justice
by secret ballot;
(2) two judges in the Supreme Administrative Court
elected at the general assembly of judges of the Supreme
Administrative Court by secret ballot;
(3) two qualified persons in the field of law, who really
possesses knowledge and expertise in law and are elected under
section 206;
(4) two qualified persons in the field of political science,
public administration or other social science, who really possesses
knowledge and expertise in the administration of the State affairs
and are elected under section 206.
In the case where no judges in the Supreme Court of
Justice or no judges in the Supreme Administrative Court are
elected under (1) or (2), the general assembly of the Supreme
Court of Justice or the general assembly of judges of the Supreme
Administrative Court, as the case may be, shall elect other persons
who have the qualifications and are not under any prohibitions
under section 205 and possess such knowledge and expertise in
law as are suitable for the performance of duties as judges of the
Constitutional Court, as judges of the Constitutional Court under
(1) or (2), as the case may be.
The elected persons under paragraph one shall hold a
meeting and elect one amongst themselves to be the President of
the Constitutional Court and notify the result to the President of
the Senate accordingly.
The President of the Senate shall countersign the Royal
Command appointing the President and judges of the Constitutional
Court.
Section 205. The qualified person under section 204
(3) and (4) shall possess the qualifications and shall not be under
any of the prohibitions as follows:
(2) being not less than forty five years of age;
(3) having been a Minister, a judge of the Supreme
Military Court, an Election Commissioner, an Ombudsman, a
member of the National Counter Corruption Commission, a
member of the State Audit Commission or a member of the National
Human Rights Commission, or having served in a position of not
lower than Deputy Prosecutor General, Director-General, or an
executive in a Government agency with executive powers
equivalent to those possessed by Director-General, or holding a
position of not lower than Professor, or having been a lawyer with
regular and continued practice for the period of not less than thirty
years up to the date of nomination;
(4) not being under any of the prohibitions under section
100 or section 102 (1), (2), (4), (5), (6), (7), (13) or (14);
(5) not being a member of the House of Representatives,
senator, political official, member of a local assembly or local
administrator;
(6) not being or having been, in the past, a member or
holder of other position of a political party over the period of
three years preceding the taking of office;
(7) not being an Election Commissioner, an Ombudsman,
a member of the National Counter Corruption Commission, a
member of the State Audit Commission or a member of the National
Human Rights Commission.
Section 206. The selection and election of judges of
the Constitutional Court under section 204 (3) and (4), shall be
proceeded as follows:
(1) there shall be a Selection Committee for Judges of
the Constitutional Court consisting of the President of the Supreme
Court of Justice, the President of the Supreme Administrative Court,
the President of the House of Representatives, the Leader of the
Opposition in the House of Representatives and the President of
a constitutional independent organ elected amongst Presidents of
such independent organs, as members, to be in charge of selecting
and short-listing qualified persons under section 204 (3) and (4),
which must be completed within thirty days as from the date on
which there occurs a ground for the selection of persons for such
office and thereafter submitting the names of the persons selected
with their consent to the President of the Senate. The resolution
making such selection must be passed on the basis of open voting
and supported by votes of not less than two-thirds of the total
number of the existing members of the Committee. In the case
where there is no member in any office or a member in any office
exists but becomes unable to perform the duty, the Selection
Committee shall, if there remain not less than one-half of its
members, consist of the remaining members, provided that the
provisions of section 113 paragraph two shall apply mutatis
mutandis.
(2) the President of the Senate shall convoke the Senate
for a sitting for the purpose of passing a resolution approving
persons selected under (1) within thirty days as from the date of
receipt of the names submitted. The resolution shall be by secret
ballot. In the case where the Senate passes a resolution giving
approval thereto, the President of the Senate shall present the
matter to the King for appointment. In the case where the Senate
does not give approval to any names, whether in whole or in part,
the Senate shall, together with reasons for disapproval, refer such
names back to the Selection Committee for Judges of the
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Constitutional Court for re-selection. If the Selection Committee
for Judges of the Constitutional Court disagrees with the Senate
and passes a unanimous resolution affirming its original resolution,
it shall refer such names to the President of the Senate for presenting
the matter to the King for further appointment. But, if the resolution
affirming the original resolution is not unanimous, the selection
process shall be re-conducted and shall be completed within thirty
days as from the date on which there occurs a ground for taking
such action.
In the case where the selection of the qualified persons
under (1) may not, for any reason, be completed within the time
prescribed, the general assembly of the Supreme Court of Justice
shall appoint three judges in the Supreme Court of Justice holding
the position not lower than Judge of the Supreme Court of Justice
and the general assembly of judges of the Supreme Administrative
Court shall appoint two judges in the Supreme Administrative
Court, as selection members for taking action under (1) in place
of the Selection Committee.
Section 207. The President and judges of the
Constitutional Court shall not:
(1) be a Government official holding a permanent position
or receiving a permanent salary;
(2) be an official or an employee of a State agency, a
State enterprise or a local government organisation or a director
or an adviser of a State enterprise or a State agency;
(3) hold any position in a partnership, a company or an
organisation carrying out business with a view to sharing profits or
incomes, or be an employee of any person;
(4) engage in any independent profession.
In the case where the general assembly of the Supreme
Court of Justice or the general assembly of judges of the Supreme
Administrative Court has elected, or the Senate has approved,
the person under (1), (2), (3) or (4) with the consent of that person,
the elected person can commence the performance of duties only
when he or she has resigned from the position under (1), (2) or
(3) or has satisfied that his or her engagement in such independent
profession has ceased to exist. This must be done within fifteen
days as from the date of the election or the approval. If such
person has not resigned or has not ceased to engage in the
independent profession within the specified time, it shall be deemed
that that person has never been elected to be a judge of the
Constitutional Court and the provisions of section 204 and section
206, as the case may be, shall apply.
Section 208. The President and judges of the
Constitutional Court shall hold office for nine years as from the
date of their appointment by the King and shall hold office for only
one term.
The outgoing President and judges of the Constitutional
Court shall remain in office to perform duties until the newly
appointed President and judges of the Constitutional Court take
office.
The President and judges of the Constitutional Court
shall be judicial officials under the law.
Section 209. In addition to the vacation of office upon
the expiration of term, the President and judges of the Constitutional
Court vacate office upon:
(1) death;
(2) being of seventy years of age;
(3) resignation;
(5) having done an act in violation of section 207;
for the removal from office;
petty offence or an offence of defamation
When a case under paragraph one occurs, the remaining
judges shall continue to perform their duties subject to section
216.
Section 210. In the case where the President and judges
of the Constitutional Court vacate office en masse at the expiration
of term, the proceedings under section 204 and section 206 shall
be taken within thirty days as from the date of the vacation of
office.
In the case where the President and judges of the
Constitutional Court vacate office otherwise than in the case under
paragraph one, the following proceedings shall be taken:
(1) in the case of the judge of the Constitutional Court
who was elected at the general assembly of the Supreme Court of
Justice, the proceedings under section 204 shall be taken and
completed within thirty days as from the date of the vacation of
office;
(2) in the case of the judge of the Constitutional Court
who was elected at the general assembly of judges of the Supreme
Administrative Court, the proceedings under section 204 shall be
taken and completed within thirty days as from the date of the
vacation of office;
(3) in the case of the judges of the Constitutional Court
under section 204 (3) or (4), the proceedings under section 206
shall be taken and completed within thirty days as from the date of
the vacation of office.
In the case where some or all judges of the Constitutional
Court vacate office out of a session of the National Assembly, the
proceedings under section 206 shall be taken within thirty days as
from the date of the opening of a session of the National Assembly.
In the case where the President of the Constitutional
Court vacates office, the provisions of section 204 paragraph three
Section 211. In the application of the provisions of any
law to any case, if the Court by itself is of the opinion that, or a
party to the case raises a reasoned objection that, the provisions
of such law fall within the provisions of section 6 and there has not
yet been a decision of the Constitutional Court on such provisions,
the Court shall submit such opinion, in the course of official service,
to the Constitutional Court for consideration and decision. In the
meantime, the Court may proceed with the trial but shall stay its
adjudication for the time being until a decision of the Constitutional
Court has been delivered.
In the case where the Constitutional Court is of the
opinion that the objection of a party under paragraph one is not so
essential as to warrant a decision, the Constitutional Court may
refuse to accept the case for consideration.
The decision of the Constitutional Court shall apply to
all cases but shall have no prejudice to final judgments of the Courts.
Section 212. A person whose rights or liberties
recognised by this Constitution are violated has the right to file a
motion to the Court for a decision that a provision of law is contrary
to or inconsistent with the Constitution.
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The right under paragraph one shall be exercisable in
the case where all other means for the exercise thereof are
exhausted, as provided in the Organic Act on the Procedure of
the Constitutional Court.
Section 213. In the performance of duties, the
Constitutional Court shall have the power to demand documents
or relevant evidence from any person or summon any person to
give statements of fact as well as request the inquiry officials, a
Government agency, a State agency, a State enterprise or a local
government organisation to carry out any act for the purpose of its
consideration.
The Constitutional Court shall have the power to appoint
a person or a group of persons to carry out duties as entrusted.
Section 214. In the case where there occurs a conflict
as to the powers and duties between at least two organs, being
the National Assembly, the Council of Ministers or constitutional
organs that are not Courts, the President of the National Assembly,
the Prime Minister or such organ shall submit a matter together
with the opinion thereon to the Constitutional Court for a decision.
Section 215. In the case where the Constitutional Court
is of the opinion that any matter or any issue as referred to it is the
matter or issue already decided by the Constitutional Court, the
Constitutional Court may refuse to accept such matter or issue for
consideration.
Section 216. The quorum of judges of the Constitutional
Court for hearing and giving a decision shall be constituted by not
less than five judges. The decision of the Constitutional Court
shall be made by a majority of votes, unless otherwise provided in
this Constitution.
Every judge of the Constitutional Court who constitutes
a quorum shall prepare an opinion in delivering a decision on his
or her own part and make an oral statement to the meeting before
passing a resolution.
The decisions of the Constitutional Court and opinions
given in the delivery of decisions of all judges of the Constitutional
Court shall be published in the Government Gazette.
The decision of the Constitutional Court must at least
consist of the background or the allegation concerned, a summary
of facts obtained from hearings, reasons for the decision on
questions of fact and questions of law and the provisions of the
Constitution and the law invoked and resorted to.
The decision of the Constitutional Court shall be deemed
final and binding on the National Assembly, Council of Ministers,
Courts and other State organs.
The procedure of the Constitutional Court shall be
prescribed by the Organic Act on the Procedure of the
Section 217. The Constitutional Court shall have its
independent secretariat, with the Secretary-General of the Office
of the Constitutional Court as the superior responsible directly to
the President of the Constitutional Court.
The appointment of the Secretary-General of the Office
of the Constitutional Court must be made upon nomination by the
President of the Constitutional Court and approval by judges of
the Constitutional Court as provided by law.
The Office of the Constitutional Court shall have
autonomy in personnel administration, budgeting and other activities
as provided by law.
Part 3
Courts of Justice
Section 218. The Courts of Justice have the jurisdiction
to try and adjudicate all cases except those specified by this
Constitution or the law to be within the jurisdiction of other courts.
Section 219. There shall be three levels of Courts of
Justice, viz, Courts of First Instance, Court of Appeal and the
Supreme Court of Justice, except otherwise provided by this
Constitution or other laws.
The Supreme Court of Justice has the jurisdiction to try
and adjudicate cases prescribed by the Constitution or the law to
be directly brought before the Supreme Court of Justice and cases
where an appeal is made against decisions or orders of Courts of
First Instance or the Court of Appeal as provided by law, save
that the Supreme Court of Justice may, in the case where it considers
that the question of law or the question of fact in respect of which
the appeal is made is not so essential as to warrant its consideration,
refuse to accept the case for adjudication, in accordance with the
Rule prescribed by the general assembly of the Supreme Court of
Justice.
The Supreme Court of Justice has the jurisdiction to hear
and decide cases in connection with the election and revocation
of the right to vote at an election of members of the House of
Representatives and the acquisition of senators, and the Court of
Appeal has the jurisdiction to hear and decide cases in connection
with the election and revocation of the right to vote at an election
of members of local assemblies and local administrators, provided
that the procedure for hearing and decision shall be in accordance
with the Rule prescribed by the general assembly of the Supreme
Court of Justice on the basis of the inquisitorial system and in an
expeditious manner.
There shall be in the Supreme Court of Justice a Criminal
Division for Persons Holding Political Positions the quorum of which
consists of nine judges in the Supreme Court of Justice holding a
position of not lower than Judge of the Supreme Court of Justice
or senior judges having held a position of not lower than Judge of
the Supreme Court of Justice and elected at the general assembly
of the Supreme Court of Justice by secret ballot and on a case-
by-case basis.
The jurisdiction of the Supreme Court of Justices
Criminal Division for Persons Holding Political Positions and the
criminal procedure for such persons shall be as provided by this
Constitution and the Organic Act on Criminal Procedure for
Persons Holding Political Positions.
Section 220. The appointment and removal from office
of a judge of a Court of Justice must be approved by the Judicial
Commission of the Courts of Justice before they are tendered to
the King.
The promotion, increase of salaries and punishment of
judges of the Courts of Justice must be approved by the Judicial
Commission of the Courts of Justice. For this purpose, the Judicial
Commission of the Courts of Justice shall appoint a sub-committee
in each level of Courts for preparing and presenting its opinion on
such matter for consideration.
In giving approval by the Judicial Commission of the
Courts of Justice under paragraph one and paragraph two, prime
regard shall also be had to the knowledge, capability and ethical
conduct of the persons concerned.
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Section 221. The Judicial Commission of the Courts of
Justice consists of the following persons:
(1) the President of the Supreme Court of
Justice as Chairman;
(2) qualified members from each level of Courts, viz, six
members from the Supreme Court of Justice, four members from
the Court of Appeal and two members from the Courts of First
Instance, who are judicial officials of each level of Courts and
elected by judicial officials of each level of Courts;
(3) two qualified members who are not judicial officials
and who are elected by the Senate.
The qualifications, prohibitions and procedures for the
election of the qualified members shall be in accordance with the
provisions of the law.
In the case where there are no qualified members under
paragraph one (3) or there is such member without being two in
number, then, if not less than seven members of the Judicial
Commission of the Courts of Justice consider that there exists an
urgent matter for approval, such number of members of the Judicial
Commission of the Courts of Justice shall constitute the
Commission as well as its due quorum for the purpose of
considering that urgent matter.
Section 222. The Courts of Justice shall have an
of the Courts of Justice as the superior responsible directly to the
President of the Supreme Court of Justice.
of the Courts of Justice must be made upon nomination by the
President of the Supreme Court of Justice and approval by the
Judicial Commission of the Courts of Justice as provided by law.
The Office of the Courts of Justice shall have autonomy
in personnel administration, budgeting and other activities as
provided by law.
Part 4
Administrative Courts
Section 223. Administrative Courts have the jurisdiction
to try and adjudicate cases of dispute between a Government
agency, a State agency, a State enterprise, a local government
organisation, a constitutional organ, or a State official on one part
and a private individual on the other part, or between a Government
agency, a State agency, a State enterprise, a local government
organisation, a constitutional organ or State official on one part
and another such agency, enterprise, organisation, organ or official
on the other part, as a consequence of the exercise of an
administrative power under the law or as a consequence of a
pursuit of an administrative act by a Government agency, a State
agency, a State enterprise, a local government organisation, a
constitutional organ or a State official, as provided by law, and
also have the jurisdiction to try and adjudicate matters prescribed
by the Constitution or law to be within the jurisdiction to the
Administrative Courts.
The jurisdiction of the Administrative Courts under
paragraph one does not include the determination by a constitutional
organ, which is its direct exercise of power under the Constitution.
There shall be the Supreme Administrative Court and
Administrative Courts of First Instance, and there may also be the
Appellate Administrative Court.
Section 224. The appointment and removal from office
of an administrative judge must be approved by the Judicial
Commission of the Administrative Courts as provided by law
before they are tendered to the King.
Qualified persons in the field of law or the administration
of the State affairs may be appointed as judges of the Supreme
Administrative Court. Such appointment shall be made in the
number of not less than one-third of the total number of judges of
the Supreme Administrative Court and must be approved by the
Judicial Commission of the Administrative Courts as provided by
law and by the Senate before it is tendered to the King.
The promotion, increase of salaries, and punishment of
administrative judges must be approved by the Judicial Commission
of the Administrative Courts as provided by law.
The number of judges of the Administrative Courts in
each level shall be determined by the the Judicial Commission of
the Administrative Courts.
Section 225. The appointment of an administrative judge
as President of the Supreme Administrative Court, shall, when
already approved by the Judicial Commission of the Administrative
Courts and the Senate, be tendered by the Prime Minister to the
King for appointment.
Section 226. The Judicial Commission of the
Administrative Courts consists of the following persons:
(1) the President of the Supreme Administrative
Court as Chairman;
(2) nine qualified members who are administrative judges
and elected by administrative judges amongst themselves;
(3) two qualified members elected by the Senate and
one qualified member elected by the Council of Ministers.
The qualifications, prohibitions and procedures for the
election of the qualified members shall be in accordance with the
provisions of the law.
In the case where there are no qualified members under
paragraph one (3) or there are such members without being three
in number, then, if not less than six members of the Judicial
Commission of the Administrative Courts consider that there exists
an urgent matter for approval, such number of members of the
Judicial Commission of the Administrative Courts shall constitute
the Commission as well as its due quorum for the purpose of
considering that urgent matter.
Section 227. The Administrative Courts shall have an
of the Administrative Courts as the superior responsible directly
to the President of the Supreme Administrative Court.
of the Administrative Courts must be made upon nomination by
the President of the Supreme Administrative Court and approval
by the Judicial Commission of Administrative Courts as provided
by law.
The Office of the Administrative Courts shall have
autonomy in personnel administration, budgeting and other activities
as provided by law.
Part 5
Military Courts
Section 228. Military Courts have the jurisdiction to
try and adjudicate criminal cases committed by persons who are
subjected to the jurisdiction of the Military Courts and other cases
as provided by law.
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The appointment and removal from office of military
judges shall be as provided by law.
CHAPTER XI
Constitutional Organs
Part 1
Constitutional Independent Organs
1. Election Commission
Section 229. The Election Commission consists of a
Chairman and four other Commissioners appointed, by the King
with the advice of the Senate, from persons of apparent political
impartiality and integrity.
Command appointing the Chairman and Commissioners under
paragraph one.
Section 230. An Election Commissioner shall have the
qualifications and shall not be under any prohibition as follows:
(1) being of not less than forty years of age;
(3) having the qualifications and not being under any of
the prohibitions under section 205 (1), (4), (5) and (6);
(4) not being a judge of the Constitutional Court, an
Ombudsman, a member of the National Counter Corruption
Commission, a member of the State Audit Commission or a member
of the National Human Rights Commission.
The provisions of section 207 shall apply to Election
Commissioners mutatis mutandis.
Section 231. The selection and election of Chairman
and Election Commissioners shall be proceeded as follows.
(1) There shall be a Selection Committee of seven
members consisting of the President of the Supreme Court of
Justice, the President of the Constitutional Court, the President of
the Supreme Administrative Court, the President of the House of
Representatives, Leader of the Opposition in the House of
