Constitutional Court Decision No. 15–18/2556

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Constitutional Court Decision No. 15–18/2556  (2013) 
by the Constitutional Court of Thailand, translated by Wikisource
The Constitutional Court Decision No. 15–18/2556 dated 20 November 2013 in the case between General Somchet Bunthanom and others, Petitioners, and the President of the National Assembly and others, Respondents, concerning the petitions for a decision of the Constitution Court under the Constitution, section 68.



The petitioners submitted four petitions...
The first petition
The 1st Petitioner claimed...
The 1st Petitioner requested...
The second petition
The 2nd Petitioner claimed...
The 2nd Petitioner requested...
The third petition
The 3rd Petitioner claimed...
The 3rd Petitioner requested...
The fourth petition
The 4th Petitioner claimed...
The 4th Petitioner requested...
An initial question which the Court needed to handle was whether or not the four petitions meet the criteria
A Respondent replied...
The Court examined the following witnesses:
1.   General Somchet Bunthanom and Wirat Kanlayasiri, Petitioners, testified...
2.   Rangsima Rot-ratsami, Democrat Representative, testified...
3.   Niphit Inthrasombat, Democrat Representative, testified...
4.   Phaibun Nititawan, Senator, testified...
5.   Suwichak Nakwatcharachai, National Assembly Secretary General, testified...
6.   Atchara Chuyuenyong, Head of Audiovisual Section, testified...
The Court will now deal with the following questions:
The preliminary question: is the Court competent to address a case concerning a constitutional amendment?
The first question: do the constitutional amendment proceedings constitute an attempt to acquire the national government power by the means not recognised by the Constitution?
(1)   Was the constitutional amendment draft considered by the National Assembly the same as that introduced to it?
(2)   Is the determination of a period of time for amendment to the constitutional amendment draft constitutional?
(3)   Are the identification and the casting of votes constitutional?
The second question: do the constitutional amendment contents constitute an attempt to acquire the national government power by the means not recognised by the Constitution?
For these reasons, the Court hereby decides...






(23)
Constitutional Court Decision[1]
Emblem of the Thai Government


In His Majesty's Name

The Constitutional Court


Decision No. 15–18/2556 Case No. 36/2556
Case No. 37/2556
Case No. 41/2556
Case No. 43/2556

The 20th Day of November, Buddhist Era 2556 (2013)


Between  \scriptstyle{

\left\{

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\ \\ \\\ \\\ \\\ \\\ \\\ \\\ \ 
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\right. }   General Somchet Bunthanom and others, 1st Petitioners
Wirat Kanlayasiri, 2nd
Sai Kangkawekhin and others, 3rd
Phiraphan Saliratthawiphak and others, 4th
 
President of National Assembly, 1st Respondents
Vice President of National Assembly, 2nd
Representatives and Senators, 3rd to 312th


Re: The petitions for a decision of the Constitution Court under the Constitution, section 68


General Somchet Bunthanom ("Somchet") and others, Wirat Kanlayasiri ("Wirat"), Sai Kangkawekhin and others, and Phiraphan Saliratthawiphak and others submitted to the Constitutional Court ("Court") four petitions for its decision under the Constitution, section 68.

Having considered, the Court found that the four petitions are of proximate matters in issue. The Court then consolidated the Cases Nos. 36/2556, 37/2556, 41/2556 and 43/2556, for the sake of the proceedings. The Court also ordered Somchet and others to be cited as the 1st Petitioner, Wirat, the 2nd Petitioner, Sai Kangkhawekhin and others, the 3rd Petitioner, and Phiraphan Saliratthawiphak and others, the 4th Petitioner, whilst the President of the National Assembly ("NA") is cited as the 1st Respondent, the NA Vice President, the 2nd Respondent, and the Representatives and the Senators, the 3rd to the 312th Respondents.

The facts derived from the petitions and the supplementary documents are as follows:

The first petition (Case No. 36/2556)

The 1st Petitioner presented the following claims: The 3rd to the 310th Respondents jointly introduced to the 1st Respondent a constitutional amendment motion in the form of the Draft Amendment to the Constitution of the Kingdom of Thailand (No. …), Buddhist Era … (…), [amending section 111, section 112, section 115, section 116, paragraph 2, section 117, section 118, section 120 and section 241, paragraph 1, as well as repealing sections 113 and 114] ("Draft"). The Petitioner deems that the proceedings and contents of the said Draft would result in the change of the democratic regime of government with the King as Head of State and an attempt to acquire the national government power by the means not recognised by the Constitution, pursuant to the Constitution, section 68, paragraph 1. The 1st Petitioner considers that the constitutional draft amendment forwarded to the NA was different from that introduced to the Secretariat General of the House of Representatives ("SGHR") by the 3rd to the 310th Respondents. Moreover, during the constitutional amendment proceedings at the first reading, Acceptance of Principles, the 1st Respondent abused his authority as the presiding officer. That is to say, he ordered the motion amendments to be filed within fifteen days from the date the NA accepted the principles, in breach of the Constitution, sections 3, 26 and 27, as well as the National Assembly Rules of Order, BE 2553 (2010) ("NARO"), rule 96. The 1st and 2nd Respondents also replaced each other as the presiding officer and denied the right of the Members of the National Assembly ("MNA") to hold a discussion following the reservation of the motion amendments and opinions, leading to a contravention of the Constitution, sections 130 and 291 (4) as well as the NARO, rule 99. Furthermore, the circumstances of the 2nd Respondent indicate his partiality and conflict of interest arising from the constitutional amendment, as this constitutional amendment motion would enable him to become a senatorial candidate immediately. His conduct is contrary to the Constitution, sections 89 and 122.

As regards the contents of the constitutional amendment, the 1st Respondent alleged that the principles and rationales of the Draft which would require the entire Senate to directly be elected by the citizens in the same manner as the House of Representatives would render the Senate incapable of examining the administration of public affairs by the Executive Branch and would deteriorate the principles of check and balance of the state powers. Additionally, the Draft, section 5, which concerns the qualifications and disqualifications of a senatorial candidate, would modify the qualifications and disqualifications set forth in section 115 (5) of the current Constitution of the Kingdom of Thailand and would thereby permit the forebears, spouse or children of a Representative or political position holder to become senatorial candidates. The Draft, section 7, would allow the Senators to remain in offices for several consecutive terms. The Draft, section 11, which deals with the enactment of a draft Organic Act on Elections of Representatives and Senators ("OARS"), would exclude the competence of the Court to review the constitutionality of the draft organic acts named in the Constitution. Moreover, the Draft, section 12, would terminate the memberships of the appointed Senators on the date a senatorial election is held in April 2014 according to the Draft, although their memberships will actually expire in February 2017.

