Constitution of Thailand (2007)/Chapter 10

CHAPTER 10 : THE COURTS

Part 1 : General Provisions

Section 197. The trial and adjudication of cases are the powers of the Courts, which must be proceeded in a manner serving justice in accordance with the Constitution and the law and in the name of the King. Judges are independent in the trial and adjudication of cases in a correct, expeditious and fair manner in accordance with the Constitution and the law. The transfer of a judge without his or her prior consent shall not be permitted except in the case of termly transfer as provided by law, promotion to a higher position, being under a disciplinary action or becoming a defendant in a criminal case, negative impacts on the administration of justice in the trial and adjudication, or a force majeure event or any other inevitable cause of necessity, as provided by law.

Judges shall not be political officials or hold political positions.

Section 198. All Courts may be established only by Acts. A new Court for the trial and adjudication of any particular case or a case of any particular charge in place of an ordinary Court existing under the law and having jurisdiction over such case shall not be established. A law having an effect of changing or amending the law on the organisation of Courts or on judicial procedure for the purpose of its application to a particular case shall not be enacted.

Section 199. In the case where there is a dispute on the competent jurisdiction amongst the Court of Justice, the Administrative Court, the Military Court or any other Court, it shall be decided by a committee consisting of the President of the Supreme Court of Justice as Chairman, the President of the Supreme Administrative Court, the President of such other Court and not more than four qualified persons as provided by law as members. The rules for the submission of the dispute under paragraph one shall be as provided by law.

Section 200. The King appoints and removes judges except in the case of removal from office upon death. The appointment and removal from office of a judge of any Court other than the Constitutional Court, the Court of Justice, the Administrative Court and the Military Court as well as the adjudicative jurisdiction and procedure of such Courts shall be in accordance with the law on the establishment of such Courts.

Section 201. Before taking office, a judge shall make a solemn declaration before the King in the following words: “I, (name of the declarer) do solemnly declare that I will be loyal to His Majesty the King and will faithfully perform my duties in the name of the King without any partiality in the interest of justice, of the people and of the public order of the Kingdom. I will also uphold and observe the democratic regime of government with the King as Head of the State, the Constitution of the Kingdom of Thailand and the law in every respect.”

Section 202. Salaries, emoluments and other benefits of judges shall be as provided by law; provided that the system of salary-scale or emoluments applicable to civil servants shall not be applied. The provisions of paragraph one shall apply to Election Commissioners, Ombudsmen, members of the National Counter Corruption Commission and members of the State Audit Commission mutatis mutandis.

Section 203. No person may simultaneously become a member, whether an ex officio member or a qualified member, of the Judicial Commission of the Courts of Justice, of the Administrative Court or of any other Court under the law on a particular matter.

Part 2 : Constitutional Court

Section 204. The Constitutional Court consists of the President and eight other judges of the Constitutional Court to be appointed by the King upon advice of the Senate from the following persons: (1) three judges in the Supreme Court of Justice holding a position of not lower than Judge of the Supreme Court of Justice and elected at the general assembly of the Supreme Court of Justice by secret ballot; (2) two judges in the Supreme Administrative Court elected at the general assembly of judges of the Supreme Administrative Court by secret ballot; (3) two qualified persons in the field of law, who really possesses knowledge and expertise in law and are elected under section 206; (4) two qualified persons in the field of political science, public administration or other social science, who really possesses knowledge and expertise in the administration of the State affairs and are elected under section 206. In the case where no judges in the Supreme Court of Justice or no judges in the Supreme Administrative Court are elected under (1) or (2), the general assembly of the Supreme Court of Justice or the general assembly of judges of the Supreme Administrative Court, as the case may be, shall elect other persons who have the qualifications and are not under any prohibitions under section 205 and possess such knowledge and expertise in law as are suitable for the performance of duties as judges of the Constitutional Court, as judges of the Constitutional Court under (1) or (2), as the case may be. The elected persons under paragraph one shall hold a meeting and elect one amongst themselves to be the President of the Constitutional Court and notify the result to the President of the Senate accordingly. The President of the Senate shall countersign the Royal Command appointing the President and judges of the Constitutional Court.

