Translation:Constitutional Court Decision No. 2/2557

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Constitutional Court Decision No. 2/2557 (2014)
the Constitutional Court of Thailand, translated from Thai by Wikisource

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The Constitutional Court Decision No. 2/2557 dated 24 January 2014 concerning a petition of the Election Commission for a decision of the Constitutional Court under the Constitution, section 214, on grounds of a dispute over the authority of the Election Commission and the Council of Ministers to redetermine the date of a general election of Representatives.

the Constitutional Court of Thailand1599961Constitutional Court Decision No. 2/25572014Wikisource

The Petitioner submitted a petition...

The Petitioner requested...

The preliminary question the Court needs to handle is whether or not the Court is competent to address the case

The Court will now deal with the following questions:

1. Can and how can the date of a general election of Representatives be redetermined?

2. Which organ is competent to redetermine the date of a general election of Representatives?

For these reasons, the Court hereby decides...

(23)
Constitutional Court Decision^[1]

In His Majesty's Name

The Constitutional Court

Decision No. 2/2557

Case No. 7/2557

Re: A petition of the Election Commission for a decision of the Constitutional Court under the Constitution, section 214, on grounds of a dispute over the authority of the Election Commission and the Council of Ministers to redetermine the date of a general election of Representatives

The Election Commission ("EC"), Petitioner, submitted to the Constitutional Court ("Court") a petition for its decision under the Constitution, section 214. The following facts could be derived from the petition and the supplementary documents:

The Petitioner alleged that after the promulgation of the Royal Decree Dissolving the House of Representatives, BE 2556 (2013), on 9 December 2013, which resulted in the termination of the memberships of the Representatives, its section 4 schedules a general election of Representatives to be held on Sunday, 2 February 2014, and section 5 places the Prime Minister and the EC President in charge of the Royal Decree. The Petitioner then issued the EC Announcement on Recruitment of Representatives dated 12 December 2013 by which the political parties were required to submit the lists of party list candidates from 23 December 2013 to 27 December 2013 and the recruitment of constituency candidates was opened from 28 December 2013 to 1 January 2014. During the period of submission of the lists of party list candidates, a group of protesters laid siege to the submission venue at Kila Wet Building 2, the (Thai–Japanese) Bangkok Youth Centre, Din Daeng District, Bangkok, and offered resistance to the police officers in charge thereof, leaving many dead and injured. The Petitioner issued a material statement to the Cabinet Secretary ("CS") in order to express its condolence. It also apologised the public for its failure to orderly hold the recruitment. However, it deems that if the general election is still be held on Sunday, 2 February 2014, amongst the conflicting ideas about the election and without prior adoption of any understanding and agreement for common peace, various forms of violence would ensue.

The CS later informed the EC Secretary General that the Council of Ministers resolved on 7 January 2014 to acknowledge the material statement of the Petitioner. The CS also communicated to the EC Secretary General the following opinion of the Council of State with respect to the said statement:

1. It is the duty of the Petitioner to organise the election on the date determined by the Royal Decree Dissolving the House of Representatives, BE 2556 (2013). Should any person obstruct an activity of the Petitioner, the Petitioner is competent to exercise its discretion to enforce the relevant laws for the purpose of maintaining the fairness and justness of the election. To this end, the Petitioner may seek cooperation from the Government whose duty is to command and supervise the pertinent authorities in the Executive Branch in supporting the activities of the Petitioner.

2. A polling day may be changed at discretion of the Petitioner only in the events mentioned in the Organic Act on Election of Representatives and Instatement of Senators, BE 2550 (2007) ("OARS"), section 78.

After the recruitment of the constituency candidates was opened, the Petitioner received information from several Provincial EC Offices that the recruitment was disrupted by the Civil Council for Thailand's Perfect Democracy with the King as Head of State^[2] ("CCDK"). In consequence, only one candidate could be registered in many constituencies and no any candidate could be subscribed in some other constituencies. Furthermore, the EC Office received from the State Audit Office ("SAO") the Urgent Memorandum No. SA 0012/0118 dated 8 January 2014, Re: 25th audit of Election Commission's disbursement of money during organisation of general election of Representatives. The SAO expressed its concern and fear over the disbursement of the public budget of three thousand, eight hundred and eighty five million baht, as it saw a high risk that the budget would be waste and its disbursement would not be cost-effective. For the sake of the effective disbursement of the public money and for the purpose of preventing and reducing any risk which may arise from the use of a large amount of public money, the SAO advised the Petitioner to reconsider the organisation of the election on the date scheduled.

