Origins and controversy
Drafting of the 1997 Constitution
The creation of the Constitutional Court was the subject of much debate during the 1996–1997 drafting of the 1997 Constitution of Thailand.James R. Klein, "The Battle for Rule of Law in Thailand: The Constitutional Court of Thailand", 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.Jurisdiction
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.Impeachment
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.Appointment
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.Appointment of the first Constitutional Court
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. A key issue was the senate's authority to review the backgrounds of judicial nominees and reject nominees deemed inappropriate or unqualified.Appointment of Amphorn Thongprayoon
After receiving the Supreme Court's list of nominees, the senate created a committee to review the nominees' credentials and backgrounds. 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.Appointment of Ukrit Mongkolnavin
The appointment of former Senate and Parliament president Ukrit Mongkolnavin was especially problematic. 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 honoraryJurisdiction
Under the 2007 Constitution, the court is competent to address the following:Composition
1997 Constitution
The Constitutional Court was modeled after the2006 Constitution
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: * 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.Members of the Tribunal
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. Under the 2007 Constitution, the Constitutional Court has nine members, all serving for nine year terms and appointed by the king with senatorial advice: * 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 theMembers of the court
2017 Constitution
AfterMembers of the court
Key decisions
Chuan-government emergency decrees during the 1997 economic crisis
Unconstitutionality of emergency economic decrees
In its first decision, the Court ruled on the constitutionality of four emergency executive decrees issued by the Chuan government to deal with theTreaty status of IMF letters of intent
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. The NAP argued that theAppointment of Jaruvan Maintaka as auditor-general
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. 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 rocesswas unconstitutional and has to be redone, the court requires the incumbent to leave the post". 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. In 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) 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. 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.Political parties dissolution following the April 2006 election
Court rejects flawed oath petition
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. 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.Future Forward Party dissolution
On 20 November 2019, the court convicted Thanathorn Juangroongruangkit, disqualifying his MP status. On 21 February 2020, Future Forward Party was dissolved in the court ruling, which said that the party was in violation of election laws regarding donations to political parties. The party was loaned 191.2 million baht (about US$6 million) from its leader, Thanathorn, according to the court, counted as a donation. The dissolution order drew criticism from commentators inside and outside the country, who characterized it as part of the military's continued interference in Thai politics, noting that the party's vocal anti-military position made it a target and that the other parties' finances were not similarly scrutinized.Court rules that Prayut not "state official"
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.Court rules that the monarchy reform is to overthrow the state and the monarchy
On 10 November 2021, the court ruled that Arnon, Panupong, and Panusaya of the 2020–2021 Thai protests' 10-point call for reforms of the monarchy in 'Thammasat will not tolerate' rally on 10 August 2020 aimed to overthrow the state and the monarchy in their speeches. The court ordered them and other protest groups to end all monarchy reform movements. The petition was filed by Natthaporn Toprayoon on 3 September 2020. The court explained that such demands were an “abuse of the rights and freedoms and harmed the state’s security”, but the court did not enforce a punishment on them, ruling on the constitutionality of their demands. Three protest leaders deny seeking to overthrow the monarchy. Evidence submitted by the defence was not examined by the court. Their lawyer and Panusaya walked out of the middle of hearing. The court also rules that sovereign power belongs to the monarchy not the people. Sunai Phasuk of Human Rights Watch described the ruling as “essentially a judicial coup” that could escalate more legal cases against protesters, possibility a treason. This could lead to an end to Thailand'sSame sex marriage
In 2021, the Court ruled that Section 1448 of the Civil and Commercial Code interpreting marriages as only between women and men is constitutional, but after the release of full ruling, one phrase mentioned that members of the LGBTQ community cannot reproduce, as it is against nature, and they are unlike other animals with unusual behaviours or physical characteristics. The text were deemed by some as sexist andSee also
*References
Further reading
In English
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