Problems on issuing the enforcement and Recommendations in Constitutional Court Ruling

Abstract

This article aims at studying problem, on the issuance of enforcement order and recommendation of the Constitutional Court’s rulings established by laws and the interpretation of the Constitutional Court. It also examined procedures and concept of the binding force, the issuance of enforcement order and the recommendation of the Constitutional Court’s rulings under the Constitution, the Organic Act on the Procedures of the Constitutional Court B.E. 2561 (2018) and the Rules of the Constitutional Court on Procedures of Constitutional Cases B.E. 2562 (2019). This article also compared with the cases of the Federal Constitutional Court of the Republic of Germany, the Constitutional Court of the Republic of Austria and the French Constitutional Council in order to analysed and examined the appropriateness of the issuance of enforcement order and recommendation. Based on documentary analysis, this article examined the Constitution of the Kingdom of Thailand B.E. 2560 (2017), relevant laws, academic articles, reports, legal text books, and electronic materials.

Consequently, it was found that the issuance of enforcement order and recommendation raised 3 problems namely (1) the problem on the protection of people’s right affected by the enforcement order issued for nullifying the law that was contrary to or inconsistent with the Constitutional in the future; (2) the problem on the issuance of enforcement order for imposing conditions for parties; and (3) the problem on status of recommendation stated in the Court’s ruling.

This article gave some recommendations to the Constitutional Court as follows: (1) the issuance of enforcement order nullifying the law that was contrary to or inconsistent with the Constitution in the future should be imposed as additional issue for consideration rather than only whether the law was contrary to or inconsistent with the Constitution. In deciding to include the enforcement order in the Court’s ruling, it should require two-third majority vote of existing Justices of the Constitutional Court; (2) the issuance of enforcement order imposing conditions for parties, the Constitutional Court should perform itself only within the competences that derived from the Constitution. Moreover, giving the recommendations was significant instrument of the Constitutional Court in guiding the concerned authorities to perform their duties in line with the Constitution. The Constitutional Court should therefore issued any recommendation based on majority vote of existing Justices of the Constitutional Court.