pariyawong - a critique on thai democracy and judicial review

THREE-COURSE RECIPE FOR THE COURTS COOKERY:

A CRITIQUE ON THAI DEMOCRACY AND JUDICIAL REVIEW

Verapat Pariyawong

Submitted in Partial Fulfillment of the Master of Laws (LL.M.) Degree

Supervised by Professor Michael J. Klarman

Harvard Law School

May 2010

FOR FAMILY, COUNTRY, DEMOCRACY

AND THOSE SELDOM ACKNOWLEDGED



Verapat Pariyawong

TABLE OF CONTENTS

INTRODUCTION ................................................................................................................................ 1 I. SEPARATION OF POWERS AND JUDICIAL REVIEW: A QUESTION OF RECIPE?..............................8

A. Judicial Variety ....................................................................................................................9 B. Cookery: Recipe of First Impression? ...............................................................................12

II. COOKERYS MISSING INGREDIENTS: THREE-COURSE RECIPE .................................................18 A. Rationale ............................................................................................................................19

1. Separation of Powers in the Drafting Process ..............................................................25 2. Legislative Intent .........................................................................................................29 3. Constitutional Jurisprudence ........................................................................................36

(a) The 10 Ministers Case ..........................................................................................37 (b) The 3 Legislations Case .......................................................................................41

B. Restraint .............................................................................................................................43 1. The Peoples Values ....................................................................................................46 2. The Democratic Process ..............................................................................................49

C. Rights .................................................................................................................................52 1. Rights and Restraint .....................................................................................................52 2. Rights and Process .......................................................................................................53

III. INSTITUTIONAL CHARACTER ...................................................................................................57 A. Observations ......................................................................................................................58 B. Reactions ............................................................................................................................62

CONCLUSION ...................................................................................................................................64 APPENDICES

A. Constitution of the Kingdom of Thailand Buddhist Era 2550 ...........................................66 B. Thai Constitutional Court decision nos. 12-13/2551 .......................................................115 C. Sovereignty in International Law Making:

Certain Treaties Requiring Parliamentary Approval ......................................................178

Verapat Pariyawong: A Critique on Thai Democracy and Judicial Review Harvard Law School LL.M. Paper

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Verapat Pariyawong*

_______________________________________________________________________________________

INTRODUCTION

HE KINGDOM OF THAILAND formally advanced from absolute monarchy to

constitutional monarchy in 1932 and has since strived to function as a parliamentary

democracy through 12 effectual coup dtat and at least another dozen failed attempts.

The Thai people have heard of 18 written constitutions, seen 59 cabinets and known 27

prime ministers out of which only one so far managed to complete the 4-year term in

office. In 1997, the promulgation of Thailands 16th Constitution1 brought significant

* LL.M. (Fulbright Scholar) with Master Paper Honors, Harvard Law School. LL.B. (1st Class Honors)

Chulalongkorn University. Email: [email protected]. I am grateful for guidance from Professor Michael J. Klarman and his terrific constitutional law class, and thankful for the inspiring civic participation illustrated by participants at the Thai Political and Public Policy Forum held in February and April 2010. I am also indebted to the generosity of the two great nations, through the Thailand - United States Educational Foundation, for funding my studies at Harvard Law School whose institutional legacy in Thailand from the time of Edward Henry Strobel, Jens Westengard, Francis B. Sayre et al. continues to drive positive change until today. Views and any errors made here are of the author alone.

1 The Constitution of the Kingdom of Thailand Buddhist Era 2540 (1997), Thai Royal Gazette vol. 124 pt.

27 (kor) (repealed) [hereinafter Thai Constitution (1997)].

Thailands Constitutional Court in September 2008 found that the then incumbent Prime Minister Samak Sundaravej violated the Thai constitutional ban on outside employment by hosting a television cookery program for which he was paid, and thus ruled that he was disqualified from prime ministership. Two months following the decision, the same Court ruled to disband three political parties including the party formerly led by Mr. Samak. By focusing on the separation of powers amid the active state of judicial affairs in Thailand, this paper borrows insights from other legal systems mainly that of the United States to highlight the significance of the Cookery decision and critique the Courts approach by presenting an alternative three-course constitutional analysis involving the deepening of rationale on separation of powers, the judicial restraint in favor of democratic process and the active empowerment of the peoples rights. Taken together with brief observations on the Courts institutional character, the author attempts to illustrate some of the possible legal methodologies that may allow the clean and powerful branch of government to achieve its fullest potential in advancing the fragile Thai democracy.

T


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changes and unsurprisingly one of the principal objectives declared in the preamble was

the improvement of political structure in order to achieve more efficiency and stability.2

In January 2001, the Thai Rak Thai party led by Thaksin Shinawatra won the first election

governed by the 1997 Constitution. As envisioned in the preamble, Mr. Thaksin became

the only Prime Minister in Thai political history to complete his first term. In February

2005, the Thai Rak Thai party won a second election gaining 374 out of 500 parliamentary

seats giving Mr. Thaksin a sweeping power.

On September 19, 2006, a seemingly military-led coup dtat3 was instigated

against the Thaksin government which led to the abrogation of the 1997 Constitution4 as

well as the Thai Constitutional Court that was created by it.5 In less than 2 weeks, the

coup instigators declared an interim charter6 which provided for, among other things, an

interim government, the National Legislative Assembly which replaced the House of

Representatives and the Senate, as well as the Constitution Drafting Assembly. The

2 Id. The relevant part of the preamble reads:

[T]he primary substance of this drafted Constitution concerns the promotion and protection of the rights and liberties of the people, the participation in government by the public and inspection of the exercise of State power as well as improvement of political structure in order to achieve more efficiency and stability.

3 Few Thai legal scholars have attempted to decode the complex modern history of Thai politics and the chronic constitutional disorder, but for one timely exception, see Borwornsak Uwanno, Economic, Crisis and Political Crisis in Thailand: Past and Present, 4 NTU L. REV. 141 (2009), available at http://asianforum2009.tw/web/uploads/file/asia2009/Uwanno.pdf. For recent accounts touching on the coup, see Tom Ginsberg, Constitutional afterlife: The continuing impact of Thailand's postpolitical constitution, in 7 INTL J. OF CONST. L. 83 (2009); Andrew Harding, Emergency powers with a moustache: special powers and evolving constitutionalism in Thailand, in EMERGENCY POWERS IN ASIA: EXPLORING THE LIMITS OF LEGALITY 294, 294 (Victor V. Ramraj & Arun K. Thiruvengadam eds., 2010). For further background reading, see generally CHATURON CHAISANG, THAI DEMOCRACY IN CRISIS: 27 TRUTHS (2009); DIVIDED OVER THAKSIN: THAILANDS COUP AND PROBLEMATIC TRANSITION (John Funston ed., 2009); PASUK PHONGPAICHIT & CHRIS BAKER, THAKSIN (2009); TAMADA YOSHIFUMI, MYTHS AND REALITIES: THE DEMOCRATIZATION OF THAI POLITICS (2008).

4 Council for Democratic Reform under Constitutional Monarchy order no. 3, Sept. 19, 2006, Thai Royal

Gazette vol. 123 pt. 95 (kor). 5 See generally THE CONSTITUTIONAL COURT OF THAILAND (Amara Raksasataya & James R. Klein eds.,

2003); Andrew Harding, The Constitutional Court of Thailand, 1998-2006, in NEW COURTS IN ASIA 121, 121 (Andrew Harding & Penelope Nicholson eds., 2010).

6 The Constitution of the Kingdom of Thailand (Interim) Buddhist Era 2549 (2006), Thai Royal Gazette

vol. 123 pt. 102 (kor) (repealed) [hereinafter Thai Interim Constitution (2006)].


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interim charter also created a Constitutional Tribunal,7 comprising a new set of justices

from the Supreme Court and the Supreme Administrative Court, to replace the dissolved

Constitutional Court.

In May 2007 while Mr. Thaksin was still out of the country, the Constitutional

Tribunal ruled to disband the Thai Rak Thai party on the ground of electoral corruption.8

The process imposed by the coup instigators led to the public referendum approving the

current Constitution of the Kingdom of Thailand which came into force in August 2007.9

The preamble of the 18th Constitution, departing from stability and efficiency language

found in the 1997 charter, adopts a different tone for primary objectives including the

scrutiny of the exercise of State powers in concrete ways and equilibrium and efficiency

along the line of the parliamentary system, and underlines the significance of the

judiciary.10

Despite major changes made to the executive and legislative branches, the 2007

Constitution recreates the Constitutional Court which is essentially an institutional

transition from the Constitutional Tribunal under the 2006 interim charter.11 At the same

time, politicians associated with the disbanded Thai Rak Thai party founded a new party

called Palang Prachachon, won a general election in December 2007 and formed the first

7 Id. sec. 35. 8 Thai Constitutional Tribunal decision nos. 3-5/2550, May 30, 2007, Thai Royal Gazette vol. 124 pt. 33

(kor). 9 The Constitution of the Kingdom of Thailand Buddhist Era 2550 (2007), Thai Royal Gazette vol. 124 pt.