Representatives, one person elected by the general assembly of
the Supreme Court of Justice and one person elected by the general
assembly of judges of the Supreme administrative Court, as
members, to be in charge of selecting three persons who have the
qualifications under section 230 and who are suitable to be Election
Commissioners, for making nomination to the President of the
Senate upon consent of the nominated persons. The resolution
making such selection must be passed by votes of not less than
two-thirds of the number of all existing members of the Selection
Committee. In the case where there is no member in any office or
a member in any office exists but becomes unable to perform the
duty, the Selection Committee shall, if there remain not less than
one-half of its members, consist of the remaining members,
provided that the provisions of section 113 paragraph two shall
apply mutatis mutandis.
The persons elected by the general assembly of the
Supreme Court of Justice and the general assembly of judges of
the Supreme Administrative Court under paragraph one must not
be judges and must not be members of selection committees for
holders of office in any other constitutional organs simultaneously.
(2) The general assembly of the Supreme Court of Justice
shall select two persons, who have the qualifications under section
230 and who are suitable to be Election Commissioners, for making
nomination to the President of the Senate upon consent of the
nominated persons.
(3) The selection under (1) and (2) shall be made within
ninety days as from the date on which there occurs a ground for
the selection of persons for such office. In the case where there
exists any cause preventing the selection within the time specified
or preventing the acquisition of the complete number of selected
persons within the time specified under (1), the general assembly
of the Supreme Court of Justice shall conduct the replacement
selection in order to achieve the complete number within fifteen
days as from the expiration of the time specified in (1).
(4) The President of the Senate shall convoke the Senate
for passing, by secret ballot, a resolution approving the selected
persons under (1), (2) or (3).
(5) In the case where the Senate gives approval thereto,
action shall be further taken in accordance with (6); but, if the
Senate does not give approval to any names, whether in whole or
in part, the Senate shall refer such names back to the Selection
Committee for Election Commissioners or to the general assembly
of the Supreme Court of Justice, as the case may be, for re-
selection. If the Selection Committee for Election Commissioners
or the general assembly of the Supreme Court of Justice disagrees
with the Senate and passes a resolution affirming its original
resolution with unanimous votes or votes of not less than two-
thirds of the general assembly of the Supreme Court of Justice, as
the case may be, action shall be further taken in accordance with
(6). But, if the resolution affirming the original resolution is not
unanimous or fails to be supported by the specified votes, the
selection process shall be re-conducted and shall be completed
within thirty days as from the date on which there occurs a ground
for taking such action.
(6) The persons approved under (4) or (5) shall meet
and elect one amongst themselves as Chairman of the Election
Commission and, then, notify the President of the Senate of the
result, and the President of the Senate shall present the matter to
the King for further appointment.
Section 232. Election Commissioners shall hold office
for a term of seven years as from the date of their appointment by
the King and shall serve for only one term.
The Election Commissioners who vacate office upon the
expiration of the term shall remain in office to continue to perform
their duties until the newly appointed Election Commissioners take
office.
The provisions of section 209 (1), (2), (3), (5), (6) and
(7) and the provisions on the disqualifications and prohibitions
under section 230 shall apply mutatis mutandis to the vacation
of office of Election Commissioners.
Section 233. Members of the House of
Representatives, senators, or members of both Houses of not less
than one-tenth of the total number of the existing members of both
Houses have the right to lodge with the President of the National
Assembly a complaint that any Election Commissioner is
disqualified, or is under any of the prohibitions or has acted in
contravention of any of the prohibitions under section 230 and the
President of the National Assembly shall refer that complaint to
the Constitutional Court within three days of receipt thereof for its
decision.
When the Constitutional Court has passed a decision, it
shall notify the President of the National Assembly and the
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Chairman of the Election Commission of such decision.
The provisions of section 92 shall also apply mutatis
mutandis to the vacation of office of Election Commissioners.
Section 234. In the case where the Election
Commissioners have vacated office in toto, action for the selection
under section 231 shall be taken within ninety days as from the
date of the vacation.
In the case where Election Commissioners vacate office
on any ground other than the expiration of term, action for the
selection under section 231 shall be taken and completed within
sixty days as from the date on which such ground occurs, and the
approved persons shall serve only for the remainder of the term of
the replaced Commissioners.
Section 235. The Election Commission shall control
and hold, or cause to be held, an election or selection of members
of the House of Representatives, senators, members of a local
assembly and local administrators, as the case may be, including
the voting in a referendum, for the purpose of rendering it to proceed
in an honest and fair manner.
The Chairman of the Election Commission shall have
charge and control of the execution of the Organic Act on the
Acquisition of Senators, the Organic Act on Political Parties, the
Organic Act on the Election Commission, the Organic Act on
Referendum and the law on the election of members of local
assemblies or local administrators and shall be the political-party
registrar.
There shall be the Office of the Election Commission as
an independent agency, with autonomy in personnel administration,
budgeting and other activities, as provided by law.
Section 236. The Election Commission shall have the
following powers and duties:
(1) to issue notifications or lay down rules prescribing all
activities necessary for the execution of the laws referred to in
section 235 paragraph two, and also lay down rules related to
election campaigns and any activities of political parties, candidates
in an election and voters with a view to ensuring their honesty and
fairness, and prescribe rules in connection with activities to be
carried out by the State in support of elections with a view to
ensuring equality and equal opportunities in launching campaigns;
(2) to lay down rules related to prohibitions in the
performance of duties of the Council of Ministers and Ministers
while remaining in office for performing duties under section 181,
having regard to the maintenance of interests of the State and also
to honesty, fairness, equality and equal opportunities in an election;
(3) to prescribe measures and controls in connection
with donations to political parties, financial support by the State,
expenditure of political parties and candidates in an election,
including the auditing of accounts of political parties in an open
manner and controls of disbursement and receipt of money for the
purpose of voting at an election;
(4) to give orders instructing Government officials,
officials or employees of a Government agency, a State agency, a
State enterprise or a local government organisation or other State
officials to perform all necessary acts under the laws referred to in
section 235 paragraph two;
(5) to conduct investigations and inquiries for fact-finding
and decision on problems or disputes under the laws referred to
in section 235 paragraph two;
(6) to order a new election or a new voting at a
referendum to be held in any or all polling stations when there
occurs convincing evidence that the election or the voting at a
referendum in that or those polling stations has not proceeded in
an honest and fair manner;
(7) to announce the result of an election and the voting in
a referendum;
(8) to provide promotion and encouragement to, or co-
ordination with, a Government agency, a State agency, a State
enterprise or a local administration, or to provide encouragement
to private organisations in educating the public on the democratic
regime of government with the King as Head of the State, and
promote public participation in politics;
(9) to perform other acts as provided by law.
In the performance of duties, the Election Commission
has the power to summon any relevant document or evidence
from any person, or summon any person to give statements as
well as to request the Courts, public prosecutors, inquiry officials,
Government agencies, State agencies, State enterprises or local
government organisations to take action for the purpose of
performing duties, investigating, conducting inquiries and passing
decisions.
The Election Commission has the power to appoint
persons, a group of persons or representatives of private
organisations to perform such duties as entrusted.
Section 237. In the case where any candidate in an
election commits any act or instigates or aids and abets the
commission of any act which violates the Organic Act on the
Acquisition of Senators or the Rule or Notification of the Election
Commission and thereby results in an election not proceeding in
an honest and fair manner , such person shall have his or her right
to vote revoked under the Organic Act on the Election of Members
of the House of Representatives and the Acquisition of Senators.
If, in the commission of the act by the person under
paragraph one, there has appeared convincing evidence that any
Leader of a political party or any member of the executive
committee of a political party has connived at or allowed the
commission thereof or, having known of the commission thereof,
failed to prevent or take remedial action in order to render the
election to proceed in an honest and fair manner, it shall be deemed
that such political party has committed an act with a view to
acquiring the power to rule the country by any means which is not
in accordance with the modes provided in this Constitution under
section 68, and in the case where the Constitutional Court has
delivered an order dissolving that political party, there shall be
revoked the right to vote of the Leader of such political party and
members of its executive committee for the period of five years
as from the date of the dissolution order.
Section 238. The Election Commission shall forthwith
conduct an investigation and an inquiry for finding facts in any of
the following cases;
(1) an objection by a voter, a candidate in an election or
a political party a member of which stood for the election in any of
the constituencies has been raised that the election in that
constituency has proceeded improperly or unlawfully;
(2) a candidate for a selection or a member of the organ
under section 114 paragraph one raises an objection that the
selection of senators has proceeded improperly or unlawfully;
(3) there has appeared convincing evidence that any
member of the House of Representatives, senator, member of a
local assembly or local administrator, before being elected or
selected, had committed any dishonest act to enable him or her to
be elected or selected, or has dishonestly been elected or selected
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as a result of an act committed by any person or political party in
violation of rules under the Organic Act on the Election of Members
of the House of Representatives and the Acquisition of Senators,
the Organic Act on Political Parties or the law on the election of
members of local assemblies and local administrators;
(4) there has appeared convincing evidence that the
voting in a referendum did not proceed lawfully or an objection
has been raised by a voter that the voting in a referendum in any
polling station proceeded improperly or unlawfully;
Upon completion of actions under paragraph one, the
Election Commission shall pass a decision forthwith.
Section 239. In the case where the Election
Commission passes a decision requiring a new election or revoking
the right to vote prior to an announcement of the result of an election
of members of the House of Representatives or senators, such
decision of the Election Commission shall be deemed final.
In the case where the result of an election has been
announced, if the Election Commission deems it appropriate to
require a new election or to revoke the right to vote of any member
of the House of Representatives or senator, a motion shall be
submitted to the Supreme Court of Justice for a decision thereon.
Upon receipt of the motion submitted by the Election Commission,
that member of the House of Representatives or that senator may
not continue his or her performance of duties until the Supreme
Court of Justice has delivered an order dismissing the motion. In
the case where the Supreme Court of Justice has delivered an
order instructing a new election in any constituency or revoking
the right to vote of any member of the House of Representatives
or senator, membership of that member of the House of
Representatives or senator in such constituency shall terminate.
In the case where the person under paragraph two may
not continue his or her performance of duties, such person shall
not be included in the total number of existing members of the
House of Representatives or the Senate, as the case may be.
The provisions of paragraph one, paragraph two and
paragraph three shall apply to an election of members of a local
assembly and local administrators mutatis mutandis, provided that
the motion to be submitted to the Court under paragraph two
shall be submitted to the Court of Appeal and an order of the
Court of Appeal shall be final.
Section 240. In the case where there is an objection
that the selection of any senator has proceeded improperly or
unlawfully or there has appeared convincing evidence that any
senator has, prior to the selection, committed an act under section
238, the Election Commission shall conduct an investigation and
an inquiry forthwith.
Upon the decision delivered by the Election Commission,
it shall forthwith be submitted to the Supreme Court of Justice for
a decision thereon and the provisions of section 239 paragraph
two and paragraph three shall apply mutatis mutandis to the
discontinuance of performance of duties of such senator.
In the case where the Supreme Court of Justice has
delivered an order revoking the selection or revoking the right to
vote of any senator, membership of such senator shall terminate
as from the date of the order of the Supreme Court of Justice, and
there shall be conducted a new selection of a senator to fill the
vacancy.
In pursuing activities under paragraph one or paragraph
two, the Chairman of the Election Commission may not participate
in the action or decision and the Election Commission shall be
constituted by existing members.
The objection and the consideration of the Election
Commission shall be as prescribed in the Organic Act on the
Election of Members of Representatives and the Acquisition of
Senators.
Section 241. During the period in which a Royal Decree
calling for an election of members of the House of Representatives
or senators, or a Notification calling for a selection of senators, or
a Notification calling for the voting in a referendum is effective, no
Election Commissioner shall be arrested, detained or summoned
by a warrant for inquiry except in the case where permission of
the Election Commission is obtained or where the arrest is made
in flagrante delicto.
In the case where an Election Commissioner has been
arrestedin flagrante delicto, or where an Election Commissioner
is arrested or detained in any other cases, it shall be forthwith
reported to the Chairman of the Election Commission and the
Chairman may order a release of the person so arrested. But, if
the Chairman of the Election Commission is arrested or detained,
the power to take such action shall be vested in the Election
Commission as constituted by existing members.
2. Ombudsmen
__________________
Section 242. There shall be three Ombudsmen
appointed, by the King with the advice of the Senate, from the
persons recognised and respected by the public, with knowledge
and experience in the administration of the State affairs, enterprises
or activities of common interest of the public and with apparent
integrity.
The persons appointed as Ombudsmen shall meet and
elect one amongst themselves to be Chairman of Ombudsmen
and notify it to the President of the Senate.
Command appointing the Chairman of Ombudsmen and
Ombudsmen.
The qualifications and prohibitions of Ombudsmen shall
be in accordance with the Organic Act on Ombudsmen.
Ombudsmen shall hold office for a term of six years as
from the date of their appointment by the King and shall serve for
only one term.
There shall be the Office of Ombudsmen as an
independent agency, with autonomy in personnel administration,
budgeting and other activities, as provided by law.
Section 243. The provision of section 206 and section
207 shall apply mutatis mutandis to the selection and election of
Ombudsmen; for this purpose, there shall be a Selection Committee
of seven members consisting of the President of the Supreme Court
of Justice, the President of the Constitutional Court, the President
of the Supreme Administrative Court, the President of the House
of Representatives, Leader of the Opposition in the House of
Representatives, one person elected by the general assembly of
the Supreme Court of Justice and one person elected by the general
assembly of judges of the Supreme Administrative Court, and the
provisions of section 231 (1) paragraph two shall also apply
mutatis mutandis.
Section 244. Ombudsmen have the powers and duties
as follows:
(1) to consider and inquire into the complaint
for fact-findings in the following cases:
(a) failure to perform in compliance with the law or
performance beyond powers and duties as provided by the law
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of a Government official, an official or employee of a Government
agency, a State agency, a State enterprise or a local government
organisation;
(b) performance of or omission to perform duties of
a Government official, an official or employee of a Government
agency, a State agency, a State enterprise or a local government
organisation, which unjustly causes injury to the complainant or
the public, whether such act is lawful or not;
(c) scrutiny of a neglect of the performance of duties
or the unlawful performance of duties by constitutional organs and
organs in the administration of justice, to the exclusion of trial and
adjudication of Courts;
(d) other cases as provided by law;
(2) to take action in connection with ethics of holders of
political positions and State officials under section 279 paragraph
three and section 280;
(3) to monitor, evaluate and prepare recommendations
on the compliance with the Constitution, including considerations
as to amendment of the Constitution, where it is deemed necessary;
(4) to report annually results of audits and results of the
performance of duties, together with pertinent remarks, to the
Council of Ministers, the House of Representatives and the Senate,
provided that such reports shall also be published in the Government
Gazette and made open to the public.
The powers and duties under (1) (a), (b) and (c) shall
be exercisable or taken by Ombudsmen upon a complaint, except
that, in the case where Ombudsmen consider that such act
threatens to cause injury to the public at large or there arises a
need to safeguard public interests, Ombudsmen may consider the
matter and conduct inquiries without prior complaint.
Section 245. An Ombudsman may refer the matter to
the Constitutional Court or the Administrative Court when the
Ombudsman considers that any of the following circumstances
occurs:
(1) any provisions of law begs the question of
constitutionality, in which case the matter shall be referred, together
with the opinion of the Ombudsman, to the Constitutional Court
and the Constitutional Court shall consider and decide it without
delay, in accordance with the Organic Act on Procedure of the
Constitutional Court;
(2) any by-law, order or any other act of any persons
under section 244 (1) (a) begs the question of constitutionality or
compliance with the law, in which case the matter shall be referred,
together with the opinion of the Ombudsman, to the Administrative
Court and the Administrative Court shall consider and decide it
without delay, in accordance with the Act on Establishment of
Administrative Courts and Administrative Court Procedure.
3. National Counter Corruption Commission
_________________
Section 246. The National Counter Corruption
Commission consists of the President and eight other members
appointed by the King with the advice of the Senate.
Members of the National Counter Corruption
Commission shall be persons of apparent integrity, with
qualifications and without any of the prohibitions under section
205; for this purpose, members must have been Ministers, Election
Commissioners, Ombudsmen, members of the National Human
Rights Commission or members of the State Audit Commission,
or must have served the government service in the position of not
lower than Director-General or Executive in a Government agency
with executive powers equivalent to those possessed by Director-
General, or hold a position of not lower than Professor, or become
representatives of non-governmental organisations or persons
engaging in professions that are subjected to professional
organisations under the law for a period of not less than three
years with endorsement and nomination by such non-governmental
organisations or professional organisations into the selection
process.
The provisions of section 204 paragraph three and
paragraph four, section 206 and section 207 shall apply to the
selection and election of members of the National Counter
Corruption Commission mutatis mutandis. For this purpose,
there shall be a Selection Committee of five members, consisting
of the President of the Supreme Court of Justice, the President of
the Constitutional Court, the President of the Supreme
Administrative Court, the President of the House of Representatives
and the Leader of the Opposition in the House of Representatives.
Command appointing the President and members of the National
Counter Corruption Commission.
There shall be members of the Provincial Counter
Corruption Committee. The qualifications, selection process and
powers and duties of the members shall be as prescribed by the
Organic Act on Counter Corruption.
Section 247. Members of the National Counter
Corruption Commission shall hold office for a term of nine years
as from the date of their appointment by the King and shall serve
for only one term.
Members of the National Counter Corruption
Commission who vacate office at the expiration of term shall remain
in office to continue to perform their duties until the newly appointed
members take office.
Section 209 and section 210 shall apply to the vacation,
selection and election of members of the National Counter
Corruption Commission mutatis mutandis.
of not less than one-fourth of the total number of the existing
members of the House or persons having the right to vote of not
less than twenty thousand in number have the right to lodge with
the President of the Senate a complaint that any member of the
National Counter Corruption Commission has acted unjustly,
intentionally violated the Constitution or laws or has been under
any circumstance which is seriously detrimental to the dignity of
the holding of office, in order to request the Senate to pass a
resolution removing him or her from office.
The resolution of the Senate removing the member of
the National Counter Corruption Commission from office under
paragraph one shall be passed by votes of not less than three-
fourths of the total number of the existing members of the Senate.
Section 249. Members of the House of
Representatives, senators or members of both Houses of not less
than one-fifth of the total number of the existing members of both
Houses have the right to lodge with the Supreme Court of Justices
Criminal Division for Persons Holding Political Positions an
allegation that any member of the National Counter Corruption
Commission has become unusually wealthy or has committed an
offence of corruption or malfeasance in office.
The request under paragraph one shall clearly, itemise
the circumstance in which such person has allegedly committed
the act under paragraph one and shall be submitted to the President
of the Senate. When the President of the Senate has received the
