Rulings of the Constitutional Court of Thailand
Encyclopedia
The rulings of the Constitutional Court of Thailand have, since the Court's establishment in 1998, had an important impact on Thai politics and jurisprudence. Major rulings having included the 1999 ruling that Deputy Minister of Agriculture Newin Chidchop could retain his Cabinet seat after being sentenced to imprisonment for defamation, the 2001 acquittal of Thaksin Shinawatra
for filing an incomplete statement with the National Counter-Corruption Committee, the 2003 invalidation of Jaruvan Maintaka
appointment as Auditor-General, and the 2006 invalidation of the nation-wide results of a House election
.
executive decrees issued by the Chuan
government to deal with the Asian financial crisis. The government had issued the decrees in early May 1998 to expand the role of the Financial Restructuring Authority and the Assets Management Corporation, to settle the debts of the Financial Institutions Development Fund through the issue of 500 billion THB in bonds
, and to authorize the Ministry of Finance to seek 200 billion THB in overseas loans. The opposition New Aspiration Party
(NAP) did not have the votes to defeat the bills, and therefore, on the last day of debate, invoked Article 219 of the Constitution to question the constitutionality of an emergency decree.
The NAP argued that since there was no emergency nor necessary urgency (under Article 218(2)), the government could not issue any emergency decrees. Article 219, however, specifically notes the constitutionality of an emergency decree can be questioned only on Article 218(1) concerning the maintenance of national or public safety, national economic security, or to avert public calamity. The government, fearing further economic damage if the decree were delayed, opposed the Court's acceptance of the complaint, as the opposition clearly had failed to cite the proper constitutional
clause. The Court wished to set a precedent, however, demonstrating it would accept petitions
under Article 219, even if technically inaccurate. Within a day it ruled that it was
obvious to the general public that the nation was in an economic crisis, and that the decrees were
designed to assist with national economic security in accordance with Article 218(1). The decrees were later quickly approved by Parliament.
The NAP's last minute motion damaged its credibility, and made it unlikely that Article 219 will
be invoked unless there is a credible issue and the issue is raised and discussed at the beginning
of Parliamentary debate, rather than at the last-minute before a vote.
On the other hand, a precedent was established by the Court that it would accept all petitions under Article 219 to preserve Parliament's right to question the constitutionality of emergency executive decrees.
's party, Thai Rak Thai
, in 2001 election, the Anti-Corruption Committee filed a case charging him as hiding a handful of assets in form of stocks, which is unlawful due to the 1997 Constitution. According to Thai law, senior government officials are required to declare their assets, along with those of their spouses and children under the age of 20, to the NCCC when they start and finish their terms in office. However Thaksin could escape the guilty as the judges ruled 8 to 7. Thaksin said it was his 'honest mistake'.
that the government signed with the International Monetary Fund (IMF)
to secure emergency financial support was a treaty
, and that Article 224 of the Constitution stipulated that the government must receive prior consent from Parliament to enter a treaty.
The NCCC determined the issue concerned a constitutional interpretation and petitioned the Constitutional Court for an opinion. The Court ruled the IMF letters were not treaties, as internationally defined, because they were unilateral documents from the Thai government with no rules for enforcement or provisions for penalty. Moreover, the IMF itself had worded the letters in a way that stated that the letters were not contractual agreements.
appointment by the Senate as Auditor-General. Jaruvan was one of three nominees for the position of auditor-general in 2001, along with Prathan Dabpet and Nontaphon Nimsomboon. Prathan received 5 votes from the 8-person State Audit Commission (SAC) chairman while Jaruvan received 3 votes. According to the constitution, State Audit Commission chairman Panya Tantiyavarong should have submitted Prathan's nomination to the Senate, as he received the majority of votes. However, on July 3, 2001, the SAC Chairman submitted a list of all three candidates for the post of auditor-general to the Senate, which later voted to select Khunying Jaruvan Maintaka.