Section 205. The qualified person under section 204 (3) and (4) shall possess the qualifications and shall not be under any of the prohibitions as follows: (1) being of Thai nationality by birth; (2) being not less than forty five years of age; (3) having been a Minister, a judge of the Supreme Military Court, an Election Commissioner, an Ombudsman, a member of the National Counter Corruption Commission, a member of the State Audit Commission or a member of the National Human Rights Commission, or having served in a position of not lower than Deputy Prosecutor General, Director-General, or an executive in a Government agency with executive powers equivalent to those possessed by Director-General, or holding a position of not lower than Professor, or having been a lawyer with regular and continued practice for the period of not less than thirty years up to the date of nomination; (4) not being under any of the prohibitions under section 100 or section 102 (1), (2), (4), (5), (6), (7), (13) or (14); (5) not being a member of the House of Representatives, senator, political official, member of a local assembly or local administrator; (6) not being or having been, in the past, a member or holder of other position of a political party over the period of three years preceding the taking of office; (7) not being an Election Commissioner, an Ombudsman, a member of the National Counter Corruption Commission, a member of the State Audit Commission or a member of the National Human Rights Commission.

Section 206. The selection and election of judges of the Constitutional Court under section 204 (3) and (4), shall be proceeded as follows:

(1) there shall be a Selection Committee for Judges of the Constitutional Court consisting of the President of the Supreme Court of Justice, the President of the Supreme Administrative Court, the President of the House of Representatives, the Leader of the Opposition in the House of Representatives and the President of a constitutional independent organ elected amongst Presidents of such independent organs, as members, to be in charge of selecting and short-listing qualified persons under section 204 (3) and (4), which must be completed within thirty days as from the date on which there occurs a ground for the selection of persons for such office and thereafter submitting the names of the persons selected with their consent to the President of the Senate. The resolution making such selection must be passed on the basis of open voting and supported by votes of not less than two-thirds of the total number of the existing members of the Committee. In the case where there is no member in any office or a member in any office exists but becomes unable to perform the duty, the Selection Committee shall, if there remain not less than one-half of its members, consist of the remaining members, provided that the provisions of section 113 paragraph two shall apply mutatis mutandis. (2) the President of the Senate shall convoke the Senate for a sitting for the purpose of passing a resolution approving persons selected under (1) within thirty days as from the date of receipt of the names submitted. The resolution shall be by secret ballot. In the case where the Senate passes a resolution giving approval thereto, the President of the Senate shall present the matter to the King for appointment. In the case where the Senate does not give approval to any names, whether in whole or in part, the Senate shall, together with reasons for disapproval, refer such names back to the Selection Committee for Judges of the

Constitutional Court for re-selection. If the Selection Committee for Judges of the Constitutional Court disagrees with the Senate and passes a unanimous resolution affirming its original resolution, it shall refer such names to the President of the Senate for presenting the matter to the King for further appointment. But, if the resolution affirming the original resolution is not unanimous, the selection process shall be re-conducted and shall be completed within thirty days as from the date on which there occurs a ground for taking such action. In the case where the selection of the qualified persons under (1) may not, for any reason, be completed within the time prescribed, the general assembly of the Supreme Court of Justice shall appoint three judges in the Supreme Court of Justice holding the position not lower than Judge of the Supreme Court of Justice and the general assembly of judges of the Supreme Administrative Court shall appoint two judges in the Supreme Administrative Court, as selection members for taking action under (1) in place of the Selection Committee.

Section 207. The President and judges of the Constitutional Court shall not: (1) be a Government official holding a permanent position or receiving a permanent salary; (2) be an official or an employee of a State agency, a State enterprise or a local government organisation or a director or an adviser of a State enterprise or a State agency; (3) 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; (4) engage in any independent profession. In the case where the general assembly of the Supreme Court of Justice or the general assembly of judges of the Supreme

Administrative Court has elected, or the Senate has approved, the person under (1), (2), (3) or (4) with the consent of that person, the elected person can commence the performance of duties only when he or she has resigned from the position under (1), (2) or (3) or has satisfied that his or her engagement in such independent profession has ceased to exist. This must be done within fifteen days as from the date of the election or the approval. If such person has not resigned or has not ceased to engage in the independent profession within the specified time, it shall be deemed that that person has never been elected to be a judge of the Constitutional Court and the provisions of section 204 and section 206, as the case may be, shall apply.

