IMPLEMENTATION AND INTERPRETATION IN CRIMINAL LAW: STUDY ON SECTION 6 OF ACT ON LEGISLATIVE DRAFTING AND EVALUATION OF LAW B.E. 2562

Abstract

The  Act on Legislative Drafting and Evaluation of Law  B.E. 2562 (2019) is the regulation enacted for the purpose by virtue of Section 77 of the Constitution of the Kingdom of Thailand which states that “The State should introduce laws only to the extent of necessity, and repeal or revise laws that are no longer necessary or unsuitable to the circumstances, or are obstacles to livelihood or engagement in occupations, without delay, so as to abstain from the imposition of burdens upon the public. The State should also undertake to ensure that the public has convenient access to the laws and are able to understand them easily in order to correctly comply with the laws.” and to provide the framework or guidelines to government sector to prepare the bill and conduct regulatory impact assessment with much clearer criteria and guidelines.

Nonetheless, Article 6 of the Act on Legislative Drafting and Evaluation of Law authorizes the courts to consider the necessity of the laws in case that application of any provision to the case and such provision contains criminal or administration penalty, or enforcement that cause negative impact in case of violation, and the court deems that such provision is no longer necessary, then the general meeting of the Supreme Court, the general meeting of the Supreme Military Court, or the general meeting of the Supreme Administrative Court, may giving judgment not to punish, or decrease the punishment to be lower than the provision of law, or imposing different criminal sanction from the provision of law, as the case may be. Authorizing the court with such power may create law enforcement issue in the future since the court decision not to punish, or decrease the punishment to be lower than the provision of law, of imposing different enforcement from the provision of law according to Article 6 of such Act may entitle the judicial body the power beyond their scope, and may cause further issue that the provision in this Article 6 may (1) contradict with the “Civil Law Juristic Method” (2) contradict with the “Separation of powers theory”; and (3) contradict with “No penalty without law” principle.

From the research, the provision in the Article 6 of the Act on Legislative Drafting and Evaluation of Law contradict with the “Civil Law Juristic Method”. Since Thailand use Civil law system, which shall rely on written statutes, and the court merely apply and interpret such written statutes and may not create new legal principle by themselves. The Article 6, however, authorizing the court to create new legal principle, which directly contradicts the civil law juristic method. In addition, the provision of Article 6 of the Act on Legislative Drafting and Evaluation of Law also contradicts with the “Separation of powers” theory since the provision of Article 6 authorizes the judicial body to impose sanction with negative impact that is difference from the written statutes, and therefore the judicial body is granted the power to  impose new penalty, which should be only in the scope of legislative body. Furthermore, the provision of the Article 6 of the Act on Legislative Drafting and Evaluation of Law also contradicts with the “No Penalty without Law” principle, which criminal law must be exact, written, well-defined, and non ex-post facto, but the provision of Article 6 authorizing the judicial body to  impose sanction with negative impact different from the provision of law, which defies the legal certainty, and causing the perpetrator to be unable to understand exactly the negative impact that will be imposed to themselves, and the provision in Article 6 had authorized the courts to indicate enforcement with negative impact other than those prescribed in the provision of laws and cause the judicial body to possess the power to create ex post facto law at any time.

Therefore, since the provision of Article 6 of theAct on Legislative Drafting and Evaluation of Law may contradict with the Civil Law Juristic Method, the Separation of Powers theory, and No Penalty without Law principle, and to prevent the occurrence of law enforcement issue as described above, the revocation of the Article 6 of theAct on Legislative Drafting and Evaluation of Law is suggested. However, due to the high importance of Act on Legislative Drafting and Evaluation of Law, if the ex-post amendment of the laws is still necessary, then the establishment of the central agency with specific objectives to be responsible for such mission is recommended, instead of authorizing judicial body to consider the necessity of the laws as prescribed in Article 6 of the Act.