27 (kor) [hereinafter Thai Constitution (2007)]. See infra Appendix A, for full English text (unofficial). 10 Id. The relevant part of the preamble reads:

The major objectives [of the constitution] are to further promote and protect peoples right and liberty, encourage peoples roles and participation in the administration of the country, concretely check and cross-examine the use of the state power; provide the mechanisms of political institution in both the legislative and administrative branches with well-balanced and effective under the democratic parliamentary form of administration; support honesty and impartial operations of courts and independent organizations.

11 Id. sec. 300.


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government under the 2007 Constitution led by the late veteran politician and former

governor of Bangkok Samak Sundaravej.12

In September 2008, the Constitutional Court in another landmark case ruled that

the then incumbent Prime Minister Samak, by hosting a television program featuring his

signature tasting while grumbling cookery presentation, committed an act contrary to

the Constitution and was thus disqualified from prime ministership.13 In deciding Cookery

brought by a group of senators and the electoral commission, the Court whose jurisdiction

was clearly provided14 applied Section 267 - one of the conflict of interests provisions in

the Constitution15 - as a provision which forbids the Prime Minister and Ministers from

being an employee of any person in order to ensure the proper execution of their duties

and to prevent any conflict of interest which would cause an unethical status.16 The Court

explained that such status would lead to a difficult decision of choosing between

pursuing a private interest and public interest. Such conflict between a private interest and

the execution of the power of the office therefore happens in the manner in which the

gaining of private interest comes from the loss of public interest.17

Mr. Samak, who had already been appearing on the same television show for

several years following the success of his cookery book, argued that after assuming the

Prime Ministership he merely continued to act as an honorary host of the cookery program

12 Mr. Samak later battled cancer and passed away on November 24, 2009 at the age of 74. 13 Thai Constitutional Court decision nos. 12-13/2551, Sept. 9, 2008, Thai Royal Gazette vol. 125 pt. 122

(kor) [hereinafter Cookery Decision]. See infra Appendix B, for the original text of the decision excluding the separate opinions. The decision notes two programs that Mr. Samak appeared on but mainly discussed only one of them, see infra note 241. This paper grants him the benefit of the doubt.

14 Thai Constitution (2007), supra note 9, secs. 91, 182 paras. 1(7), 3. The Constitutional Court has the

jurisdiction to determine whether the Prime Minister or a Minister lacks any of the various qualifications (age, nationality, being free from conflict of interests etc.) which would trigger the individual termination of office. Such cases may be brought by members of the Parliament or the Electoral Commission.

15 Id. sec. 267. ([Prime Minister and Minister] shall not hold any position in a partnership, a company or

an organisation carrying out business with a view to sharing profits or incomes or be an employee of any person).

16 Cookery Decision, supra note 13, at 14. 17 Id.


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and neither had any relevant interests nor held any position in, nor received any salary,

stocks or income division from the television production company. Mr. Samak thus

argued that his conduct as a television host did not amount to a conduct of an employee

according to the definition of relevant civil and commercial law, employment laws and tax

law, and that the television production company was not his employer.18

The Court, citing a definition of the word employee from a standard Thai

dictionary, responded that the term must be interpreted generally as a person who

accepts to work however that may be called and whether or not there was a written

employment contract, and whether the remuneration was in cash or compensation in other

forms.19 The Court justified the broad interpretation by placing reliance on the

constitutional intent, finding that Section 267 aims to effectively prevent conflicts of

interests in relation to private parties. The Court explained that the Constitution provides

the ground rules for State functions which can be applied by the State to different

scenarios and situations in accordance with the spirit of the Constitution and that

employee under Section 267 is distinct from employee defined by other laws. The

Court further gave examples how a narrower interpretation would allow former doctors or

lawyers to change from acceptance of hospital or law firm salary to individual fee

payment to avoid being seen as an employee under Section 267.20

The Court dismissed Mr. Samaks letters to the production company conveying his

refusal to accept any payment after taking office, which the Court found suspicious and

contradictory to other evidence such as Mr. Samaks interview in 2001 discussing his

appearance fee or his recent statements that he merely received transportation

reimbursement. The Court concluded that Mr. Samak continued to receive remuneration

18 Id. at 6-15. 19 Id. at 14-15. 20 Id.


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from the television production company after taking the office and was employed as the

host of the cookery program,21 and thus unanimously ruled that Mr. Samak violated a

specific prohibition on conflict of interests which then triggered an automatic

disqualification from office as explicitly provided by the Constitution.22

By focusing on the recipe instead of the dish, this paper seeks to showcase Cookery

as a sample situation where the Thai judiciary, particularly the Constitutional Court, had

an opportunity to perform its checks and balances functions in a manner which truly

enhances the rule of law and democracy. While it is argued that such opportunity in

Cookery was unrealized, plenty other opportunities still continue to arise in Thailands

constitutional legal arena amid an active state of judicial affairs. Considering the novelty

of the issue and the limited Thai literature on the subject, accounts are drawn from the

experience and insights of other developed legal systems such as that of the United States

America to shed some new lights on the discussions which are divided into 3 parts.23

Part I briefly explores the issues on separation of powers and judicial review found

in democratic contexts and highlights the concerns presented by Cookery not as an

individual decision but as part of a larger judicial affairs. In Part II, by using Cookery as

an example, the author critiques the Courts methodology and proposes an alternative

three-course analysis involving rationale, restraint and rights. It is argued that such three-

21 Id. at 15-16. The main opinion stated that 6 judges found Mr. Samak to be an employee of the television

production company while 3 other judges considered the relationship as commercial partnership, but see discussions infra notes 240-41 (noting a contradiction between the main and the separate opinions). Further it was neither clear if any direct evidence of payment made to Mr. Samak after he took office was found (aside from transportation reimbursement), nor how much was the amount paid, nor how the testimony of Ms. Darika who was unidentified in the main opinion was used to rebut Mr. Samaks evidence (her identity was only later discussed by some of the judges in separate opinions).

22 See supra note 14 and accompanying text. 23 Professor Lawrence Tribe nicely summarized the judicious use of global sources of insights in the

United States, see LAWRENCE H. TRIBE, THE INVISIBLE CONSTITUTION 181-88 (2008). The modernization of Thai law also involved global sources. See TAMARA LOOS, SUBJECT SIAM 29-71 (2006). Indeed once for at least a half century, seven out of ten high-level foreign advisers to the King of Siam (Thailands former name) studied at Harvard Law School. See Kenneth T. Young, The Special Role of American Advisers in Thailand, 1902-1949, Asia (Asia Society, 1969), 6-11, in Jens Iverson Westengard Papers, Harvard Law School Library, Box 1, Folder 9, cited in LOOS, supra, at 53-54.


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course approach allows the Court to further enhance the rule of law and democracy

irrespective of a particular outcome without compromising the balance of powers between

branches of government. In Part III, observations are made on the Courts institutional

character which may help explain the Courts confidence in removing the head of

executive branch without engaging in a detailed course of analysis.

Neither the Courts constitutional power to review a Prime Ministers qualification

nor its political motivation, if any, in rendering the decision is the subject of inquiry here.

Also, reliance on the facts determined by the Court does not negate the authors belief that

its evidentiary standard requires separate and urgent inquiry.24 Above all, references to the

rules that follow from the decriminalization of the 2006 coup dtat and the subsequent

illegitimate acts, as forced into the Constitution25 and enforced by the Thai courts,26 were

made with deep grievance and constant awareness that much serious work on Thai

constitutionalism and its inherited disorder still remains to be fulfilled.27

24 See supra note 21 and accompanying text. 25 Thai Constitution (2007), supra note 9, sec. 309 (All acts recognized in the Constitution of the

Kingdom of Thailand (Interim), B.E. 2549 (2006) as lawful and constitutional, including acts incidental thereto whether performed prior to or subsequent to the date of the promulgation of this Constitution, shall be deemed constitutional...); See also Thai Interim Constitution (2006), supra note 6, sec. 37:

All matters that the Leader and the Council for Democratic Reform, including any related persons who have been assigned by the Leader or the Council for Democratic Reform or who have obtained orders from the persons assigned by the Leader or the Council for Democratic Reform pursuant to the seizure of State administration on 19 September B.E. 2549 (2006) to take actions prior to or after said date for enforcement of legislative, executive, judicial purposes, including carrying out punishment and other administrative acts, whether as principal, supporter, instigator or assigned person, which may be in breach of the law, shall be absolutely exempted from any wrongdoing, responsibility and liabilities.