Finding that all the Respondents exercise the right to amend the Constitution in such a manner conducing to the change of the democratic regime of government with the King as Head of State or the form of state and with the intention to acquire the national government power by the means not recognised by the Constitution, despite the prohibition under the Constitution, section 68, paragraph 1, the 1st Petitioner therefore requested the Court to hand down the following decision and order:

(1)   An order imposing provisional measures upon the 1st Respondent and the Secretary General of the National Assembly ("SeGNA"), directing them to suspend the constitutional amendment proceedings at the third reading until any decision is given by the Court;

(2)   A decision directing the 1st to the 310th Respondents to forthwith cancel the proceedings of the Draft on modification of senatorial sources;

(3)   An order dissolving the For Thais Party ("FTP"), the Thai Nation Development Party, the Nation Development Party, the Chon's Power Party, the People's Majority Party and the New Democracy Party, as well as disfranchising their leaders and executive members for five years from the date the decision or order is rendered by the Court.

The 1st Petitioner later modified the petition of 15 October 2013 by adding the following statements thereto:

(1)   During the proceedings of the constitutional amendment on senatorial sources, the resolutions were passed in such a manner that one MNA used several voting cards. This rendered void the entire NA joint sessions at the second reading.

(2)   A request is made for an order or decision revoking the NA resolutions adopted at all three readings and cancelling the promulgation of the Draft.

The second petition (Case No. 37/2556)

The 2nd Petitioner brought forward the following claims: The 1st to the 310th Respondents exercise the constitutional rights and freedoms to undermine the democratic regime of government with the King as Head of State or to acquire the national government power by the means not recognised by the Constitution. The 3rd to the 310th Respondents jointly initiated a constitutional amendment motion in the form of the Draft by which all the Senators would be elected in the same manner as the Representatives who are directly elected by the citizens. Udomdet Rattanasathian ("Udomdet"), FTP Representative who is the 3rd Respondent, and other Respondents jointly introduced the Draft to the 1st Respondent. Following that, the 1st Respondent summoned the NA on 1 April 2013. At the first reading on 3 April 2013, the NA, by three hundred and sixty seven votes, accepted the principles and, by two hundred and four votes, disapproved the principles and, by thirty four votes, abstained. The NA then set up a forty five person committee to review the Draft. On 1 August 2013, the committee presented the Draft having been revised according to its resolutions as well as the reports thereon to the 1st Respondent to be forwarded to the NA for further consideration. The NA completed the consideration of the Draft on 12 September 2013 and the 2nd Respondent informed the NA that the third reading may be held upon elapse of fifteen days from the completion of the second reading according to the Constitution, section 291 (5). Such elapse occurred on 27 September 2013.

The 2nd Petitioner deems that the described constitutional amendment is the change of the Constitution, not merely an amendment thereto pursuant to the Constitution, section 291, because it would by nature result in the change of the form of state and the methods of senatorial instatement. The requirement that all the Senators be elected would enfeeble the check and balance under the parliamentary system. The abolition of the subject matters of section 115 (5), the modification of the disqualifications under section 115 (6), (7) and (9), as well as the repeal of section 116 would enable the forebears, spouse or children of a Representative or political position holder to become senatorial candidates and would allow the Senators to stay in offices for several consecutive terms. The amendment governing the OARS enactment would exclude the competence of the Court to review the constitutionality of the draft organic acts specified in the Constitution, section 141. The memberships of the incumbent appointed Senators would also be terminated on the date a new senatorial election takes place in April 2014, in spite of the fact that their memberships will expire in February 2017.

The said constitutional amendment, which would permit the incumbent Senators to immediately apply for senatorial candidacies, shows the intention to the Senators partaking in the introduction and consideration of the constitutional amendment motion to remain in the legislative power of the State by unconstitutional means. In addition, the requirement that the memberships of the current Senators be ended on the date of a new senatorial election would abrogate the right of the appointed Senators to hold their offices. The constitutional amendment proceedings are also of other unconstitutional and unlawful characteristics. The constitutional amendment draft introduced to the 1st Respondent was different from that forwarded to the MNAs for consideration. The proceedings were hastened, for instance, the discussions were concluded with the intention to exclude the participation of the MNAs who had reserved the amendments to the motion, and the presiding officer decided upon the period of motion amendment without seeking any resolution of the NA due to its lack of quorum. The committee proceedings led to the cancellation and alteration of the subject matters of the Draft against the originally accepted principles. Section 11/1 was inserted in section 11 of the Draft during the consideration of the latter and a resolution was passed thereon at the same time without piecemeal discussion. And, during piecemeal discussions, certain MNAs used the identification and voting cards ("Card") on behalf of others.

On the mentioned grounds, the 2nd Petitioner views that this constitutional amendment would subject the Senators to the mandate of any specific person, violating the Constitution of the Kingdom of Thailand, Buddhist Era 2550 (2007) ("2007 Constitution"), in consequence. Finding that the constitutional rights and freedoms are exercised for the purpose of undermining the democratic regime of government with the King as Head of State or acquiring the national government power by the means not recognised by the Constitution, section 68, the 2nd Petitioner therefore requested the Court to deliver the following decision and order:

(1)   An injunction directing the 1st to the 310th Respondents to suspend the constitutional amendment proceedings at the third reading until any decision or order is passed by the Court;

(2)   A decision directing the 1st to the 310th Respondents to cancel the Draft.

The third petition (Case No. 41/2556)

The 3rd Petitioner tendered the following claims: In the course of the constitutional amendment proceedings, the 1st and the 2nd Respondents replaced each other as the presiding officer and conducted the NA sessions without good faith and impartiality as required by the NARO. This gave rise to a conflict of interest and indicates their intention to exercise their authority against the provisions of the Constitution. They thus exercised the constitutional rights and freedoms to undermine the democratic regime of government with the King as Head of State or to acquire the national government power by the means not recognised by the Constitution. Their conduct is as follows, in summary:

In respect of the contents of the Draft, sections 5 and 6 requires that all Senators be elected, without prohibiting the forebears, spouse or children of a Representative or political position holder from becoming candidates. This would enhance their opportunity to be elected, having regard to their political bases. For that very reason, the constitutional amendment benefits the Senators. Moreover, the proceedings concerning the Draft, section 11, were carried out in such a hasty manner. The OARS enactment is required to be completed within a brief period. And the incumbent Senators are required to lose their memberships on the date of a new senatorial election. These clearly indicate the intention of the 1st and the 2nd Respondents, who are Representative and Senator, to expedite the constitutional amendment in order to enrich themselves with the national government power by the means not recognised by the Constitution as well as to stay in the legislative power of the State.