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said request, the President shall refer it to the Supreme Court of
Justices Criminal Division for Persons Holding Political Positions
for trial and adjudication.
The alleged member of the National Counter Corruption
Commission shall not perform his or her duty until the Supreme
Court of Justices Criminal Division for Persons Holding Political
Positions has delivered a decision dismissing the said request.
In the case where members of the National Counter
Corruption Commission may not perform duties under paragraph
three and there remain members of the National Counter
Corruption Commission in the number of less than one-half of its
total number, the President of the Supreme Court of Justice and
the President of the Supreme Administrative Court shall jointly
appoint persons with the same qualifications and without any of
the same prohibitions as those applicable to members of the
National Counter Corruption Commission as members of the
National Counter Corruption Commission for the time being and
the appointed persons shall be in office until the original members
of the National Counter Corruption Commission may perform
duties or until the Supreme Court of Justices Criminal Division
for Persons Holding Political Positions delivers a decision that such
original members have committed the alleged act.
Commission shall have the following powers and duties:
(1) to inquire into facts, provide a summary of the case
and prepare opinions in connection with a removal from office,
for submission to the Senate in accordance with section 272 and
section 279 paragraph three;
(2) to inquire into facts, provide a summary of the case
and prepare opinions in connection with criminal proceedings
against persons holding political positions, for submission to the
Supreme Court of Justices Criminal Division for Persons Holding
Political Positions in accordance with section 275;
(3) to inquire and decide whether State officials, from
high-ranking executives or Government officials holding positions
of Director or its equivalent upwards, have become unusually
wealthy or have committed an offence of corruption, malfeasance
in office or malfeasance in judicial office, and take action against
State officials or Government officials holding lower positions, who
have committed offences in conspiracy with the aforesaid holders
of positions or with persons holding political positions or who have
committed offences of such description considered by the National
Counter Corruption Commission as warranting its inquisitive action,
in accordance with the Organic Act on Counter Corruption;
(4) to inspect the accuracy, actual existence as well as
change of assets and liabilities of the persons holding positions
under section 259 and section 264 as stated in the account and
supporting documents submitted, in accordance with the rules and
procedures prescribed by the National Counter Corruption
Commission;
(5) to exercise oversight of virtue and ethics of persons
holding political positions;
(6) to submit an audit report and a report on the
performance of duties together with remarks to the Council of
Ministers, the House of Representatives and the Senate annually
and publish such reports in the Government Gazette and make
them open to the public;
(7) to carry on other acts as provided by law.
Section 213 shall apply to the performance of duties of
the National Counter Corruption Commission mutatis mutandis.
The President of the National Counter Corruption
Commission and members of the National Counter Corruption
Commissionare officials injudicial service under the law.
Commission shall have its independent secretariat, with the
Secretary-General of the National Counter Corruption
Commission as the superior responsible directly to the President
of the National Counter Corruption Commission.
The appointment of the Secretary-General of the National
Counter Corruption Commission shall be approved by the National
Counter Corruption Commission and the Senate.
There shall be Office of the National Counter Corruption
Commission, with autonomy in personnel administration, budgeting
and other activities as provided by law.
4. State Audit Commission
__________________
Section 252. The State audit shall be carried out by
the State Audit Commission which is independent and impartial.
The State Audit Commission consists of the Chairman
and six other members appointed by the King from persons with
expertise and experience in state audit, accounting, internal audit,
finance and other fields.
The provisions of section 204 paragraph three and
paragraph four, section 206 and section 207 shall apply mutatis
mutandis to the selection and election of members of the State
Audit Commission and the Auditor-General, save that the
composition of the Selection Committee shall be in accordance
with section 243.
Command appointing the Chairman and members of the State
Audit Commission and the Auditor-General.
Members of the State Audit Commission shall hold office
for a term of six years from the date of their appointment by the
King and shall serve for only one term.
The qualifications, prohibitions and vacation of office of
members of the State Audit Commission and the Auditor-General
as well as powers and duties of the State Audit Commission, the
Auditor-General and the Office of the State Audit Commission
shall be in accordance with the Organic Act on State Audit.
The determination of qualifications and procedures for
the election of persons to be appointed as members of the State
Audit Commission and the Auditor-General shall be made in the
manner which can secure persons of appropriate qualifications
and apparent integrity and which can provide for the guarantee of
the independence in the performance of duties of such persons.
Section 253. The State Audit Commission has the
powers and duties to prescribe standard rules in connection with
the State audit, give advice and suggestions and recommend
rectification of shortcomings in connection with the State audit
and has the power to appoint an independent fiscal and financial
disciplinary committee to be in charge of making the determination
of action in connection with disciplines in fiscal affairs, finance and
budgeting, and disputed cases in connection with decisions given
by the fiscal and financial disciplinary committee in such matters
shall be under the jurisdiction of the Administrative Court.
The Auditor-General has the powers and duties in
connection with the State audit on the basis of independence and
impartiality.
Section 254. The State Audit Commission shall have
its independent secretariat, with the Auditor-General as the superior
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responsible directly to the Chairman of the State Audit Commission.
There shall be Office of the State Audit, with autonomy
in personnel administration, budgeting and other activities as
provided by law.
Part 2
Other Constitutional Organs
1. Public Prosecutors
__________________
Section 255. Public Prosecutors have the powers and
duties as provided in this Constitution and under the law on powers
and duties of public prosecutors and other laws.
Public Prosecutors enjoy independence in making the
determination as to prosecution and the performance of duties in
the interest of justice.
The appointment and removal from office of Prosecutor-
General shall be upon resolution of the Public Prosecutors
Commission and upon approval by the Senate.
Command appointing the Prosecutor-General.
Public Prosecutors shall have an independent secretariat,
with autonomy in personnel administration, budgeting and other
activities, and with the Prosecutor-General as the superior, as
provided by law.
Public Prosecutor shall not be directors in State
enterprises or State undertakings of the similar nature, unless upon
approval by the Public Prosecutors Commission and shall not
engage in an occupation or profession or any act prejudicial to the
performance of duties or detrimental to the esteem of the official
office, and shall not be directors, managers or legal counsellors or
hold any other positions of the similar nature in a corporate body.
The provisions of section 202 shall apply mutatis
mutandis.
2. National Human Rights Commission
__________________
Section 256. The National Human Rights Commission
consists of the President and six other members appointed, by the
King with the advice of the Senate, from the persons having
apparent knowledge and experiences in the protection of rights
and liberties of the people, having regard also to the participation
of representatives from private organisations in the field of human
rights.
Command appointing the President and members of the National
Human Rights Commission.
The qualifications, prohibitions, removal from office and
determination of the remuneration of members of the National
Human Rights Commission shall be as provided by law.
The members of the National Human Rights Commission
shall hold office for a term of six years as from the date of their
appointment by the King and shall serve for only one term.
The provisions of section 204 paragraph three, section
206, section 207 and section 209 (2) shall apply mutatis
mutandis, save that the composition of the Selection Committee
shall be in accordance with section 243.
There shall be Office of the National Human Rights
Commission, with autonomy in personnel administration, budgeting
and other activities as provided by law.
Section 257. The National Human Rights Commission
has the powers and duties as follows:
(1) to examine and report the commission or omission
of acts which violate human rights or which do not comply with
obligations under international treaties to which Thailand is a party,
and propose appropriate remedial measures to persons or agencies
committing or omitting such acts for taking action. In the case
where it appears that no action has been taken as proposed, the
Commission shall report it to the National Assembly for further
proceeding;
(2) to refer the matter, together with an opinion, to the
Constitutional Court in the case where it agrees with a complaint
addressed by a complainant that any provision of law affects human
rights and begs a question of constitutionality, in accordance with
the Organic Act on Procedure of the Constitutional Court;
(3) to refer the matter, together with an opinion, to the
Administrative Court in the case where it agrees with a complaint
addressed by a complainant that a by-law, order or any other
administrative act affects human rights and begs a question of
constitutionality or compliance with the law, in accordance with
the Act on Establishment of Administrative Courts and
Administrative Court Procedure;
(4) to file a lawsuit to the Court of Justice on behalf of
the injured person when a request is made by the injured person
and it is deemed appropriate to find a solution to violation of human
rights vis- -vis the public at large, as provided by law;
(5) to propose to the National Assembly or the Council
of Ministers policies and recommendations with regard to the
revision of laws and by-laws for the purpose of promoting and
protecting human rights;
(6) to promote education, research and the dissemination
of knowledge on human rights;
(7) to promote co-operation and co-ordination amongst
Government agencies, private organisations, and other
organisations in the sphere of human rights;
(8) to prepare an annual report for the purpose of
evaluating situations in the sphere of human rights in the country
and submit it to the National Assembly;
(9) other powers and duties as provided by law.
In the performance of duties, the National Human Rights
Commission shall also have regard to the interests of the country
and the public.
The National Human Rights Commission has the power
to demand relevant documents or evidence from any person or
summon any person to give statements of fact including other
powers for the purpose of performing its duties, as provided by
law.
3. National Economic and Social Council
__________________
Section 258. The National Economic and Social
Council has the duty to give advice and recommendations to the
Council of Ministers on economic and social problems, including
legislation concerned.
A national economic and social development plan and
other plans as provided by law shall obtain opinions of the National
Economic and Social Council before their adoption and publication.
The composition, source, powers and duties and the
operation of the National Economic and Social Council shall be
as provided by law.
There shall be Office of the National Economic and
Social Council, with autonomy in personnel administration,
budgetingandother activities as providedbylaw.
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CHAPTER XII
Scrutiny of the Exercise of State Powers
Part 1
Proprietary Scrutiny
Section 259. Persons holding the following political
positions shall submit an account showing particulars of assets
and liabilities of themselves, their spouses and children who have
not yet become sui juris to the National Counter Corruption
Commission on each occasion of taking or vacating office:
(1) Prime Minister;
(2) Ministers;
(3) members of the House of Representatives;
(4) senators;
(5) other political officials;
(6) local administrators and members of a local assembly
as provided by law.
The account under paragraph one shall be submitted
together with the supporting documents evidencing the actual
existence of such assets and liabilities as well as a copy of the
personal income tax return of the previous fiscal year.
The submission of an account showing particulars of
assets and liabilities under paragraph one and paragraph two shall
also include assets of persons holding political positions placed
under possession or care of third persons, whether directly or
indirectly.
Section 260. The account showing particulars of assets
and liabilities under section 259 shall disclose the particulars of
assets and liabilities actually in existence as of the date of taking
office or the date of vacation of office, as the case may be, and
shall be submitted within such time as follows:
(1) in the case of the taking of office, within thirty days
as from the date of taking office;
(2) in the case of the vacation of office, within thirty days
as from the date of the vacation of office;
(3) in the case where the person under section 259, who
has already submitted the account, is deceased while being in office
or before submitting the same after the vacation of office, an heir
or an administrator of an estate of such person shall submit an
account showing the particulars of assets and liabilities existing on
the date of such persons death within ninety days as from the
date of the death.
In addition to the submission of the account under (2),
the person holding a position of Prime Minister, Minister, local
administrator, member of a local assembly or the person holding a
political position, who has vacated office, shall also re-submit an
account showing particulars of assets and liabilities, actually in
existence at the expiration of one year as from the vacation of
office, within thirty days as from the date of the expiration of such
one-year period.
Section 261. The account showing particulars of assets
and liabilities and supporting documents submitted by the Prime
Minister, a Minister, a member of the House of Representatives
and a senator shall be disclosed to public without delay but not
later than thirty days as from the date of the expiration of the time
limit for the submission of such account. The account of the person
holding any other position may be disclosed only where the
disclosure will be useful for the trial and adjudication of cases or
for the making of a decision and is requested by the courts,
interested persons or the State Audit Commission.
The President of the National Counter Corruption
Commission shall convene a meeting of the Commission to examine
the accuracy and the actual existence of assets and liabilities without
delay.
Section 262. In the case where the submission of the
account is made by reason of the vacation of office or death of
any person holding a political position, the National Counter
Corruption Commission shall examine the change of assets and
liabilities of such person and prepare a report of the examination.
Such report shall be published in the Government Gazette.
In the case where it appears that the assets of the person
holding the position under paragraph one have unusually increased,
the President of the National Counter Corruption Commission
shall furnish all documents together with the examination report to
the Prosecutor-General to institute an action in the Supreme Court
of Justices Criminal Division for Persons Holding Political
Positions so that the unusually increasing assets shall vest in the
State and the provisions of section 272 paragraph five shall apply
mutatis mutandis.
Section 263. In the case where any person holding a
political position intentionally fails to submit the account showing
assets and liabilities and the supporting documents as provided in
this Constitution or intentionally submits the same with false
statements or conceals the facts which should be revealed, the
National Counter Corruption Commission shall refer the matter
to the Supreme Court of Justices Criminal Division for Persons
Holding Political Positions for further decision.
If the Supreme Court of Justices Criminal Division for
Persons Holding Political Positions gives a decision that any person
holding a political position has committed an offence under
paragraph one, such person shall vacate office on the date of the
decision of the Supreme Court of Justices Criminal Division for
Persons Holding Political Positions and, for this purpose, the
provisions of section 92 shall apply mutatis mutandis and such
person shall also be prohibited from holding any political position
or holding any position in a political party for five years as from
the date of the decision of the Supreme Court of Justices Criminal
Division for Persons Holding Political Positions.
Section 264. The provisions of section 259, section
260, section 261 paragraph two and section 263 paragraph one
shall apply mutatis mutandis to State officials as determined by
the National Counter Corruption Commission.
The National Counter Corruption Commission may
disclose to interested persons the account showing assets and
liabilities and supporting documents submitted if it is beneficial to
the pursuit of legal proceedings or the giving of decision on the
offence concerned, in accordance with the Organic Act on Counter
Corruption.
Part 2
Action Amounting to a Conflict of Interests
Section 265. A member of the House of Representatives
and a senator shall not:
(1) hold any position or assume any duty in any
Government agency, State agency or State enterprise, or hold a
position of member of a local assembly, local administrator or
local government official;
(2) receive, interfere with or intervene in any concession
from the State, a Government agency, a State agency or a State
105
enterprise, or become a party to a contract of a monopolistic nature
with the State, a Government agency, a State agency or a State
enterprise, or a become partner or a shareholder in a partnership
or a company receiving such concession or becoming a party to
the contract of that nature, whether directly or indirectly;
(3) receive any special money or benefit from any
Government agency, State agency or State enterprise apart from
that given by the Government agency, the State agency or the
State enterprise to other persons in the ordinary course of
business.
(4) perform any act prohibited under section 48.
The provisions of this section shall not apply in the case
where a member of the House of Representatives or a senator
receives military pensions, gratuities, pensions, annuities or any
other form of payment of the same nature, and shall not apply in
the case where a member of the House of Representatives or a
senator accepts or holds a position of committee member of the
National Assembly, the House of Representatives or the Senate,
or committee member appointed in the course of the administration
of the State affairs.
The provisions of (2), (3) and (4) shall also apply to
spouses and children of members of the House of Representatives
or senators and to other persons who, not being spouses or
children of members of the House of Representatives or senators,
have acted as instructed, as accomplices or as entrusted by
members of the House of Representatives or senators in relation
to the acts under this section.
Section 266. A member of the House of Representatives
and a senator shall not, through the status or position of member
of the House of Representatives or senator, interfere with or
intervene in the following matters for personal benefits or for the
benefits of others or of a political party, whether directly or indirectly:
(1) the performance of official service or the performance
of regular duties of Government officials, officials or employees of
a Government agency, a State agency, a State enterprise or an
undertaking, of which the majority of shares are owned by the
State, or a local Government organisation;
(2) the recruitment, appointment, reshuffle, transfer,
promotion and elevation of a salary scale of a Government official
holding a permanent position or receiving a permanent salary and
not being a political official, or an official or employee of a
Government agency, a State agency, a State enterprise, an
undertaking of which the majority of shares are owned by the
State, or a local Government organisation; or
(3) any action causing a removal from office of a
Government official holding a permanent position or receiving a
permanent salary and not being a political official, or an official or
employee of a Government agency, a State agency, a State
enterprise, an undertaking of which the majority of shares are
owned by the State, or a local Government organisation.
Section 267. The provisions of section 265 shall also
apply to the Prime Minister and Ministers, save in the case of
holding office or taking action by operation of law, and such
persons shall not hold any position in a partnership, a company or
an organisation carrying out business with a view to sharing profits
or incomes or be an employee of any person.
Section 268. The Prime Minister and a Minister shall
not perform any act provided in section 266, unless it is the
performance within the powers and duties in the course of the
administration of the State affairs in accordance with the policies
declared to the National Assembly or as provided by law.
Section 269. The Prime Minister and a Minister shall
not be a partner or shareholder of a partnership or a company or
retain his or her status as a partner or shareholder of a partnership
or a company up to the limit as provided by law. In the case
where the Prime Minister or any Minister intends to continue to
receive benefits in such cases, the Prime Minister or such Minister
shall inform the President of the National Counter Corruption
Commission within thirty days as from the date of the appointment
and shall transfer his or her shares in the partnership or company
to a juristic person which manages assets for the benefit of other
persons, as provided by law.
The Prime Minister and Minister shall not do any act
which, by nature, amounts to the administration or management of
shares or affairs of such partnership or company under paragraph
one.
The provisions of this section shall also apply to the
spouse and children who are not sui juris of the Prime Minister
and a Minister and the provisions of section 259 paragraph three
Part 3
Removal from Office
Section 270. A person holding a position of Prime
Minister, Minister, member of the House of Representatives,
senator, the President of the Supreme Court of Justice, the
President of the Constitutional Court, the President of the Supreme
Administrative Court or Prosecutor General, who is under the
circumstance of unusual wealthiness, or purports to commit
corruption, malfeasance in office, malfeasance in judicial office or
an intentional exercise of power contrary to the provisions of the
Constitution or law, or gravely violates or fails to observe ethical
standards may be removed from office by the Senate.
The provisions of paragraph one shall also apply to the
persons holding the following positions:
(1) judge of the Constitutional Court, Election
Commissioner, Ombudsman and member of the State Audit
Commission;
(2) judge, public prosecutor or high-ranking official in
accordance with the Organic Act on Counter Corruption.
of not less than one-fourth of the total number of the existing
members of the House have the right to lodge with the President
of the Senate a complaint in order to request the Senate to pass a
resolution under section 274 removing the persons under section
270 from office. The said request shall clearly itemise circumstances
in which such persons have allegedly committed the act.
Senators of not less than one-fourth of the total number
of the existing members of the Senate have the right to lodge with
