Constitutional Court of Thailand

The creation of the Constitutional Court was the subject of much debate during the 1996–1997 drafting of the 1997 Constitution of Thailand.[7] Senior judges opposed the concept on the grounds that constitutional and judicial review should remain a prerogative of the Supreme Court and that a Constitutional Court would create a fourth branch of government more powerful than the judiciary, legislature, or executive. Judges stated their fear over political interference in the selection and impeachment of judges. The Constitution Drafting Assembly (CDA) eventually made several concessions regarding the composition and powers of the Court.

The constitution did not give the Constitutional Court the authority to overrule a final judgment of the Supreme Court. An affected party, or a court, could request the opinion from the Constitutional Court if it believed a case involved a constitutional issue. The court where the initial action was pending would stay its proceedings until the Constitutional Court issued its decision. Constitutional court decisions would have no retroactive effect on previous decisions of the regular courts.

The constitution also did not give the Constitutional Court the authority to rule on any case in which the constitution did not specifically delegate an agency the power to adjudicate.

The constitution allowed individual justices to be the subject of impeachment proceedings with the vote of one-fourth of the members of the House or with the approval of 50,000 petitioners. A vote of three-fifths of the Senate is required for impeachment. Earlier drafts had required votes of only 10% of the combined House and Senate to call for a vote of impeachment, and votes of three-fifths of the combined parliament to dismiss a justice.

The constitution gave the judiciary a strong influence over the composition of the Constitutional Court. Originally, the court was to have nine justices including six legal experts and three political science experts. A panel of 17 persons would propose 18 names from which parliament would elect the nine justices. The panel president would be the president of the Supreme Court, the panel itself would have included four political party representatives. The CDA finally compromised and allowed seven of the justices to be selected by the judiciary, while the remaining eight justices would be selected by the Senate from a list of Supreme Court nominees.

The appointment of the first Constitutional Court following the promulgation of the constitution in 1997 was four month controversy pitting the senate against the Supreme Court.[7] A key issue was the senate's authority to review the backgrounds of judicial nominees and reject nominees deemed inappropriate or unqualified.

After receiving the Supreme Court's list of nominees, the senate created a committee to review the nominees' credentials and backgrounds.[7] On 24 November 1997, the Senate voted to remove the name of Supreme Court Vice-president Amphorn Thongprayoon, on the grounds that his credentials were dubious and on allegations that he had defaulted on three million baht in debt. The Supreme Court was furious, arguing the constitution did not empower the senate to do background checks or to reject Supreme Court nominees. The Supreme Court requested a ruling from the Constitutional Tribunal chaired by the House speaker. On 8 January 1998, in a six to three vote, the Tribunal ruled the Senate did not have the authority to do background checks or reject the Supreme Court's nominees. The Tribunal ruled that the Senate's review powers were limited to examining the records of the nominees and electing half of those nominees for appointment.

Immediately after the Supreme Court filed its request to the Tribunal, Justice Amphorn withdrew his name. After the Tribunal's ruling, the Supreme Court elected justice Jumpol na Songkhla on 9 January 1998 to replace Amphorn. The Senate ignored the Tribunal's ruling and proceeded to review Jumphol’s background and delayed a vote to accept his nomination for seven days so that the Senate could evaluate Jumphol. Finding no problems, the Senate acknowledged his appointment to the court on 23 January 1998.

The appointment of former Senate and Parliament president Ukrit Mongkolnavin was especially problematic.[7] The Senate had initially elected Ukrit from the list of ten legal specialists nominated by the selection panel, despite claims by democracy activists that Ukrit was unqualified to guard the constitution because he had served dictators while president of parliament under the 1991-1992 military government of the National Peacekeeping Council.

Stung by the Senate rejection of Amphorn Thongprayoon, the two Bangkok Civil Court judges, Sriampron Salikhup and Pajjapol Sanehasangkhom, petitioned the Constitutional Tribunal to disqualify Ukrit on a legal technicality. They argued that Ukrit only had an honorary professorship at Chulalongkorn University, while the 1997 Constitution specifically specifies that a nominee, if not meeting other criteria, must be at least a professor. Echoing the Senate's rejection of Amphorn, the judges also alleged that Ukrit was involved in a multi-million baht lawsuit over a golf course. On 10 January 1998 the tribunal ruled that the judges were not affected parties and therefore they had no right to request a ruling. Nevertheless, the parliament's president invoked his power as chairman of the tribunal to ask the Senate to reconsider Ukrit's nomination.

On 19 January 1998, the Senate reaffirmed Ukrit's qualifications, noting that his professorship was special only because he was not a government official. Under Chulalongkorn's regulations, he had the academic status of a full professor.

This position inflamed activists and the judiciary, and prompted the parliament president on 21 January to invoke his authority under Article 266 of the 1997 Constitution to order the Constitutional Tribunal to consider the issue. On 8 February, in a four to three vote, the tribunal ruled that Ukrit's special professorship did not qualify him for a seat on the Constitutional Court. The tribunal noted that Chulalongkorn's criteria for honorary professorship were different from its criteria for academic professors, as intended by the constitution. The Senate ended up electing Komain Patarapirom to replace Ukrit.

