Legal Problems and Concepts affecting Constitutional Court Decision No. 6/2021

Abstract

The Constitution sets forth several grounds of termination of membership of the House of Representatives. In this connection, membership may terminate on the ground of lack of qualifications, prohibitions and prohibited conduct of a member of the House of Representatives. The Constitutional Court, in its decision No. 6/2564, has ruled on termination of membership of the House of Representatives on the ground of prohibitions and primarily based its decision on the principle of sovereignty, as to which termination on the ground of “having been convicted by a final judgment” has been found to be limited to conviction by a judgment of a Thai court only without being extended to a judgment of any foreign court. This research finds that the legal principle under which final judgments of foreign courts are recognised has been well received both in jurisdictions whose provisions of law give direct recognition to such principle and in jurisdictions where there is no such direct provision of law, including the Thai jurisdiction. In effect, in the case which has led to the above-mentioned decision of the Constitutional Court, possible invocation of the principle of recognition of final judgments of foreign courts and necessary steps in conducting inquiries and collecting evidence with a view to obtaining an official copy of the decision of the foreign court were, in no wise, beyond the competence and capability of the Constitutional Court. If the Court had pursued such path, the Court would indeed have reached a completely different decision. In effect, the act for which the foreign court sentenced the respondent to imprisonment for a term of 4 years in the charge of involvement in the importation of an amount of heroin into Australia for trade also constituted an offence in Thai law. However, no law-enforcing agency in Thailand carried out inquiries and investigation in relation to this case. It is, therefore, recommended that section 73 of the Organic Act on Procedures of the Constitutional Court, B.E. 2561 (2018) and Clause 17 of the Ministerial Regulation Organising the Office of the Permanent Secretary of the Ministry of Foreign Affairs, B.E. 2558 (2015) be amended.