In relation to the proceedings of the Draft, the Constitution, section 291 (4), was not observed. That is to say, during the constitutional amendment sessions at the second reading on 20 August 2013, the two Respondents failed to conduct the proceedings in order of sections. Consequentially, the proceedings are unconstitutional and the entire Draft is void. Furthermore, during the discussion on amendment to the Draft, section 5, held on 4 September 2013, the 2nd Respondent denied the participation of the amendment reservers. He then concluded the discussion amidst heavy protests by the MNAs. When a resolution on conclusion of discussion was required, the 2nd Respondent told the NA that a resolution on the Draft, section 5, was to be adopted and the Respondent immediately dismissed the session. This resulted in a violation of the Constitution, section 291 (4). If the Draft is promulgated, the 2nd Respondent will be entitled to apply for senatorial candidacy without having to resign from his office and he will also be able to hold his office for an unlimited period. In performing his duties, the 2nd Respondent was therefore attacked by a conflict of interest, despite the prohibition under the Constitution, section 122. The Respondent also plotted with the pro-government MNAs to introduce and approve the discussion conclusion motion. As this was incompatible with the administrative procedure, the session became void. The constitutional amendment is also likely to destroy the system of check and balance between the House of Representatives, the Senate, the constitutional independent organs, the constitutional organs and the Court. Finding that these activities give rise to an attempt to acquire the national government power by the means not recognised by the Constitution, in defiance of the Constitution, section 68, paragraph 1, the 3rd Petitioner therefore requested the Court to render the following decision and order:

(1)   An order imposing provisional measures upon the 1st Respondent and the SeGNA, directing them to suspend the constitutional amendment sessions at the third reading until any decision is conferred by the Court;

(2)   A decision directing the 1st and the 2nd Respondents to straightaway cancel the Draft on the modification of senatorial sources;

(3)   A decision declaring that the Draft is void or unconstitutional.

The 3rd Petitioner subsequently modified the petitions of 30 September 2013 and 2 October 2013 by inserting the following therein:

(1)   A request for an order imposing provisional measures upon the Prime Minister, directing her to suspend the execution of the Constitution, section 150, until any decision is provided by the Court;

(2)   A request for a decision declaring that the activities of the Respondents and the related parties fall under the Constitution, section 68;

(3)   A request for a decision prohibiting the 1st and the 2nd Respondents from contravening the Constitution and from promulgating the Draft concerning the modification of senatorial sources without delay.

The fourth petition (Case No. 43/2556)

The 4th Petitioner asserted the following claims: The Draft introduced by the 3rd to the 310th Respondent contains the amendment to section 111, section 112, section 115, section 116, paragraph 2, section 117, section 118, section 120 and section 241, paragraph 1, and the repeal of Sections 113 and 114, with the intention to abolish the senatorial appointment, leaving only the senatorial election. This is inconsistent with the principles and purposes of the 2007 Constitution. The 311th and the 312th Respondents, who were the committee members forming the majority and favouring the Draft during the committee proceedings, revised the Draft with a view to furnishing themselves and their partisans with certain advantages from the Draft. In this respect, the repeal of section 115 (5) would allow the forebears, spouse or children of a Representative or political position holder to become senatorial candidates, resulting in a breach of the Constitution, section 122. The amendment to section 115 (6), (7) and (9), would permit the persons having been members of or having held certain positions in the political parties or the persons having been Representatives, Senators, local councilors, local administrators, Ministers or other political position holders to apply for senatorial candidacies without having to abide by the original conditions of the Constitution. Additionally, the Draft, section 6, would entitle the incumbent Senators to compete for senatorial seats again, leading to a conflict of interest as proscribed by the Constitution, section 122. The Draft, section 10, prohibits an election or appointment of a new Senator to fill a vacancy which occurs prior to the promulgation of the Draft. This means the Draft is not an amendment to the Constitution according to the Constitution, section 291. Also, the Draft, section 8, fails to allow the application of section 118 in cases a senatorial office becomes vacant for any reason other than term expiry and an election of a new Senator is required to be conducted within forty five days. This would bring about certain problems relating to the enforcement of the Constitution.

On 4 April 2013, the 1st Respondent summoned a committee to review three constitutional amendment drafts as part of the second reading. However, the Respondent summoned the NA to adopt a resolution regarding a period of motion amendment again on 18 April 2013, causing the first reading to be resumed. This activity was against the Constitution, section 291. Moreover, the 1st and the 2nd Respondents, as NA President and Vice President, failed to conduct themselves in a neutral manner. During the constitutional amendment proceedings at the second reading, the two invoked a majority of votes to conclude the discussions and approve the Draft whilst many MNAs who formed the minority and had reserved the motion amendments and opinions did not yet complete their discussions. In the course of their performance of duties, the 1st and the 2nd Respondents also quickened the proceedings by plotting with the pro-government MNAs to introduce and approve the discussion conclusion motions. As a result, the Constitution, sections 89, 122, 125 in conjunction with sections 137 and 291, as well as the NARO, rule 47, rule 59, paragraph 2, and rule 99, were infringed.

Besides, during the identification for calculating a quorum before passing resolutions on the Draft, certain MNAs inserted the Cards of other MNAs in the readers and pressed the identification buttons. They also inserted the Cards in the readers and pressed the voting buttons on behalf of the true owners of the Cards, notwithstanding the owners were absent. The result of the quorum calculation and polling thus deviated from the truth. As the described acts were the casting of more than one vote, the acts infracted the Constitution, section 126, paragraph 3, and the actors failed to carry out their duties faithfully and in the interest of all Thais, also breaching the Constitution, section 122 and section 126, paragraph 3. The Petitioner therefore requested the Court to pronounce the following decision and order:

(1)   A decision that the Draft proceedings are contrary to or inconsistent with the Constitution and are thus void;

(2)   A decision that the acts of all the Respondents constitute an attempt to acquire the national government power by the means not recognised by the Constitution and that all the Respondents are obliged to discontinue those acts pursuant to the Constitution, section 68;

(3)   An order that an examination be held for the indication of provisional measures.

An initial question which the Court needed to handle was whether or not the petitions of the four Petitioners meet the criteria of the Constitution, section 68.

The Constitution, section 68, paragraph 1, prescribes: "No person may exercise the constitutional rights and freedoms to undermine the democratic regime of government with the King as Head of State under this Constitution or to acquire the national government power by the means not recognised by this Constitution". Paragraph 2 provides: "Where any person or political party commits the act forbidden by paragraph 1, a person aware of the act shall be entitled to refer the matter to the Attorney General for investigation and request the Constitutional Court to order the discontinuation of the act, without prejudice to the criminal prosecutions against the actor".

Upon due consideration, the Court was of the following opinion: Section 68, paragraph 2, entitles a person who learns that any person or political party commits the act described in section 68, paragraph 1, to examine such act in two ways. Firstly, he may refer the matter to the Attorney General for investigation. And secondly, he may request the Court to order the discontinuation of the act in question – this is his right to directly make a request to the Court. The present cases are well-founded to the extent that it could preliminarily be heard that all the Respondents, by initiating the Draft, are likely to unfit the system of check and balance between the House of Representatives, the Senate, the constitutional independent organs and other constitutional organs, which forms the authority of the Senate as designed by the 2007 Constitution. This is the purpose of the Constitution as can be seen in its Preamble: the Constitution is intended to serve as the guidance for public administration with a view to allowing the extensive public participation in the preparation of the Constitution as well as in the administration and the concrete examination of the exercise of state powers, through the creation of a mechanism for the political institutions, both legislative and executive, which would enhance their balance and effectiveness under the parliamentary system of government and enable the judicial institutions and other independent organs to faithfully discharge their duties. The Court saw an attempt to acquire the national government power by the means not recognised by the Constitution, as mentioned in the Constitution, section 68, paragraph 1. The Court therefore accepted to address the four petitions by virtue of the Constitution, section 68, paragraph 2, and the Constitutional Court Regulations on Procedure and Decision Making, BE 2550 (2007), regulation 17 (2). The Court then ordered the three hundred and twelve Respondents to reply within fifteen days from their receipt of the copied petitions. The other requests were denied.

