Thailand 2007 Constitution

CHAPTER X. THE COURTS

Part 1. General Provisions

Section 197

The trial and adjudication of cases are the powers of the Courts, which must proceed in accordance with the Constitution and the law and in the name of the King.

A judge is free and independent to adjudicate correctly, justly, and quickly in accordance with the Constitution and law.

Transfer of Judges and Justices without their consent is prohibited except for timing as provided by the law and promotion, or in the case of disciplinary action or being a criminal defendant, or prejudicial to an on-going trial, unavoidable necessity, or force majeure, as provided by law. Judges and Justices are prohibited to hold political positions.

Section 198

All courts can only be established 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 is prohibited if it would have an effect of changing or amending the law on the organization of Courts or on judicial procedure for the purpose of its application to a particular case.

Section 199

Where there is a dispute over the competent jurisdiction among 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 members as provided by law.

The rules of 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, the Administrative Court or any other Court as provided by law.

Part 2. Constitutional Court

Section 204

The Constitutional Court consists of the President and eight other Judges to be appointed by the King upon advice of the Senate from the following persons:

1. three Judges of the Supreme Court of Justice holding a position of not lower than Judge of the Supreme Court of Justice and elected at a general meeting of the Supreme Court of Justice by secret ballot;
2. two Judges of the Supreme Administrative Court elected at a general meeting of the Supreme Administrative Court by secret ballot;
3. two qualified persons in law with thorough knowledge and expertise of law, to be selected under Section 206;
4. two qualified persons in political science, public administration, or other social sciences with thorough knowledge and expertise in public administration, to be selected under Section 206.

Where no Judges in the Supreme Court of Justice or Justices in the Supreme Administrative Court are selected under (1) or (2), the general meeting of the Supreme Court or the general meeting of the Supreme Administrative Court as the case may be select qualified candidates without prohibited characteristics under Section 205 and with knowledge and expertise in law fit for the performance of duties as Constitutional Court justices under (1) or (2) as the case may be.

Those selected under paragraph one shall meet and select the President of The Constitutional Court and notify the President of the Senate.

The President of the Senate shall countersign the royal appointment of the President and Justices 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, in the past, a Minister, an Election Commissioner, an Ombudsman, a member of the National Human Rights Commission, a member of the National Counter Corruption Commission or a member of the State Audit Commission, or having served, in the past, in a position of not lower than Deputy Prosecutor General, Director-General or its equivalent, or holding a position of not lower than Professor, or a lawyer of at least thirty years of continuous experience from the day 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 before 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 proceed 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 Opposition Leader, and one President to be selected from and among the Presidents of the statutory Independent Bodies. The Selection Committee thus formed shall select and elect the qualified persons under Section 204 (3) and (4) within thirty days from the date when selection and election has to be made and submit a name- list of those selected with their consent to the President of the Senate. The decision of the selection process is made by an open ballot and must have a vote of no less than two-third of the total number of the existing Committee members. If there are some vacancies in the Committee or if there are members but these cannot perform duties, if there are fewer than one half, the members available shall constitute the Selection Committee;
2. The President of the Senate shall convoke the Senate for a sitting for the purpose of passing persons of approval of the selected under (1) within 30 days from the date of receiving the name list. The vote shall be by secret ballot. If the Senate approves, the President of the Senate submits the name(s) to the King for appointment. Otherwise, in part or in whole, the President of the Senate shall send the names of those rejected back to the Selection Committee for the Constitutional Court, complete with reasons. If the Selection Committee agrees with the rejection, then the Senate shall renew the search. If the Selection Committee disagrees and resolves to confirm the original resolution with unanimous votes, the President of the Senate shall submit the name to the King for appointment.

Where it is not possible to select qualified persons within the time limit under (1), for any reason, the general meeting of the Supreme Court shall appoint three judges in the Supreme Court with positions of not lower than Judges of the Supreme Court; the general meeting of the Supreme Administrative Court shall appoint two Justices for Selection Committee to perform the functions in place of (1).

Section 207

The President and Judges of the Constitutional Court shall not:

1. be a Government official holding a permanent position or receiving a salary;
2. be an official or employee of a State agency, State enterprise or local government organization or a director or adviser of a State enterprise or State agency;
3. hold any position in a partnership, a company or an organization 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 meeting of the Supreme Court of Justice, the general meeting of the Supreme Administrative Court or the Senate, as the case may be, has elected the person in (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 in (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. 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 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 Justices 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;
7. being sentenced by a judgment to imprisonment even if the judgment is not final or the sentence is suspended except for negligence, minor offences, or defamation.

When a case under paragraph one occurs, the remaining judges shall continue to perform their duties subject to Section 216.

Section 210

Where the President and Justices of the Constitutional Court vacate office en masse at the expiration of term, the steps under Section 204 and Section 206 shall be taken within thirty days as from the date of the vacation of office.

Where the President and Justices of the Constitutional Court vacate office otherwise than in the case under paragraph one, the following steps shall be taken:

1. In the case of a Justice of the Constitutional Court who was selected at the general meeting of the Supreme Court of Justice, Section 204 shall apply within 30 days from the date of vacating office;
2. In the case of a Justice of the Constitutional Court who was selected at the general meeting of the Supreme Administrative Court, Section 204 shall apply within 30 days from the date of vacating office;
3. In the case of a Justice of the Constitutional Court under Section 204 (3) or (4), Section 206 shall apply within 30 days from the date of vacating office.

In the case where some or all Justices of the Constitutional Court vacate office out of a session of the National Assembly, the steps under Section 204 shall be taken within 30 days 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.