On 12 January 2014, the Petitioner submitted to the Prime Minister its opinion that the Government ought to enact a royal decree to redetermine the date of the general election of the Representatives, in order to enable every political party to hold a joint conference and peacefully reach any conclusion in favour of the fair and just election. The Petitioner views that in the prevailing situation where the society is undergoing such a serious political crisis which is not likely to come to an end within a brief period of time, if the general election is still conducted on Sunday, 2 February 2014, according to the Royal Decree Dissolving the House of Representatives, BE 2556 (2013), the Petitioner would be unable to fairly and justly organise the approaching election pursuant to the purposes of the Constitution and the political conflict would worsened to the extent exposing the lives and property of a great number of citizens to danger. The Petitioner deems that the Prime Minister, who is accountable for the enactment and countersigning of royal decrees by virtue of the Constitution, section 187 in conjunction with section 195, must enact a royal decree to redetermine the election date. Having received the memorandum from the Petitioner, the Prime Minister fails to enact a royal decree to reschedule the general election of Representatives. Despite that, she expressed her view through public media that the rescheduling of a general election of Representatives cannot be done, and that neither the Prime Minister nor the Petitioner is competent to redetermine the date of a general election of Representatives. The Petitioner finds that the described event leads to a conflict of authority between two constitutional organs other than the courts, that is, the Prime Minister, as Head of the Council of Ministers, and the Petitioner, and this conflict needs to urgently be decided by the Court for the following reasons:

1. The Constitution, sections 235 and 236, charge the Petitioner with controlling and organising or causing to be organised in a fair and just manner the elections of Representatives. By this authority vested in the Petitioner by the Constitution, the Petitioner is empowered to act on behalf of the Government, the National Assembly and the courts as necessary for enforcing the laws, enacting the laws and adjudging upon the problems or disputes in relation to elections. The enactment of a royal decree to determine the date of an election is the prerogative of the King and the Prime Minister, representing the Government, is required to countersign it. When the Petitioner finds a necessity arising from an obstruction to the organisation of an election to the degree that the organisation would not be completed or, even completed, would be useless or defective, the Petitioner may redetermine the date of such election. Accordingly, the Petitioner, as an agency accountable for controlling or organising or causing to be organised the elections, is entitled to advise the Prime Minister, who is the Head of the Council of Ministers, to enact a new royal decree to reschedule a general election of Representatives and the Prime Minister is obliged to provide cooperation so that the election could be accomplished in agreement with the purposes of the Constitution.

2. The Petitioner is bound to control and organise or cause to be organised an election of Representatives within a period of time fixed by the Constitution, section 108, paragraph 2. The Petitioner has carried out the organisation and its preparations and has made an effort to organise the election on the scheduled date. But since the organisation has been impeded by the political conflicts, it could be conjectured that the continuation of the organisation would become impossible or in vain, breaching the purposes of the Constitution in consequence. Moreover, the sixty day period under the Constitution, section 108, paragraph 2, is intended for a usual situation. In this unusual situation, the Petitioner has unanimously resolved that a royal decree should be enacted to reschedule the general election of Representatives to a new appropriate period after a joint conference of the officers in charge of the Royal Decree dissolving the House of Representatives. As no provision of the Constitution directly governs such an exceptional case as described, section 7 may then apply. The Petitioner therefore requested the Court to decide the following:

1. Can the date of a general election of Representatives be redetermined in case of an inevitable necessity as alleged in the petition?

2. To the Petitioner or the Council of Ministers, represented by the Prime Minister who is exclusively competent to advise the King to sign a royal decree determining an election date and to countersign it, does the power to redetermine the date of a general election of Representatives belong?

The preliminary question the Court needs to handle is whether or not the Court is empowered by the Constitution, section 214, to address this petition. The Court is of the following opinion. The Constitution, section 214, prescribes that where there arises a conflict of authority between the National Assembly, the Council of Ministers or two or more constitutional organs which are not courts, the President of the National Assembly, the Prime Minister or those organs shall refer the matter and their opinions to the Court for further decision. Such a conflict of authority as referred to in the Constitution occurs when there is a disagreement or dispute over the exercise of authority of two organs or more and the authority is granted by the Constitution. The said dispute or disagreement must actually have come to pass. If it is merely a need of advice or a doubt as to the constitutional authority of any organ, it does not fall under the competence of the Court.

