Summary of the Decision of the Constitutional Tribunal

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Summary of the Decision of the Constitutional Tribunal
(Unofficial Translation)
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Democrat Party, Prachatippatai KaoNa Party                                  
 
 
Thai Rak Thai Party, Pattana Chart Thai Party, Pandin Thai Party

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(Unofficial Translation)
Summary of the Decision of the Constitutional Tribunal
Case Group 2
Decision no.1-2/2550 Dated 30 May B.E. 2550
Subject: The petition of the Attorney- General to dissolve the
Prachatippatai Kao Na Party and the Democrat Party.
The Attorney- General filed a petition to dissolve the Prachatippatai Kao
Na Party and the Democrat Party on the grounds of commission of acts
that violated Article 66 (2) and (3) of the Organic Act on Political Parties
of B.E. 2541. After the consideration of evidence in the enquiring
process, the Tribunal has reached a decision as follows:
1. The Election of Members of Parliament and Senators Act B.E.
2541 is still applicable and has not been revoked by Announcement No.
3 of the Council for Democratic Reform unlike the Constitution of the
Kingdom of Thailand B.E. 2540.
2. The Registrar of the political parties is able to file this case to the
Attorney-General for further submission of the petition to the
Constitutional Court without it being considered by the Election
Commission. This power is specifically given to the Registrar according
to Article 67 of the Political Parties Act.
3. The fact that the Registrar of the political parties filed the petition
to dissolve the Democrat Party on account of 8 issues and the Attorney-
General further submitted such petition arguing on only four issues, shall
be deemed that the Attorney-General has submitted the petition to the
Constitutional Court. Accordingly, there is no need to set up a committee
to collect the evidence and submit it to the Attorney-General in order to
re-submit it to the Constitutional Court for this is not the case where the
Attorney- General has not filed the petition to the Constitutional Court
under Article 67 paragraph 1 of the Political Parties Act.
4. The fact that the Constitutional Court ruled in its case no. 9/2549
that the general election of the members of Parliament held on 2 April
B.E.2549 up until the day of the decision was considered to be an
unlawful election under the Constitution of Thailand, has an implication
on all activities in relation to the election which falls within the scope of
duties of the Election Commission. However, such implication does not
give any effect on the nullification or revocation of the commission of
acts by the political parties which caused the dissolution of the parties.
2
As a result, the accusation against the Prachatippatai Kao Na Party, filed
by the Attorney-General is not invalid.
5. With respect to the speech given by leader and executive
committee members of the Democrat Party in relation to the performance
of Pol. Col. Thaksin Shinnawatra while in office as Prime Minister, as
having the behavior which can be understood that Pol. Col. Thaksin
Shinnawatra and some members of the government have hidden and joint
interests, it is thus, by making such public criticism, considered sound
because Pol. Col.Thaksin Shinnawatra is the Prime Minister who is a
public figure. The speech encouraging people to cast the ballot ‘no vote’
is a right of the people under the Constitution of the Kingdom of Thailand
B.E.2540, Article 326 (4) and the Election of Members of Parliament and
Senators Act B.E.2541, Article 56. Thus, this is not considered to be an
act of giving false statement or encouraging a misunderstanding of the
popularity of Pol. Col. Thaksin, the Party leader, and Thai Rak Thai
members who submitted their candidacy for election nor is it considered
to be an act of inducing people to cast a ‘no vote’ for any candidate or
party in every constituency.
6. On the accusation that the Democrat Party conspired with Mr.
Taksanai Keesun in taking Ms. Nipa Junpo, Ms. Ratchanu Tangsri and
Mr. Suwit Ob-oon to apply for membership to the Prachatippatai Kao Na
Party and to submit their candidacy for election to the House of
Representatives of Trang Province, then held a press conference that the
Thai Rak Thai Party hired the said three persons. The Tribunal believes
that Mr. Taksanai had taken the three candidates to apply for membership