26 See e.g. Thai Constitutional Court decision no. 5/2551, June 30, 2008, Thai Royal Gazette vol. 125 pt.

107 (kor), at 27-28; Thai Supreme Court decision (red case) no. Or Mor 1/2553, Feb. 26, 2010, Thai Royal Gazette vol. 127 pt. 21 (kor), at 45-56.

27 At least one Supreme Court justice has rejected the legality of the criminal proceedings that originated

from the unlawful change of government. See Thai Supreme Court red decision no. Or Mor 9/2552, Sept. 28, 2009, Thai Royal Gazette vol. 126 pt. 90 (kor) (dissenting opinion by Judge Kirati Kanjanarin):

[W]ere the court to recognize as sovereign power the authority of the person or group that conducted a revolution or coup dtat, the court would be failing the people by enforcing the illegitimate power and ignoring the preservation of democracy. The court would also be ignoring the natural justice which prevents a person from enjoying benefits deriving from his fraud or crime, and further the court would be encouraging revolution or coup dtat to repeat as a vicious circle. Moreover, the court would be allowing such person or group to have the law at their disposal. [trans. by the author].


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I. SEPARATION OF POWERS AND JUDICIAL REVIEW: A QUESTION OF RECIPE?

The primary structure of modern democracies involves the exercise of various

powers by different but related institutions commonly seen as the executive, the

legislature and the judiciary. The observation that the judicial power in England consists

one main preservative of the public liberty, which cannot subsist long in any state unless

the administration of common justice be in some degree separated both from the

legislative and also from the executive power28 was linked to the fundamental notion of

the Rule of Law which continues to underpin the British constitutionalism today.29

Similarly described but in a different national context, the separation of powers

commands and pervades American constitutional law30 and its principles involve the

very structure of government, and nothing lies close to the core of constitutional

lawthan the system of divided and interlocking powers embodied in the framework of

our government.31 Embedded not only in many written constitutions around the world,32

the separation of powers also plays fundamental roles beyond nation-states such as in the

institutionalization of legal and political actors at the regional level.33

28 1 WILLIAM BLACKSTONE, COMMENTARIES, *269. 29 A.V. DICEY, LAW OF THE CONSTITUTION 273, 380-81 (Liberty Fund 1982); See also T. R. S. ALLAN,

CONSTITUTIONAL JUSTICE 59 (2003); cf. TRIBE, supra note 23, at 83-84 (relating separation of powers to the government of laws and the rule of law in U.S. context).

30 1 LAWRENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 124 (3rd ed. 2000); See also ALEXANDER M.

BICKEL, THE LEAST DANGEROUS BRANCH 159-61 (2d ed., 1986) (relating the separation of powers to the doctrine of delegation); ROBERT H. BORK, THE TEMPTING OF AMERICA 4 (1990) (suggesting that the separation of powers perhaps guaranteed the liberties more than the Bill of Rights); RONALD DWORKIN, FREEDOMS LAW 2 (1996) (stressing that political morality is uncertain and the system of government must decide whose interpretation and understanding is authoritative).

31 Id. at 126. 32 See e.g. Constitucin Poltica del Per art. 43; Constitution of the Democratic Socialist Republic of Sri

Lanka art. 4; Constitution of the Republic of Armenia art. 5; Constitution of the Republic of the Fiji Islands sec. 21(1); Constitution of Ukraine art. 6; Grundgesetz fr die Bundesrepublik Deutschland art. 20(2) [F.R.G.]; Suomen perustuslaki sec. 3 [Finland]; Thai Constitution (2007), supra note 9, sec. 3.

33 See generally Koen Lenaerts, Some Reflections on the Separation of Powers in the European

Community, 28 COMMON MKT. L. REV. 11 (1991); SERGIO FABBRINI, COMPOUND DEMOCRACY: WHY THE UNITED STATES AND EUROPE ARE BECOMING SIMILAR (2007).


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While the principle that there is separation attracts ample agreement, the scope and

extent to which the judicial power is exercised as checks and balances in a democratic

system finds no precise universal formula.

A. Judicial Variety

Studies on the nature and functions of the judiciary in different jurisdictions

suggest that characteristics of their powers are very much dependent on the historical,

constitutional and institutional context, domestically and internationally, within which

they operate.34 For instance, in the United Kingdom where the Rule of Law performs the

disabling function to constrain the government and parliamentarians without giving the

courts to broad power to render legislations void like in the United States, Thailand or

elsewhere, the courts have attempted to reconcile the sovereignty of the Parliament and

the Rule of Law when possible by presuming that the Parliament intends to abide by the

Rule of Law.35

34 See e.g. M. J. C. VILE, CONSTITUTIONALISM AND THE SEPARATION OF POWERS 114, 173-74, 215-16 (2d

ed., 1998) (noting the history of judicial review in England, the United States and France); THE GLOBAL EXPANSION OF JUDICIAL POWER (Neal Tate & Torbjrn Vallinder eds., 1995); compare THEODORE L. BECKER, COMPARATIVE JUDICIAL POLITICS 204-24 (1987) (discussing English legal heritage on judicial independence), with JUDICIAL INTEGRITY 1-16 (Andrs Saj ed., 2004) (discussing impartiality and independence in post-communist contexts); JUDICIAL ACTIVISM IN COMMON LAW SUPREME COURTS 11-12 (Brice Dickson ed., 2007) (noting that the supreme courts in 9 jurisdictions can be activist in different ways); RAN HIRSCHL, TOWARDS JURISTOCRACY 223 (2004) (noting mechanisms in 4 jurisdictions which reduced popular opposition to the judiciary, also mentioning that transition towards judicial empowerment in 19 countries were driven by different social and political struggles); compare DONALD KOMMERS, THE CONSTITUTIONAL JURISPRUDENCE OF THE FEDERAL REPUBLIC OF GERMANY (1997), with ALEC STONE, THE BIRTH OF JUDICIAL POLITICS IN FRANCE (1992) (accounting how the judiciary in Germany and France adjusted to the political climate after periods of great changes such as the war time); Compare TOM GINSBERG, JUDICIAL REVIEW IN NEW DEMOCRACIES 247-263 (2003) (noting that in some Asian jurisdictions depending on the prevailing political at the time courts may be used as an insurance mechanism to achieve balance of power), and COMPARATIVE STUDIES ON THE JUDICIAL REVIEW SYSTEM IN EAST AND SOUTH EAST ASIA 253-261 (Yong Zhang ed., 1997) (expressing the view that the executive branch tends to be stronger in developing countries, still in a developed country such as Japan the judiciary more often asserts a passive check on the executive), with Harding & Nicholson, supra note 5, at 20 (noting the issue of Asian culture and Asian-ness); JUDICIAL CONTROL: COMPARATIVE ESSAYS ON JUDICIAL REVIEW 5 (Rob Bakker et. al eds., 1995) (observing in 1995 the growing mutual influence between national courts and the rise of European international courts).

35 Jeffrey Jowell, The Rule of Law Today, in THE CHANGING CONSTITUTION 20, 20 (Jeffrey Jowell & Dawn

Oliver eds., 2009). See also T. R. S. Allan, The Rule of Law as the Foundation of Judicial Review, in JUDICIAL REVIEW AND THE CONSTITUTION 413, 419 (C. F. Forsyth ed., 2000).