Section 208. The President and judges of the Constitutional Court shall hold office for nine years as from the date of their appointment by the King and shall hold office for only one term. The outgoing President and judges of the Constitutional Court shall remain in office to perform duties until the newly appointed President and judges of the Constitutional Court take office. The President and judges of the Constitutional Court shall be judicial officials under the law.

Section 209. In addition to the vacation of office upon the expiration of term, the President and judges of the Constitutional Court vacate office upon: (1) death; (2) being of seventy years of age; (3) resignation; (4) being disqualified or being under any of the prohibitions under section 205;

(5) having done an act in violation of section 207; (6) the Senate passing a resolution under section 274 for the removal from office; (7) having been sentenced by a judgment to a term of imprisonment irrespective of the finality of the case or a suspension of the punishment, except for a non-final case or a suspension of the punishment in an offence committed through negligence or a petty offence or an offence of defamation When a case under paragraph one occurs, the remaining judges shall continue to perform their duties subject to section 216.

Section 210. In the case where the President and judges of the Constitutional Court vacate office en masse at the expiration of term, the proceedings under section 204 and section 206 shall be taken within thirty days as from the date of the vacation of office. In the case where the President and judges of the Constitutional Court vacate office otherwise than in the case under paragraph one, the following proceedings shall be taken: (1) in the case of the judge of the Constitutional Court who was elected at the general assembly of the Supreme Court of Justice, the proceedings under section 204 shall be taken and completed within thirty days as from the date of the vacation of office; (2) in the case of the judge of the Constitutional Court who was elected at the general assembly of judges of the Supreme Administrative Court, the proceedings under section 204 shall be taken and completed within thirty days as from the date of the vacation of office; (3) in the case of the judges of the Constitutional Court under section 204 (3) or (4), the proceedings under section 206

shall be taken and completed within thirty days as from the date of the vacation of office. In the case where some or all judges of the Constitutional Court vacate office out of a session of the National Assembly, the proceedings under section 206 shall be taken within thirty days as from the date of the opening of a session of the National Assembly. In the case where the President of the Constitutional Court vacates office, the provisions of section 204 paragraph three shall apply mutatis mutandis. Section 211. In the application of the provisions of any law to any case, if the Court by itself is of the opinion that, or a party to the case raises a reasoned objection that, the provisions of such law fall within the provisions of section 6 and there has not yet been a decision of the Constitutional Court on such provisions, the Court shall submit such opinion, in the course of official service, to the Constitutional Court for consideration and decision. In the meantime, the Court may proceed with the trial but shall stay its adjudication for the time being until a decision of the Constitutional Court has been delivered. In the case where the Constitutional Court is of the opinion that the objection of a party under paragraph one is not so essential as to warrant a decision, the Constitutional Court may refuse to accept the case for consideration. The decision of the Constitutional Court shall apply to all cases but shall have no prejudice to final judgments of the Courts.

Section 212. A person whose rights or liberties recognised by this Constitution are violated has the right to file a motion to the Court for a decision that a provision of law is contrary to or inconsistent with the Constitution.

The right under paragraph one shall be exercisable in the case where all other means for the exercise thereof are exhausted, as provided in the Organic Act on the Procedure of the Constitutional Court.

Section 213. In the performance of duties, the Constitutional Court shall have the power to demand documents or relevant evidence from any person or summon any person to give statements of fact as well as request the inquiry officials, a Government agency, a State agency, a State enterprise or a local government organisation to carry out any act for the purpose of its consideration. The Constitutional Court shall have the power to appoint a person or a group of persons to carry out duties as entrusted.

Section 214. In the case where there occurs a conflict as to the powers and duties between at least two organs, being the National Assembly, the Council of Ministers or constitutional organs that are not Courts, the President of the National Assembly, the Prime Minister or such organ shall submit a matter together with the opinion thereon to the Constitutional Court for a decision.

Section 215. In the case where the Constitutional Court is of the opinion that any matter or any issue as referred to it is the matter or issue already decided by the Constitutional Court, the Constitutional Court may refuse to accept such matter or issue for consideration.