to the said party and to submit their candidacy for election, knowing that
these three persons had been members of the Prachatippatai Kao Na Party
for less than 90 days. However, Mr. Satit and the Democrat Party did not
know nor supported the act done by Mr. Taksanai. The Tribunal does not
believe that Mr. Suthep Tueksuban made a press statement to defame the
Thai Rak Thai Party in its hiring of these three persons to submit their
candidacy for election.
7. On the accusation that the Democrat Party through Mr. Taikorn
Polsuwan hired Mr. Watawarit Tantipirom, leader of the Shewitteedekwa
Party, to defame Mr. Suwat Lipatapanlop, the executive member of Thai
Rak Thai Party, the Tribunal views that such accusation is unjustified;
however, it believes that Mr. Taikorn was seeking evidence from Mr.
Watawarit because Mr. Taikorn thought that the Thai Rak Thai Party
hired smaller parties to contest in the general election.
8. On the accusation that there has been an obstruction by the
Democrat Party in submitting candidacy for election of Ms. Pattama
Chaikate and colleagues at Songkla Province, the Tribunal believes that
3
there has been an obstruction. However, it does not believe that the
executive members and MPs of the Democrat Party took part in such
obstruction.
9. On the accusation that the Prachatippatai Kao Na Party issued the
fault affidavit with the knowledge that the said three persons had not been
the party members for 90 days in submitting their candidacy for election
to the House of Representatives, the Tribunal believes that Miss Issara or
Pornnarin Youngprasit, leader of the Prachatippatai Kao Na Party issued
the fault affidavit with the knowledge that such three persons had not
been the party members for 90 days.
Regarding the revocation of election rights of the executive
members of the parties for five years since the day which the court
decides that there should be a dissolution of the party, in accordance with
the Announcement of the Council for Democratic Reform, No. 27 (3),
such revocation is not a criminal sanction but it is a legal measure which
resulted from the laws empowering such parties’ dissolution if the parties
had carried out activities in violation of the Political Parties Act. The
objective of this law is to prevent the party’s executive directors having
caused damages to the country and to the democratic system to have an
opportunity to repeat the same commission during such period of time.
Even though the right to vote is a basic right in democratic system, it is
not prohibited to have the law identifying persons who are entitled to
have such right. Thus, in this case, the Announcement of the Council for
Democratic Reform can be applied retroactively with this party’s
dissolution.
The Tribunal has come to the conclusion that the Democrat Party
did not commit the act as it had been accused. Therefore, the Tribunal
hereby dismisses the case. The Prachatippatai Kao Na Party, however,
committed the act as it had been accused. Such act was considered to be
against the administrative tradition of the Kingdom of Thailand under the
Constitutional Monarchy with the King as Head of State and such act is
in violation of the law and good public moral of the people under the
Political Parties Act B.E. 2541, Article 66 (2) (3) since the commission of
the act lacked good consciousness of the people without paying due
regard to the damages and consequences to the country. The Tribunal,
therefore, declared to dissolve the Prachatippatai Kao Na Party and
withdraw the election rights of the party’s executive directors for five
years since the issuing date of the dissolution, in accordance with
Announcement of the Council for Democratic Reform No. 27 (3).
With the aforementioned reasons, the Tribunal hereby issues the
order to dissolve the Prachatippatai Kao Na Party, the 2nd accused, under
4
the Political Parties Act B.E. 2541, Article 67, in conjunction with Article
66(2) and (3), and also to withdraw the election rights of the nine
executive directors of the 2nd accused, under the announcement of the
Political Registrar Re: the Notification of the Establishment of the
Prachatippatai Kao Na Party, dated 24 March B.E.2548 for the period of
five years from the issuing date of the dissolution and in accordance with
Announcement of the Council for Democratic Reform No. 27 (3), dated
30 September B.E. 2549 and dismissed the request to dissolve the
Democrats Party, respondent No. 1.
*****