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One interesting development introduced in 1998 is the judicial power to make a

declaration of incompatibility where the courts cannot simply quash the Parliaments

legislations which violate certain human rights, but can instead issue a declaration which

triggers the possible remedy process to be carried out by the government and the

parliament.36 At the same time there is indeed a general recognition of an increasing role

of judicial review to guard citizens rights against the abuse of official power,37 but at the

same time there is also a strong concern regarding the impact on theories of democracy,38

and the Courts are not hesitant to admit that certain types of review are not amenable to

the judicial process.39

In the United States, the judicial power to review legislations has long been

recognized for instance in the famous Marbury v. Madison,40 and even before 1803 when

the decision was rendered.41 As famous as it may be when one speaks on the issue of

judicial review, the decision by Chief Justice John Marshall nevertheless caused a

political stir amid the rise of the Jeffersonian power, not because of the elaboration on

judicial review, but perhaps more due to the assertion of controversial notions suggesting

that the President and the cabinet were subject to judicial process.42 It was probably the

36 The Human Rights Act, 1998, c.42 Sections 4; See also RICHARD GORDON AND TIM WARD, JUDICIAL

REVIEW AND THE HUMAN RIGHTS ACT 11-12 (2000); AILEEN KAVANAGH, CONSTITUTIONAL REVIEW UNDER THE UK HUMAN RIGHTS ACT 281 (2009); MARK ELLIOTT, THE CONSTITUTIONAL FOUNDATIONS OF JUDICIAL REVIEW 197-245 (2001).

37 T. R. S. ALLAN, LAW LIBERTY AND JUSTICE 183-210 (1993); HARRY WOOLF, JEFFREY JOWELL AND

ANDREW LE SUEUR, DE SMITHS JUDICIAL REVIEW 6-8 (2007). 38 DAWN OLIVER, CONSTITUTIONAL REFORM IN THE UNITED KINGDOM, 103 (2009); See also Adrienne

Stone, Judicial Review Without Rights: Some Problems for the Democratic Legitimacy of Structural Judicial Review, 28 O.J.L.S. 1 (2008) (discussing a similar situation faced in Australia).

39 See e.g. Council for the Civil Service Unions v Minister for the Civil Service [1985] 1 A.C. 374, at 418

(Lord Roskill). 40 Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803). 41 See e.g. Louise L. Jaffe & Edith G. Henderson, Judicial Review and the Rule of Law: Historical Origins,

72 L.Q. Review 345 (1956); Michael Klarman, How Great Were the Great Marshall Court Decisions?, 87 VA. L. REV. 1111-17 (2001).

42 Klarman, supra note 41, at 1116-17.


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political brilliance of Marshall, in avoiding a political battle with the President and his

supporters in the Congress by declaring the statute granting the Courts jurisdiction

unconstitutional, that made this decision widely recognized. As a constitutional historian

puts it, Marshall boldly lectured the President about his accountability to law, but then

declined to issue any order that might have been defied. Jefferson fumed, but had no

direct means of response.43

The role played by the United States Supreme Court continues to be a subject of

much debate today not only in the realm of legislation review. In the much discussed Bush

v. Gore,44 the Supreme Court decided that a statewide recount of electoral votes ordered

by the Florida Supreme Court violated the Equal Protection Clause of the Fourteenth

Amendment and thus issued a remedy which arguably decided the general election of

2000. This decision can be seen as a form of judicial review by which the Supreme Court

not only interpreted the constitutionality of the recount ordered by the Florida Supreme

Court, but also in essence the procedural electoral standards and remedy, which can be

argued as both unnecessary and unwise.45

Critics of Bush v. Gore seem to recognize a clear division between the conservative

and liberal justices,46 yet when it comes to the separation of powers justices on the same

wing do not always agree. For instance, in Federal Election Commission v. NRA Political

Victory Fund,47 while Justice Souter and Justice Breyer were willing to accept the

43 Id. 44 Bush v. Gore, 531 U.S. 70 (2000) (per curiam). 45 Jesse H. Chopper, Why the Supreme Court Should Not Have Decided the Presidential Election of 2000,

18 CONST. COMMENT. 335, 335 (2001). 46 See e.g. Richard A. Epstein, Constitutional Crash Landing: No One Said It Would Be Pretty, in BUSH V.

GORE: THE COURT CASES AND THE COMMENTARY 284, 284 (E.J. Dionne Jr. & William Kristol eds., 2001); Linda Greenhouse, Another Kind of Bitter Split, N.Y. TIMES, Dec. 15, 2000, at 1; Michael S. Greve, The Real Division in the Court, WEEKLY STANDARD, December 25, 2000, at 28-31.

47 Federal Election Commission v. NRA Political Victory Fund, 513 U.S. 88 (1994).


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authority of the attorney general in approving cases to be handled by the Federal Election

Commission, Justice Stevens dissented arguing that the election body should enjoy greater

independence from the executive structure.48

As the debate continues however, there is a general recognition of the greater

ocean of constitutional law to be explored beyond a specific political sea, as can be seen

in a recent work49 and a response50 published in two leading law journals. Both essays

addressed the judicial review of legislation (not of executive acts) and assumed a well

functioning nonpathological democracy as a strict parameter. Nonetheless, Professor

Jeremy Waldron, who favored democratic legislatures, suggested that there are other

instances where peculiar pathologies, dysfunctional legislative institutions, corrupt

political cultures may justify an acceptance of judicial review.51 Professor Richard

Fallon, who argued that the court should have the judicial review powers to safeguard

fundamental rights, similarly accepted that there is a broader domain of constitutional

theory where different inquiries should be made into the existence of judicial review other

than that of the United States.52

B. Cookery: Recipe of First Impression?

Thailand is one such place where the broader domain of separation of powers can

be explored. Judicial review is indeed nothing new and throughout the long history of

political crises the Thai courts have traditionally been involved in upholding the legality

48 Id. at 100 (Stevens, J., dissenting). 49 Jeremy Waldron, The Core of the Case Against Judicial Review, 115 YALE L. J. 1346 (2006). 50 Richard H. Fallon, Jr., The Core of an Uneasy Case Against Judicial Review, 121 HARV. L. REV. 1693

(2008). 51 Id. at 1406. 52 See supra note 50, at 1734; cf. Bruce Ackerman, The New Separation of Powers, 113 HARV. L. REV.

633 (2000) (suggesting that constrained parliamentarianism in some countries may serve as better constitutional model than the American approach).


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of certain acts stemming out of coup dtat53 and at the same time exercised the review

power to safeguard the rights and liberties from some unconstitutional applications of

those acts.54

Still, Cookery and a host of other recent decisions provide new samples of inquiry.

The decision immediately received worldwide media attention; Mr. Samak was found to

have violated a ban on ministers having outside interests by taking money from a private

company to host a TV show reported a British broadcaster,55 or in the words of an

American press: [t]he court case is another attempt by Samak's opponents who have

thrown everything but the kitchen sink at him.56 Also widely reported in the Thai media

was a breif comment by a former Yale Law School professor suggesting that Cookery was

the most hilarious decision.57 In spite of the cheers it brought to certain crowds and wild

puzzlement to others, the decision deserves serious attention in three respects.

First, in terms of subject matter, Cookery tackles the issue that is historically

related to the stability of government. One of the primary justifications used by the

instigators of the 2006 coup dtat was the need to end the systematic corruption during

53 See e.g. Thai Supreme Court decision no. 1662/2505 (1962); Thai Constitutional Tribunal decision no.

tor 1/2513, Jan. 5, 1970, Thai Royal Gazette vol. 87 pt. 4; Thai Supreme Court decision no. 1234/2523 (1980).

54 See e.g. Thai Supreme Court decision no. 766/2505 (1962); Thai Supreme Court decision no. 222/2505

(1962); Thai Supreme Court decision no. 225/2505 (1962); Thai Supreme Court decision no. 913/2536 (1993).

55 BBC News, Court says Thai PM 'must resign', http://news.bbc.co.uk/2/hi/7605838.stm (last visited Apr.

30, 2010); See also Thomas Bell, Thai premier forced to quit over cookery programme, THE DAILY TELEGRAPH, Sept. 10, 2008, at 16.

56 CNN.com, Thai PM fired over cookery show, http://cnn.com/2008/WORLD/asiapcf/09/09/thailand.pm

(last visited Apr. 30, 2010); See also Seth Mydans, Thai Court Forces Premier From Office Over TV Cooking Show, N.Y. TIMES, Sept. 10, 2008, at A8.

57 E.g. Thai Parliament News, Former Yale professor laughs at Samaks disqualification,

http://www.parliament.go.th/news/news_detail.php?prid=159466 (last visited Apr. 30, 2010); Matichon Online (Thail.), 19 Professors oppose Samaks return - Former Yale Prof says absurd, http://www.matichon.co.th/news_detail.php?newsid=1220965656 (last visited Apr. 30, 2010).