The Constitutional Court ruled in 6 July 2004 that the selection process that led to the appointment of Jaruvan as Auditor-General was unconstitutional. The Court noted that the Constitution empowers the SAC to nominate only one person with the highest number of votes from a simple majority, not three as had been the case. The court stopped short of saying if she had to leave her post. However when the Constitutional Court had ruled on 4 July 2002 that the then Election Commission
chairman Sirin Thoopklam's election to the body was unconstitutional, the President of the Court noted "When the court rules that the selection [process] was unconstitutional and has to be redone, the court requires the incumbent to leave the post".
However, Jaruwan refused to resign without a royal dismissal from King Bhumibol Adulyadej. She noted ""I came to take the position as commanded by a royal decision, so I will leave the post only when directed by such a decision." The State Audit Commission later nominated Wisut Montriwat, former deputy permanent secretary of the Ministry of Finance, for the post of Auditor-General. The Senate approved the nomination on 10 May 2005. However, King Bhumibol Adulyadej, in an unprecedented move, withheld his royal assent. The National Assembly did not hold a vote to overthrow the royal veto. On October 2005 the Senate rejected a motion to reaffirm her appointment, and instead deferred the decision to the SAC.
On 15 February 2006 The State Audit Commission (SAC) decided to reinstate Auditor-General Khunying Jaruvan Maintaka. Its unanimous decision came after it received a memo from the Office of King Bhumibol Adulyadej's
Principal Private Secretary, advising that the situation be resolved.
The controversy led many to reinterpret the political and judicial role of the King in Thailand's constitutional monarchy.
Thaksin Shinawatra
Thaksin Shinawatra is a Thai businessman and politician, who was Prime Minister of Thailand from 2001 to 2006, when he was overthrown in a military coup....
for filing an incomplete statement with the National Counter-Corruption Committee, the 2003 invalidation of Jaruvan Maintaka
Jaruvan Maintaka
Khun Ying Jaruvan Maintaka is the current Auditor-General of the Kingdom of Thailand. She refused to resign her position after the Constitutional Court of Thailand ruled that her nomination was illegal. She is well known for her public criticism of deposed Premier Thaksin Shinawatra...
appointment as Auditor-General, and the 2006 invalidation of the nation-wide results of a House election
Thailand legislative election, April 2006
-Opposition boycott:On 25 February the Post reported Democrat party leader Abhisit Vejjajiva as saying he was "ready to become a prime minister who adheres to the principles of good governance and ethics, not authoritarianism." The next day, however, it was announced that the Democratic Party,...
.
Unconstitutionality of emergency economic decrees
In its very first decision, the Court ruled on the constitutionality of four emergencyexecutive decrees issued by the Chuan
Chuan Leekpai
Chuan Leekpai was the Prime Minister of Thailand from September 20, 1992 to May 19, 1995 and again from November 9, 1997 to February 9, 2001. A third-generation Thai Chinese, Chuan was born in Trang province in a grass-roofed house. The walls of his family's house were woven from strips of...
government to deal with the Asian financial crisis. The government had issued the decrees in early May 1998 to expand the role of the Financial Restructuring Authority and the Assets Management Corporation, to settle the debts of the Financial Institutions Development Fund through the issue of 500 billion THB in bonds
Bond (finance)
In finance, a bond is a debt security, in which the authorized issuer owes the holders a debt and, depending on the terms of the bond, is obliged to pay interest to use and/or to repay the principal at a later date, termed maturity...
, and to authorize the Ministry of Finance to seek 200 billion THB in overseas loans. The opposition New Aspiration Party
New Aspiration Party
The New Aspiration Party was a political party in Thailand. In the legislative elections, on February 6, 2005, the party won 0.4 % of the popular vote and no seats in the House of Representatives....
(NAP) did not have the votes to defeat the bills, and therefore, on the last day of debate, invoked Article 219 of the Constitution to question the constitutionality of an emergency decree.