the President of the Senate a complaint in order to request the
Senate to pass a resolution under section 274 removing a senator
from office.
The persons having the right to vote of not less than twenty
thousand in number have the right to lodge a complaint in order to
request for a removal of persons under section 270 from office in
accordance with section 164.
Section 272. Upon receipt of the request under section
271, the President of the Senate shall refer the matter to the National
Counter Corruption Commission for conducting and completing
106
an investigation without delay.
When the investigation is complete, the National Counter
Corruption Commission shall prepare a report thereon for
submission to the Senate. The said report shall clearly state
whether, and to what extent, the accusation put in the request has
a prima facie case and is supported by convincing evidence and
shall state the reasons therefor.
In the case where the National Counter Corruption
Commission is of the opinion that the accusation put in the request
is an important matter, the National Counter Corruption
Commission may make a separate report specifically on the said
accusation and refer it to the President of the Senate in accordance
with paragraph one for consideration in advance.
If the National Counter Corruption Commission passes
a resolution, with votes of not less than one-half of the total number
of existing members, that the accusation has a prima facie case,
the holder of the position against whom the accusation has been
made shall not, as from the date of such resolution, perform his or
her duties until the Senate has passed its resolution. The President
of the National Counter Corruption Commission shall submit the
report, existing documents and its opinion to the President of the
Senate for proceeding in accordance with section 273 and to the
Prosecutor General for further instituting prosecution in the
Political Positions. If the National Counter Corruption Commission
is of the opinion that the accusation has no prima facie case, such
accusation shall lapse.
In the case where the Prosecutor General is of the opinion
that the report, documents and opinion submitted by the National
Counter Corruption Commission under paragraph four are not so
complete as to institute prosecution, the Prosecutor General shall
notify the National Counter Corruption Commission for further
proceedings and, for this purpose, the incomplete items shall be
specified on the same occasion. In such case, the National Counter
Corruption Commission and the Prosecutor General shall appoint
a working committee, consisting of their representatives in an equal
number, for collecting complete evidence and submit it to the
Prosecutor General for further prosecution. In the case where the
working committee is unable to reach a decision as to the
prosecution, the National Counter Corruption Commission shall
have the power to prosecute by itself or appoint a lawyer to
prosecute on its behalf.
Section 273. Upon receipt of the report under section
272, the President of the Senate shall convoke a sitting of the
Senate for considering the said matter without delay.
Commission submits the report out of session of the Senate, the
President of the Senate shall inform the President of the National
Assembly in order to tender a petition to the King for the issuance
of a Royal Command convoking an extraordinary session of the
National Assembly. The President of the Senate shall countersign
the Royal Command.
Section 274. A senator shall have autonomy in casting
a vote, which must be by secret ballot. A resolution for the removal
of any person from office shall be passed by votes of not less than
three-fifths of the total number of the existing members of the
Senate.
A person who is removed from office shall vacate office
or be released from government service as from the date of the
resolution of the Senate. Such person shall be deprived of the
right to hold any political position or to serve in the government
service for five years.
The resolution of the Senate under this section shall be
final and no request for the removal of such person from office
shall be made on the same ground, without, however, prejudice to
the trial of the Supreme Court of Justices Criminal Division for
Part 4
Criminal Proceedings Against Persons Holding
Political Positions
Section 275. In the case where the Prime Minister, a
minister, member of the House of Representatives, senator or other
political official has been accused of becoming unusually wealthy,
or of the commission of malfeasance in office under the Penal
Code or a dishonest act in the performance of duties or corruption
under other laws, the Supreme Court of Justices Criminal Division
for Persons Holding Political Positions shall have the competent
jurisdiction to try and adjudicate the case.
The provisions of paragraph one shall also apply to the
case where the said person or other person is a principal, an
instigator or an aider and abettor or to the person who gives,
promises to give or agrees to give property or any other benefit to
the person under paragraph one for the purpose of inducing an
act, an omission or a procrastination of an act under duty
improperly.
The submission to a motion to the National Counter
Corruption Commission for taking action under section 250 (2)
shall be in accordance with the Organic Act on Counter Corruption.
In the case where the person against whom an accusation
is made under paragraph one holds office of Prime Minister,
Minister, President of the House or Representatives or President
of the Senate, the person injured by such act may submit a motion
to the National Counter Corruption Commission for taking action
under section 250 (2) or may submit a motion to the general
assembly of the Supreme Court of Justice for an appointment of
an independent investigator under section 276. But, if the injured
person has submitted a motion to the National Counter Corruption
Commission, the injured person may submit a motion to the general
assembly of the Supreme Court of Justice only when the National
Counter Corruption Commission has refused to conduct an
investigation, taken action with unreasonable delay or conducted
an investigation and found no prima facie case for the offence to
which the accusation relates.
Commission is of the opinion that there is a reasonable ground to
suspect that a circumstance under paragraph four has occurred
and the Commission passes a resolution, with votes of not less
than one-half of the total number of its existing members, for taking
action under section 250 (2), the National Counter Corruption
Commission shall take action under section 250 (2) expeditiously.
In this case, the injured person may not submit a motion to the
general assembly of the Supreme Court of Justice under paragraph
four.
The provisions of section 272 paragraph one, paragraph
four and paragraph five shall apply mutatis mutandis.
Section 276. In the case where the general assembly
of the Supreme Court of Justice considers it appropriate to pursue
action in accordance with the motion submitted under section 275
paragraph four, the general assembly of the Supreme Court of
Justice shall, at its discretion, appoint an independent investigator
from persons of apparent political impartiality and integrity or may
107
refer the matter to the National Counter Corruption Commission
for conducting an investigation under section 250 (2) in lieu of an
appointment of an independent investigator.
The qualifications, powers and duties, investigation
procedures and other necessary proceedings of the independent
investigator shall be as prescribed by law.
When the independent investigator has conducted the
investigation for fact-finding and prepared a summary of the case
as well as an opinion, if the independent investigator is of the
opinion that the accusation has a prima facie case, the independent
investigator shall refer the report, existing documents and the opinion
to the President of the Senate for taking action under section 273
and refer the file as well as the opinion to the Prosecutor General
for further instituting an action before the Supreme Court of Justices
Criminal Division for Persons Holding Political Positions and the
provisions of section 272 paragraph five shall apply mutatis
mutandis.
Section 277. In a trial, the Supreme Court of Justices
Criminal Division for Persons Holding Political Positions shall rely
on the file of the National Counter Corruption Commission or of
the independent investigator, as the case may be, and may conduct
an investigation in order to obtain additional facts or evidence as it
thinks fit.
The procedure of the Supreme Court of Justices Criminal
Division for Persons Holding Political Positions shall be as
prescribed by the Organic Act on Criminal Procedure for Persons
Holding Political Positions and the provisions of section 213 shall
apply to the performance of duties of the Supreme Court of
mutatis mutandis.
The provisions on the immunity of members of the House
of Representatives and senators under section 131 shall not apply
to a trial of the Supreme Court of Justices Criminal Division for
Section 278. An adjudication of a case shall be made
by a majority of votes; provided that every judge constituting the
quorum shall prepare his or her written opinion and make oral
statements to the meeting prior to the passing of a resolution.
An order and a decision of the Supreme Court of
shall be disclosed and be final, except it is the case under paragraph
three.
In the case where the person on whom a decision of the
Political Positions has been given has found fresh evidence likely
to result in a material alteration of facts, such person may appeal
to the general assembly of the Supreme Court of Justice within
thirty days as from the date of the decision of the Supreme Court
of Justices Criminal Division for Persons Holding Political
Positions.
The submission of an appeal and the hearing as well as
the adjudication of the general assembly of the Supreme Court of
Justice shall be in accordance with the Rule prescribed by the
general assembly of the Supreme Court of Justice.
CHAPTER XIII
Ethics of Holders of Political Positions
and State Officials
Section 279. Ethical standards of persons holding
political positions, Government officials or State officials in each
type shall be in accordance with the ethical standards prescribed.
The ethical standards under paragraph one shall feature
mechanisms and operability in the interest of efficient execution
and prescribe steps for imposing punitive sanctions in accordance
with the gravity of the act in question.
Violation or non-observance of the ethical standards
under paragraph one shall be deemed a disciplinary breach. In
the case of violation or non-observance by a person holding a
political position, the Ombudsmen shall report it to the National
Assembly, the Council of Ministers or the local assembly
concerned, as the case may be, and in the case of a gravely
wrongful act, the matter shall be referred to the National Counter
Corruption Commission for consideration and further action on
the basis that such act shall be deemed a ground for a removal
from office under section 270.
The consideration, selection, reconsideration or
appointment of any person for taking office which involves the
exercise of the State powers, and the transfer, the promotion, the
elevation of a salary scale and the imposition of punitive sanction
vis-a-vis such person shall be in accordance with the merit system
and regard shall also be had to his or her ethical conduct.
Section 280. For the purpose of this Chapter, the
Ombudsmen shall have the powers and duties to make
recommendations or advice in connection with the preparation or
revision of the ethical standards under section 279 paragraph one,
promote ethical awareness of persons holding political positions,
Government officials and State officials and report acts in violation
of ethical standards in order that those in charge of the execution
of the ethical standards may pursue the execution thereof under
section 279 paragraph three.
In the case were the violation or non-observance of the
ethical standard is of particular gravity or there is a reasonable
cause to believe that action to be taken by the person in charge
will not be in a fair manner, the Ombudsmen may conduct an inquiry
and disclose a result of the inquiry to the public.
CHAPTER XIV
Local Government
Section 281. Subject to section 1, the State shall give
autonomy to local government organisations in accordance with
the principle of self-government based upon the will of the people
in the locality and promote the role of a local government
organisation as a principal provider of public services and
encourage it to participate in the decision-making for solving
problems in the locality.
Any locality which meets the conditions of self-
government shall have the right to be formed as a local government
organisation, as provided by law.
Section 282. The supervision of a local government
organisation shall be exercised in so far as it is necessary and
founded upon clear rules, procedures and conditions
corresponding to and suitable for the form of the local government
organisation, as provided by law; provided that it shall be for the
purpose of protecting the interests of local residents or the interests
of the country as a whole and shall not substantially affect the
principle of self-government based upon the will of the people in
the locality otherwise than as provided by law.
In exercising the supervision under paragraph one, there
shall be determined a uniform standard as guidance to be observed
by a local government organisation, having regard to suitability
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and disparity in the level of development and administration
efficiency of each type of local government organisations, without
prejudice to the local government organisations capability in
making decisions in accordance with its need, and there shall be
mechanisms for its operation to be scrutinised principally by the
public.
Section 283. A local government organisation shall have
general powers and duties to oversee and provide public services
for the benefits of local residents and enjoy autonomy in laying
down policies and carrying out administration, public service
provision, personnel administration, and finance, and shall have
powers and duties particularly on its own part, provided that regard
shall also be had to the consistency with the development of a
province and of the country as a whole.
A local government organisation shall be given promotion
and support with a view to achieving such strength as to be able to
administer its operation autonomously and in a manner efficiently
meeting the need of local residents, develop the local finance system
to the extent of providing full public services in accordance with
its powers and duties and establish or jointly establish an
organisation for the provision of public services in accordance
with its powers and duties, in the interest of value for money and
comprehensiveness of public services.
There shall be the law determining plans and process of
decentralisation for the purpose of delineating powers and duties
and allocating revenues between the Central Administration and
Provincial Administration, on one part, and local government
organisations, on the other part, or amongst local government
organisations themselves, having regard to the expansion of
decentralisation commensurate with the level of capability of local
government organisations of each type, and also determining
systems for the scrutiny and evaluation to be performed by a
Committee consisting of representatives of Government agencies
concerned, representatives of local government organisations and
qualified members, in an equal number, in accordance with the
law.
There shall be a law on local revenues for the purpose
of determining powers and duties in connection with the collection
of taxes and other revenues of local government organisations,
with suitable rules in accordance with the nature of each type of
tax, the allocation of resources in the public sector, the adequacy
of revenues for expenditure within the powers and duties of local
government organisations, having regard to the achievement of
economic development of the locality, the financial status of local
government organisations and financial sustainability of the State.
In the case where the delineation of powers and duties
and the allocation of revenues have been made for local government
organisations, the Committee under paragraph three shall review
the matters at every interval of not more than five years in order to
consider suitability of the delineation of powers and duties and the
allocation of revenues previously made, having prime regard to
the expansion of decentralisation to local government organisations.
The act performed under paragraph five shall be effective
upon approval by the Council of Ministers and being reported to
the National Assembly.
Section 284. A local government organisation shall have
a local assembly and local administrative committee or local
administrators.
Members of a local assembly shall be elected.
A local administrative committee or local administrators
shall be directly elected by the people or shall be from the approval
of a local assembly.
An election of members of a local assembly and local
administrative committee or local administrators who must be
directly elected by the people shall be made by direct suffrage
and secret ballot.
Members of a local assembly or of a local administrative
committee or local administrators shall hold office for the period
of four years.
A member of a local administrative committee or a local
administrator shall not be a Government official holding a permanent
position or receiving a permanent salary or an official or employee
of a Government agency, a State agency, a State enterprise or a
local government organisation, and shall not have a conflict of
interests in respect of the holding of office as provided by law.
The qualifications of the person having the right to vote
and the person having the right to apply for candidacy in an election
of members of a local assembly, members of a local administrative
committee and local administrators and rules and procedures
therefor shall be as provided by law.
In the case where members of a local administrative
committee have vacated office en masse or where a local
administrator has vacated office and it is necessary to appoint
members of a local administrative committee or a local administrator
temporarily, the provisions of paragraph three and paragraph six
shall not apply, as provided by law.
The establishment of a local government organisation of
a special form, with a different administrative structure from that
provided in this section, shall be permitted as provided by law,
provided that its local administrative committee or local
administrators shall be elected.
The provisions of section 265, section 266, section 267
and section 268 shall apply mutatis mutandis to members of a
local assembly, a local administrative committee or local
administrators, as the case may be.
Section 285. If persons having the right to vote in an
election in any local government organisation consider that any
member of the local assembly, any member of a local administrative
committee or any local administrator of that local government
organisation is not suitable to remain in office, such voters shall
have the right to cast votes removing such member of the local
assembly, such member of a local administrative committee or
such local administrator from office and, in this connection, the
number of persons eligible for lodging a petition for this purpose
and the rules and procedures for the lodging of the petition, the
examination of listed names and the vote-casting shall be as
provided by law.
Section 286. Persons having the right to vote in any
local government organisation shall have the right to lodge with
the President of the local assembly a request for the issuance by
the local assembly of local ordinances.
The number of persons eligible for lodging the request
and the rules and procedures for the lodging of the request and
the examination of listed names shall be as provided by law.
Section 287. Local residents have the right to participate
in the administration of a local government organisation. For this
purpose, a local government organisation shall also make available
means for such public participation.
In the case where any act to be performed by a local
government organisation may have material impacts on the
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livelihood of local residents, the local government organisation may
inform the public of details thereof for a reasonable period of time
prior to such act and shall, in the case where it deems appropriate
or receives a request by persons having the right to vote in an
election in the local government organisation, cause to be conducted
a public hearing prior to such act or may cause to be conducted a
referendum for deciding on the matter, as provided by law.
A local government organisation shall report its operation
to the public in matters concerning the preparation of budgets,
expenditure and results of work performance for the year, in order
to enable public participation in the scrutiny and supervision of the
administration of the local government organisation.
The provisions of section 168 paragraph six shall apply
mutatis mutandis to the preparation of budgets of a local
government organisation under paragraph three.
Section 288. The appointment, and removal from office,
of officials and employees of a local government organisation shall
be in accordance with the suitability to and the need of each locality
and the personnel administration of local government organisations
shall be subject to a uniform standard, with possibilities of joint
development or reshuffles of personnel amongst local government
organisations, and shall also be made upon prior approval by the
Local Officials Committee as a central body in charge of local
personnel administration, as provided by law.
There shall be, in the personnel administration of a local
government organisation, Merit System Watchdog Agency for
Local Officials, for the purpose of building up systems for the
protection of virtue and ethics pertinent thereto, as provided by
law.
The Local Officials Committee under paragraph one shall
consist, in an equal number, of representatives of relevant
Government agencies, representatives of local government
organisations, representatives of local officials and qualified persons,
as provided by law.
The transfer, promotion, increase of salaries and the
punishment of the officials and employees of a local government
organisation shall be as provided by law.
Section 289. A local government organisation has the
power and duty to conserve arts, custom, local knowledge and
good culture of the locality.
A local government organisation has the right to provide
education and professional training in accordance with the suitability
to and the need of that locality and participate in the provision of
education and training by the State, having regard to the consistency
with the national educational standard and system.
In providing education and training in the locality under
paragraph two, the local government organisation shall also have
regard to the conservation of arts, custom, local knowledge and
good culture of the locality.
Section 290. A local government organisation has
powers and duties in connection with the promotion and
maintenance of the quality of the environment as provided by law.
The law under paragraph one shall at least contain the
following matters as its substance:
(1) the management, preservation and exploitation of the
natural resources and environment in the area of the locality;
(2) the participation in the preservation of natural
resources and environment outside the area of the locality only in
the case where the livelihood of the inhabitants in the area may be
affected;
(3) the participation in considering the initiation of any
project or activity outside the area of the locality which may affect
the quality of the environment, health or sanitary conditions of the
inhabitant in the area;
(4) the participation by local communities.
CHAPTER XV
Amendment of the Constitution
Section 291. An amendment of the Constitution may
be made under the rules and procedures as follows:
(1) a motion for amendment must be proposed by the
Council of Ministers, members of the House of Representatives
of not less than one-fifth of the total number of the existing members
of the House of Representatives or members of both Houses of
not less than one-fifth of the total number of the existing members
thereof or persons having the right to vote of not less than fifty
thousand in number under the law on lodging a petition for
introducing the law;
A motion for amendment which has the effect of
changing the democratic regime of government with the King as
Head of the State or changing the form of the State shall be
