THE LEGAL ENFORCEMENT OF FISCAL RESPONSIBILITY LAW IN THAILAND

Abstract

The purpose of this article is to study legal binding of advisory opinion of Constitutional Court of Thailand to the Parliament. At present, decisions of the Constitutional Court of Thailand, especially the decisions of judicial review, are not only included general part of decisions but also the Court’s advisory opinion that raised the problem whether the Court’s advisory opinions have a legal binding to parliament or not, as well as the problem that the Constitutional Court should have the power to formulate advisory opinion in its decisions.

            In order to obtain the answers, the author studied the concepts of jurisdiction of the constitutional court to examine Parliament. These concepts compose of Negative Legislator, Principle of Judicial self-restraint, and the role to give the final meaning to the constitution or law. The Study shows a limited scope of the constitutional court's powers to examine parliament. In addition, the compositions of constitutional court’s decision have shown that which part of decision is binding and which part is non-binding to the Parliament. The study proofs that the advisory opinion is neither bound the parties, nor the parties involved. The author also make a comparative study of decisions of the foreign constitutional court such as those of the Federal Republic of Germany, the Republic of Korea and the supreme court of the United States. The results of the study found that there is non the case that the advisory opinion in constitutional court’s decisions is binding on the parliament as a law-making institution. In addition, when considering the roles of constitutional court under the Negative Legislator together with the principle of Judicial self-restraint and the role to give the final meaning to the constitution or law, which give that the constitutional court has only power to interpret the law to determine the case and to convey final decision to legal disputes. Moreover, the political context of Thailand still has issue in the balance of power between the Constitutional Court and the Parliament, thus, the author consider that the constitutional court should not prescribe the advisory opinion in the decision and should declare the constitutionality of law without suggestion on the issue of suitability of law or legal content. The constitutional court also should advice the appropriate time limit for the parliament to amend the unconstitutional laws in order to prevent a legal vacuum in a specific situation.