[********Q********]

(Unofficial Translation)

Summary of the Decision of the Constitutional Tribunal
Case Group 1


On 30 May 2007, the Constitutional Tribunal reached its decision
in the case between the Attorney –General, the Claimant, Thai Rak Thai
Party, Respondent No. 1, Pattana Chart Thai Party, Respondent No. 2,
Pandin Thai Party, Respondent No. 3, on the subject that the Attorney-
General has filed a petition to dissolve the Party of all three respondents.
The Constitutional Tribunal has thoroughly considered the petition,
rebuttal statement from the three respondents and all of the evidence of
the Parties concerned, and found, on the factual and legal basis, with the
following details in summary:
1. The Constitutional Tribunal has jurisdiction over the case in
accordance with section 35 of the Constitution of the Kingdom of
Thailand (Interim) B.E. 2549.
2. The filing of the petition to dissolve the Party is the authorized
power given to the Registrar of the political parties. If the matter appears
before the Registrar, notwithstanding wherever the source is, the
Registrar has the authority to inform the Attorney-General to file a
petition to the Constitutional Court to dissolve the Party.
3. The investigation of factual issue and determination of issues or
arguments are within the powers of the Registrar of the political parties in
accordance with the Organic Act on Political Parties of B.E. 2541, and is
not subject to the Organic Act on the Election Commission of B.E. 2541,
Section 19 paragraph 2 and 3. Moreover, it is the action under the order
of the Registrar of the political parties, not of the Election Commission,
so it is not bound by Section 40 of the Election Commission’s regulation.
4. The Organic Act of the Constitution of the Kingdom of
Thailand of B.E. 2540 has an equal legal standing with other general
legislations. Therefore, the revocation or termination of the Organic Act
of the Constitution of the Kingdom of Thailand B.E. 2540 requires a
revoking legislation or a new legislation issued in place of it. Hence, the
cause of party dissolution that occurred before is still valid and the action
that breaches the Organic Act still continues to be a breach. The
statement of the Secretariat of the Council for Administrative Reform is
merely an opinion and thus, does not have a legal binding effect to
terminate the two mentioned Organic Acts.
5. Section 328 of the Constitution of the Kingdom of Thailand
B.E. 2540 empowers the legislative branch to issue the law that has an
effect to revoke or dissolve political parties. This does not mean that it
could prevent legislative branch to issue the law that punishes political
party under the Organic Act on Political Parties of B.E. 2541 Sections
66(2), (3) and (4). Hence, this is not a provision in excess of necessity,
nor does it have an impact on the substantive freedom of individual rights
for collective establishment of a political party.
A rebuttal argument was raised that the legal provision was not
issued legitimately under the Constitution of the Kingdom of Thailand
B.E. 2540. Section 262 of the Constitution gives the right to rebut only
for members of the House of Representatives, the Senate and the Prime
Minister. It does not give rise to rebuttal on such matter by the Thai Rak
Thai Party.
6. As the Constitutional Court orders the political party to cease
action that undermines the Constitutional Monarchy with the King as
Head of State or the acquisition of administrative power over the country
through means not in accordance with this Constitution under the
Constitution of the Kingdom of Thailand B.E. 2540, the Constitutional
Court also has the power to exercise immediate discretion to dissolve
political parties under Section 63 paragraph 3 without having to first issue
an order to the political party to cease actions under paragraph 2.
7. The election on 2 April B.E. 2549, which has been annulled by
the said ruling of the Administrative Court, does not have the effect as to
nullify the previous conduct of wrongdoing as it is separate from each
other.
8. It is found on factual basis that the Thai Rak Thai Party had
hired the Pattana Chart Thai Party and Pandin Thai Party, and that the
Pattana Chart Thai Party and Pandin Thai Party agreed to be hired by the
Thai Rak Thai Party to seek for election candidates to assist the Thai Rak
Thai Party. The Pattana Chart Thai Party together with the Election
Commission’s officers amended information about Pattana Chart Thai
party members to the meet 90 days requirement with the support of the
Thai Rak Thai Party. Moreover, the Pattana Chart Thai Party and Pandin
Thai Party issued a fraudulent letter to certify their members to use as a
document for the registration of the election candidates.
9. General Thammarak Issarangkura na Ayudhya and Mr. Pongsak
Raktapongpaisarn were the key executive members of the Thai Rak Thai
Party who had been placed with great trust by the executive members
committee and the Party leader to manage the Thai Rak Thai Party in
such a way that the Party could promptly return back to power. They
played an important role for the Thai Rak Thai Party. The Thai Rak Thai
Party had never held a meeting of executive members committee to make