prohibited;
(2) a motion for amendment must be proposed in the
form of a draft Constitution Amendment and the National Assembly
shall consider it in three readings;
(3) the voting in the first reading for acceptance in
principle shall be by roll call and open voting, and the amendment
must be approved by votes of not less than one-half of the total
number of the existing members of both Houses;
(4) the consideration in the second reading section by
section shall also be subject to a public hearing participated by
persons having the right to vote, who have proposed the draft
Constitution Amendment;
The voting in the second reading for consideration
section by section shall be decided by a simple majority of votes
(5) at the conclusion of the second reading, there shall
be an interval of fifteen days after which the National Assembly
shall proceed with its third reading;
(6) the voting in the third and final reading shall be by roll
call and open voting, and its promulgation as the Constitution must
be approved by votes of more than one-half of the total number
of the existing members of both Houses;
(7) after the resolution has been passed in accordance
with the rules and procedures hitherto specified, the draft
Constitution Amendment shall be presented to the King, and the
provisions of section 150 and section 151 shall apply mutatis
mutandis.
Transitory Provisions
Section 292. The Privy Council holding office on the
date of the promulgation of this Constitution shall be the Privy
Council under the provisions of this Constitution.
Section 293. The National Legislative Assembly under
the Constitution of the Kingdom of Thailand (Interim), B.E. 2549
(2006) shall act as the National Assembly, the House of
Representatives and the Senate under the provisions of this
Constitution until there shall be the first sitting of the National
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Assembly under section 127.
During the time under paragraph one, if any provisions
of this Constitution or any other law require a counter-signature
by the President of the National Assembly, the President of the
House of Representatives or the President of the Senate, then the
President of the National Legislative Assembly shall be a counter-
signatory.
At the initial stage, if it is apparent that the Senate has
not yet been constituted at the time when the first sitting is required
under section 127, the National Legislative Assembly shall, with
the exception of the consideration of persons for taking office or
removing from office in accordance with the provisions of this
Constitution, continue to act as the Senate until the Senate is duly
constituted under this Constitution and any act performed by the
National Legislative Assembly during such time shall be regarded
as the act performed by the Senate, and in the case where any
provisions of this Constitution or any other law require a counter-
signature by the President of the National Assembly, the President
of the National Legislative Assembly shall be a counter-signatory.
The provisions of section section 93, section 94, section
101, section 102, section 106, section 109, section 111, section
113, section 114, section 115, section 119, section 120, section
197 paragraph four, section 261 and the provisions of any law
that prohibit persons from holding political positions shall not apply
to the holding of office of a member of the National Legislative
Assembly.
The provision of section 153 shall apply to the termination
of the National Legislative Assembly mutatis mutandis.
Section 294. The Constituent Assembly and the
Constitution Drafting Commission under the Constitution of the
Kingdom of Thailand (Interim), B.E. 2549 (2006) shall cease to
exist on the date of the promulgation of this Constitution.
For the purpose of avoidance of a conflict of interests, a
member of the Constitution Drafting Commission shall not be a
candidate for an election of members of the House of
Representatives or hold office of senator within two years as from
the date of the vacation of office under paragraph one.
Section 295. The National Legislative Assembly shall
complete the consideration of the Organic Bill on the Election of
Members of the House of Representatives and the Acquisition of
Senators, the Organic Bill on Political Parties and the Organic Bill
on the Election Commission as received from the Constitution
Drafting Commission within the time specified in the Constitution
of the Kingdom of Thailand (Interim), B.E. 2549 (2006).
In the case where, upon the lapse of the time under
paragraph one, the National Legislative Assembly has not yet
completed the consideration of such Organic Bills, the President
of the National Legislative Assembly shall present the Organic
Bills as prepared by the Constitution Drafting Commission to the
King within seven days for His signature as if the National
Legislative Assembly had approved such Organic Bills.
While the Organic Act on Political Parties and the
Organic Act on the Election Commission under paragraph one
have not yet come into force, the Organic Act on Political Parties,
B.E. 2541 (1998) and the Organic Act on the Election
Commission, B.E. 2541 (1998) shall continue to be in force until
such Organic Acts shall come into force.
Section 296. An election of members of the House of
Representatives under this Constitution shall be held and completed
within ninety days and action shall be taken for acquiring senators
under this Constitution within one hundred and fifty days, as from
the day the Organic Acts under section 295 come into force.
In the first general election of members of the House of
Representatives after the promulgation of this Constitution, a person
eligible for candidacy in the election shall be a member of any
single political party for a period of not less than thirty days up to
the election day. For this purpose, the required period under
section 101 (4)(a) shall be replaced by the period of one year
whilst the required period under section 101 (4)(c) and (d) shall
be replaced by the period of two years.
At the initial stage, any person who was a senator elected
for the first time under the Constitution of the Kingdom of Thailand,
B.E. 2540 (1997) shall not hold office of senator to be acquired
for the first time under this Constitution and the provisions of section
115 (9) and section 116 paragraph two shall not apply to persons
who were senators last elected under the Constitution of the
Kingdom of Thailand, B.E. 2540 (1997).
Section 297. At the initial stage, selected senators shall
hold office for a period of three years as from the date of the
commencement of membership and the provisions prohibiting the
holding of office for a period longer than one consecutive term
shall not apply to such persons in the next selection subsequent to
the termination of membership.
Section 298. The Council of Ministers assuming the
administration of the State affairs on the date of the promulgation
of this Constitution continues to be the Council of Ministers under
the provisions of this Constitution and shall vacate office en masse
when the Council of Ministers newly appointed under this
Constitution takes office.
The National Security Council under the Constitution of
the Kingdom of Thailand (Interim), B.E. 2549 (2006) shall also
vacate office en masse at the same time as the Council of Ministers
assuming the administration of the State affairs on the date of the
promulgation of this Constitution.
The provisions of section 171 paragraph two, section
172, section 174 and section 182 (4), (7) and (8) shall apply to
the holding of office of the Prime Minister and Minister assuming
the administration of the State affairs on the date of the promulgation
of this Constitution.
Section 299. The Ombudsmen who are in office on the
date of the promulgation of this Constitution shall be Ombudsmen
under the provisions of this Constitution and shall continue to be in
office until the expiration of the term and, for this purpose, the
term shall be taken to commence as from the date of the
appointment by the King and such Ombudsmen shall completely
elect one amongst themselves to be Chairman of Ombudsmen
within sixty days as from the date of the promulgation of this
Constitution, and the provisions of section 242 paragraph two
and paragraph three shall apply mutatis mutandis.
The Election Commissioners, members of the National
Counter Corruption Commission and members of the National
Economic and Social Council who are in office on the date of the
promulgation of this Constitution shall continue to be in office until
the expiration of the term and, for this purpose, the term shall be
taken to commence as from the date of the appointment.
The members of the National Human Rights Commission
who are in office on the date of the promulgation of this Constitution
shall continue to be in office until the appointment of the National
Human Rights Commission has been made under the provisions
of this Constitution. But, if such persons, upon appointment, have
been in office for a period of not more than one year up to the
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date of the promulgation of this Constitution, the provisions
prohibiting the holding of office for a period longer than one
consecutive term shall not apply to such persons in respect of the
first appointment of members of the National Human Rights
Commission under this Constitution.
The persons under this section shall continue to perform
duties under Organic Acts or relevant laws as in force on the date
of the promulgation of this Constitution until Organic Acts or other
laws have been enacted in the implementation of this Constitution,
save that any provisions which are contrary to or inconsistent with
provisions of this Constitution shall be replaced by the provisions
of this Constitution.
Section 300. The Constitutional Tribunal under the
Constitution of the Kingdom of Thailand (Interim), B.E. 2549
(2006) shall be the Constitutional Court under the provisions of
this Constitution and, for this purpose, the holder of the office of
the President of the Supreme Court of Justice shall be the President
of the Constitutional Court and the holder of the office of the
President of the Supreme Administrative Court shall be the Vice
President of the Constitutional Court; but, judges in the Supreme
Court of Justice or judges in the Supreme Administrative Court
elected under section 35 of the Constitution of the Kingdom of
Thailand (Interim), B.E. 2549 (2006) shall continue to be in office
of judges of the Constitutional Court until there occurs an
appointment of new judges of the Constitutional Court under the
provisions of this Constitution, which must be made no longer
than one hundred and fifty days as from the date of the appointment
of the President of the House of Representatives and the Leader
of the Opposition in the House of Representatives subsequent to
the first general election of members of the House of
Representatives under the provisions of this Constitution.
The provisions of section 205 (3), section 207 (1) and
(2) and section 209 (5) shall not apply to the holding of office of
judge of the Constitutional Court under paragraph one.
The provisions of section 35 paragraph two, paragraph
three and paragraph four of the Constitution of the Kingdom of
Thailand (Interim), B.E. 2549 (2006) shall continue to be in force
until the enactment of the Organic Act on Procedure of the
All cases or acts being dealt with by the Constitutional
Tribunal under paragraph one shall be dealt with by the
Constitutional Court under this section and when judges of the
Constitutional Court have been appointed under this Constitution,
such cases or acts pending the required determination shall be
transferred to the Constitutional Court newly appointed.
During the pendency of the Organic Act on Procedure
of the Constitutional Court, the Constitutional Court shall have the
power to issue rules governing procedure and delivery of decisions,
provided that the enactment of such Organic Act shall be completed
within one year as from the date of the promulgation of this
Constitution.
Section 301. Action shall be taken for the selection of
the State Audit Commission and the Auditor-General within one
hundred and twenty days as from the date of the appointment of
the President of the House of Representatives and the Leader of
the Opposition in the House of Representatives subsequent to the
first general election of members of the House of Representatives
under the provisions of this Constitution, and if the office of President
of the Constitutional Court selected under this Constitution remains
vacant, the Selection Committee shall consist of its existing
members.
While there is no State Audit Commission, the Auditor-
General shall exercise the powers and perform the duties of the
Chairman of the State Audit Commission and of the State Audit
Commission.
Section 302. The following Organic Acts shall continue
to be in force on the conditions set forth under this section:
(1) Organic Act on Ombudsmen, B.E. 2542 (1999),
provided that the Chairman of the Ombudsmen shall have charge
and control of the execution of this Organic Act;
(2) Organic Act on Counter Corruption, B.E. 2542
(1999), provided that the President of the National Counter
Corruption Commission shall have charge and control of the
execution of this Organic Act;
(3) Organic Act on State Audit, B.E. 2542 (1999),
provided that the Chairman of the State Audit Commission shall
have charge and control of the execution of this Organic Act;
(4) Organic Act on Criminal Procedure for Persons
Holding Political Positions, B.E. 2542 (1999), provided that the
President of the Supreme Court of Justice shall have charge and
control of the execution of this Organic Act.
Amendment to Organic Acts by Acts promulgated while
the Constitution of the Kingdom of Thailand (Interim), B.E. 2549
(2006) remains in force shall be deemed the amendment by the
Organic Acts under this Constitution.
The persons having charge and control of the execution
of the Organic Acts under paragraph one shall take action in
revising the respective Organic Acts to be in compliance with this
Constitution within one year as from the date of the promulgation
of this Constitution. In the case where the office the holder of
which is required to have charge and control of the execution of
such Organic Act is vacant, the period of one year shall commence
as from the date of the appointment of the holder of such office.
The House of Representatives shall complete the
consideration of the Organic Acts under this section within one
hundred and twenty days as from its receipt thereof.
A resolution approving amendment to, or disapproving,
the Organic Bills under paragraph one shall be passed with votes
of not less than one-half of members of each House.
The Election Commission shall prepare the Organic Bill
on Referendum in compliance with this Constitution and, for this
purpose, the provisions of paragraph three, paragraph four and
paragraph five shall apply mutatis mutandis.
Section 303. At the initial stage, the Council of Ministers
assuming the administration of the State affairs subsequent to the
first general election under this Constitution shall complete the
preparation or revision of the laws on the following matters within
the time specified:
(1) the law setting out of details in connection with the
promotion and protection of the exercise of rights and liberties
under section 40, section 44, Part 7, Liberties in Expression of
Persons and Mass Media, Part 8, Rights and Liberties in Education,
Part 9, Rights to Public Health Services and Welfare from the
State, Part 10, Rights in connection with Information and
Complaints, and the law on personal data under section 56, Part
12, Community Rights, the law on establishment of an independent
organisation for the protection of consumers under section 61
paragraph two, the law on the Political Reform Council under
section 78 (7), the law establishing the justice-administration reform
organisation under section 81 (4), the law on establishment of
farmers councils under section 84 (8), the law on establishment
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of a civic fund for political development under section 87 (4) and
the law on National Human Rights Commission under section 256,
within one year as from the date of the declaration of policies to
the National Assembly under section 176;
(2) the law aimed at the development of national
education under section 80 along the line of promoting formal
education, informal education, personalised education, self-learning,
life-time learning, community colleges or other forms of education;
provided that the Council of Ministers shall also revise laws for
the purpose of determining agencies to be in charge of the
administration of education suitable to and consistent with
educational systems at all levels of basic education, within one
year as from the date of the declaration of policies to the National
Assembly under section 176;
(3) the law under section 190 paragraph five, which shall
at least set out details in connection with procedures and methods
for the conclusion of treaties, with checks and balances between
the Council of Ministers and the National Assembly, transparency
efficiency and actual public participation and also details in
connection with independent research to be conducted prior to
the negotiations of treaties without any conflict between interests
of the State and interests of researchers at any time during the
execution of the treaties, within one year as from the date of the
declaration of policies to the National Assembly under section
176;
(4) the laws under section 86 (1) and section 167
paragraph three, within two years as from the date of the declaration
of policies to the National Assembly under section 176;
(5) the law determining plans and the process of
decentralisation, the law on local revenues, the law establishing
local government organisations, the law on local officials and other
laws under Chapter 14 Local Government in compliance with the
provisions of this Constitution, within two years as from the date
of the declaration of policies to the National Assembly under section
176 and, for this purpose, these laws may be integrated into a
Code of Local Law.
In the case where it is apparent that any law enacted
prior to the date of the promulgation of this Constitution has the
substance already in compliance with the provisions of this
Constitution, action under this section shall be deemed to be
exempted.
Section 304. A code of ethics for the purpose of section
279 shall be prepared and completed within one year as from the
date of the promulgation of this Constitution.
Section 305. At the initial stage, the following provisions
shall not apply to the following events under the conditions
herebelow:
(1) the provisions of section 47 paragraph two shall not
apply until there shall be enacted the law under section 47 for the
establishment of the agency in charge of the allocation of frequencies
and the supervision over the operation of radio or television
broadcasting businesses and telecommunication businesses, which
must be completed within one hundred and eighty days as from
the date of the declaration of policies to the National Assembly; in
this connection, such law shall at least, in its substance, make the
provision for the establishment of specific commissions as internal
bodies within such agency independent from one another to be in
charge of supervising radio and television broadcasting businesses
and supervising telecommunication businesses and contain details
with regard to the supervision and protection of the operation of
businesses, the provision of funds for the development of
communication resources and the promotion of public participation
in the operation of public mass media, provided, however, that
such law shall have no prejudice to lawful permissions, concessions
or contracts made prior to the date of the promulgation of this
Constitution until the expiration of such permissions, concessions
or contracts;
(2) subject to section 296 paragraph three, the provisions
of section 102 (10) only insofar as they deal with the previous
holding of office of senator, section 115 (9) and section 116
paragraph two shall not apply to the first general election of
members of the House of Representatives and the holding of
political positions on the initial occasion under this Constitution;
(3) the provisions of section 141 shall not apply to the
enactment of the Organic Acts under section 295;
(4) the provisions of section 167 paragraph one and
paragraph two, section 168 paragraph nine, section 169 only
insofar as they deal with the determination of sources of incomes
for the reimbursement of expenditure previously made out of the
treasury balance, and section 170 shall not apply within one year
as from the date of the promulgation of this Constitution;
(5) any act, in connection with the conclusion or the
implementation of a treaty, which has been done prior to the date
of the promulgation of this Constitution shall be valid and the
provisions of section 190 paragraph three shall not apply but the
provisions of section 190 paragraph three shall apply to acts which
remain incomplete and require further action;
(6) the provisions of section 209 (2) shall not apply to
members of the National Human Rights Commission who are in
office on the date of the promulgation of this Constitution;
(7) the provisions of section 255 paragraph five and
section 288 paragraph three shall not apply within one year as
from the date of the promulgation of this Constitution.
Section 306. At the initial stage, a judge in the Supreme
Court of Justice having held office of not lower than judge of the
Supreme Court of Justice and completely attained the age of sixty
in the fiscal year 2007 may perform the duty as senior judge in the
Supreme Court under section 219 until the law prescribing rules
on the performance of duties of senior judges has been revised.
Within one year as from the date of the promulgation of
this Constitution, there shall be enacted the law prescribing the
rule to the effect that judges of the Court of Justice may be in
judicial service until the age of seventy and judges of the Court of
Justice who have completely attained the age of sixty upwards in
any fiscal year and have served for a period of not less than twenty
years may, upon passing the evaluation of professional proficiency,
make a request for a transfer to the office of senior judges in a
Court of a rank not higher than that at the time of their current
office.
The law to be enacted under paragraph one and
paragraph two shall have provisions to the effect that those who
shall have completely attained the age of sixty upwards in any
fiscal year within the first ten years as from the day this law comes
into force shall gradually vacate office year by year consecutively
and may make a request for a transfer to the office of senior judges.
The provisions of paragraph two and paragraph three
shall also apply to public prosecutors mutatis mutandis.
Section 307. The qualified members of the Judicial
Commission of the Courts of Justice who hold office on the date
of the promulgation of this Constitution shall, with the exception of
the qualified members who shall have attained the age of sixty in
the fiscal year 2007 and the qualified members in any level of
Court who have transferred from that level of Court, continue to
113
hold office of members of the Judicial Commission of the Courts
of Justice, provided that the continued holding of office shall not
be longer than one hundred and eighty days as from the date of
the promulgation of this Constitution.
Section 308. The Council of Ministers assuming the
administration of the State affairs on the date of the promulgation
of this Constitution shall, within ninety days as from the date of the
promulgation of this Constitution, appoint an independent law
reform commission to be in charge of studying and recommending
the preparation of laws necessary to be enacted in the
implementation of the provisions of the Constitution and such
commission shall complete the preparation of a law establishing
an agency responsible for law reform under section 81 (3) within
one year as from the date of the promulgation of this Constitution
and, for this purpose, such law shall at least contain also provisions
imposing on such law reform agency the duty to support the law
drafting by persons having the right to vote.
The performance of action under paragraph one shall
not preclude powers and duties of other agencies charged with
the duty to prepare laws under their responsibility.
Section 309. All acts recognised in the Constitution of
the Kingdom of Thailand (Interim), B.E. 2549 (2006) as lawful
and constitutional, including acts incidental thereto whether
performed prior to or subsequent to the date of the promulgation
of this Constitution, shall be deemed constitutional under this
Constitution.
Countersigned by
Meechai Ruechupan
President of the National Legislative Assembly
Meechai Ruchupan
114