In the course of the Court proceedings, three hundred and eleven Respondents failed to reply to the Court. Only Suradet Chiratthiticharoen, a Senator who is the 293rd Respondent, replied as follows: On 20 March 2013, he signed a motion to introduce the Draft, for he deemed that if the Senators are elected in the same way as the Representatives who are directly elected by the citizens, the principles of democracy and the public participation in politics pursuant to the Constitution will be promoted and the Senates will be attached to the people of each region. But he did not concur on the amendment to certain sections of the Constitution, that is, the Draft, section 5, which would amend the Constitution, section 115, and the Draft, section 7, which would amend the Constitution, section 117, because such amendment is inconsistent with the purposes of the original draft. He then abstained at the third reading. His acted so in good faith and without the intention to acquire the national government power by the means not recognised by the Constitution or to change the democratic regime of government with the King as Head of State. He therefore requested the Court to dismiss the parts of the petitions which concern him.

On 8 November 2013, the Court examined seven witnesses called by the Petitioners and summoned by the Court, namely, Somchet, Wirat, Rangsima Rot-ratsami ("Rangsima"), Niphit Inthrasombat ("Niphit"), Phaibun Nititawan ("Phaibun"), Suwichak Nakwatcharachai ("Suwichak") and Atchara Chuyuenyong ("Atchara"). The witnesses gave the following evidence:

Somchet, the 1st Petitioner, and Wirat, the 2nd Petitioner, testified that the introduction and consideration of the constitutional amendment on senatorial sources by the 1st to the 310th Respondents result in an attempt to acquire the national government power by the means not recognised by the Constitution for the following reasons:

1.   The constitutional amendment draft considered at the first reading was not that introduced by the 3rd to the 310th Respondents. The draft considered by the NA at the first reading was therefore introduced by no one and the first reading is in opposition to the Constitution, section 291 (2).

2.   The constitutional amendment proceedings are unconstitutional. The MNAs were denied to right to amend the motion because the fifteen period of motion amendment had been fixed in defiance of the NARO for the purpose of preventing them from amending the motion. In addition, a majority of votes was invoked to exclude the right of the amendment and opinion reservers as well as to conclude the discussions and to adopt the resolutions.

3.   The constitutional amendment sessions were conducted by the persons attacked by a conflict of interest and by the Senators and the Representatives who conspired to introduce the constitutional amendment motion to favour each other.

4.   During the piecemeal discussions at the second reading, the MNAs who initiated the constitutional amendment used the Cards on behalf of other MNAs and sections 11 and 11/1 of the Draft were simultaneously approved.

5.   The constitutional amendment proceedings were carried out in such a cursory manner, because the Respondents and their partisans would be benefited if the amendment is successful. The modification of the senatorial qualifications, disqualifications and terms of office is not in line with the purposes of the current Constitution which has been designed for the check and balance between the state powers. Additionally, the memberships of the incumbent Senators, especially those appointed, are required to terminate immediately after the new Senators take offices.

6.   The OARS enactment processes are required to be completed within one hundred and twenty days. If such period is not observed, the draft passed by the Representatives can be forwarded to the King without delay. This would exclude the competence of the Court to review the constitutionality of the draft organic acts.

The Petitioners hence view that the constitutional amendment conducted by the 1st to the 310th Respondents is an attempt to acquire the national government power by the means not recognised by the Constitution, resulting in a violation of the Constitution, section 68, paragraph 1.

Rangsima, a witness called by the 2nd and the 4th Respondents, testified as follows: The witness is a Democrat Representative from Samut Songkhram Province. She has always combatted and complained about the use of the Cards on behalf of other MNAs. But her complaints have never led to the actual punishment of any wrongdoer. The witness saw the events as appeared in the video clips adduced in the present cases, and filed a protest with the presiding officer, but her protest was in vain. The conduct of the group of persons seen by the witness usually occur both during and after the NA sessions. They hold the Cards on behalf of each other. If the owner of any Card is absent, the holder of the Card will make the presence and cast a vote on his behalf. The witness has learnt about this conduct but had no evidence to support her complaints. The witness then requested the officers, whose names were concealed by the witness, to take photographs and record videos for her. The witness also confirmed that the person appeared in a photograph is Narit Thongthirat ("Narit"), an FTP Representative for Sakon Nakhon Province, whom the witness knows very well because she and he have both been Representatives for ten years. Being aware that Narit usually uses the Cards on behalf of others, the witness keeps her eye on him. The witness requested the officers to take his photographs and record his videos with photograph and motion picture recorders according to the signals given by the witness whilst being in the auditorium. Having received the videos from the officers, the witness forwarded them to a legal team of the Democrat Party for further actions. After the witness filed complaints and published the said videos, Narit did not condemn the witness or take any action against her.

The Court ordered the showing of the video clips adduced as evidence by the 2nd Petitioner in support of his petition and the Court directed the witness to give explanations along with the pictures appeared. The witness confirmed that the events seen were part of the proceedings of the constitutional amendment on senatorial sources and included both the calculation of quorum and the casting of votes. The witness continued to testify that, at each polling, the NA President requires the identification button to be pressed first in order to ensure the constitution of a quorum and he then requires another button to be pressed for the purpose of voting. However, the person seen in the pictures used the Card of another and pressed the buttons on behalf of the latter. In the other two clips, the person was seen to be changing his seat because he learnt that the officers were taking his photographs and recoding his videos at the witness's request. The witness knows that, under the system of identification and voting by electronic means, several Cards can be inserted in a reader without the number of the used Cards and the times of such use being checkable. If the original Card of any person is used, his alternative Card cannot be used again, because the system records the code of each person to prevent such use of his alternative Card.

Niphit, a witness called by the 2nd and the 4th Petitioners, testified as follows: The constitutional amendment proceedings were not conducted in three readings, because the period of motion amendment were determined in defiance of the correct methods. The determination of a period of motion amendment is an important process which allows the MNAs to amend a motion. When an MNA does not agree with a draft law or constitution, he is entitled to amend the motion and express his opinions during the committee proceedings. If the committee does not concur upon his amendment, he may reserve his amendment and present it to the NA for further discussion. The right to amend a motion and reserve an amendment is a privilege of an MNA. The witness applied for amending the constitutional amendment motion but his application was turned down by the committee, claiming that the application was made after a period of fifteen days. The witness had never seen the denial of the right to discuss by the presiding officer who cited the reason that a discussion can be subject to a period of time for the sake of its conciseness. An amendment to a motion bears importance, because an MNA who has not applied for amending a motion is not entitled to object to the proceedings of the committee, save the revisions made by the committee. If the committee confirms the original draft without revision, an MNA is not entitled to initiate a discussion, whether or not he has applied for amending the motion.