The NAP argued that since there was no emergency nor necessary urgency (under Article 218(2)), the government could not issue any emergency decrees. Article 219, however, specifically notes the constitutionality of an emergency decree can be questioned only on Article 218(1) concerning the maintenance of national or public safety, national economic security, or to avert public calamity. The government, fearing further economic damage if the decree were delayed, opposed the Court's acceptance of the complaint, as the opposition clearly had failed to cite the proper constitutional
clause. The Court wished to set a precedent, however, demonstrating it would accept petitions
under Article 219, even if technically inaccurate. Within a day it ruled that it was
obvious to the general public that the nation was in an economic crisis, and that the decrees were
designed to assist with national economic security in accordance with Article 218(1). The decrees were later quickly approved by Parliament.
The NAP's last minute motion damaged its credibility, and made it unlikely that Article 219 will
be invoked unless there is a credible issue and the issue is raised and discussed at the beginning
of Parliamentary debate, rather than at the last-minute before a vote.
On the other hand, a precedent was established by the Court that it would accept all petitions under Article 219 to preserve Parliament's right to question the constitutionality of emergency executive decrees.
Thaksin Shinawatra and the allegation of hiding assets and stocks
After the sounding victory of Thaksin ShinawatraThaksin Shinawatra
Thaksin Shinawatra is a Thai businessman and politician, who was Prime Minister of Thailand from 2001 to 2006, when he was overthrown in a military coup....
's party, Thai Rak Thai
Thai Rak Thai
The Thai Rak Thai Party was a Thai political party that was officially banned on May 30, 2007, by the Constitutional Court of Thailand due to violations of electoral laws during the 2006 legislative elections. From 2001 to 2006, it was the ruling party under Prime Minister and its founder Thaksin...
, in 2001 election, the Anti-Corruption Committee filed a case charging him as hiding a handful of assets in form of stocks, which is unlawful due to the 1997 Constitution. According to Thai law, senior government officials are required to declare their assets, along with those of their spouses and children under the age of 20, to the NCCC when they start and finish their terms in office. However Thaksin could escape the guilty as the judges ruled 8 to 7. Thaksin said it was his 'honest mistake'.
Treaty status of IMF letters of intent
The NAP later filed impeachment proceedings with the National Counter Corruption Commission (NCCC) against Prime Minister Chuan Leekpai and the Minister of Finance Tarrin Nimmanahaeminda for violation of the Constitution. The NAP argued that the letter of intentLetter of intent
A letter of intent is a document outlining an agreement between two or more parties before the agreement is finalized. The concept is similar to a heads of agreement...
that the government signed with the International Monetary Fund (IMF)
International Monetary Fund
The International Monetary Fund is an organization of 187 countries, working to foster global monetary cooperation, secure financial stability, facilitate international trade, promote high employment and sustainable economic growth, and reduce poverty around the world...
to secure emergency financial support was a treaty
Treaty
A treaty is an express agreement under international law entered into by actors in international law, namely sovereign states and international organizations. A treaty may also be known as an agreement, protocol, covenant, convention or exchange of letters, among other terms...
, and that Article 224 of the Constitution stipulated that the government must receive prior consent from Parliament to enter a treaty.
The NCCC determined the issue concerned a constitutional interpretation and petitioned the Constitutional Court for an opinion. The Court ruled the IMF letters were not treaties, as internationally defined, because they were unilateral documents from the Thai government with no rules for enforcement or provisions for penalty. Moreover, the IMF itself had worded the letters in a way that stated that the letters were not contractual agreements.