clarification on the accusation either before or after the date of election
although such accusation was a significant matter which had an impact on
the Thai Rak Thai Party’s image. It is deemed that the action of General
Thammarak and Mr. Pongsak was the action binding the Thai Rak Thai
party.
Mr. Boontaweesak Amorasil, Pattana Chart Thai party leader had
been involved with the amendment of information on the Pattana Chart
Thai Party and received money from General Thammarak as a
representative of the Pattana Chart Thai Party. It is deemed that Mr.
Boontaweesak’s action was the action binding the Pattana Chart Thai
Party.
Mr. Bunyabaramipon Chinarat, Pandin Thai Party leader
acknowledged and consented for Mrs. Thattima Pawali to receive money
from General Thammarak, as well as to issue a fraudulent letter of
certification for Party members. It can be presumed that the action of Mr.
Bunyabaramipon was the action binding the Pandin Thai Party.
10. The action of the Thai Rak Thai Party can be deemed as an
acquisition of administrative power over the country through means not
in accordance with the Constitution under section 66(1) of the Organic
Act on Political Parties of B.E. 2541. It is an act that constitutes a threat
to national security or good public order and moral under Section 66(3).
The action of the Pattana Chart Thai Party and that of the Pandin
Thai Party can be deemed as an action that opposes the Constitutional
Monarchy with the King as Head of State in accordance with the
Constitution under the Organic Act on Political Parties of B.E. 2541,
Section 66(2), as well as constitutes a threat to national security or good
public order and moral under Section 66(3).
11. The action of the Thai Rak Thai Party is the action which
sought to acquire administrative power over the country through means
not in accordance with the Constitution as well as constituting threats to
national security or good public order and moral under Section 66(3). It
did not uphold the key principle of democratic form of government and
did not respect the law of the country. It could not maintain the form of
political party that created or sustained political legitimacy to the
democratic form of government of the country as a whole. Therefore,
there is a reasonable cause for the dissolution of the Thai Rak Thai Party.
The Pattana Chart Thai Party and the Pandin Thai Party were
established for the benefit of the founder or the executive members
committee of their respective Parties. They did not have any status as
political parties. Therefore, there is a reasonable cause for the dissolution
of the Pattana Chart Thai Party and the Pandin Thai Party.
12. The Announcement of the Council for Democratic Reform No.
27 is applicable to the cause of party dissolution under the Organic Act
on Political Parties of B.E. 2541, Sections 1, 2 and 3 because the content
of these sections clearly read as a prohibitive provision. As and when a
political party acts in a certain way that is prohibited by the said sections,
such political party may be dissolved. Hence, the effect is equivalent to
the prohibition of a political party not to act in a certain way.
13. The Announcement of the Council for Democratic Reform No.
27 dated 30 September B.E. 2549 provides that the revocation of election
rights is not criminal penalty. It is merely a legal measure derived from
the effect of law which entitles the dissolution of political party which
engages in prohibited acts under the Organic Act on Political Parties of
B.E. 2541. It is meant to prevent the political party’s executive members,
who caused harm to the society and the democratic form of government,
to repeat their wrongdoings in a certain period of time. Although the
electoral rights are fundamental rights ensured for people in the
democratic society, the law which sets criteria for persons who should be
entitled for the electoral rights so as to suit the social conditions or to
sustain the democratic form of that society, could still be valid. Hence
the Announcement of the Council for Democratic Reform No. 27, Section
3 has a retroactive binding effect to the act that is the cause of party
dissolution in this case.
14. The fact that the political party’s executive members, who held
their positions during the time the concerned act occurred, withdrew their
positions before the date of the Constitutional Tribunal’s ruling, does not
annul the effect of the actions committed by the political party during
such time that the executive members were holding their positions. If
otherwise, it could cause an illegitimate result and invalidate the
enforcement of law to meet the legal intention. Hence, the Constitutional
Tribunal cannot but withdraw the election rights of the political party’s
executive members.
The Constitution Tribunal hereby issues an order to dissolve the
Thai Rak Thai Party, the Pattana Chart Thai Party and the Pandin Thai
Party as well as to suspend the electoral rights of 111 executive members
of the Thai Rak Thai Party, 19 executive members of the Pattana Chart
Thai Party, 3 executive members of Pandin Thai Party, for a period of
five years, effective on the date of the order of party dissolution.
*****