The Constitutional Court was modeled after the Constitutional Court of Italy.[9] According to the 1997 Constitution, the Court had 15 members, all serving nine year terms and appointed by the king upon senatorial advice:[10]

• Five were judges of the Supreme Court of Justice (SCJ) and selected by the SCJ Plenum through secret ballot.
• Two were judges of the Supreme Administrative Court (SAC) and selected by the SAC Plenum through secret ballot.
• Five were experts in law approved by the Senate after having been selected by a special panel. Such panel consisted of the SCJ president, four deans of law, four deans of political science, and four representatives of the political parties whose members are representatives.
• Three were experts in political science approved by the Senate after having been selected by the same panel.

According to the 2006 Constitution, the Constitutional Tribunal was established to replace the Constitutional Court which had been dissolved by the Council for Democratic Reform. The Tribunal had nine members as follows:[11]

• The SCJ president as president.
• The SAC president as vice-president.
• Five SCJ judges selected by the SCJ plenum through secret ballot.
• Two SAC judges selected by the SAC plenum through secret ballot.

The composition of the Constitutional Court of Thailand under the 2007 Constitution.

After the Constitutional Court was abolished by the Council for Democratic Reform and was replaced by the Constitutional Tribunal under the 2006 Constitution, the 2007 Constitution reestablishes the Constitutional Court and makes various changes to it. The Court is back with greater vigour and is also empowered to introduce to the National Assembly the draft laws concerning the Court itself.[13]

Under the 2007 Constitution, the Constitutional Court has nine members, all serving for nine year terms and appointed by the king with senatorial advice:[14]

• Three are SCJ judges and are selected by the SCJ plenum through secret ballot.
• Two are SAC judges and are selected by the SAC plenum through secret ballot.
• Two are experts in law approved by the Senate after having been selected by a special panel. Such panel is composed of the SCJ president, the SAC president, the president of the House of Representatives, the opposition leader and one of the chiefs of the constitutional independent agencies (chief ombudsman, president of the election commission, president of the National Anti-Corruption Commission or president of the State Audit Commission).
• Two are experts in political science, public administration or other field of social science and are approved by the Senate after having been selected by the same panel.

In its first decision, the Court ruled on the constitutionality of four emergency executive decrees issued by the Chuan government to deal with the Asian financial crisis.[7] 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 baht in bonds, and to authorize the ministry of finance to seek 200 billion baht 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.

The NAP later filed impeachment proceedings with the National Anti-Corruption Commission (NACC) against prime minister Chuan Leekpai and the minister of finance Tarrin Nimmanahaeminda for violation of the Constitution.[7] The NAP argued that the letter of intent 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 NACC 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.

On 24 June 2003, a petition was filed with the Constitutional Court seeking its decision on the constitutionality of Jaruvan Maintaka’s 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 five votes from the eight person State Audit Commission (SAC) while Jaruvan received three 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 3 July 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 on 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 she had to leave her post.[22] 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".[23]

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."[24] 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. In October 2005 the Senate rejected a motion to reaffirm her appointment, and instead deferred the decision to the SAC.[25]

On 15 February 2006 the State Audit Commission (SAC) reinstated 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, directing that the situation be resolved.[26]

The controversy led many to reinterpret the political and judicial role of the king in Thailand's constitutional monarchy.

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.[27] 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.

In September 2019, the court rejected a petition lodged by the Ombudsman of Thailand regarding the incomplete oath recited by Prime Minister Prayut Chan-o-cha and his cabinet in July 2019.[28] The prime minister failed to recite the final sentence of the oath which pledges to uphold and abide by the constitution. The court ruled that it was "not in its authority" to make a ruling on the issue, in effect ruling that vows to uphold the constitution are none of the constitutional court's business.[29][30]

The court ruled in September 2019, that General Prayut, on seizing power in May 2014 with no authorization to do so, answering to no other state official, and holding onto his power only temporarily, could not be considered a state official. The ruling bears on Prayut's eligibility to serve as prime minister.[30]

• Dressel, Bjőrn; Khemthong, Tonsakulrungruang (2019). "Coloured Judgements? The Work of the Thai Constitutional Court, 1998–2016". Journal of Contemporary Asia. 49 (1): 1–23. doi:10.1080/00472336.2018.1479879.
• Dressel, Björn (2010). "Judicialization of politics or politicization of the judiciary? Considerations from recent events in Thailand". The Pacific Review. 23 (5): 671–691. doi:10.1080/09512748.2010.521253.
• Harding, Andrew; Leyland, Peter (2008). "The Constitutional Courts of Thailand and Indonesia: Two Case Studies from South East Asia". J. Comp. L. 3: 118ff. Retrieved 27 February 2020.
• McCargo, Duncan (December 2014). "Competing Notions of Judicialization in Thailand". Contemporary Southeast Asia. 36 (3): 417–441. doi:10.1355/cs36-3d. JSTOR 43281303.
• Mérieau, Eugénie (2016). "Thailand's Deep State, Royal Power and the Constitutional Court (1997–2015)". Journal of Contemporary Asia. 46 (3): 445–466. doi:10.1080/00472336.2016.1151917.
• Nolan, Mark (10 October 2012). "Review Essay: The Constitutional System of Thailand: A Contextual Analysis". Australian Journal of Asian Law. 13 (1). SSRN 2159591.
• Takahashi, Toru (7 March 2020). "Thai Constitutional Court leans closer to military amid protests". Nikkei Asian Review. Retrieved 7 March 2020.