Constitution of Thailand (2007)/Chapter 12

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Constitution of Thailand (2007)
Chapter 12 : Scrutiny of exercise of State powers

CHAPTER 12 : SCRUTINY OF EXERCISE OF STATE POWERS[edit]

Part 1 : Proprietary Scrutiny[edit]

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, whom 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 person’s 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 Justice’s 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 Justice’s Criminal Division for Persons Holding Political Positions for further decision.

If the Supreme Court of Justice’s 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 Justice’s 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 Justice’s 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[edit]

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 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 shall apply mutatis mutandis.

Part 3 : Removal from Office[edit]

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.

Section 271. Members of the House of Representatives 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 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 Supreme Court of Justice’s Criminal Division for Persons Holding 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.

In the case where the National Counter Corruption 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 Justice’s Criminal Division for Persons Holding Political Positions.

Part 4 : Criminal Proceedings Against Persons Holding Political Positions[edit]

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 Justice’s 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)n 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.

In the case where the National Counter Corruption 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 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 Justice’s 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 Justice’s 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 Justice’s 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 Justice’s Criminal Division for Persons Holding Political Positions 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 Justice’s Criminal Division for Persons Holding Political Positions.

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 Justice’s Criminal Division for Persons Holding Political Positions 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 Supreme Court of Justice’s Criminal Division for Persons Holding 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 Justice’s 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.