115
Appendix B
THAI CONSTITUTIONAL COURT DECISION NOS. 12-13/2551
(SEPT. 9, 2008)
Thai Royal Gazette vol. 125 pt. 122 (kor).

The following is the full text of the Cookery Decision (full name: Thai Constitutional
Court Decision nos. 12-13/2551 Re: Request from the President of the Senate to
consider the Senators complaint on the termination of Prime Ministership & Re:
Request from the Election Commission to consider the termination of Prime
Ministership). The author inserts the original page number of the Thai Royal Gazette in
the middle column at the bottom of each page for convenient reference. The decision of
the Court ends at page 17 followed by separate opinions of individual judges.

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.-..+.a+.+a..-..+. ... .- + .u!++.,r...u.a.ra.
Verapat Pariyawong: A Critique on Thai Democracy and Judicial Review Harvard Law School LL.M. Paper (Appendix B)
116 Thai Royal Gazette vol. 125 pt. 122 (kor) page 1
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178
Appendix C
SOVEREIGNTY IN INTERNATIONAL LAW MAKING:
CERTAIN TREATIES REQUIRING PARLIAMENTARY APPROVAL

THAILAND PUBLIC LAW NETWORK WEBSITE (Nantawat Boramanand ed.)

http://www.pub-law.net/publaw/view.asp?PublawIDs=1214 (last visited Apr. 30, 2010).