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Press Release
- Clarification on the Constitutional Tribunal’s rulings on Election Fraud and Party Dissolution

June 5, 2007, 5:46 pm


In recent days, there have been comments in western media criticizing the Constitutional Tribunal’s rulings and questioning the Tribunal’s impartiality.



Regarding the Tribunal, it should be noted that the judges of the Tribunal are all drawn from the judicial branch.  The nine judges of the Constitutional Tribunal are all high ranking senior judges of the Supreme Court and the Supreme Administrative Court, including the presiding judges of both Courts.  The President of the Supreme Court and the President of the Administrative Court, both of whom were appointed during past administrations, are ex officio President and Vice President of the Tribunal, respectively.  The other seven members were elected by their peers by secret ballot – five by the Supreme Court and two by the Supreme Administrative Court.  As with other countries, Thailand’s judiciary is independent of the legislative and executive branches.  Indeed, the judiciary’s independence has been guaranteed by all Thai constitutions and has never been compromised, even whilst the integrity of the country’s legislative and executive branches may have at times been put into question.  This remains the case even after the 19 September intervention.

The Constitutional Tribunal is therefore fully independent with no interference from the executive and legislative branches, as well as the Council for National Security.

This is clearly illustrated by a recent statement issued on 1 June 2007 by the President of the Supreme Court’s Criminal Division for Persons Holding Political Positions that should former Prime Minister Thaksin Shinawatra be called to appear before the Court in defence of charges against him, any action by the Council for National Security to obstruct his return would be deemed an obstruction of justice, for which the Council could be held in contempt of court.

Likewise, it should be noted that after the 19 September intervention, instead of using the power they seized, the Council for National Security swiftly returned the administration of the country to a civilian government and ensured that investigations of all allegations and charges of wrong doings proceed on the basis of the rule of law.

Regarding the electoral fraud and party dissolution cases, one should be reminded that, prior to the Tribunal’s rulings, the leader of not only the Democrat Party but also that of the Thai Rak Thai Party had publicly expressed confidence in the judicial process and made public calls that the judges’ ruling  – whatever it might be – be respected.

The consideration and ruling by the Constitutional Tribunal were therefore carried out in accordance with due process, on the basis of the country’s laws and with full transparency.  Once the cases were accepted for consideration by the Constitutional Court in July 2006, all parties concerned were accorded every opportunity to present evidence and make their defence, both in writing and verbally, before the Court. 

It was through this process that the Democrat Party was acquitted on all charges by the vote of 9 to 0 because the Tribunal, based on all evidence and testimonies, did not find the Party to have attempted to mislead the public about the Thaksin regime and undermined democracy, hired individuals to run under another party to discredit Thai Rak Thai, obstructed elections in Songkhla province, or hired another political party to undermine Thai Rak Thai.

Also by a vote of 9 to 0, the Thai Rak Thai Party, together with three other smaller parties (Progressive Democratic Party, Pattana Chartthai Party and Thai Ground Party), were found guilty of election fraud during general elections that took place in April 2006 and thus ordered to dissolve. 

In the case of the Thai Rak Thai Party, the Tribunal found that two of its executives paid two smaller parties to field candidates to compete with the Thai Rak Thai Party in certain locations where it was thought unlikely the Party’s candidate would be able to gain more than 20% of the vote as required by the electoral law if that candidate ran uncontested.  In addition, the Thai Rak Thai Party was found to have helped these smaller parties tamper with the electoral commission’s database so that the latter’s candidates would be qualified to contest the elections (false information was entered showing that the candidates had been members of the parties for more than 90 days as required by Section 107 (4) of the 1997 Constitution).  Such acts amounted to Thai Rak Thai Party fielding more than one candidate in one electoral district, which was in violation of Section 108 of the 1997 Constitution.  It also created a false image of a democratic election’s competition that in fact undermined democracy, thereby eroding the public’s faith in the democratic system.

The two executives in question held key positions in the Thai Rak Thai Party (one being its Deputy Leader and the other its Deputy Secretary-General) as well as ministerial positions in the Thaksin cabinet.  Their actions were deemed to have been carried out in the interests of the Thai Rak Thai Party rather than their own, because, if successful, it would have enabled the Thai Rak Thai Party to acquire enough parliamentary seats to govern the country.  They thus could not have done so without the complicity and acquiescence of the Party.