Appointment of Jaruvan Maintaka as Auditor-General
On 24 June 2003, a petition was filed with the Constitutional Court seeking its ruling on the constitutionality of Jaruvan Maintaka'sJaruvan Maintaka
Khun Ying Jaruvan Maintaka is the current Auditor-General of the Kingdom of Thailand. She refused to resign her position after the Constitutional Court of Thailand ruled that her nomination was illegal. She is well known for her public criticism of deposed Premier Thaksin Shinawatra...
appointment by the Senate as Auditor-General. Jaruvan was one of three nominees for the position of auditor-general in 2001, along with Prathan Dabpet and Nontaphon Nimsomboon. Prathan received 5 votes from the 8-person State Audit Commission (SAC) chairman while Jaruvan received 3 votes. According to the constitution, State Audit Commission chairman Panya Tantiyavarong should have submitted Prathan's nomination to the Senate, as he received the majority of votes. However, on July 3, 2001, the SAC Chairman submitted a list of all three candidates for the post of auditor-general to the Senate, which later voted to select Khunying Jaruvan Maintaka.
The Constitutional Court ruled in 6 July 2004 that the selection process that led to the appointment of Jaruvan as Auditor-General was unconstitutional. The Court noted that the Constitution empowers the SAC to nominate only one person with the highest number of votes from a simple majority, not three as had been the case. The court stopped short of saying if she had to leave her post. However when the Constitutional Court had ruled on 4 July 2002 that the then Election Commission
Election Commission (Thailand)
The Election Commission of the Kingdom of Thailand is an independent government agency and the sole Electoral Commission of Thailand tasked with overseeing Senate, House, local and district elections throughout the Kingdom of Thailand. Established by the Constitution, the Election Commission has...
chairman Sirin Thoopklam's election to the body was unconstitutional, the President of the Court noted "When the court rules that the selection [process] was unconstitutional and has to be redone, the court requires the incumbent to leave the post".
However, Jaruwan refused to resign without a royal dismissal from King Bhumibol Adulyadej. She noted ""I came to take the position as commanded by a royal decision, so I will leave the post only when directed by such a decision." The State Audit Commission later nominated Wisut Montriwat, former deputy permanent secretary of the Ministry of Finance, for the post of Auditor-General. The Senate approved the nomination on 10 May 2005. However, King Bhumibol Adulyadej, in an unprecedented move, withheld his royal assent. The National Assembly did not hold a vote to overthrow the royal veto. On October 2005 the Senate rejected a motion to reaffirm her appointment, and instead deferred the decision to the SAC.
On 15 February 2006 The State Audit Commission (SAC) decided to reinstate Auditor-General Khunying Jaruvan Maintaka. Its unanimous decision came after it received a memo from the Office of King Bhumibol Adulyadej's
Bhumibol Adulyadej
Bhumibol Adulyadej is the current King of Thailand. He is known as Rama IX...
Principal Private Secretary, advising that the situation be resolved.
The controversy led many to reinterpret the political and judicial role of the King in Thailand's constitutional monarchy.
Thaksin Shinawatra's alleged conflicts of interest
In February 2006, 28 Senators submitted a petition to the Constitutional Court calling for the Prime Minister's impeachment for conflicts of interest and improprieties in the sell-off of Shin Corporation under Articles 96, 216 and 209 of the Thai constitution. The Senators said the Prime Minister violated the Constitution and was no longer qualified for office under Article 209. However, the Court rejected the petition on 16 February, with the majority judges saying the petition failed to present sufficient grounds to support the prime minister's alleged misconduct.See also
- Constitutional Court of ThailandConstitutional Court of ThailandThe Constitutional Court of Thailand is an independent Thai court originally established under the 1997 Constitution with jurisdiction over the constitutionality of parliamentary acts, royal decrees, draft legislation, as well as the appointment and removal of public officials and issues regarding...
- Constitution of ThailandConstitution of ThailandThe Constitution of the Kingdom of Thailand is the supreme law of Thailand. Since the change from an absolute monarchy to a constitutional democracy in 1932, Thailand has had 17 charters and constitutions, reflecting the high degree of political instability and frequency of military coups faced...
- History of Thailand since 1973History of Thailand since 1973The history of Thailand since 1973 saw an unstable period of democracy, with military rule being reimposed after a bloody coup in 1976....
External links
- Official Web site Constitutional Court of Thailand
- www.ThaiLaws.com - Thailand acts and legal information, both in English and Thai language.