According to the facts stated in the petition, the EC, which is a constitutional organ, asserted the following allegation. After the general election of Representatives was scheduled by the Royal Decree Dissolving the House of Representatives, BE 2556 (2013), to be held on Sunday, 2 February 2014, the Petitioner determined the periods of recruitment of party list candidates and constituency candidates. However, it appeared that, during the said period, a group of protesters blocked the recruitment venues and clashed with the police officers to the extent leaving many dead and injured. The Petitioner then submitted a material statement to the CS, advising the Council of Ministers to adjourn the election. The CS subsequently informed the EC Secretary General that the Council of Ministers passed a resolution on 7 January 2014 to acknowledge the material statement of the Petitioner. The CS also communicated to the Petitioner the opinion of the Council of State that the Petitioner bears the duty to hold an election as scheduled, that in cases any person obstructs its activity, the Petitioner may enforce the relevant laws to maintain the fairness and justness of the election, and that the change of an election date may be made at the discretion of the Petitioner only in the events set out in the OARS, section 78. Following the opening of the recruitment of constituency candidates, the Petitioner was informed by many Provincial EC Offices that the disruption of the recruitment resulted in there being only one candidate in several constituencies and there even being no any candidate in certain constituencies. Additionally, the SAO informed the Petitioner that the public budget is likely to be waste and its disbursement would not fulfill the purposes of the election. The Petitioner then advised the Prime Minister that the Government ought to enact a royal decree to redetermine the date of the general election so that all political parties would hold a joint conference and peacefully adopt any conclusion concerning the election. Not only failing to enact any royal decree to reschedule the general election, the Prime Minister also expressed her view through public media that neither the Prime Minister nor the Petitioner may order such rescheduling. This therefore brings about a conflict of authority between the EC and the Council of Ministers, represented by the Prime Minister, regarding the enactment of a royal decree to redetermine the date of a general election. The conditions and criteria under the Constitution, section 214, are met and allows the Court to address the petition.

Having reviewed the petition and the supplementary documents, the Court finds that the obtained facts suffice to adopt any decision upon the questions of law arising from the conflict of authority as described in the petition and the Court may deal with these questions without any examination of evidence. The Court then sets up two questions: First, can and how can the date of a general election of Representatives as determined by a royal decree dissolving the House of Representatives be redetermined? And second, to which organ do the authority and accountability concerning the redetermination of the date of a general election belong?

The material grounds for and the origins of the petition are the conflicts and discord amongst the people of the Nation, involving the demonstrations staged by various groups of people and the CCDK to annul the bill amnestying offenders in public political demonstrations and political expressions, the constitutional amendment on senatorial sources which contravened the Constitution and the rule of law, as well as the denial of the judicial power. When the Government enacted the Royal Decree Dissolving the House of Representatives, BE 2556 (2013), which schedules a general election of Representatives to be held on Sunday, 2 February 2014, the said groups of people and the CCDK deem that the Government is no longer legitimate to run the Nation and they disrupt the election with a view to calling for a political reform before the election, leading to the ongoing anti-government campaigns.

The first question – Can and how can the date of a general election of Representatives determined by a royal decree dissolving the House of Representatives be redetermined?

Upon due consideration, the Court entertains the following opinion. The Constitution, section 108, paragraph 1, prescribes that it is the prerogative of the King to dissolve the House of Representatives in order to hold an election of new Representatives. Paragraph 2 provides that the dissolution of the House of Representatives shall be effected by a royal decree, that a general election of new Representatives must be scheduled to be held within a period of not less than forty five days but not more than sixty days from the date the House of Representatives is dissolved, and that such election must be held on the same date throughout the Kingdom. And paragraph 3 states that the House of Representatives may be dissolved only once in one event. Under the mentioned provisions of the Constitution, the King is empowered to dissolve the House of Representatives upon advice of the Prime Minister and the dissolution must be effected by a royal decree enacted by virtue of the Constitution, section 108, paragraph 2. A royal decree dissolving the House of Representatives is thus different from the general royal decrees enacted under the acts or emergency decrees. Moreover, a royal decree dissolving the House of Representatives is required to contain the date of a general election which must take place within a period of not less than forty five days but not more than sixty days from the dissolution, so as to enable the election-related persons to sufficiently be prepared and allow every political party and candidate to enjoy fairness.

The Royal Decree Dissolving the House of Representatives, BE 2556 (2013), contains two subject matters: firstly, section 3 dissolved the House of Representatives to pave the way for an election of new Representatives, and secondly, section 4 schedules a general election of Representatives to be held on Sunday, 2 February 2014. Moreover, section 5 requires that the Prime Minister and the EC President be in charge of the Royal Decree.

The first subject matter which resulted in the dissolution of the House of Representatives indicates that when the King has exercised his prerogative to dissolve the House of Representatives according to an advice of the Prime Minister, the Prime Minister may not request him to dissolve the House again, as the House may only be dissolved for one time in one event pursuant to the Constitution, section 108, paragraph 3.