Phaibun, a witness called by the 2nd and the 4th Respondents, testified as follows: According to the examination reports of the Subcommittee for Prevention of Corruption and Examination of Exercise of State Powers under the Senatorial Committee for Studies of Corruption and Promotion of Good Governance, as submitted to the Court by the witness, the constitutional amendment draft annexed to the motion was found to be different from that forwarded to the NA. The witness believed that the original draft was replaced in the morning of 27 March 2013. The presentation of the new draft lacked a written motion signed by the initiating Representatives and Senators. The draft originally introduced and signed was submitted on 20 March 2013 and does not contain any amendment to section 115 (9) and section 116, paragraph 2. The witness, as Chairperson of the said Subcommittee, summoned Butsakon Amphonprapha, Director of the SGHR Meeting Affairs Bureau who was directly in charge of this matter. She appeared on Saturday, 23 March 2013, and explained that she was informed by Nongyao Praphin, a specialised legal officer of the Bureau, that an SGHR government officer, whom Nongyao could not remember, requested for replacement of the constitutional amendment draft without having coordinated with Udomdet. The witness considers that this forgery of motion and use of false motion at NA sessions indicates a joint attempt to acquire the national government power by the means not recognised by the Constitution.

Suwichak, SeGNA summoned by the Court as a witness, testified as follows: There was only one constitutional amendment draft. The contents of the introduced draft were equivalent to those of the draft actually used at the NA sessions. However, the witness had never compared both draft with each other. The review of a draft constitution or law is the duty of the preliminary officers. The witness reviewed the constitutional amendment draft after the NA held the first reading, for the witness was absent on the date the motion was introduced. Pursuant to precedents, a motion can be edited before it is placed in the agenda by the NA President and the officers would edit the motion as requested. The witness learnt that a subcommittee examined the relevant officers. But the witness does not know the examination outcome, since the officers have not yet provided any information. A motion may, in general, be introduced outside the working hours or on a holiday if a session is held.

With respect to the MNAs using the Cards on behalf of each other, the witness testified as follows: As far as the witness knew, the SGNA provides one Card to each of the MNAs to be used for identification and voting. At the initial period, the MNAs were required to sign a list in front of the auditorium before the commencement of a session and the NA President would commence the session after the constitution of a quorum. The voting card system has been in use for about ten years in order to prevent certain errors and disputes which may arise from the voting by hand raising. The witness could not confirm if the MNAs used the Cards on behalf of each other. But the witness knew that a committee has been set up by the NA President to look into the matter but no conclusion is yet reached.

The Court ordered the showing of the video clips adduced as evidence by the 2nd Petitioner in support of his petition and the Court ordered the witness to express opinions. The witness testified that he was not certain if an MNA was using a Card on behalf of another. But he said he saw that an MNA might be holding two Cards, one for identification and the other for casting of vote. The witness does, however, not know the number of the Cards which one MNA may possess. The witness agreed that the voices of the presiding officer heard in the video clips belong to Nikhom Wairatchaphanit, the NA Vice President who presided over the session.

Atchara, Head of the SGHR Audiovisual Section summoned by the Court as a witness, testified as follows: According to the rules on NA session attendance, an MNA signs his name by placing his Card upon an electronic machine. The processor will calculate the number of the singing MNAs and send the information to the Section. The Records Section oversees the singing and Card placement.

The Court ordered the showing of the video clips adduced as evidence by the 2nd Petitioner in support of his petition and the Court ordered the witness to give opinions. The witness testified that the pictures shown were possibly the events of pressing voting buttons. In general, one Card is used by one MNA and one MNA has one vote. The witness saw that the persons appeared in the clips had several Cards in their hands. Under the present system, an MNA can insert a Card in a reader and press the voting button before inserting a Card of another MNA and doing the same. But no MNA can use his own Card again after the Card is inserted in a reader and the voting button is pressed. The witness cannot tell if the use of Cards and the casting of vote in such manner affects the voting result. Apart from an original Card, each MNA has one alternative Card which is kept by the officers and can be demanded when he fails to carry the original Card, being two Cards per one MNA. The technology currently adopted by the NA cannot check if the voting button is pressed by the Card owner or by another MNA on his behalf. In practices, an MNA can insert a Card and press the voting button before inserting another Card and press the voting button again in successive order. The system will count the votes until the polling is concluded by the presiding officer.

Having reviewed the petitions and the supplementary documents of the Petitioners, having examined evidence and having required the parties to file written closing arguments, the Court will now address two questions:

The first question – Do the proceedings of the Draft constitute an attempt to acquire the national government power by the means not recognised by the Constitution?

The second question – Do the contents of the Draft constitute an attempt to acquire the national government power by the means not recognised by the Constitution?

Prior to addressing the said questions, the Court needs to handle a preliminary question as to whether the Court is competent to deal with a constitutional amendment. Upon due consideration, the Court entertains the following opinion: All countries which adopt the democratic regime of government aim and intend to design or create a mechanism for protection of rights and freedoms of their people, in order to enable the public roles and participation in the administration and the examination of the exercise of state powers. They also establish a system of check and balance between the political organs or institutions with a view to balancing the exercise of the sovereign powers which rest with the people, pursuant to the principles of separation of powers into three branches: the legislative power which is exercised through a legislature, the executive power, through a cabinet, and the judicial power, through the courts. These are the purposes of the 2007 Constitution, the supreme law of the Nation, as can be seen in its Preamble: "The subject matters of the newly prepared constitution are to achieve the common will of the Thais to maintain the national independence and security, to maintain and cherish all religions for the sake of their eternity, to uphold the King as Head and idol of the State, to adopt the democratic regime of government with the King as Head of State as the guidance for public administration, to protect the rights and freedoms of the people, to enhance the concrete roles and participation of the public in the administration and the examination of the exercise of state powers, to create a mechanism for the political institutions, both legislative and executive, for the sake of their balance and effectiveness under the parliamentary system of government, and to enable the judicial institutions and other independent organs to faithfully discharge their duties".

The described principles clearly indicate that the present Constitution intends to direct the political organs or institutions to perform their duties in a correct, legitimate, independent and faithful manner for the common good of all Thais, without any conflict of interest. The Constitution has no desire to allow any political organ or institution to hold the absolute powers through any form of illegitimacy or to permit it to invoke any legal provision as a basis for enriching itself or its partisans with personal advantages from the exercise of powers.