Section 216. The quorum of judges of the Constitutional Court for hearing and giving a decision shall be constituted by not less than five judges. The decision of the Constitutional Court

shall be made by a majority of votes, unless otherwise provided in this Constitution. Every judge of the Constitutional Court who constitutes a quorum shall prepare an opinion in delivering a decision on his or her own part and make an oral statement to the meeting before passing a resolution. The decisions of the Constitutional Court and opinions given in the delivery of decisions of all judges of the Constitutional Court shall be published in the Royal Gazette. The decision of the Constitutional Court must at least consist of the background or the allegation concerned, a summary of facts obtained from hearings, reasons for the decision on questions of fact and questions of law and the provisions of the Constitution and the law invoked and resorted to. The decision of the Constitutional Court shall be deemed final and binding on the National Assembly, Council of Ministers, Courts and other State organs. The procedure of the Constitutional Court shall be prescribed by the Organic Act on the Procedure of the Constitutional Court.

Section 217. The Constitutional Court shall have its independent secretariat, with the Secretary-General of the Office of the Constitutional Court as the superior responsible directly to the President of the Constitutional Court. The appointment of the Secretary-General of the Office of the Constitutional Court must be made upon nomination by the President of the Constitutional Court and approval by judges of the Constitutional Court as provided by law. The Office of the Constitutional Court shall have autonomy in personnel administration, budgeting and other activities as provided by law.

Part 3 : Courts of Justice

Section 218. The Courts of Justice have the jurisdiction to try and adjudicate all cases except those specified by this Constitution or the law to be within the jurisdiction of other courts.

Section 219. There shall be three levels of Courts of Justice, viz, Courts of First Instance, Court of Appeal and the Supreme Court of Justice, except otherwise provided by this Constitution or other laws. The Supreme Court of Justice has the jurisdiction to try and adjudicate cases prescribed by the Constitution or the law to be directly brought before the Supreme Court of Justice and cases where an appeal is made against decisions or orders of Courts of First Instance or the Court of Appeal as provided by law, save that the Supreme Court of Justice may, in the case where it considers that the question of law or the question of fact in respect of which the appeal is made is not so essential as to warrant its consideration, refuse to accept the case for adjudication, in accordance with the Rule prescribed by the general assembly of the Supreme Court of Justice. The Supreme Court of Justice has the jurisdiction to hear and decide cases in connection with the election and revocation of the right to vote at an election of members of the House of Representatives and the acquisition of senators, and the Court of Appeal has the jurisdiction to hear and decide cases in connection with the election and revocation of the right to vote at an election of members of local assemblies and local administrators, provided that the procedure for hearing and decision shall be in accordance with the Rule prescribed by the general assembly of the Supreme

Court of Justice on the basis of the inquisitorial system and in an expeditious manner. There shall be in the Supreme Court of Justice a Criminal Division for Persons Holding Political Positions the quorum of which consists of nine judges in the Supreme Court of Justice holding a position of not lower than Judge of the Supreme Court of Justice or senior judges having held a position of not lower than Judge of the Supreme Court of Justice and elected at the general assembly of the Supreme Court of Justice by secret ballot and on a caseby- case basis. The jurisdiction of the Supreme Court of Justice’s Criminal Division for Persons Holding Political Positions and the criminal procedure for such persons shall be as provided by this Constitution and the Organic Act on Criminal Procedure for Persons Holding Political Positions.

Section 220. The appointment and removal from office of a judge of a Court of Justice must be approved by the Judicial Commission of the Courts of Justice before they are tendered to the King. The promotion, increase of salaries and punishment of judges of the Courts of Justice must be approved by the Judicial Commission of the Courts of Justice. For this purpose, the Judicial Commission of the Courts of Justice shall appoint a sub-committee in each level of Courts for preparing and presenting its opinion on such matter for consideration. In giving approval by the Judicial Commission of the Courts of Justice under paragraph one and paragraph two, prime regard shall also be had to the knowledge, capability and ethical conduct of the persons concerned.