The second subject matter which deals with the scheduling of the election of Representatives directs the general election of Representatives to be held on Sunday, 2 February 2013. Although it is the Prime Minister who advises the King to fix a general election date and countersigns his royal decree, the fixation is in connection with the control or organisation of elections which is the authority of the EC under the Constitution, section 235, as well as certain periods of time for the EC to carry out various processes concerning the organisation. The Prime Minister thus needs to take counsel of the EC before specifying the date in the royal decree. After the date is fixed, the EC is competent to exercise the constitutionally granted authority to hold activities to control and organise or cause to be organised the election. This indicates a general principle that a royal decree dissolving the House of Representatives must contain the date of a general election of Representatives and neither the Prime Minister nor the EC may alone change the date from that stipulated in the royal decree.

However, the Constitution, section 108, paragraph 2, requires a royal decree dissolving the House of Representatives to contain the date of a general election for the mere purpose of expediting the installation of the new Representatives and Government to further administer the Nation according to the methods laid down by the Constitution. The Constitution does not intend to establish a jus cogens. In consequence, where arises a casus fortuitus or other necessity which prevents the scheduled general election from being accomplished according to the purposes of the Constitution or which may expose the Nation or its security to detriment, or where occurs a considerable natural disaster, the general election date specified in the royal decree dissolving the House of Representatives can be redetermined in line with the requirements of the situation. The Court therefore deems that in cases such necessity requires a general election to be held on a date different from that set forth in the royal decree dissolving the House of Representatives, the rescheduling can be done by a royal decree enacted to modify the originally determined date of general election, not by an EC resolution as in the case of redetermining the date of election in certain polling stations or constituencies according to the OARS, section 78 or 108. An example could be seen in Thailand during the time the Constitution of the Kingdom of Thailand, Buddhist Era 2540 (1997), was in force, a general election was scheduled by the Royal Decree Dissolving the House of Representatives, BE 2549 (2006), to be held on 2 April 2006 and was rescheduled to 2 April 2006 by the Royal Decree Amending the Date of General Election of Representatives, BE 2549 (2006), after the general election of 2 April 2006 was found unconstitutional by the Court on grounds of noncompliance of regulations.

The second question – To which organ do the authority and accountability concerning the redetermination of the date of a general election of Representatives belong?

Upon due consideration, the Court entertains the following opinion. In the events that the EC is unable to organise a general election of Representatives in conformity with the concerned provisions of the Constitution and laws, on account of a casus fortuitus or other necessity which debars a general election from being held according to the date mentioned in a royal decree dissolving the House of Representatives or which would render such election unfair and unjust and render the purposes of the Constitution void, the general election may be rescheduled by a royal decree. Although it is the authority of the Prime Minister to advise the King to enact a royal decree, the Prime Minister is required to hold prior conference with the EC, as the Constitution, section 235, empowers the EC to control and organise or cause to be organised in a fair and just manner the elections of Representatives, and paragraph 2 of such section places the EC President in charge of the OARS, which means he is accountable for the control and organisation of the elections in accordance with the said organic act. In addition, the Royal Decree Dissolving the House of Representatives, BE 2556 (2013), section 5, prescribes that the EC President shall be in charge of this Royal Decree together with the Prime Minister. When there is more than one officer in charge of any law, those officers must discharge their duties and take accountability on the basis of their respective authority and must cooperate with each other and the related agencies on the fulfillment of the purposes of such law. A royal decree dissolving the House of Representatives requires both the Prime Minister and the EC President to be in charge, because it intends to have both officers accountable for the fair and just organisation of a general election pursuant to the purposes of the Constitution. It could therefore be deemed that if the general election date originally specified in a royal decree dissolving the House of Representatives needs to be changed, then the Prime Minister and the EC President, who are in charge of thereof, bear common authority and accountability to prevent any public disaster and serious threat from attacking the Nation or its citizens, with good faith and in the interest of the Nation and the peace of its people. Should there be any serious injury to the Nation or its citizens arising from the organisation of the general election as scheduled by the royal decree, the EC must inform the Prime Minister or the Council of Ministers who may further enact a royal decree to redetermine the date of the general election. The Prime Minister and the EC President who are in charge of a royal decree dissolving the House of Representatives share this authority and accountability, for the sake of the smooth and successful organisation of a general election in keeping with the purposes of the Constitution.

For these reasons, the Court hereby decides, unanimously, that the date of a general election of Representatives as determined by a royal decree dissolving the House of Representatives can be redetermined and, by a majority of votes, that the redetermination of the date of a general election of Representatives is the joint authority and accountability of the Prime Minister and the EC President.

Charoon Intachan

President of the Constitutional Court

Jaran Pukditanakul