Even though a decision under the democratic regime of government is adopted by a majority of votes, the democratic regime of government is not constituted if the minority is ignored or oppressed by the arbitrary exercise of powers without heeding its reasons and guaranteeing a place for it to stand and exist. It will, however, become the tyranny of the majority which is apparently against the regime of government adopted by the Nation. This material fundamental principle has always confirmed that certain measures must be taken to prevent any person or group of persons who come to the sovereign powers of the people from abusing or arbitrarily exercising the powers. Such principle is based upon the separation of sovereign powers which belong to all Thais, so as to place the political organs or institutions exercising those powers in the checkable and balanceable state where they can appropriately warn and counterweigh each other. The principle does not intend to establish an independent space where each party may exercise the powers in any manner as it wishes. Should any party be allowed to possess the absolute powers without check and balance, the wrong notions and blindness of the holder of state powers will likely expose the Nation to wrack and ruin.

In this regard, it could be said that all the organs acting on behalf of the sovereign power holders, whether being the NA, the Council of Ministers or the courts, are established by or enjoy the authority derived from the Constitution. The exercise of authority of these organs must therefore be restricted, both in terms of processes and contents. This results in these organs being unable to exercise their authority in a manner contrary to or inconsistent with the Constitution.

To this end, the 2007 Constitution applies the rule of law to the exercise of authority by all parties, organs and state agencies, subject to the principle that the authority needs to be exercised in line with the generally existing laws and also with the rule of law. One can therefore not merely observe the written laws or the principles of the majority, but he needs to also bear in mind the rule of law. The reference to the majority without having regard to the minority, in order to support the arbitrary exercise of powers to fulfill certain goals or objectives of the power exerciser amidst a conflict of personal benefits or benefits of a group of persons and national benefits or order of the public as a whole, will indeed lead to the downfall and downgrade of the Nation or the serious discord and disharmony amongst the people. This is definitely incompatible with the rule of law recognised section 3, paragraph 2, of the 2007 Constitution or "this Constitution" as mentioned in section 68. In all cases must the application of laws and the exercise of powers be in good faith and be free of ill will, frauds, conflicts of interest or hidden agenda, unless most of the honest persons in the Nation would be deprived of their due benefits by a person or group of persons using powers without legitimacy.

The rule of law is regarded as an administrative guidance arising from the principles of natural justice – the pure and equitable justice not beset with personal and concealed advantages. It thus forms the material fundamental legal principle which is above the written laws and is expected to be upheld by the NA, the Council of Ministers, the courts as well as the constitutional organs and the state agencies.

Democracy means the government of the people by the people and for the people, not the government according to the opinions of any person or merely relying on the power base acquired from an electoral victory. The principles of democracy consist of more characteristics than that. As the political organs or institutions which exercise the state powers usually claim that they are elected by the people but subject themselves to the opinions of certain specific persons, they fail to follow the democratic ways of government which aim at the interest of the entire people under the rule of law. Democracy does not merely refer to the elections or electoral triumph of the political factions. The majority obtained from an election only reflects the desire of the eligible voters at such election. It never enables the representatives to exercise the powers without having to be mindful of the correctness and legitimacy pursuant to the rule of law.

Now, the present Constitution brings the Court into existence and charges it with the key authority to check and balance the exercise of powers in keeping with the rule of law and the principles of control of constitutionality of laws. It is the philosophy of the democratic regime of government which would concretely protect the rights and freedoms of the people as recognised by the Constitution and would also maintain and uphold the supremacy of the Constitution. This can be seen from the Constitution, section 216, paragraph 5, which prescribes that the decisions of the Court are final and binding the NA, the Council of Ministers, the courts and other state organs, and section 27 which provides that the rights and freedoms explicitly or implicitly recognised by the Constitution or the Court are protected and directly binding the NA, the Council of Ministers, the courts as well as the constitutional organs and state organs in relation to the enactment, enforcement and interpretation of all laws. Having thoroughly considered, the Court finds that the four Petitioners exercised the right of constitutional defence under the Constitution, section 68, paragraph 2, to bring the cases before the Court together with the claims that all the Respondents are undermining the democratic regime of government with the King as Head of State or attempting to acquire the national government power by the means not recognised by the Constitution. The Court is therefore competent to address the cases.

The first question – Do the proceedings of the Draft constitute an attempt to acquire the national government power by the means not recognised by the Constitution?

(1)   Was the constitutional amendment draft concerning senatorial sources which had been used at the NA joint sessions the same as that introduced to the SGHR serving as the SGNA?

The Petitioners claimed that the contents of the Draft introduced to the NA were greatly different from the constitutional amendment draft forwarded to the MNAs for consideration at the first reading, Acceptance of Principles. In this respect, the Court ordered the SeGNA to present to the Court for the sake of its consideration the constitutional amendment draft originally introduced to the NA. Suwichak, SeGNA, presented the draft to the Court on 12 November 2013. Having reviewed it, the Court finds that the constitutional amendment draft introduced to the NA and presented to the Court by the SeGNA contains the handwritten page numbers from the pages of the memorandum to the NA President, the list of initiators, the list of joint initiators, to page 33. But the following pages, which are the explanatory note, the constitutional amendment draft and the draft summary, have no any handwritten page number or statement. Upon further review, the Court finds that the typography appearing from page 1 to page 33 is different from that in the explanatory note, the constitutional amendment draft and the draft summary.

Having compared the said draft with two supplementary documents of the petitions of the 1st and 2nd Petitioners which were allegedly distributed for use at the NA sessions, the Court finds that the typography and page numbers of the two documents are consistent. A handwritten statement was added at the end of the title of the draft on the draft summary pages. The page numbers appear on every page from the Memorandum to the NA President for introduction of constitutional amendment, the list of initiators, the list of joint initiators, the explanatory note, the constitutional amendment draft and the draft summary, being a total of forty one pages. The typography appearing from the page to the last pages is also invariable.

Moreover, having reviewed the motion for amending the Constitution, section 190, as introduced by Prasit Phothasuthon and others and presented to the Court by the SeGNA, the Court finds that the motion contains handwritten page numbers from the pages of the memorandum to the NA President, the list of initiators, the list of joint initiators, the explanatory note, the constitutional amendment draft, to the last page which is the draft summary. The phrases "Amendment (No. …), Buddhist Era … (…)" were also added to the title of the draft in the draft summary and the typography from the first to the final pages is consistent. The manners of page numbering from the first to the last pages, the correction of the title of the draft, as well as the typography from the first to the last pages are the same as those in the documents which the Petitioners alleged to have received for use at the NA sessions.

On account of the evidence so examined, the Court believes that the Draft actually considered by the MNAs at the first reading, Acceptance of Principles, was not that originally introduced to the SGHR by Udomdet on 20 March 2013 and later distributed to the MNAs for use at the sessions, but the Draft was newly drawn up with the contents greatly different from the original. Although Suwichak testified that necessary corrections can be made to a motion before the motion is entered in the agenda, the Court deems that those corrections must merely deal with insignificant mistakes, such as clerical errors, and may not be adverse to the original principles. If the original principles are altered, the alteration must be supported by a number of signatories as required by the law. Upon reviewing the contents of the newly prepared draft, the Court finds that various original principles were altered, including the addition of a new principle to amend section 116, paragraph 2, and section 241, paragraph 1. It should be noted that an amendment to section 116 would allow a retired Senator to become a senatorial candidate without having to wait for the elapse of two years. Moreover, the alteration was done with the intention to conceal the facts, as not all the MNAs were informed of the new draft.

