CONSTITUTIONAL COURT AND ITS POWER TO REVIEW THE ACT OF GOVERNMENT

Abstract

The study of the Constitutional Court and its power to review the act of government aimed to 1) Study the guideline of the ruling of the Constitutional Court on the issue of the act of government and 2) Recommend the guideline to control and supervise the act of government by the Constitutional Court. In terms of the scope of the study, the researcher compared the act of government based on the legal systems of France, United Kingdom, United States of America, Germany with Thailand and analyzed the ruling of the Thai Constitutional Court concerning the act of government.

The study findings revealed that on the control and supervision of the act of government by the Constitutional Court, if the Constitutional Court extends the scope with more control, it means that the public administration must have the prior approval of the Constitutional Court which is against the principle of the division of power. The problems of the control and supervision of the act of government by the Constitutional Court both before and after the act of government was legally binding appeared in three aspects namely unspecific of the words in the Constitutional provisions, scope of power of ruling of the Constitutional Court, and lack of criteria to consider the act of government.   

Therefore, this thesis recommends the guideline to control and supervise the act of government by the Constitutional Court by determining the criteria to consider the act of government, consisting of the power exercising organization, the types of the act, and the base or source of power, with two main rankings for the consideration of the control and supervision.  The first ranking is the consideration of the extent of the control and supervision of the Constitutional Court to end according to the provisions as appeared in the Constitution. The second ranking is that if the words as stipulated in the Constitution are unspecific, abstract, and unclear, the extent of the consideration of the control and supervision of the Constitutional Court shall be undertaken as follows: A) If the reference to the evidence or fact as the reason to explain the unspecific words of the provision is complete and in the entirety. B) If the evidence or fact referenced to explain the unspecific words can correctly explain the meaning of the words. C) If the use of any specific tool or method to assess the unspecific words or to prove the unspecific words as claimed truly took place or not. If there is a specific tool or method assessment to prove the unspecific words and if the administration does not take action with the mentioned tool or method resulting in its deficiency. D)  Appropriate reason given in accordance with the unspecific words. (E) Correct, clear, and reasonable modification of facts with the legal provisions.