Thailand 2017 Constitution

CHAPTER XI. CONSTITUTIONAL COURT

Section 200

The Constitutional Court consists of nine judges of the Constitutional Court appointed by the King from the following persons:

1. three judges in the Supreme Court holding a position not lower than Presiding Justice of the Supreme Court for not less than three years elected by a plenary meeting of the Supreme Court;
2. two judges of the Supreme Administrative Court holding a position not lower than judge of the Supreme Administrative Court for not less than five years elected by a plenary meeting of the Supreme Administrative Court;
3. one qualified person in law obtained by selection from persons holding or having held a position of Professor of a university in Thailand for not less than five years, and currently having renowned academic work;
4. one qualified person in political science or public administration obtained by selection from persons holding or having held a position of Professor of a university in Thailand for not less than five years, and currently having renowned academic work;
5. two qualified persons obtained by selection from persons holding or having held a position not lower than Director-General or a position equivalent to a head of government agency, or a position not lower than Deputy Attorney-General, for not less than five years.

In the case where the Presiding Justice of the Supreme Court cannot be selected under (1), the plenary meeting of the Supreme Court may select a person from those who have held a position not lower than Judge in the Supreme Court for not less than three years.

The period under paragraph one shall be counted to the date of election or the date of application for selection, as the case may be. In a case of unavoidable necessity, the Selection Committee may announce a decrease of the period of time under paragraph one or paragraph two, but the decrease shall not result in a period of less than two years.

Section 201

A judge of the Constitutional Court shall also possess the qualifications as follows:

1. being of Thai nationality by birth;
2. being not less than forty-five years and not reaching sixty-eight years of age as from the date of election or the date of application for selection;
3. having graduated with not lower than a Bachelor’s degree or its equivalent;
4. being of evident integrity;
5. being sufficiently in good health to perform duties efficiently.

Section 202

A judge of the Constitutional Court shall not be under any of the prohibitions as follows:

1. being or having been a judge of the Constitutional Court or holding a position in any Independent Organ;
2. any of the prohibitions under section 98 (1), (2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (17) or (18);
3. having been sentenced by a final judgment to imprisonment, except for the case of an offence committed through negligence or a petty offence;
4. being or having been a Member of the House of Representatives, a Senator, a political official, or a member of a local assembly or local administrator at any time during the period of ten years before election or application for selection;
5. being or having been a member or holder of other position in a political party at any time during the period of ten years before election or application for selection;
6. being a government official holding a permanent position or receiving salary;
7. being an official or employee of a State agency, State enterprise or local government organisation or a director or adviser of a State agency or State enterprise;
8. holding any position in a partnership, a company or an organisation carrying out business with a view to making and sharing profit or income, or being an employee of any person;
9. engaging in an independent profession;
10. being involved in circumstances which constitute a serious violation or failure to comply with ethical standards.

Section 203

In the case where a person suitable for appointment as a judge of the Constitutional Court must be selected, it shall be the duty and power of the Selection Committee which shall consists of:

1. President of the Supreme Court as Chairperson;
2. President of the House of Representatives and Leader of the Opposition in the House of Representatives as members;
3. President of the Supreme Administrative Court as member;
4. persons appointed by the Independent Organs, from persons who have the qualifications under section 201, are not under any of the prohibitions under section 202, and have never performed any duty in the Constitutional Court or Independent organs comprising one person from each organ, as members.

In the case where there is no person holding a position of member of selection committee under (2) or the number of members under (4) is incomplete by any cause, the selection committee shall consist of its remaining members.

The Secretariat of the Senate shall perform duties as the administrative unit of the selection committee.

The Selection Committee shall carry out the selection of persons who are suitable for appointment as judges of the Constitutional Court according to rules, procedures and conditions prescribed in the Organic Act on the Procedures of the Constitutional Court.

In case where there is a question pertaining to the qualifications of an applicant, a person who has been elected or selected, it shall be the duty and power of the Selection Committee to consider the matter, and its decision shall be final.

In the selection process, the Selection Committee shall deliberate with a view to selecting a person having high responsibility, courage in performing duties, and ethical behaviour that can be a good role model of the society. In addition to the process of announcement for application for the position, the Selection Committee may select persons who are generally suitable, provided that consent from such person must be obtained.

Section 204

A person who is elected or selected to hold the position of judge of the Constitutional Court must obtain the approval of the Senate with the votes of not less than one-half of the total number of the existing members of the Senate.

In the case where the Senate disapproves any selected or elected person, a new person shall be selected or elected and thereafter submitted to the Senate for approval.

After the selected or elected persons are approved by the Senate, they shall elect one amongst themselves to be the President of the Constitutional Court and inform the result to the President of the Senate.

The President of the Senate shall report to the King for appointment of the President and judges of the Constitutional Court and countersign the Royal Command.

Section 205

A person approved by the Senate to be a judge of the Constitutional Court who has not yet vacated office under section 202 (6), (7) or (8) or is still engaged in a profession under (9), shall present evidence of resignation or termination from engaging in such profession under section 202 (6), (7), (8) or (9) to the President of the Senate within the period as provided by the President of the Senate, which shall be the period before the President of the Senate reports to the King under section 204 paragraph four. In case of failure to present evidence within such period, it shall be deemed that such person has waived his or her rights and a new person shall be selected or elected.