It could now be conclusively heard that the constitutional amendment draft on senatorial sources as introduced by Udomdet and others to the SGHR on 20 March 2013 was not used during the NA sessions at the first reading, Acceptance of Principles, but a new draft whose principles are much different from the original draft introduced by Udomdet was used without any introductory motion signed by a sufficient number of MNAs. In consequence, the introduction of the constitutional amendment draft whose principles were accepted by the NA pursuant to the petitions is contrary to the Constitution, section 291 (1), paragraph 1.

(2)   Is the determination of the period of amendment to the Draft constitutional?

A legislative discussion is a fundamental right of an MNA. An MNA who has applied for amending a motion or has reserved an amendment to a motion or a committee member who has reserved an opinion is entitled to hold a discussion at which he would express his opinions and reasons regarding the amendment, reserved amendment or reserved opinion. In this matter, the facts derived from the evidence in the files and from the testimonies given by the witnesses to the Court in the course of the examination indicate that, at the first and second readings, the 1st and the 2nd Respondents replaced each other as the presiding officer and denied the right of the discussion requestors during the first reading as well as fifty seven MNAs who had applied for amending the motion, had reserved the amendments to the motion and had reserved the opinions. The two Respondents claimed that their opinions were against the principles, even though they were not yet heard. Following that, the 1st and the 2nd Respondents invoked a majority of votes to conclude the discussion. The Court deems that in spite of the fact that the presiding officer may exercise his discretion to permit a discussion and a majority of votes may conclude a discussion, the exercise of such discretion and majority must not result in the prevention of the MNAs from discharging their duties or the ignorance of the opinions of the minority. The conclusion of the discussions and the dismissal of the sessions in order to expedite the polling were thus the abuse of power to unjustly benefit the majority, breaching the rule of law as a result.

Besides, the Petitioners alleged that the 1st Respondent incorrectly fixed the period of motion amendment. According to them, after the NA accepted the principles at the first reading on 4 April 2013, some MNAs applied for a fifteen day period and a sixty day period in order to amend the motion. Pursuant to the NARO, the NA needed to decide which period would be adopted. However, no such decision was made because the NA, at that time, lacked a quorum as required by the Constitution. The 1st Respondent then ordered the amendments to be filed within fifteen days from the date the NA accepted the principles. Owing to heavy objections, the 1st Respondent summoned the NA again on 18 April 2013. At such session, the NA approved the period of fifteen days. But the 1st Respondent ordered the fifteen day period to retrospectively be calculated from 4 April 2013, leaving only one actual day for filing amendments. The amendment period approved by the NA was thus less than fifteen days. The Court deems that since it is the right of the MNAs to express their opinions, the amendments to a motion must therefore be given a sufficient period of time which would allow the MNAs who desire to amend the motion to prepare the amendments. A period of time for motion amendment cannot be calculated retrospectively, but it must be counted from the date the resolution is adopted. As the retrospective calculation which left only one day for filing amendments is repugnant to the NARO and the impartiality, it is contrary to the Constitution, section 125, paragraphs 1 and 2, as well as the rule of law recognised by the Constitution, section 3, paragraph 2. As a consequence, the determination of the period of time for amending the Draft is against the Constitution, section 3, paragraph 2, and section 125, paragraph 1.

(3)   Are the manners of identification and voting during the proceedings of the constitutional amendment on senatorial sources constitutional?

Taking into account the material principles of the parliamentary representative democratic system of government, one will see that the MNAs who represent all people in exercising the legislative power in the NA on behalf of the people through popular elections or through appointment play important roles under this system. The 2007 Constitution, section 122, clearly prescribes that, under the democratic regime of government with the King as Head of State, the Representatives and the Senators represent all Thais without being under any mandate, commitment or influence, and must, faithfully and without a conflict of interest, carry out their duties for the common good of all Thais. They are also required to conduct themselves in agreement with the rule of law, according to the Constitution, section 3, paragraph 2, which provides that the NA, the Council of Ministers, the courts, as well as the constitutional organs and the state agencies must adhere to the rule of law when rendering their duties.

As regards the exercise of powers of the MNAs who represent all Thais, the true owners of the sovereign powers, the Constitution, section 126, paragraph 3, establishes a key principle to regulate the functions concerning the law enactment processes. According to which, one MNA has one vote at the polling. Upon a parity of votes, the presiding officer is permitted to issue one additional vote as the casting vote. It is understood that an MNA is required to make his personal appearance to perform his duties at each legislative session and has one vote in respect of each matter. Any act which turns the polling result away from the truth is hostile to the provisions and purposes of the Constitution.

Upon due consideration, the Court entertains the following opinion: In the present cases, the Petitioners introduced eyewitnesses and significant evidence, that is, the video clips containing three events in which certain MNAs inserted the Cards of others in the readers during the proceedings of the constitutional amendment regarding senatorial sources. In this respect, Rangsima, a Democrat Representative, was called by the 2nd and the 4th Petitioners, to give evidence in conjunction with the three events in the clip. The witness confirmed that the persons appeared in the clip inserted several Cards in the readers and pressed the voting buttons at the same time, and that this is contrary to the correct principles and methods concerned. Atchara, Head of the SGHR Audiovisual Section, testified that each MNA has, in general, one electronic card for self-identification during quorum calculation and for casting of votes and has one alternative card which is kept by the officers and may be demanded when he does not carry the former card. Furthermore, the voices of the events heard from the clips are in line with two evidences produced to the Court by the SeGNA: the voices contained in the NA session live broadcasting recordings and the NA minutes which recorded the same NA joint sessions to consider constitutional amendment concerning senatorial sources as those mentioned in the petitions. In the course of examining oral evidence, the SeGNA watched and heard the pictures and voices in the clips and testified that he could remember that the voices belong to the NA Vice President who presided over the session at the time being. Moreover, Rangsima, Democrat Representative, was called by the 2nd and the 4th Petitioners to give evidence along with the pictures in the clips submitted to the Court by the 2nd Petitioner. The witness pointed out that the 162nd Respondent [Narit], who is an MNA, inserted several Cards in the readers and pressed the voting buttons in successive order. The witness also testified that she knows this Respondent very well and have no personal conflict with him, and that she and he still have usual conversations after she filed complaints against him. The witness has been a Representative for ten years and has always followed up, combatted and complained about the use of the Cards on behalf of others, especially the conduct of Narit. The witness also ordered her men to take photographs and record videos to be used as evidence in support of her complaints. Having reviewed the photographs produced to the Court by the witness, the Court saw a side view of a person whom could be confirmed to be Narit, the 162nd Respondent, as the suits they wore bore the same colour. As appeared in the clips, the person had in his hands more than two Cards, the number which one MNA can possess, and the person inserted all of those Cards in the readers and successively pressed the buttons on the readers.