The fraudulent means with which the Thai Rak Thai Party used to acquire political power, as well as the preceding decision by its leader to dissolve the House of Representatives amid the growing public dissatisfaction over his personal business ventures, reflected the Party’s disregard for the people’s right to vote and the rule of law, as well as of its own principles and policies.  The Constitutional Tribunal therefore found, through the Party’s own actions, that the Party could not maintain its political legitimacy as a political party.

The Tribunal therefore unanimously found the Thai Rak Thai Party to have acted in a manner that sought to acquire power to govern the country through means not in accordance with the Constitution, and that may constitute threats to national security or peace or public morals in accordance with Section 66 (1) and (3), respectively, of the Organic Law on Political Parties of 1998. 

Consequently, the Tribunal voted 6 to 3 to revoke the electoral rights of the executives of the Thai Rak Thai Party for five years in accordance with the law.

All the details of how and on what bases the judges made their rulings were read out and broadcast live nationwide for 10 hours reflecting full transparency.  Although some may question the decision made by the Constitution Tribunal, its decision must be respected as is the case in all civilized and democratic societies.   Indeed, if a political party were to be found guilty by a court of law in a similar case in other countries, should that political party be allowed to go free?  Or should its executives be held accountable and bear the consequences of their actions in accordance with the law?

It should also be underscored that the whole cases against the political parties began during the period of the 2 April 2006 general election when complaints of wrong doings by political parties were filed with the electoral authorities. The Attorney-General formally submitted the cases to the Constitutional Court in July 2006 – well before the political change that took place on 19 September.  Indeed, one should add that the April election itself, claimed by some to be democratic, was annulled by the preceding ruling of the Constitutional Court on 8 May 2006 as the Court found that the flaws and irregularities of how it was organized resulted in unfair and undemocratic outcomes, making the election unconstitutional.

Additionally, it must be stressed that Thailand’s return to a full-fledged parliamentary democracy is a process separate from the judicial process.  The decisions by the Constitutional Tribunal in these particular cases are totally unrelated to the country’s political timeline.  Regardless of how the judges’ rulings might have been, efforts by the Government to return the country to full-fledged parliamentary democracy has and will proceed on track in keeping with the set timeline.

A number of western media reports on political developments in Thailand, including the Constitutional Tribunal’s decisions, reflect their misunderstanding about the country’s situation and preceding circumstances.  These reports are based on a certain mindset which ignores the intentions and tend to typecast certain actions together, irrespective of their circumstances.  It is therefore hoped that friends of Thailand will afford us a fairer analysis, taking a broader perspective of what has actually happened and why.


 
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[********Q********]

Consequently, the Tribunal voted 6 to 3 to revoke the electoral rights of the executives of the Thai Rak Thai Party for five years in accordance with the law.

All the details of how and on what bases the judges made their rulings were read out and broadcast live nationwide for 10 hours reflecting full transparency.  Although some may question the decision made by the Constitution Tribunal, its decision must be respected as is the case in all civilized and democratic societies.   Indeed, if a political party were to be found guilty by a court of law in a similar case in other countries, should that political party be allowed to go free?  Or should its executives be held accountable and bear the consequences of their actions in accordance with the law?
It should also be underscored that the whole cases against the political parties began during the period of the 2 April 2006 general election when complaints of wrong doings by political parties were filed with the electoral authorities. The Attorney-General formally submitted the cases to the Constitutional Court in July 2006 – well before the political change that took place on 19 September.  Indeed, one should add that the April election itself, claimed by some to be democratic, was annulled by the preceding ruling of the Constitutional Court on 8 May 2006 as the Court found that the flaws and irregularities of how it was organized resulted in unfair and undemocratic outcomes, making the election unconstitutional.

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Summary of the Decision of the Constitutional Tribunal
(Unofficial Translation)     
Democrat Party, Prachatippatai KaoNa Party
     
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Thai Rak Thai Party, Pattana Chart Thai Party, Pandin Thai Party
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