14

Mr. Thaksins time58 and similar lines of justification were used throughout the long

history of military uprising. Politicians also attacked their opponents in the Parliament by

asking the Constitutional Tribunal under the previous Constitutions to rule on general

qualifications not necessarily related to corruption.59

In spite of the active history, the available jurisprudence on constitutional conflict

of interests is fairly limited; and Cookery is the first case of its kind making Mr. Samak

the first Prime Minister in the Thai political history to be disqualified by the judiciary on

the ground of conflict of interests. Only one case involving a similar issue was previously

decided by the Court,60 and another case by its predecessor under the 1997 Constitution,61

both of which are discussed below.62 Other cases relating to conflict of interests under the

1997 and the 2007 Constitution mostly concerned the disclosure of assets held by

politicians.63 At the same time there is a limited amount of Thai legal literature on judicial

review over the executive power on constitutional grounds,64 let alone in the specific area

58 See supra note 3. 59 See e.g. Thai Constitutional Tribunal petition no. (red) 1/2523, July 16, 1980, Thai Royal Gazette vol. 97

pt. 112 (ngor); Thai Constitutional Tribunal decision no. 1/2526, Nov. 29, 1983, Thai Royal Gazette vol. 100 pt. 197 (ngor); Thai Constitutional Tribunal decision no. 1/2528, Feb. 28, 1985, Thai Royal Gazette vol. 102 pt. 32; Thai Constitutional Tribunal decision no. 1/2529, Oct. 10, 1986, Thai Royal Gazette vol. 103 pt. 177.

60 Thai Constitutional Court decision no. 10/2551, July 2, 2008, Thai Royal Gazette vol. 125 pt. 115 (kor). 61 Thai Constitutional Court decision no. 4/2544, Feb. 6, 2001, Thai Royal Gazette vol. 118 pt. 115 (kor). 62 See infra Part II.A.3. 63 E.g. Thai Constitutional Court decision no. 20/2544, Aug. 3, 2001, Thai Royal Gazette vol. 118 pt. 77

(kor); Thai Constitutional Court decision no. 11/2551, July 9, 2008, Thai Royal Gazette vol. 125 pt. 113 (kor).

64 Related to the constitutional legal domain however, there are existing judicial precedents and legal

literature on the review and control of executive power by the judiciary on administrative grounds and these cases generally fall under the jurisdiction of the Thai Administrative Court. See generally Peter Leyland, The emergence of administrative justice in Thailand under the 1997 Constitution in ADMINISTRATIVE LAW AND GOVERNANCE IN ASIA: COMPARATIVE PERSPECTIVES 230, 230 (Tom Ginsburg and Albert H.Y. eds., 2009); Peter Leyland, Genealogy of the administrative courts and the consolidation of administrative justice in Thailand, in NEW COURTS IN ASIA 231, 231 (Andrew Harding and Penelope Nicholson eds., 2010). For a more general critique on Thai legal scholarship, see discussions infra Part III.B.


15

concerning conflict of interests.65 Such light amount of jurisprudence coupled with the

long history of political uprising against those unfit politicians therefore makes the

constitutional interpretation in Cookery especially significant.

Second, reactions to Cookery are but a laughing matter that illustrates Thailands

chronic constitutional disorder. Many of those who voted for Mr. Samak and his party

platform were left in awe, if not bored and less willing to participate. Arguably, citizens

would want their Prime Minister to be free from conflict of interests, but at the same time

they also wish not to worry constantly about ambiguous conflicts that can bring down

their next head of government. The brief yet sweeping holding in Cookery has led to

reactions that might be seen as signs of backlash against what the conflict of interests

provisions aim to serve, and thus making its subject matter appear even more political and

legal.

For instance, the decision was used by politicians to further Mr. Samaks argument

that the 2007 Constitution unfairly weakens the executive branch and required

controversial amendments.66 Political demonstrators tried to overplay the Courts standard

and demand that it be applied to holders of other offices under the Constitution who might

not necessarily perform executive functions.67 Questions have also been raised, in light of

the broad interpretation of the term employee, with regard to the legitimacy of certain

justices on the Constitutional Court, who might for instance have been paid as honorary

65 See generally Jul-niti Board of Editors, Political Office Holders and Conflict of Interests Actions, JUL-

NITI LAW JOURNAL vol. 5, at 1-23 (2009) (Thail.); THEERAPAT SERIRANGSAN, THAI POLITICIANS: ETHICS, CONFLICT OF INTERESTS, CORRUPTION: PROBLEMS, CAUSES, IMPACTS AND SOLUTIONS (2006) (Thail.).

66 Reuters, Thailand's grumpy, food-loving PM defies critics,

http://reuters.com/article/idUKBKK5007420080904 (last visited Apr. 30, 2010). 67 See e.g. ASTV Manager Online (Thail.), Silly Cookery Case Attack on Privy Council President,

http://www.thaisarn.com/th/news_reader.php?newsid=476445 (last visited Apr. 30, 2010).


16

lecturers at educational institutions.68 Finally, since the Constitution does not ban the

representatives from reconfirming Mr. Samak, his party was confident to defy the Courts

ruling by pushing him to retake the office.69 It was not clear whether it was Mr. Samaks

health conditions coupled with his fierce temper or the Courts ruling and social pressure

that led to the blocking by coalition parties.

Third and most importantly, the approach of the Court, which is further discussed

in Part II of this paper, raises serious concerns over the judicial place in the separation of

powers and the enforcement of constitutional law as a mean to enhance democratic

political process. This is certainly not a separate concern over an individual case, but a

case that belongs to series of active judicial affairs that have profound impacts on the

political branches.70 For instance two months prior to Cookery, the Thai Constitutional

Court ruled that the government breached a Constitutional provision when it failed to

submit the joint communiqu signed by the Thai and Cambodian governments to the Thai

parliament for approval,71 leading to the resignation of the foreign minister which added

awkwardness to the ongoing border disputes between the two governments. Two months

following Cookery, the same Court on the same day ruled to disband 3 political parties,

68 See e.g. Matichon Online (Thail.), Five law professors question qualifications of the Constitutional Court

justices, http://www.matichon.co.th/news_detail.php?newsid=1228045726 (last visited Apr. 30, 2010); Matichon Online (Thail.), From 'Cookery Case' to 'Jarun Pukditanakul' - can a Constitutional Court judge be an honorary lecturer at a private university?, http://www.matichon.co.th/news_detail.php?newsid=1221138135 (last visited Apr. 30, 2010).

69 Seth Mydans, supra note 56. 70 The discussions on judicial activism and judicialization have recently attracted attention within the Thai

academic community. See PIYABUTR SAENGKANOKKUL, IN THE NAME OF THE THE KING; DEMOCRACY AND THE JUDICIARY (2009) (Thail.); Kanongnij Sribuaiam, Summary of Group 3 Judicial review and judicial activism, discussed at KING PRAJADHIPOKS XI CONGRESS CONFLICT, LEGITIMACY AND GOVERNMENT REFORM: EQUITABLE ALLOCATION OF RESOURCES IN THAI SOCIETY, November 5-7, 2009, http://www.kpi.ac.th/kpien/dmdocuments/ (then select King Prajadhipoks XI Congress.pdf, at 7); Karn Vorakul, Judicial Activism in Solving the National Crisis, THAI CONSTITUTIONAL COURT JOURNAL vol. 31, at 25 (2009) (Thail.); Avirut Charnchaikittikorn, Judicial Activism and Political Crisis, DULA-PAHA LAW JOURNAL vol. 3, at 110 (2009) (Thail.); Pichet Maolanon, Judicial Activism, NEW LAW JOURNAL vol. 113, at 36 (2009) (Thail.).

71 Thai Constitutional Court decision nos. 6-7/2551, July 8, 2008, Thai Royal Gazette vol. 125 pt. 108

(kor).


17

including the Palang Prachachon party once led by Mr. Samak, on similar grounds of

electoral corruption.72

Subsequently, a new parliamentary coalition was formed in December 2008 and

the former leader of the opposition Abhisit Vejjajiva became the 27th Prime Minister. In

April 2010, following the intensified massive protests by the National United Front of

Democracy Against Dictatorship or the red shirts against his government, Mr. Abhisit

declared a State of Severe Emergency in Bangkok and several other provinces followed

by deadly clashes. At the time this paper was written, a new case was submitted to the

Constitutional Court to rule whether Mr. Abhisits party should be disbanded.73

The above concerns highlight the fact that Thailand, like in many other places, is

still looking for the right judicial recipe in maintaining a functional democracy. What is

the role of the Thai parliament in making legal rules on conflict of interests and how

should such rules be regarded by the Court? Are there constitutional questions that would

be considered unnecessary and unwise for the Court to answer? How would the Court be

perceived in its modern history if it were to lecture the Prime Minister but issue no order?