Section 211

In applying 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 an 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 its opinion in the course of official service, to the Constitutional Court for consideration and decision. Meanwhile, the Court can continue deliberation, but hold the judgment pending the decision from the Constitutional Court.

In the case where the Constitutional Court is of the opinion that the objection of a party under paragraph one is not essential for 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.

Section 212

A person whose rights and freedoms provided by this Constitution have been violated is entitled to petition to the Constitutional Court for decision whether the provisions of the law contradict the Constitution.

The exercise of the rights to petition under paragraph one shall be the last resort in accordance with the provisions of the organic Act on the Constitutional Procedure.

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 Courts, inquiry officials, a State agency, State enterprise or local government organization 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 a dispute arises as to the powers and duties of two or more non-court organs under the Constitution, the President of the National Assembly, the Prime Minister, or such organs shall submit the matter together with an opinion to the Constitutional Court for decision.

Section 215

In the case where the Constitutional Court is of the opinion that a matter or case having been petitioned for its decision is a matter or case that it has once made a decision on, the Constitutional Court may refuse to accept the matter or case for consideration.

Section 216

The quorum of judges of the Constitutional Court for hearing and giving a decision shall consist of 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 give opinions for 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 all judges thereof shall be published in the Government Gazette.

The decision of the Constitutional Court must at least consist of the background or allegation, 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 in accordance with 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 nominated by the President of the Constitutional Court and be approved by judges of the Constitutional Court as provided by law.

The Office of the Constitutional Court shall have autonomy in personnel administration, budget and other activities as provided by law.

Part 3. Courts of Justice

Section 218

The Courts of Justice have the powers 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, namely: Courts of First Instance, Courts of Appeal, and the Supreme Court of Justice, except otherwise provided by this Constitution or other laws.

The Supreme Court of Justice shall have powers as provided by the Constitution or the law to consider and adjudicate cases brought before it directly, appeal cases, or review the decisions or orders of the Court of First Instance or the Court of Appeal except in cases in which the Supreme Court of Justice thinks the legal point and facts presented for appeal are not sufficiently substantive. In such cases, the Supreme Court shall have the powers not to accept the case subject to the procedure of the general meeting.

The Supreme Court shall have the power to consider and adjudicate a case connected with elections and revocation of the right to stand in the election of members of the House of Representatives. And the Appellate Court shall have the power to consider and adjudicate cases connected with elections and revocation of the right to stand in local elections and election of local administrators. The proceedings shall be in accordance with the procedure of the general meeting of the Supreme Court, using the inquisitorial method and acting quickly.

There shall be in the Supreme Court of Justice a Criminal Division for Persons Holding Political Positions, which quorum in court consists of nine Judges of the Supreme Court of Justice holding a position of not lower than Judge of the Supreme Court of Justice and elected at a general meeting of the Supreme Court of Justice by secret ballot and on a case-by-case basis.

The competence 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 organic law 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, salary increase, 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.

The approval by the Judicial Commission of the Courts of Justice under paragraph one and paragraph two, has to consider about erudition, performance and moral ethic of his or her mainly.

Section 221

The Judicial Commission of the Courts of Justice consists of the following persons:

1. President of the Supreme Court of Justice as Chairman,;
2. Qualified members of all levels of Courts: six from the Supreme Court, four from the Appellate Courts, and two from the Courts of First Instance, who are judges of each level of Courts and elected by judicial officials of all level of Courts;
3. Two qualified members who are not or were not judicial officials and who are elected by the Senate.

The qualifications, prohibitions and procedure for the election of the qualified members shall be in accordance with the provisions of the law.

In cases of no qualified members under paragraph one (3) or not complete of two qualified members; if the Judicial Commission of the Courts of Justice less than 7 members see the necessity of the pressing that shall be approved, the Judicial Commission of the Courts of Justice shall be one of the composition and shall have a meeting for making the decision.

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 shall be proposed by the President of the Supreme Court of Justice and must be approved by the Judicial Commission of the Courts of Justice.

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

Part 4. Administrative Courts

Section 223

Administrative Courts have the powers to try and adjudicate cases of dispute between a State agency. State enterprise, local government organization, or State official under the super-intendance or supervision of the Government on one part and a private individual on the other part, or between a State agency. State enterprise, local government organization, or State official under the superintendence or supervision of the Government on one part and another such agency, enterprise, organization or official on the other part, which is the dispute as a consequence of the act or omission of the act that must be, according to the law, performed by such State agency, State enterprise, local government organization, or State official, or as a consequence of the act or omission of the act under the responsibility of such State agency, State enterprise, local government organization or State official in the performance of duties under the law, as provided by law.

The powers of the Supreme Administrative Courts under paragraph one are not combine with the adjudicate cases of the Constitution Court or any act that in the powers of the Constitution Court under that 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.

Number of administrative judges in each Administrative Court shall be prescribed by 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. President of the Supreme Administrative Court as Chairman;
2. Nine qualified members who are administrative judges and elected by administrative judges among themselves;
3. Three qualified members, two of whom are elected by the Senate and the other by the Council of Ministers.

The qualifications, prohibitions and procedure 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 less than three of them, if members of the Judicial Commission of the Administrative Courts of not less than six are of the opinion that any case is an urgent matter requiring the Commission’s approval, such members shall form a quorum to consider 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 nominated by the President of the Supreme Administrative Court and be approved by the Judicial Commission of Administrative Courts as provided by law.

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

Part 5. Military Courts

Section 228

Military Courts have the powers to try and adjudicate criminal cases, of which perpetrators are within 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.