Principles of independence of the Constitutional Court: A Comparative Study of Foreign Countries

Abstract

The research entitled "The Neutral Principle of the Constitutional Court: A Comparative Study of Theories in Foreign Countries" aims to explore concepts and theories regarding the neutral principle of the judiciary, including essential components of the neutral principle of the judiciary as a view of development on the spirit of the principle provided in the Constitution of the Kingdom of Thailand. This research also compares the neutral principle of the Constitutional Court of Thailand with the parallel principle as applicable to other courts in the Thai judicial system as well as constitutional courts or equivalent organizations in foreign jurisdictions. Suggestions on concrete ways to develop or ameliorate relevant laws or administrative measures were focused on. This qualitative research is based on both documentary examinations and in-depth interviews with key persons in Thailand, such as former judges of the Constitutional Court, judges in the Supreme Court and qualified persons in legal science and political science.

It was found that the neutral principle of the Constitutional of Thailand, the Constitutional Court of Austria, the Constitutional of Germany, and the Constitutional Council of France have, as its components, at least two aspects of independence. First, they require substantive independence. The Constitutional Court must be free to perform its duties and exercise its power without any interference from the legislative, executive, and judicial branches. Also, it must be independent in its structure, including the process of the selection and appointment of the judges. The second aspect of independence lies in individual matters, in which the Constitutional Court must be equipped with independence in terms of being in charge position, duty performance, removal or replacement.

The comparative analysis of the neutral principle of the Constitutional Court of Thailand and equivalent international organizations leads to recommendations for the amelioration of law with the goal of bringing the neutral principle of the Thai Constitutional Court into conformity with international standards. To this end, the law should be amended with respect to the qualifications of judges of the Constitutional Court, where the judges can be selected from experts in public law. In addition, to avoid interpersonal relationships, the organization of training programmes by the Constitutional Court should be reviewed to prevent prejudicial effects on the neutral principle pertaining to this Court.