How do we place the Thai courts in the stream of labels such judicial activism,

judicialization, or juristrocracy given the historical and institutional contexts? What is the

role of the Court in safeguarding the rights and liberties of the people and are these rights

affected by a broad prohibition on certain acts?

These questions emerge at the time when there is a limited body of jurisprudence

that is far outweighed by the ongoing political problems. They require elaborate and

systematic investigation beyond the realm of legal research, and complete answers may

72 Thai Constitutional Court decision no. 18/2551, Dec. 2, 2008, Thai Royal Gazette vol. 126 pt. 16 (kor);

Thai Constitutional Court decision no. 19/2551, Dec. 2, 2008, supra, at 79; Thai Constitutional Court decision no. 20/2551, Dec. 2, 2008, Thai Royal Gazette vol. 126 pt. 20 (kor).

73 Thomas Fuller, Opposition Appears to Gain in Thai Crisis, N.Y. TIMES, Apr. 13, 2010, at A12; The

Bangkok Post, Democrat Party faces dissolution, http://www.bangkokpost.com/news/politics/174518 (last visited Apr. 30, 2010).


18

not be offered here. Nonetheless in an effort to generate the flow of such investigation, the

following is a modest attempt to use Cookery as a sample of inquiry where answers to

some of these questions may be found.

II. COOKERYS MISSING INGREDIENTS: THREE-COURSE RECIPE

Answering questions concerning the separation of powers, as described by the

Supreme Court of the United States in Baker v. Carr, is itself a delicate exercise in

constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of

the Constitution.74 The same requirement of delicacy holds true for the Constitutional

adjudication under the Thai Constitution. In this part, the author examines the legal

methodology employed by the Court in Cookery and proposes an alternative approach that

involves three courses of analysis.

First, separation of powers is to be the rationale in interpreting the text and the

spirit of the Constitution and not simply in identifying categories of jurisdictions divided

between branches of the government. Second, provided that inquiry into the separation of

powers rationale does not render a clear answer, judicial restraint is favored where the

Constitution provides the same remedy through another branch which is more politically

accountable. Third, balancing consideration must always be given to any adverse affects

on any guaranteed rights and liberties as a matter of constitutional public order, even

though such rights and liberties were not the primary issues of the case or were not raised

by the litigants. If any rights or liberties are under threat in the case at hand, restraint

should not be favored. In contrast, if the judicial intervention may result in any restriction

of right or liberties, stronger favor is to be accorded to restraint.

Indeed, this is not to say that the Constitutional Court must always undertake such

delicate analysis in order to achieve desirable goals. The author proposes the model as an 74 Baker v. Carr, 369 U.S. 211.


19

alternative methodology for the Court to engage in unclear and controversial cases where

the basic mode of textual and contextual interpretation75 might be insufficient and yet the

answer may have a substantial impact on separations of powers. If the Court is faced with

a legal issue that, despite the substantial impact, is facially apparent, for instance in a

hypothetical case where it is asked to rule whether an incumbent Prime Minister meets the

qualification requirement on age or nationality,76 issues of detailed analysis would not

arise. Such issue may arise, for instance, were the Court asked to rule whether a treaty

signed by the executive has extensive impacts on national economic or social security or

generates material commitments in trade, investment or budgets of the country, which if

answered in the affirmative would require the executive to seek parliamentary approval.77

A. Rationale

The separation of powers principle is reflected by a basic provision of the Thai

Constitution which reads [t]he sovereign power belongs to the Thai people. The King as

Head of the State shall exercise such power through the National Assembly, the Council

of Ministers and the Courts in accordance with the provisions of this Constitution.78

However, neither the provision nor the principle was referred to in Cookery and the

unanimous Court in did not show much hesitant in subjecting the head of the executive to

such level of judicial process. The same may not be said for the courts in the United States

of America.

Following Marbury v. Madison79 in which the asserted but unexercised judicial

power to issue mandamus to an executive officer deeply angered the Jeffersonians,80

75 See Wat Tingsamit, Tasting while Grumbling Case, NEW LAW JOURNAL vol. 100, at 46 (2008) (Thail.). 76 Thai Constitution (2007), supra note 9, secs. 174, 182. 77 Id. sec. 190; See also supra note 71. For further discussions see infra Appendix C. 78 Id. sec. 3 para. 1. 79 5 U.S. (1 Cranch) 137 (1803).


20

Marshall had an opportunity in United States v. Burr81 to issue a subpoena to President

Jefferson demanding evidence related to a trial of treason. In doing so however Marshall

carefully argued that the President did not enjoy absolute immunity from the court by

distinguishing the President, who is elected by the people and then returns to the mass of

the people after the term office, from a monarch whose crown is heredity and thus under

English law may be protected by the principle that the king can do no wrong.82 Jefferson

nevertheless declared that he voluntarily cooperated with the judicial process but

rejected any legal obligation to do so.83

Over a century later in United States v. Nixon,84 the Supreme Court faced the issue

whether the Constitution grants the executive a privilege of immunity from handing over

confidential information required by a criminal prosecution, or to frame more generally,

whether the separation of powers bars judicial activity from certain areas sensitive to the

executive. Chief Justice Burger writing for the Court responded that separate powers

were not intended to operate with absolute independence85 nevertheless the Court

remained aware of the need to carefully examine and resolve the competing interests in a

manner that preserves the essential functions of each branch.86 The Court concluded that

the Presidents assertion of privilege as to subpoenaed materials was based only on the

80 GEORGE L. HASKIN & HERBERT A. JOHNSON, HISTORY OF THE SUPREME COURT OF THE UNITED STATES:

FOUNDATIONS OF POWER: JOHN MARSHALL, 1801-15, at 183-86 (1981). 81 United States v. Burr, 25 F. Cas. 30 (C.C. Va. 1807). 82 Id. at 34. 83 See Paul A. Freund, Foreword: On Presidential Privilege, the Supreme Court, 1973 Term, 88 HARV. L.

REV. 13, 23-28 (1974). 84 United States v. Nixon, 418 U.S. 683. 85 Id. at 708. 86 Id.


21

generalized interest in confidentiality and thus cannot prevail over the fundamental

demands of due process of law in the fair administration of criminal justice.87

Indeed, the modern clarity of the Thai Constitution on judicial jurisdictions over a

case such as Cookery88 may leave not much room for issues of executive privilege and

immunity. Nevertheless, the Thai Court can still observe the judicial delicacy required in

resolving the competing interests that lie in the substance of the case. In Youngstown

Sheet & Tube Co. v. Sawyer,89 the Supreme Court had to consider the challenge against

the executive measures of taking over the major steel mills in the country. President

Truman believed that a strike by the major steel producers would lead to serious problems

for the national economy and also the defense contractors at the time when the United

States were sending troops to South Korea and argued that he was acting within the

aggregate of his constitutional powers as the Chief Executive and the Commander in

Chief. The Court held that President Truman had no power to take such measures which

were not expressly or implicitly authorized by the Constitution or an act of Congress.

But deciding what the President is allowed to do under the Constitution was not a

simple question and members of the Court gave a considerable amount of effort in

distinguishing different types of situations bearing in mind the separation of powers.

Justice Douglas, concurring, reasoned that the nature of the seizure was a quintessentially

legislative act which the Constitution entrusted to the Congress.90 Acknowledging the

argument calling for presidential emergency power, Douglas stressed on the intent of the

framers who rejected the alternative arrangement that may lead to political tyranny.91

87 Id. at 714. 88 See supra note 14 and accompanying text. 89 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). 90 Id. at 631. 91 Id. at 634.


22

Justice Jackson, who in joining the majority had some reservations on the

complicated nature of the separation of powers principle,92 further delineated 3 categories

of practical situations related to the challenge of presidential powers.93 The first is a

situation in which the President acts pursuant to an express or implied authorization of

Congress [and] his authority is at its maximum.94 The second is the one in which the

President acts in absence of either a congressional grant or denial of authority or a zone

of twilight; which to Jackson seemed to be a non-justiciable issue.95 The final situation is

when the President takes measures incompatible with the expressed or implied will of

Congress, his power is at its lowest ebb, for then he can rely only upon his own

constitutional powers minus any constitutional powers of Congress over the matter and

further noted that such case must be scrutinized with caution, for what is at stake is the

equilibrium established by our constitutional system.96 It seemed to be in the last

category where Jackson treated the silence of the Congress as an implied denial on the

Presidential power to seize the mills, given that a previous attempt to make such power

into law was unfruitful.97

Turning to Cookery, a sober and sound legal mind may also recognize a similar

delicacy in rationalizing the ban imposed by Section 26798 bearing in mind the enormous

92 Id. at 594 (Although the considerations relevant to the legal enforcement of the principle of separation

of powers seem to me more complicated and flexible than may appear from what Mr. Justice Black has written, I join his opinion because I thoroughly agree with the application of the principle to the circumstances of this case.)