The following work of the author, as referred to in footnotes of the LL.M. paper, was
completed in April 2008 and submitted for partial fulfillment of the Bachelor of Laws
degree at Chulalongkorn University Faculty of Law, and later published on Thailand
Public Law Network Website. It discusses the Thai constitutional jurisprudence on the
treaty clause under the 1997 Constitution and offers the interpretation of the
significantly expanded treaty clause or the controversial Section 190 of the 2007
Constitution. The Thai Constitutional Court later decided a case concerning a Joint
Communiqu between Cambodia and Thailand, in which the Court expansively
interpreted Section 190 and put the executive branch under much scrutiny [Thai
Constitutional Court decision no. 12/2552, Dec. 2, 2009, Thai Royal Gazette vol. 126 pt.
91 (kor)]. Needless to say, the concerns raised and the legal methodology proposed by
the author in relation to Cookery can indeed be applied to the Joint Communiqu Case.
:

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* ( ).

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Verapat@gmail.com
http://verapat.googlepages.com.
Verapat Pariyawong: A Critique on Thai Democracy and Judicial Review Harvard Law School LL.M. Paper (Appendix C)
179

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- http://www.mfa.go.th/jtepa ( ).
http://www.thaifta.com/ThaiFTA/ http://www.dtn.moc.go.th/
( ).
http://www.ftadigest.com ( ).
http://www.ftawatch.org; , (FTA)
http://www.ftawatch.org/autopage1/show_page.php?t=5&s_id=3&d_id=3 ( ).
181 Article page 3

(sovereignty)

? ?
?

, . ( ),
; , . ( ), .
, ,
, , .
182 Article page 4

.

.

(puissance
souveraine)

Etat, cest moi!
(social contract)
-
(souverainet populaire)

( + )

John Austin, The Province of Jurisprudence Determined, 1832, pp. 199-204; H.W.R. Wade, The Basis of Legal Sovereignty,
CLJ 172, 1955, pp. 187-188; , , , -
; , , -; , :
, , -; ,
, , -; , , , ;
, , , -.
Jean Bodin, livres de la Rpublique, 1576; A. Gardot, Jean Bodin - Sa Place Parmi les Fondateurs du Droit International, 1934,
p. 549.
, , -; , , -.
, , -; , , -.
.
183 Article page 5

.

sovereign equality
( )
(modern international
law)

(Self-determination)

(independence)
(autonomy) (equality)

(exclusivity of domestic jurisdiction)

() (United Nations Charter, 26 June 1945, 892 UNTS 119)
; .. (Vienna Convention on
the Law of Treaties, 23 May 1969, 1155 UNTS 33), East Timor Case, ICJ Reports 1995, para. 29.
Rousseau, Droit international public, vol. IV, 1980, pp. 21-33; Louis Henkin, International Law: Politics, Values and
Functions, 216 Recueil des cours de lAcadmie de droit international (1989 IV), pp. 24-29; Antonio Cassese, International Law
(2001), pp. 89-90; Ian Brownlie, Principles of Public International Law, 2003, pp. 287-289; Malcolm Shaw, International Law,
2003, pp. 13-41; Warbrick, States and Recognition in International Law in International Law (M. Evans ed.), 2006, p. 222.
McNair, Law of Treaties, pp. 754-765; Permanent Court of International Justice, SS Wimbledon Case, PCIJ, Publications,
Series A., No.I, p.25; The Supreme Court of the United States of America, Perry v. United States, 294 US 330-354.
184 Article page 6

(consent)

.

full power

Louis Henkin, Axioms of Statehood: the Mythology of Sovereignty , pp.24-26; H. Spruyt, The Sovereign
State and Its Competitors: An Analysis of Systems Change, 1994; J. Bartelson, A Genealogy of Sovereignty, 1995; Martin van
Creveld, The Rise and Decline of the State, 1999, p. 164 and pp. 349-354; Stphane Beaulac, The Power of Language in the
Making of International Law: The Word Sovereignty in Bodin and Vattel and the Myth of Westphalia, 2004.
United Nations General Assembly, Resolution 2625 (XXV) Declaration on the Principles of the International Law
Concerning Friendly Relations and Cooperation among States in Accordance with the Charter of the United Nations, UN Doc
A/Res/25/2625, 24 October 1970, Oscar Schachter, International Law in Theory and Practice, 1991, pp. 18-31.
.. ; , ,
, -.
185 Article page 7

(fundamental importance) (manifest)

.. ; , , -; ,
, , - -.
.
186 Article page 8

.

.

, ( ), , ; ,
, , ; , , , .
187 Article page 9

(Prerogative of the Crown)
(Secretary of State for Foreign and Commonwealth Affairs)

(Advice and Consent)

(Executive Agreement)
Congress
, , .
Duncan B. Hollis, Merritt R. Blakeslee and L.

Benjamin Ederington, National Treaty Law and Practice, 2005.
AV Dicey, Introduction to the Study of the Law of the Constitution, 1959, p.425; AW Bradley and KD Ewing, Constitutional
and Administrative Law, 1997, pp. 272-273.
Anthony Aust, Modern Treaty Law and Practice, 2003, p.151; Joanna Harrington, Scrutiny and Approval: The Role for the
Westminster Style Parliament in Treaty Making, ICLQ vol. 55, January 2006, p. 125.
(Constitution du 4 Octobre 1958) .
(Grundgesetz fr die Bundesrepublik Deutschland Basic Law)
Constitution of the United States of America, Article II Section 2(2); D. Vogts, Taking Treaties less Seriously, American
Journal of International Law (1998), pp. 458-462.
, (
Executive Agreement), , .
McNair, Supra note 21, pp. 120-121.

188 Article page 10

.

(
) / :
""

"
" ""

..

..
" " "

" " "

""

.. ;
(Treaty Section of the United Nations Office of Legal Affairs) Treaty Handbook, United Nations
Publications No.E.02.V2, 2006, p.6 Summary of Practice of the Secretary-General as Depositary of Multilateral
Treaties, ST/LEG/7/Rev. 1, 1999, paras. 101-115.
(Permanent Court of International Justice) Legal Status of Eastern

Greenland, P.C.I.J. (1933) Series A/B, No. 53, p. 71;
(International Law Commission), Draft Articles on the Law of Treaties with commentaries, in Yearbook of the International Law
Commission, 1966, vol. II., pp. 192-193.
189 Article page 11

" "
.
.
.
.

/:
"

Agreed Minute
( ) :
Agreed Minute
procs-verbal
(negotiation) Agreed Minute
(treaty) (legally binding force)
(intention) Agreed Minute

Agreed Minute
(supplementary instrument)
Agreed Minute
Agreed Minute

/, .
/, .
(International Court of Justice ICJ)

(Joint communiqu) Aegean Sea Continental Shelf, ICJ Reports 1978, p.39, para.96
(Minutes) Maritime Delimitation and Territorial Questions between Qatar and
Bahrain (JurisdictionFirst Phase), ICJ Reports 1994, p.112 (Declaration) Land and Maritime
Boundary between Cameroon and Nigeria, ICJ Reports 2002, p.303; , , -.
190 Article page 12

Agreed Minute

(Charter of the United Nations) Agreed
Minute (treaty) Agreed Minute

(pacta sunt servanda) ..
(Vienna Convention on the Law of Treaties)
(international responsibility) Agreed Minute

(politically or morally binding force)
Agreed Minute

(Law of Treaties)
( ), / (
Agreed Minute).
() .. , ; Ian Sinclair,
The Vienna Convention on the Law of Treaties, 1984; , ,
-; Fitzmaurice and Elias, Contemporary Issues in the Law of Treaties, 2005.
Ian Brownlie, Supra note 20, p.651; , , .

191 Article page 13

..

. (Dualism) (Monism) (Co-ordination)
(Monism) (Dualism)

(View) (Approach)

(International Court of Justice ICJ)

Gabckovo-Nagymaros
Project (Hungary v Slovakia), ICJ Reports 1997, para.46, 99.
Antonio Cassese, Modern

Constitutions and International Law, 192 Recueil des cours de lAcadmie de droit international (1985-III), p.331;
J.G. Stark, Monism and Dualism in the Theory of International Law, British Yearbook of International Law 66
1936, pp.66-82; Louis Henkin; Supra note 20.; pp.88-105; David Feldman, Monism, dualism and constitutional legitimacy.
Australian Yearbook of International Law v.20 (1999), pp.105-126; A.F.M. Maniruzzaman, State contracts in contemporary
international law: monist versus dualist controversies, European Journal of International Law v.12 no.2 (April 2001), pp.309-
328; Cassese, Supra note 20.; pp.162-165; Brownlie, Supra note 20, pp.31-33; ; ;
192 Article page 14

(Dualism)

(Transformation) (Adoption)
(Implementation)

(Monism)

(Incorporation)

(J ournal Officiel Official J ournal)

- -; , , -; , ,
-; , ; -.
/; /; /;
/ ..

193 Article page 15

; /, ,
; /.
, : ( ),
, ; , , , ; ,
?: ,
.. , http://www.archanwell.org/autopage/print.php?t=1&s_id=4&d_id=6&page=1
( ); ,
; , , , ;
, : , ,
http://www.oja.go.th/data/document/download/jrd_civill_justice_group_6.pdf ( ).

;
, / ( [Binding]), .
, , -.
.
194 Article page 16

Theories of Co-ordination

(European Union EU)

( Subsidiarity and Competence)

(Framework Decision)

(European Arrest Warrant)

( )

, ;
, , -.
Louis Henkin, Supra note 20, pp. 90-91; E. Jimnes de Archaga, Self-Executing Provisions in International Law, in
Staat und Vlkerrechtsordnung : Festschrift fr Karl Doehring, 1989, p. 409; Eileen Denza, The Relationship between National
Law and International Law, in International Law (M. Evans ed.), 2006, pp. 440-445.
Legitimate Expectation Minister for Immigration and Ethnic Affairs v Teo

(1995) 183 CLR 273.
Ian Brownlie, Supra note 20, pp. 33-34.
Gerald Fitzmaurice, The general principles of international law considered from the standpoint of the rule of law, 92 Recueil des
cours de lAcadmie de droit international (1957-II), pp. 68-94.
The European Council Framework Decision on the European Arrest Warrant and the Surrender Procedures between Member
States, 13 June 2002 (2002/584/JHA), OJ L 190/5, 18 July 2002.
195 Article page 17

( ) European Arrest Warrant

.

.

-
-

-
-
-

.

Verapat Pariyawong, European Arrest Warrant: New Features with Old Headaches ?, Chulalongkorn University
European Union Law Term Paper, at http://verapat.googlepages.com/home2 ( ).

, , -
; , , -; , , -;
Anthony Aust, Supra note 33, pp. 47-130.
().
196 Article page 18

.

.
)

.
()
(Signature) (Consent to be bound)

, ,
-.
.. (Means of Expressing Consent to Bound by A Treaty);

, , -.
() :

, .
, , .
./ .
197 Article page 19

(Parliamentary approval)
(Ratification)

.

.

() (land)

() (territorial sea)

() (seabed) (sub-soil)
() (territorial airspace)

, , ; , , .
McNair, Supra note 21, p. 130.
, , .
, , .
, , -; , , ; Oppenheim,
International Law (Robert Jennings and Arthur Watts eds.), 1992, pp. 661-662; Ian Brownlie, Op. Cit., pp. 105-117.
.. (United Nations Convention on Law of the Sea 10

December 1982, 1833 UNTS 397); , , .
198 Article page 20

(Delimitation) (Demarcation)

- - ( .. ), -
( .. ); - - ( .. ), -
( .. ), - ( .. ), - ( ..
); - - .., -
.. , - ( .. ), .. ; -
- .. .
, ,
, ,
, , http://gfmis.mfa.go.th/treaty/MSdoc/KateDan.doc ( );
,
http://www.rtsd.mi.th/section/Boundary/Boundary.html ( ).

