What Did the Constitutional Court Abuse?

The Constitutional Court of Thailand has recently adjudicated on 2 cases concerning alleged attempts to overthrow the country’s democratic system which is covered in Article 68 of the Constitution. In Case No. 15-18/2556, the Court stated that changing the senate from being half-appointed and half-elected to being fully elected is an attempt to overthrow the democratic system. And in the latest case, the Court rejected the amendment of Article 190 of the Constitution for the same reason. Both rulings seem to be unacceptable to some people and raise the question of whether the jurisdiction and function of the Court is consistent with the Constitution or not. This Article will examine violations of the Constitution and the law by the Court.

1. The Court has destroyed the separation of powers.

The separation of powers is a fundamental principle in democratic governance. According to this theory, sovereignty has 3 components: legislative, executive and judicial power. A system of checks and balances prevents the abuse of power. The judiciary may use the law to settle disputes or, in the case of the Constitutional Court, review the legitimacy of laws and draft bills. In recent cases, even when still in trial proceedings, judges have tended to criticize government policy by expressing their own negative opinions, such as the judge who commented “Thailand is not ready for a high-speed train”. This case concerned the legitimacy the government’s two-trillion baht loan bill. The case is still pending. We look forward to the ruling to see whether the Court has over-exercised its judicial power to encroach on the power of the executive.

2. The Court has expanded its own jurisdiction.

The Court has the jurisdiction to review whether legislation violates the Constitution as prescribed in Articles 141, 149, 154, 155, 211, 212, 245 and 257 of the Constitution. In these two cases, Members of Parliament were sued under Article 68 which allows the Court to examine the actions of people “[e]xercising the rights and liberties … to overthrow the democratic system 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.” However, acts of parliament to amend the Constitution are not in the scope of this Article since it is not about the exercise of rights and liberties, but the use of Pouvoir Constituant to establish and amend the Constitution. The Court’s action not only reviews the acts of parliament but reduces its power excessively. The Constitution does not allow the Court to review draft amendments to the Constitution. The expansion of the Court’s jurisdiction in these cases obviously violates the Constitution itself.

3. The Court fails in legal reasoning to support its ruling.

The judges of the Court come from various backgrounds, not only from the study of the law, because adjudicating cases concerning the Constitution may need experts from other fields to consider carefully the social context. There are also disadvantages. The Court tends to misapply or misinterpret laws, or even does not use the juristic method in public law. This may make the law arbitrary and ruin the legal system in general. For example, in Case No. 15-18/2556, the Court asserted the principle of the rule of law under Article 3 of the Constitution to reject the constitutional amendment to have all senators elected. The Court said that this may destroy the system of checks and balances of parliament as appointed senators are intended to balance elected ones. And in its latest ruling, the Court did not allow the amendment to Article 190 regarding the conclusion of international treaties by arguing that the new amendment lacks parliamentary review of acts by the government in concluding treaties. But in fact, parliament itself wants Article 190 to be that way. This may also affect the separation of powers as mentioned earlier.

Conclusion

Once the Court has made a decision, the judgment is final and binds every institution. Putting too much trust in judges without review is a loophole in the law. Even with no external body to review the Court’s rulings under the Thai legal system where they violate the constitution, there may be some informal or social way of monitoring its rulings. It is our task to reform the system and to find a solution to this problem. Judicialization may threaten the legal system and the system of the Court itself. Don’t give the Court absolute power because absolute power tends to corrupt absolutely.


About Author: Jutha Saovabha, Bachelor of Laws, Thammasat University
juthas.wordpress.com