93 Id. at 636-39. 94 Id. at 636. 95 Id. at 638 (In this area, any actual test of power is likely to depend on the imperatives of events and

contemporary imponderables rather than on abstract theories of law). 96 Id. at 638-39. 97 Id. at 645-46. This reliance on silence attracted sharp criticisms. See infra pp. 35-36 notes 136-41. 98 Thai Constitution (2007), supra note 9, sec. 267 ([Prime Minister and Minister] shall not hold any

position in a partnership, a company or an organisation carrying out business with a view to sharing profits or incomes or be an employee of any person).


23

consequence on the separation of powers and the structure of the government. Although

the situation was different from the one in Youngstown, one could nonetheless argue

whether the Thai Constitution or any Act of Parliament explicitly or implicitly prohibits a

Prime Minister from hosting a television cookery show. The Court started its opinion by

speaking of the spirit of the Constitution or the purpose behind Section 267 which is to

ensure the proper execution of Ministers duties by preventing a difficult and unethical

situation of choosing between pursuing a private interest and public interest, but seemed

to abandon from expounding such spirit regarding conflict of interests completely when it

swiftly moved to adopt the definition of employee that it deemed proper99 and

dismissed the relevance of legal definition of employee under civil and commercial law,

employment law100 and tax law.

This is not to say that the Thai Constitutional Court does not recognize the

separation of powers as it indeed refers to the principle on some other occasions. For

99 Cookery Decision, supra note 13, at 14. Contra Thai Constitution (2007), supra note 9, sec. 216 para. 4.

The author is concerned with the brevity and generality of the decision of the Court as one judicial institution, and while it is noted most if not all of the 9 judges discussed the issue in their separate opinions at greater length both legally and factually, the Courts rationale escapes the author as to why such individual prudence, if indeed judicially ascertainable, did not seep through the unanimous main opinion. See e.g. Cookery Decision, supra, at 19-21 (separate opinion of Chief Judge Chat Chonlaworn) (generally reapting the main opinion), 22-26 (separate opinion of Judge Jarun Pukditanakul) (reasoning that the conflict of interests provisions should be strictly interpreted due to the difficulty of retrospective investigation); 29-35 (separate opinion of Judge Charoon Intachan) (mentioning the issues of good governance and propriety of the office, the elements of abuse of power, and discussing the appointment of a person who sponsored the cookery program to a position in a State-owned company), 37-39 (separate opinion of Judge Chalermpon Ake-uru) (discussing the required quality of a public person holding a high level public office), 40-42 (separate opinion of Judge Nurak Marpraneet) (analogizing the income Mr. Samak received from a publishing company), 46-48 (separate opinion of Judge Boonsong Kulbupar) (analyzing the commercial relationship between Mr. Samak and the television production company that existed long before the taking of office); 49-52 (separate opinion of Judge Vasan Soi-phisud) (citing a Supreme Court decision to suggest that the interpretation of employee under public law is different from the one under private law), 54-58 (separate opinion of Judge Supoj Kaimook) (noting that the cookery program was aired on a television network that was operated by the Thai Army at the time when Mr. Samak also held the Defense Ministership), 59-62 (separate opinion of Judge Udomsak Nitimontri) (discussing the relevance of hire of work and labor employment under Section 267 and also distinguishing the prohibited acts from permissible acts).

100 Cf. Pranee Suksri, Tasting while Grumbling Case: an employee who is not self-insured, BUSINESS LAW

AND HUMAN RESOURCES JOURNAL vol. 71, at 38-44 (2008) (Thail.) (analyzing relevant employment law and Thai Supreme Court precedents and suggesting that Mr. Samak is not an employee under employment law).


24

instance in Annual Expenditure,101 when a group of Senators challenged the

constitutionality of a budgetary amendment made by the executive during a process in

which the annual government statement of expenditure was being considered by the

House of Representative, the Court elaborated how the Constitution assigns certain

budgetary matters to be under the authority and responsibility of the executive branch, and

reserve some to the legislature.102 Similarly in Economic Stability Decree,103 when an

executive decree which authorized the Ministry of Finance to take emergency loans to

stabilize the economy was challenged, the Court justified its decision to uphold the decree

by explaining how the separation of powers principle allows the executive branch to enjoy

certain emergency powers while at the same time subjects it to other available means of

checks and balances.104

The present contention being advanced here however is that the separation of

powers principle should be deemed fundamentally relevant not only when the Court is

faced with the obvious question on the scope of authority or constitutional jurisdiction of

branches of the government, as the Court did in Annual Expenditure or Economic Stability

Decree, but also in the situation where the Court, as one branch of the government,

engages in constitutional construction that substantially affecting another. Hence, in a case

such as Cookery, even though the question concerning the individual qualification of the

Prime Minister does not require the Court to identify any division of authority or

jurisdictions divided between branches of the government, separation of powers is to be

the rationale in interpreting the text of the Constitution, as illustrated below.

101 Thai Constitutional Court decision no. 14/2551, Sept. 29, 2008, Thai Royal Gazette vol. 125 pt. 127

(kor). 102 Id. at 11-14. 103 Thai Constitutional Court decision no. 11/2552, June 3, 2009, Thai Royal Gazette vol. 126 pt. 77 (kor). 104 Id. at 23-30.


25

1. Separation of Powers in the Drafting Process

There is an unconventional argument to be made regarding the element of

separation of powers not only in the process of the exercising the power under the current

Constitution, but also the process that took place after abrogation of the 1997 Constitution

which led to the 2007 Constitution. Unlike in certain countries where the original drafting

process took place over centuries ago and involved a smaller group of delegates, the

unconventional modern day post coup process experienced in Thailand inevitably

involved the existing personnel from existing institutions belonging to different branches

of the government, which partly reflected the attempt of the coup instigators to draw

supports from the personnel of these branches to preserve their own legitimacy. For

instance, the membership of the National Peoples Assembly105, as well as the process that

led to it, which is a body responsible for the partial selection of the members of

Constitutional Drafting Assembly, included ambassadors, bureaucrats, political party

representatives, former legislative members, judges and officers of the Constitutional

organs etc. who were already performing active functions within different branches of

government.106

Indeed by the order of the coup instigators the Parliament and some organs were

not functioning and their representation to different branches might not be formal, but the

balancing of power in the process that led to the draft Constitution, especially the

alterations and modifications of the provisions of their direct concerns such as the

qualification of the Ministers as seen in Section 267, took place in crude form nonetheless.

Moreover, even though the legitimacy and transparency of the drafting process can be a

subject of separate inquiry, the drafting institution also engaged in the process which 105 Thai Interim Constitution (2006), supra note 6, sec. 21. 106 Notification of the Council for National Security on the Criteria and Process for the Appointment of

Members of the National Peoples Assembly, October 19, 2006 and amended on October 20 2006, Thai Royal Gazette vol. 123 pt. 177 (kor).


26

included the hearings and deliberation by institutions what was meant to be a

representative body not of the citizens but also arguably among the existing influence with

the branches of government.

Thus, the unconventional argument is, by resorting to the debates and records in

the drafting process, there is not only a value in an attempt to illuminate the text with the

history and original meaning,107 but also in the peculiar case such as Thailand, one can

also observe the working of powers in play in the drafting process especially for those

provisions concerning the separation of powers.

The framers of the 2007 Constitution were aware of the past difficulties faced by

the Constitutional Court and the litigants in interpreting constitutional provisions due to

the lack of written records on the history and purpose behind the drafting. Thus the

framers of the 2007 Constitution set up a committee to prepare the Record containing the

drafting intent and history behind each section of the Constitution.108 The Constitutional

Court indeed, albeit without citation, copied a part of the Record noting the intent behind

Section 265 (conflict of interests in case of members of the Parliament), and put it in

Cookery as a general explanation on the notion of conflict of interests in relation to

Section 267.109 Three observations may be made.

First, the Courts use of the Record in relation to Section 265 is welcomed indeed

as Section 265, while dealing with Parliamentarians, is borrowed by Section 267 and thus

also applies to Prime Minister and Ministers.