Having heard the evidence and the testimonies of the witnesses obtained from the examination, including the obvious motion pictures and the eyewitnesses who testified in conjunction with the live broadcasting of the NA sessions that, during the passage of resolutions on the constitutional amendment as to senatorial sources, many MNAs were absent but authorised other MNAs to exercise the right to vote on their behalves, the Court finds that one MNA used several Cards and that the described conduct is of unnatural nature. Not only contravening the fundamental principles of being MNAs, Representatives of all Thais, who must function in good faith for the common good of every Thai, without being subject to any mandate, commitment or influence, and without any conflict of interest as proscribed by section 122 of the Constitution, the conduct is also against the principles of voting pursuant to section 126, paragraph 3, which entitles one MNA to have only one vote. When the polling processes were in violation of the NARO and the aforementioned provisions of the Constitution, the polling result was fraudulent and was not the true will of the Representatives of all Thais. Consequentially, the NA could not be deemed to have adopted the lawful resolutions during the constitutional amendment proceedings.

The second question – Do the contents of the Draft constitute an attempt to acquire the national government power by the means not recognised by the Constitution?

The subject matters of the constitutional amendment which the Petitioners referred to the Court for decision are to modify the senatorial qualifications in various manners. The Court now needs to determine if the said constitutional amendment would undermine the democratic regime of government with the King as Head of State or would furnish any person with the national government power by the means not recognised by the Constitution.

The Court finds that the 2007 Constitution was modelled on the Constitution of the Kingdom of Thailand, Buddhist Era 2540 (1997) ("1997 Constitution"), but many original principles on senatorial qualifications have been modified so as to prevent certain problems which had come to pass under the 1997 Constitution. For such purpose, it is prescribed that there be appointed Senators and elected Senators in equal proportions, with a view to enabling the members of all sectors and professions to jointly function as Senators and make contributions to the Nation in a deliberate manner. Moreover, the senatorial qualifications have been revised in order to liberate the Senators from the politics and the Representatives, for instance, the forebears, spouse and children of a Representative or political position holder are prohibited from being Senators and the senatorial candidates are not allowed to associate with political parties and hold any political position for five years.

Under the 2007 Constitution, the NA consists of two chambers: the Senate and the House of Representatives which balance each other. The Senate has been given the roles to examine and screen the performance of the Representatives as well as to counterpoise them, whilst the Senators are empowered to scrutinise and remove the Representatives accused of unusual wealth, corruption in office, intentional exercise of authority against the provisions of the Constitution or law, or serious contravention of or failure to comply with moral standards pursuant to the Constitution, section 270. The purposes of the Constitution to concretely free the Senators from the Representatives are shown by the prohibition of their relationships. Should the Senators and the Representatives be permitted to enjoy close relations, the frank scrutiny will become hopeless and the principles of check and balance which form the basis of the present Constitution will be violated.

The constitutional amendment pursuant to the petitions is a return to the former defects which are perilous and likely to bring an end to the faith and harmony of the majority of the Thai people. It is an attempt to draw the Nation back into the canal[2], as it would bring the Senate back to the state of being an assembly of relatives, assembly of family members and assembly of husbands and wives. In consequence, the Senate would lose its status and vigour as the source of wisdom for the House of Representatives, but would merely be an echo of the people from the same group. The principles of the bicameral system would be debased, leading to the monopoly of state powers and the exclusion of the participation of the members of various sectors and professions. The amendment is thus an effort of its initiators to regain the national government power by the means not recognised by the Constitution – the 2007 Constitution approved by the majority of the people of Thailand at a referendum.

Furthermore, the modification of the senatorial qualifications by only requiring the Senators to be elected in the same manner as the Representatives would cause the two chambers to become one, lacking differences and independence. This would put an end to the nature and subject matters of the bicameral system.

The modification of the senatorial sources and qualifications which bring the Senators into close relations with the political sectors would considerably impair the principles of check and balance under the bicameral system, as it would allow the political sectors to absolutely overshadow the NA without any check and balance. This would cast an impact upon the democratic regime of government with the King as Head of State and would pave the way for those involved in the proceedings to acquire the national government power by the means not recognised by the Constitution.

Besides, the contents of the Draft, sections 11 and 11/1, which govern the OARS enactment processes, are in breach of the Constitution, since they exempt the promulgation of the said draft organic law from the Constitution, section 141, which requires the draft to be forwarded to the Court for review of its constitutionality first. Accordingly, this is against the principles of check and balance which constitute the principles of democratic government and would enable the political sectors to issue the laws at its will by merely invoking a majority of votes, without any examination.

For these reasons, the Court hereby decides, by six votes to three, that the proceedings and resolutions concerning the Draft as adopted by all the Respondents in the present cases are contrary to the Constitution, section 122, section 125, paragraphs 1 and 2, section 126, paragraph 3, section 291 (1), (2) and (4), and section 3, paragraph 2, and decides, by five votes to four, that the contents of the Draft are inconsistent with the Constitution, section 68, paragraph 1, since they breach the fundamental principles and purposes of the 2007 Constitution and constitute an attempt of all the Respondents to acquire the national government power by the means not recognised by the 2007 Constitution.

As the 1st Petitioner requested for the dissolution of the relevant political parties and the disfranchisement of their executive members, the Court holds that the conditions under the 2007 Constitution, section 68, paragraphs 3 and 4, are not met. This request is therefore denied.



Charoon Intachan
President of the Constitutional Court


Jaran Pukditanakul
Judge of the Constitutional Court


Chalermpon Ake-uru
Judge of the Constitutional Court


Chut Chonlavorn
Judge of the Constitutional Court


Taweekiat Meenakanit
Judge of the Constitutional Court


Nurak Marpraneet
Judge of the Constitutional Court


Boonsong Kulbupar
Judge of the Constitutional Court


Suphot Khaimuk
Judge of the Constitutional Court


Udomsak Nitimontree
Judge of the Constitutional Court



Footnotes[edit]

  1. Published in the Government Gazette: volume 131/part 5 A/page 1/8 January 2014.
  2. In Thai language, "canal" (คลอง) idiomatically refers to something unpleasant. For instance, "ถอยหลังเข้าคลอง" (step back to the canal) means to go back to something unpleasant. Wikisource keeps the term "canal" in this translation. Various translations of the phrases "[นำประเทศชาติให้] ถอยหลังเข้าคลอง" (draw [the Nation] back into the canal) could also be found in foreign media:
    1. Wall Street Journal: "a backward move [for the country]".
      [Warangkana Chonchuen. (2013-11-20). "Thai Court Rules Against Constitution Amendment". The Wall Street Journal. Retrieved: 2014-02-04.]
    2. Bloomberg Businessweek: "a retrograde step".
      [Anuchit Nguyen. (2013-11-20). "Thai Court Rejects Government Move to Change Formation of Senate". Bloomberg Businessweek. Retrieved: 2014-02-04.]




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