Section 221. The Judicial Commission of the Courts of Justice consists of the following persons: (1) the President of the Supreme Court of Justice as Chairman; (2) qualified members from each level of Courts, viz, six members from the Supreme Court of Justice, four members from the Court of Appeal and two members from the Courts of First Instance, who are judicial officials of each level of Courts and elected by judicial officials of each level of Courts; (3) two qualified members who are not judicial officials and who are elected by the Senate. The qualifications, prohibitions and procedures for the election of the qualified members shall be in accordance with the provisions of the law. In the case where there are no qualified members under paragraph one (3) or there is such member without being two in number, then, if not less than seven members of the Judicial Commission of the Courts of Justice consider that there exists an urgent matter for approval, such number of members of the Judicial Commission of the Courts of Justice shall constitute the Commission as well as its due quorum for the purpose of considering that urgent matter.

Section 222. The Courts of Justice shall have an independent secretariat, with the Secretary-General of the Office of the Courts of Justice as the superior responsible directly to the President of the Supreme Court of Justice. The appointment of the Secretary-General of the Office of the Courts of Justice must be made upon nomination by the President of the Supreme Court of Justice and approval by the Judicial Commission of the Courts of Justice as provided by law.

The Office of the Courts of Justice shall have autonomy in personnel administration, budgeting and other activities as provided by law.

Part 4 : Administrative Courts

Section 223. Administrative Courts have the jurisdiction to try and adjudicate cases of dispute between a Government agency, a State agency, a State enterprise, a local government organisation, a constitutional organ, or a State official on one part and a private individual on the other part, or between a Government agency, a State agency, a State enterprise, a local government organisation, a constitutional organ or State official on one part and another such agency, enterprise, organisation, organ or official on the other part, as a consequence of the exercise of an administrative power under the law or as a consequence of a pursuit of an administrative act by a Government agency, a State agency, a State enterprise, a local government organisation, a constitutional organ or a State official, as provided by law, and also have the jurisdiction to try and adjudicate matters prescribed by the Constitution or law to be within the jurisdiction to the Administrative Courts. The jurisdiction of the Administrative Courts under paragraph one does not include the determination by a constitutional organ, which is its direct exercise of power under the Constitution. There shall be the Supreme Administrative Court and Administrative Courts of First Instance, and there may also be the Appellate Administrative Court.

Section 224. The appointment and removal from office of an administrative judge must be approved by the Judicial

Commission of the Administrative Courts as provided by law before they are tendered to the King. Qualified persons in the field of law or the administration of the State affairs may be appointed as judges of the Supreme Administrative Court. Such appointment shall be made in the number of not less than one-third of the total number of judges of the Supreme Administrative Court and must be approved by the Judicial Commission of the Administrative Courts as provided by law and by the Senate before it is tendered to the King. The promotion, increase of salaries, and punishment of administrative judges must be approved by the Judicial Commission of the Administrative Courts as provided by law. The number of judges of the Administrative Courts in each level shall be determined by the the Judicial Commission of the Administrative Courts.

Section 225. The appointment of an administrative judge as President of the Supreme Administrative Court, shall, when already approved by the Judicial Commission of the Administrative Courts and the Senate, be tendered by the Prime Minister to the King for appointment.

Section 226. The Judicial Commission of the Administrative Courts consists of the following persons: (1) the President of the Supreme Administrative Court as Chairman; (2) nine qualified members who are administrative judges and elected by administrative judges amongst themselves; (3) two qualified members elected by the Senate and one qualified member elected by the Council of Ministers.

The qualifications, prohibitions and procedures for the election of the qualified members shall be in accordance with the provisions of the law. In the case where there are no qualified members under paragraph one (3) or there are such members without being three in number, then, if not less than six members of the Judicial Commission of the Administrative Courts consider that there exists an urgent matter for approval, such number of members of the Judicial Commission of the Administrative Courts shall constitute the Commission as well as its due quorum for the purpose of considering that urgent matter.

Section 227. The Administrative Courts shall have an independent secretariat, with the Secretary-General of the Office of the Administrative Courts as the superior responsible directly to the President of the Supreme Administrative Court. The appointment of the Secretary-General of the Office of the Administrative Courts must be made upon nomination by the President of the Supreme Administrative Court and approval by the Judicial Commission of Administrative Courts as provided by law. The Office of the Administrative Courts shall have autonomy in personnel administration, budgeting and other activities as provided by law.

Part 5 : Military Courts

Section 228. Military Courts shall have the jurisdiction to try and adjudicate criminal cases committed by persons who are subjected to the jurisdiction of the Military Courts and other cases as provided by law.

The appointment and removal from office of military judges shall be as provided by law.