Section 206

In considering an approval under section 204, if the number of persons approved by the Senate is not fewer than seven persons, the approved persons shall elect one amongst themselves to be the President of the Constitutional Court and inform the President of the Senate of the result without awaiting the complete number of nine approved persons, and upon receiving Royal appointments, the Constitutional Court shall perform its duty and power for the time being. During that period, the Constitutional Court shall be deemed to consist of number of the existing judges of the Constitutional Court.

Section 207

A judge of the Constitutional Court shall hold office for a term of seven years as from the date of appointment by the King and shall hold office for only one term.

Section 208

In addition to the vacation of office upon the expiration of term, a judge of the Constitutional Court vacates office upon:

1. being disqualified under section 201 or being under any of the prohibitions under section 202;
2. death;
3. resignation;
4. being seventy-five years of age;
5. a resolution of the Constitutional Court by the votes of not less than three-fourths of the total number of the existing judges of the Constitutional Court to remove such person from office on the ground of violation or failure to comply with ethical standards of the Constitutional Court;
6. removal from office due to a cause under section 235 paragraph three.

The President of the Constitutional Court who resigns shall also vacate the office of judge of Constitutional Court.

In the case where a judge of the Constitutional Court vacates office at the expiration of term, such judge of the Constitutional Court who vacates office shall remain in office to perform duties until a newly appointed judge of the Constitutional Court takes office.

In case where there is a question as to whether a judge of the Constitutional Court has vacated office under (1) or (3), it shall be duty and power of the Selection Committee under section 203 to make a decision. A decision of the Selection Committee shall be final.

A petition, petitioner, consideration, and decision under paragraph four shall be in accordance with rules and procedures prescribed in the Organic Act on the Procedures of the Constitutional Court.

Section 209

In the period during which a judge of the Constitutional Court has vacated office before the expiration of the term, and a judge of the Constitutional Court has not yet been appointed to fill the vacancy, the remaining judges of the Constitutional Court may continue to perform duties.

The provisions under paragraph one shall not apply when the remaining number of judges of the Constitutional Court is fewer than seven persons.

Section 210

The Constitutional Court has duties and powers as follows:

1. to consider and adjudicate on the constitutionality of a law or bill;
2. to consider and adjudicate on a question regarding duties and powers of the House of Representative, the Senate, the National Assembly, the Council of Ministers or Independent Organs;
3. others duties and powers prescribed in the Constitution.

The submission of a petition and the conditions for submitting a petition, the consideration and adjudication, the rendering of a decision, and the operation of the Court, except as prescribed by the Constitution, shall be in accordance with the Organic Act on the Procedures of the Constitutional Court.

The provisions of section 188, section 190, section 191, and section 193 shall also apply to the Constitutional Court mutatis mutandis.

Section 211

A panel of judges of the Constitutional Court for hearing and rendering a decision shall consist of not fewer than seven judges.

A decision of the Constitutional Court shall be made by a majority of votes, unless otherwise prescribed by the Constitution.

In the case where the Constitutional Court accepts any case for consideration, any judge of the Constitutional Court may not refuse to adjudicate on the ground that the case does not fall under the jurisdiction of the Constitutional Court.

The decision of the Constitutional Court shall be final and binding on the National Assembly, the Council of Ministers, Courts, Independent Organs, and State agencies.

Section 212

In the application of a provision of law to any case, if a court by itself is of the opinion that, or a party to the case raises an objection with reasons that, such provision of law falls within the provisions of section 5 and there has not yet been a decision of the Constitutional Court pertaining to such provision, the court shall submit its opinion to the Constitutional Court for decision. During that time, the Court shall proceed with the trial, but shall temporarily stay its decision until a decision is made by the Constitutional Court.

In the case where the Constitutional Court is of the opinion that the objection of a party under paragraph one does not concern a matter which calls for 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 not affect final judgments of the Court, except in a criminal case where it shall be deemed that a person who has been convicted of a crime under a provision of law decided by the Constitutional Court as being unconstitutional under section 5 has never committed such offence, or where such person is still serving the sentence, he or she shall be released. However, this does not entitle such a person to claim for any compensation or damages.

Section 213

A person whose rights or liberties guaranteed by the Constitution are violated, has the right to submit a petition to the Constitutional Court for a decision on whether such act is contrary to or inconsistent with the Constitution, according to the rules, procedures and conditions prescribed by the Organic Act on Procedures of the Constitutional Court.

Section 214

In the case where a judge of the Constitutional Court must cease performing duties according to section 235 paragraph three, and there are fewer than seven judges remaining, the President of the Supreme Court and the President of the Supreme Administrative Court shall jointly appoint persons who possess the same qualifications and are not under any of the same prohibitions applicable to judges of the Constitutional Court to temporarily perform duties as judges of the Constitutional Court to complete the seat of nine judges. The appointed person shall perform duties as a judge of the Constitutional Court until the judge of the Constitutional Court who has been provisionally replaced is able to perform duties, or until a new judge is appointed to fill the vacancy.