The second observation, which concerns the author more, is the fact that the Court

did not refer to another relevant part of the Record that noted the intent behind Section 107 See TRIBE supra note 30, at 47-70. 108 THE SPIRIT OF THE CONSTITUTION OF THE KINGDOM OF THAILAND BUDDHIST ERA 2550, prepared by the

Ad Hoc Committee on Spirit Record, Archive and Meeting Reports Verification of the Constitution Drafting Assembly, available at http://library2.parliament.go.th/giventake/content_cons50/cons50-intention.pdf (last visited Apr. 30, 2010).

109 See supra notes 16-17 and the quoted text. See also Id. at 257.


27

267 which was at issue in Cookery. The Record states that Section 267 aims to prevent

the exercise of power for personal gain.110 The author admits that such broad statement

can be interpreted in different ways and the Court may as well found that statement to be

relevant to certain prohibited acts under Section 267 and not the ban on employment. In

any case, the Record was recently prepared and evidence was readily available for further

investigation. The Court nonetheless made no attempt to clarify the relevance of such

statement which may otherwise suggest that an exercise of any form of executive power

enjoyed by Mr. Samak in appearing on a cookery show forms a basis of conflict of

interests.111

There are without doubt certain situations that manifestly purport to an

unacceptable conflict of interests, for instance in a convenient hypothetical situation

where the Prime Minister is employed as an advisor by a catering company whose

business involves the provision of catering services to governmental and state agencies

which require the selection and approval by the executive authority. In such convenient

case the Prime Minister might exercise the power to select and approve a catering

business in order to gain benefit for his employer and himself, and thus there is a conflict

of interests. Even in the Cookery situation where the interpreting the definition of

employee is less than obvious, there are still rooms to investigate into the relationships

between the governmental agencies, the television production company, the television

network and affiliates, the sponsors of the program which might range from family-run

cooking oil companies to a national player in agricultural sector.

The third observation concerns the issue of original understanding. Such ban which

appears as Section 267 today originally appeared as Section 143 of the Thai Constitution 110 Id. at 258. Interestingly the notes in the Record seem to mention some elements of power being exercised

both in relation to Section 265 and Section 267. 111 The Courts predecessor under the 1997 Constitution discussed this issue in a similar case, see infra Part

II.A.3(a) at p. 37.


28

of 1949.112 Professor Dr. Yut Saeng-uthai, who was the Secretary-General of the Council

that drafted the 1949 Constitution, explained in his commentary published in 1950 that

such ban was included for two reasons, the first being that it would be simply improper

for the Ministers of His Majesty the King to be working for a private party, and the second

reason being that any outside employment may take away the concentration and the time

of the Minister that should be devoted to the public office,113 however the 1949

Constitution did not contained any provision that allowed the judiciary to intervene.114

The Court in Cookery did not discuss such original understanding which was

neither refuted nor reaffirmed in the Record, however it would be possible, and helpful,

for the Court to distinguish the meaning of Section 267 under the current Constitution

which is a fresh product of the coup dtat against Thaksin Shinawatra government from

the text in 1949 where the Constitutional Court was not in existence, and try to delineate

to what extent has the rationale in 1949 remained the same.

The author has expressed concerns elsewhere on the questionable nature of the

statements of high generality contained in the Record,115 but ultimately it is up to the

Constitutional Court to use the statements contained therein as one of the available tools

of interpretation given a specific situation of the case at bar, and not as the decisive

indication of the content of constitutional law itself. Here the Court was silent on the

constitutional baseline of the term conflict of interests, which it said to be the purpose of

the provision in the first place. Indeed the text of Section 265 is very precise in the level 112 The Constitution of the Kingdom of Thailand Buddhist Era 2492 (1949) (repealed), Thai Royal Gazette

vol. 66 pt. 17, sec. 143. 113 YUD SAENG-UTHAI, COMMENTARY ON THE CONSTITUTION OF THE KINGDOM OF THAILAND 550-552

(Uthai Printing House 1950). 114 Id. (explaining further that violation of such ban has no direct remedy but political process such as the

vote of confidence in the House of Representatives). 115 See Verapat Pariyawong, Sovereignty in International Law Making: Certain Treaties Requiring

Parliamentary Approval, on THAILAND PUBLIC LAW NETWORK WEBSITE (Nantawat Boramanand ed.), http://www.pub-law.net/publaw/view.asp?PublawIDs=1214 (last visited Apr. 30, 2010). See infra Appendix C for the full text.


29

of details which may explain the generality of the note behind of Section 265 in the

Record, unlike the text of Section 267 which is more general and cannot be easily read in

the same way.

More importantly, when due regard is given to elements of the separation of

powers in the drafting process, by quoting a general statement in the Record on Section

265, which applies to the legislature and neglecting the part provided for Section 267

dealing with the executive, the Court was engaging in a dangerous enterprise of blurring

the applicability of Constitutional rules on which it then relied to make a swift conclusion

on the broad definition of employee and thus disqualified Mr. Samak from office. The

Court was therefore in effect asserting a statement of high generality with little

qualification that enters the constitutional legal system as a binding law116 that bans a

wide range of relationship of interests even though it remains unclear if such ban was

even contemplated by either the original framers or members of the branches that were

involved in the drafting process.

2. Legislative Intent

In addition to the drafting process and original understanding of the Constitution,

the intent of the representatives also plays a vital role. While the Constitution makes the

Constitutional Court the ultimate arbiter on constitutional law, it nonetheless reserve some

powers to the legislature by specifically providing for certain Acts of the Parliament to be

the Constitutional Organic Acts which spell out the details of the issues fundamentally

related to the Constitution such as election, political parties and public referendum.117 One

of such Organic Acts is the Organic Act on Countering Corruption passed by the

116 Thai Constitution (2007), supra note 9, sec. 216 para. 5 (providing that is decision of the Constitutional

Court is final and binding on the parliament, the council of ministers and other State organs). 117 Id. sec. 138.


30

Parliament in 1999118 pursuant to the 1997 Constitution, but continues to remain in force

as an Organic Act for the purpose of the current Constitution.119 The 1999 Act which is

primarily executed by the National Counter Corruption Commission contains a specific

chapter dealing with Conflicts between Personal Interest and Public Interest120 detailing

a list of prohibited conducts121 applicable to State officials which also covers the Prime

Minister and Ministers.122

While there is no specific prohibition on a private conduct as an honorarium,

Section 100 (3) of the Organic Act prohibits State officials from certain employment and

is especially relevant. It establishes a three-prong test.

(1) The official shares interests in the capacity as a director, counsel,

representative, official or employee in a private business.

(2) Such private business is supervised, controlled or examined by the State agency

to which such State official is attached or where such State official performs

duties in the capacity as State official. 118 The Constitutional Organic Act on the Prevention and the Suppression of Corruption B.E. 2542 (1999),

Thai Royal Gazette vol. 116 pt. 114 (kor) [Hereinafter Organic Act]. 119 Thai Constitution (2007), supra note 9, sec. 302 para. 1(2). 120 Organic Act, supra note 118, Ch. IX. 121 Id. sec. 100 para. 1. It prohibits any State official from carrying out the following acts:

(1) being a party to or having interest in a contract made with a Government agency where such State official performs duties in the capacity as State official who has the power to conduct supervision, control, inspection or legal proceedings; (2) being a partner or shareholder in a partnership or company which is a party to a contract made with a Government agency where such State official performs duties in the capacity as a State official who has the power to conduct supervision, control, inspection or legal proceedings; (3) being a concessionaire or continuing to hold a concession from the State, State agency, State enterprise or local administration or being a party to a contract of a directly or indirectly monopolistic nature made with the State, a Government agency, State agency, State enterprise or local administration, or being a partner or shareholder in a partnership or company which is a concessionaire or a contractual party in such manner; (4) being interested in the capacity as a director, counsel, representative, official or employee in a private business which is under supervision, control or audit of the State agency to which such State official is attached or where such State official performs duties in the capacity as State official, provided that the nature of the interest of the private business may be contrary to or inconsistent with public interest or the interest of the Government service or may affect the autonomy in the performance of duties of such State official.

122 Organic Act, supra note 118, sec. 1.


31

(3) The nature of the interest belonging to such private business may be contrary to

or inconsistent with the public interest or the government service, or may affect

the autonomy of such State official in performing his or her duties.

The above test can provide a reasonable room of inquiry for the Court for instance

to determine whether a television program host, if not considered as an employee, can

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