-
/ .
Hollis, Blakeslee and Ederington, Supra note 31; Anthony Aust, Supra note 33, pp. 145-160.
Constitution du 4 Octobre 1958 Article 53 :

Les traitsceux qui comportent cession, change ou adjonction de territoire, ne peuvent tre ratifis ou approuvs
quen vertu dune loi.
... Nulle cession, nul change, nulle adjonction de territoire nest valable sans le consentement des populations
intresses.
199 Article page 21

-

(International
Court of J ustice)

(Merits)

(Mixed Commission) (Annexed
Map)

(Preliminary objection)

(
) ( ) (League
of Nations) (Permanent Court of
International J ustice)

(United Nations)

(United Nations Charter)
( annex )

(Declare)

Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Merits, ICJ Reports 1962, p. 6,
http://www.icj-cij.org/docket/ ( ).
, , ; , , ;
. , , ; ,
..-, ; , ; - (
).
( )
Pleadings, Oral Arguments, Documents of Case Concerning the Temple of Preah Vihear, ICJ, Volume I, p. 5.
:
All Members of the United Nations are ipso facto parties to the Statute of the International Court of Justice.
200 Article page 22

(Special Agreement)

:
The states parties to the present Statute may at any time declare that they recognize as compulsory ipso facto and
without special agreement, in relation to any other state accepting the same obligation
Hugh Thirlway, Reciprocity in the Jurisdiction of the International Court, in 15 NYBIL 1984, p. 97;
Shabtai Rosenne, The Law and Practice of the International Court 1920-2005, 2006.
Letter of Application Instituting the Proceeding from the Minister-Counsellor of at the Royal Cambodian Embassy in Paris to
the International Court of Justice dated 30 September 1959 (undersigned by the Cambodian Minister of Foreign Affairs dated 15
September 1959) Pleadings, Oral Arguments, Documents of Case Concerning the Temple of Preah Vihear Case, ICJ,
Volume I Application-Pleadings, p. 4.
Declaration of 20 May 1950 by the Kingdom of Thailand recognizing as Compulsory the jurisdiction of the International Court
of Justice :
"I have the honour to inform you that by a declaration dated September 20, 1929, His Majesty's Government had
accepted the compulsory jurisdiction of the Permanent Court of International Justice in conformity with Article 36, paragraph 2,
of the Statute for a period of ten years and on condition of reciprocity. That declaration has been renewed on May 3, 1940, for
another period of ten years.
In accordance with the provisions of Article 36, paragraph 4, of the Statute of the International Court of Justice, 1 have
now the honour to inform you that His Majesty's Government hereby renew the declaration above mentioned for a further period
of ten years as from May 3, 1950, with the limits and subject to the same conditions and reservations as set forth in the first
declaration of Sept. 20, 1929."
Case Concerning the Temple of Preah Vihear (Cambodia v. Thailand), Preliminary Objections, ICJ Reports 1961, p. 17.
201 Article page 23

Cesare P.R. Romano,

The Proliferation of International Judicial Bodies: The Pieces of the Puzzle, in 31 New York University Journal of
International Law and Politics, p. 709; Rosalyn Higgins, A Babel of Judicial Voices? Ruminations from the Bench, in ICLQ
vol 55, October 2006, pp 791-804; Proliferation of International Courts and Tribunals (
) http://www.pict-pcti.org ( ).
202 Article page 24

-

..

(acquiesce)

The Antarctic Treaty 1959, UNTS 402 1961, p.71; G. Triggs, The Antarctic Treaty Regime: Law
Environment and Resources, 1987; Olav Schram Stokke and Davor Vidas, Governing the Antarctic: The Effectiveness and
Legitimacy of the Antarctic Treaty System, 1997
The Antarctic Treaty Article II
The Antarctic Treaty Article IV [territorial claims] :

1. Nothing contained in the present Treaty shall be interpreted as:
(a) a renunciation by any Contracting Party of previously asserted rights of or claims to territorial sovereignty in
Antarctica;
(b) a renunciation or diminution by any Contracting Party of any basis of claim to territorial sovereignty
in Antarctica which it may have whether as a result of its activities or those of its nationals in Antarctica, or otherwise;
(c) prejudicing the position of any Contracting Party as regards its recognition or non-recognition of any other State's
right of or claim or basis of claim to territorial sovereignty in Antarctica.
2. No acts or activities taking place while the present Treaty is in force shall constitute a basis for asserting, supporting or
denying a claim to territorial sovereignty in Antarctica. No new claim, or enlargement of an existing claim, to territorial
sovereignty shall be asserted while the present Treaty is in force.
203 Article page 25

.

/

/

...

:

:

:

:

:

... ...

.
204 Article page 26

()
()

... ...

/ ( ), .
,
/, ; ,
: , , ;
,
, ; ,
,
, ; , ,
( ) .. , http://pub-
law.net/publaw/view.asp?PublawIDs=859 ( ).
205 Article page 27

.

.. ..
..

..
"
(J urisdiction) (Sovereignty)

State J urisdiction

State J urisdiction
J urisdictional Competence ( )

, .
M. Akehurst, Jurisdiction in International Law, in British Yearbook of International Law, 1972-1973, pp.171-177; A.
Lowenfeld, Public Law in International Arena, 163 Recueil des cours de lAcadmie de droit international (1979), p. 321,
Oscar Schachter, Supra note 23, 1991, Chapter XII; Meessen, Extra-territorial Jurisdiction in Theory and Practice, 1996; P.
Schlosser, Jurisdiction and International Judicial and Administrative Co-operation, 284 Recueil des cours de lAcadmie de
droit international (2000); Ian Brownlie; Supra note 20, Chapter 15; , ,
.
206 Article page 28

Status of Force Agreement (SOFA) ;

Dieter Fleck, The Handbook of The Law of Visiting Forces, 2001; I. R. McConnel, A Re-examination of the United
States-Japan Status of Forces Agreement, in Boston College International and Comparative Law Review v. 29 no. 1 (Winter
2006), pp. 165-74; Egan, The Future of Criminal Jurisdiction over the Deployed American Soldier: Four Major Trends in
Bilateral U.S. Status of Forces Agreements, in Emory International Law Review v. 20 no. 1 (Spring 2006), pp. 291-343.
.. .

Soft Law ,
( ), / (
.. ); Soft Law CM Chinkin, The Challenge of Soft Law: Development and Changes in International Law, 38
ICQL, 1989, p.850; P. Weil, Towards Relative Normativity in International Law, in 77 AJIL, 1983, p. 413; Alan Boyle, Soft
Law in International Law Making, in International Law (M. Evans ed.), 2006, p. 141.
207 Article page 29

.
. /
. /

/
/

(International custom
customary international law)

Sovereign right J urisdiction

(Exclusive economic zone)

/ , -.

; M. Akehurst, Custom as a
Source of International Law, in 47 BYBIL, 1974-1975 p. 53; Oscar Schachter, New Custom: Opinio Juris and Contrary
Practice, in Theory of International Law at the Threshold of the 21
st
Century (J. Makarczyk), 1996, pp. 531-532.
.. :
In the exclusive economic zone, the coastal State has:
(a) sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources,
whether living or non-living
208 Article page 30

(Continental shelf)

(Physical area)

a change inextraterrotorial areas
.. .
The coastal State exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting
its natural resources.
() .. .
() .. .

/ ,
, , .
Constitution of the Kingdom of Thailand, B.E. 2550 (2007), Managed by Constitution Drafting Commission, Constituent
Assembly, Bureau of Committee 3 of The Secretariat of the House of Representatives, Published in the Government Gazette,
Vol. 124, Part 27a, dated 24th August B.E. 2550 (2007), at www.senate.go.th/pdf/Constitution2007.pdf, p. 105 (last accessed 30
March 2008).
Unofficial Translation of the Constitution of the Kingdom of Thailand, B.E. 2550 (2007), Foreign Law Bureau, Office of the
Council of State, at http://www.asianlii.org/th/legis/const/2007/1.html (last accessed 30 March 2008).
209 Article page 31

(INTERPOL)

Status of Force Agreement

Status of Force Agreement

, .

/ , , ,
, ( )
.
210 Article page 32

(
)

(Implementation)

, , ; Hugo Grotius, DE JURE BELLI AC PACI BIBRI TRES (Book I), in the Classics of
International Law (James Brown Scott ed.), vol. 2 Translation by Francis W. Kelsey, 1925, pp. 102-163; Rousseau,
L'indpendance de l'Etat dans l'ordre international, 73 Recueil des cours (1948-II), pp. 171-253; Hans Kelsen, Principles of
International Law, 1952, pp. 108-110, 155-157, 216-217
, , ; , , ;
, , ; , , .
,
( /-).
, .
211 Article page 33

Ponsonby Rule

(House of Commons)
(Sitting Days)

(Acts of Parliament)
(Diet)

(Federal legislation)

(loi)
International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, UN Doc
A/56/10(2001) with Commentaries, Yearbook of the International Law Commission, 2001.
.. .
United Kingdom Foreign and Commonwealth Office, The Ponsonby Rule (January 2001), at
http://www.fco.gov.uk/Files/kfile/PonsonbyRule.pdf (Last accessed 30 March 2008).
Joanna Harrington, -, .
Lord Templeman, Treaty-Making and British Parliament, in Parliamentary Participation in the Making and Operation of
Treaties: A Comparative Study, 1994, p. 153.
European Parliamentary Elections Act 2002, Section 12; P. Barnes, Parliamentary Scrutiny of Policy and Legislation: The
Procedures of the Lords and Commons, in Britain in the European Union: Law, Policy and Parliament (Giddings and Drewry),
2004, pp. 60-96.
United Kingdom House of Commons, Parliamentary Debates, Series 6 vol 4 col WA 82 (6 May 1981).
.. ( Nihon-Koku Kenp) .
(Grundgesetz fr die Bundesrepublik Deutschland) ().
Constitution du 4 Octobre 1958 Article 53 :

Les traitsceux qui modifient des dispositions de nature lgislative, ceux qui sont relatifs ltat des
personnesne peuvent tre ratifis ou approuvs quen vertu dune loi.
212 Article page 34

(Interpretative
declaration)

, , ; , , , ;
, , ; , , ; ,
, .

(Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment)
Torture "With respect to the term "torture" under Article 1 of the Convention,
although there is neither a specific definition nor particular offence under the current Thai Penal Code corresponding to the term,
there are comparable provisions under the aforesaid Thai Penal Code applicable to acts under Article 1 of the Convention. The
term "torture" under Article 1 of the Convention shall accordingly be interpreted in conformity with the current Thai Penal
Code, 1465 UNTS 85.
/.
; ( ), / (
);
( ), / ( );
( ), / ( ... (.. ....)
); ( ), / (
)
(Hague Convention on the

Protection of Children and Cooperation in respect of Inter-country Adoption)

( ), / (
)
213 Article page 35

..

.. ( ) ..

/; -/.
( ), / (
).
( ), / (
).
, / ( [Binding]).
214 Article page 36

(Asian-
Pacific Postal Union APPU) (the Asian-Pacific
Postal Training Centre APPTC)
.. (Agreement between the Government of the
Kingdom of Thailand and the Asian-Pacific Postal Union Regarding the Privileges of the Asian-
Pacific Postal Training Centre (1985)) APPU ..
..
APPU ..
(APPU Bureau)
..
APPU APPU
Bureau (Draft Headquarters Agreement between the Government of the Kingdom of
Thailand and the Asian-Pacific Postal Union Regarding the Establishment of the Asian-Pacific Postal
Union Bureau in Thailand)
.. .
APPU Bureau
APPTC
..

APPU Bureau APPTC
APPTC
.. APPU Bureau
APPTC The Central Office
APPTC

..
APPU Bureau
.. APPU Bureau
APPU Bureau
..
( ), / (
).
215 Article page 37

(International conventions)

(Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment)

( ), / ( ).
:

216 Article page 38

.

-
-

(FTA)

(
)

...

...

:
()

217 Article page 39

A treaty whichhas extensive impacts on national economic or social security or
generates material commitments in trade, investment or budgets of the country, must be
approved by the National Assembly

A treaty whichaffects immensely to economic or social security of the country or
results in the binding of trade, investment budget of the country significantly must be
approved by the National Assembly

-
-

- (Signature)
(Expression of consent to be bound)
-
-

-

...

( ).
( ).
().
218 Article page 40

-

-

-

,
, , .
,
( ), , .
219 Article page 41

-

- (Signature)
(Expression of consent to be bound)

-

-

, (WTO): , ; ,
(WTO), .

220 Article page 42

( )
(National Treatment NT)

(Most Favored Nation MFN)

NT MFN Andreas F. Lowenfeld, International Economic Law, 2002; ,

; , : (
), .; John Howard
Jackson, Sovereignty, the WTO and changing fundamentals of international law, 2006.
221 Article page 43

Trade Promotion
Authority Fast Track Authority

amicus curiae

Trade Act of 2002; United States Senate Committee on Finance, Trade Promotion Authority Annotated (Annotated by
William G. Dauster), 2007 at http://finance.senate.gov/TradePromotionAuthority.pdf ( );
Shapiro et. al., Trade promotion authority formerly known as fast track: building common ground on trade demands
more than a name change, in George Washington International Law Review v. 35 no. 1 (2003) pp. 1-53; S. D. Murphy, 2002
Enactment of Trade-Promotion Authority, in American Journal of International Law v. 96 no. 4 (October 2002), pp. 979-80.
M. Schachter, The Utility of Pro Bono Representation of U.S.-based Amicus Curiae in Non-U.S. and Multi-national Courts
as a Means of Advancing the Public Interest, in Fordham International Law Journal v. 28 no. 1 (December 2004), pp. 88-144;
Cawley, Friend of the Court: How the WTO Justifies the Acceptance of the Amicus Curiae Brief from Non-Governmental
Organizations, in Penn State International Law Review v. 23 no. 1 (Summer 2004), pp. 47-78; V. E. Flango et. al., Amicus
Curiae Briefs: The Court's Perspective, in The Justice System Journal v. 27 no. 2 (2006), pp. 180-190.
222 Article page 44

..

(Human
rights approach)

, , , .
223 Article page 45

-

.. ... " " "

"

...

(TDRI)
.. ...

()

()

, ..

.. ..., /.
, , , , .
224 Article page 46

()
()

( FTA Watch)
FTA Watch

()

()

()

()

()

() .

()

()

, , http://www.ftawatch.org ( ).
225 Article page 47

()
() () ()

226 Article page 48

( )

(
)

227 Article page 49

National Treatment Most-Favored Nation

(amicus curiae)

228 Article page 50

Pariyawong - A Critique On Thai Democracy and Judicial Review

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THREE-COURSE RECIPE FOR THE COURTS COOKERY:

A CRITIQUE ON THAI DEMOCRACY AND J UDICIAL REVIEW

() (United Nations Charter, 26 June 1945, 892 UNTS 119)

(Secretary of State for Foreign and Commonwealth Affairs)

Duncan B. Hollis, Merritt R. Blakeslee and L.

(Constitution du 4 Octobre 1958) .

(Grundgesetz fr die Bundesrepublik Deutschland Basic Law)

McNair, Supra note 21, pp. 120-121.

(Permanent Court of International Justice) Legal Status of Eastern

(International Court of Justice ICJ)

Ian Brownlie, Supra note 20, p.651; , , .

(International Court of Justice ICJ)

Antonio Cassese, Modern

Legitimate Expectation Minister for Immigration and Ethnic Affairs v Teo

Ian Brownlie, Supra note 20, pp. 33-34.

(Signature) (Consent to be bound)

.. (Means of Expressing Consent to Bound by A Treaty);

McNair, Supra note 21, p. 130.

.. (United Nations Convention on Law of the Sea 10

Constitution du 4 Octobre 1958 Article 53 :

Cesare P.R. Romano,

The Antarctic Treaty Article II

The Antarctic Treaty Article IV [territorial claims] :

Status of Force Agreement (SOFA) ;

(Grundgesetz fr die Bundesrepublik Deutschland) ().

Constitution du 4 Octobre 1958 Article 53 :

(Hague Convention on the

NT MFN Andreas F. Lowenfeld, International Economic Law, 2002; ,

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