Thailand’s
Legislative Process: Overview
[1] In this
article, the writer is going to clarify the legislative process of Thailand
through historical approach since the main structure of Thailand’s legislative
process has emerged from conventional practice, not by provisions of laws. Statutory provisions related thereto have
been prescribed later on so as to make that process become concrete rules. Some may know that Thailand changed her regime
of administration from absolute monarchy to democratic one in the mid of 1932
and may by then presume that legislative process of the two regimes might be drastically
different. Actually, the legislative process before and after that change is closely
relative. Many dominant characteristics of legislative
process of the old regime have been succeeded to the new one and still be
practiced until now.
[2] This article
composes of 3 parts. In Part I, the
writer is going to portray shortly Thailand’s legislative process in absolute
monarchy period prior to the date she had been threaten by western colonization
as well as the description of legislative process while Thailand was under
pressure of colonization till she adopted democratic regime of government in
1932. The legislative process after the
adoption of democratic regime shall be clarified in Part II. It should be noted that the legislative
process in this part means the legislative process in ordinary circumstance in
which the Legislatives is bicameral. The
last part relates to legislative process in such extraordinary situation where
the Legislatives is unicameral as in the present time.
Part
I
[3] According to
Thai archives and those of neighboring countries,[2]
Thai people
had settled in Suvarnabhumi peninsula for more than 700 years. In ruling the Kingdom, the King was the only
one having power to make law. If His
Majesty deemed appropriate to have any law for any existing or expected
problem, He was going to entrust “A-luck,” a Royal Court officer, to
make draft law in accordance with His Majesty’s pleasure. The King sometimes required His noblemen to
give advices, comments or recommendations on that problem with a view to make
Him an idea in law making or improving the draft law. Consultation with noblemen was however
limited only to the matter the King deemed appropriate and had been organized
in very rare case.[3] The draft shall become law when His Royal
Signature had been given thereto. This tradition nevertheless
had been changed by the Royal Command of King Rama IV.[4]
His Majesty deemed that it was not fair to the alleged
offenders if they were not know that what they had done were prohibited by
laws. This initiative was compliant with
general legal principle of ignorantia
juris non excusat. The King laid down the new practice to guarantee
rights and liberties of His subjects under the rule of law that law shall be
enforceable when it had been made know to public. Since then, all laws shall come into force
upon its publication in the government information publication; the Government
Gazette.[5] It could therefore be said
that no formal legislative process in the archaic era, except the publication
of law in the Government Gazette.
[4] When the western empires turned their powerful
fleets to the East in mid 1800s, King Rama V[6] strongly realized that
the only way His country might avert from the claim for colonization of those superpowers
was to make friend with them all through diplomatic channel and to modernize
Thailand along the same line with the western way so as to make them recognize
Thailand as civilized country, not the barbaric one as they claimed. Infrastructure reform had been push seriously. Roads system, irrigation system, electricity
system, trains and rails and other infrastructures had been provided
systematically and continually. In term
of public administration, even though Thailand or Siam at that time still
governed by absolute monarchy. King Rama
V established 12 Ministries in 1888 to conduct State administration upon
functional basis according to British and European models. Legal reform however was atop of the
aforesaid. Thai legal system of that day
was accused barbaric by the Wests. King
Rama V then chose to modernize Thai legal system both substance and procedure
upon Civil Law system of the European continent because Thai legal system of
that day was familiar with that system and the compilation of Codes took
shorter period than the development of Common Law.
[5] As for legislative power, despite the King still had
the supreme power to enact law, King Rama V had decentralized his initiative in
law making to the Minister of each Ministry.
Each Minister was granted with permission to propose the bill he drafted
to the King for His Royal Signature if that bill was deemed necessary for the
performance of duties of his Ministry. His Majesty’s decentralization on this
matter caused to have the customary rule as to whether the bill has to be
drafted by each responsible Ministry.
[6] For the benefit of deliberation of legislations
proposed by all Ministries, King Rama V who enthroned at His young ages established
the Council of State upon French Counseil d’Etat model, consisting of
His noblemen having knowledge and experience in the administration of State’s
Affairs, to give Him advices and recommendations in relation to any bill upon His
request. The law on abolition of slavery
of 1874 was of the outstanding recommendation of the Council of State. This institution had been dissolved so far
since there was no request for consultation.
[7] The distinctive evolution of Thai law drafting
practice emerged when the law drafting agency; the Department of Legislative
Redaction (DLR), had been established by King Rama VI[7] along the same line
with the Parliamentary Council of the Common Law countries and Law Drafting
Division of the Council of State of the European Continent. According to the Royal Proclamation of October
27, 1923,[8] DLR had been
established in the Ministry of Justice with the powers and duties as follows:
(1) to make a draft laws upon His Royal
Command;
(2) to examine all draft laws made and proposed
by all Ministers prior to be submitted to His Majesty for His Signature;
(3) to give advices and recommendations on
the point of law to the King upon His request.
[8] The effect of the Royal Proclamation of 1923 was
not just the establishment of law drafting institution, but also set up
concrete legislative process for the first time in Thailand. By customary rule, draft law had to be made
by the responsible Ministry. After that,
it had to be forwarded to DLR for examination.
In this regard, DLR which composed of Law Councillors who were Thai elite
lawyers and foreign legal consultants of the Royal Thai Government had to
examine it in term of suitability of legal policy and legal mechanism. Only the draft examined by DLR shall be
presented further to the King for His Royal Signature.[9]
Part II
[9] After June
24, 1932, Thai legislative process had changed on account of the bloodless revolution
that turned State administration from absolute monarchy to democratic regime of
government with the King as Head of State.
Under the new administrative regime, the sovereign power belongs to Thai
people and the King as Head of State exercises this power through the National
Assembly, the Council of Ministers and the Court. The legislative power as a result thereof
shifted from the King to the National Assembly which was bicameral. It consists of the House of Representatives;
the lower House, and the Senate; the upper House.
[10] The changing of State’s administration
as mentioned above had direct effect to legislative process. After the Coup of 1932, the term “law” in
general meant both Act of Parliament and subordinate legislations. But only Act of Parliament was within the arms’
length of the Legislatives. Subordinate legislation which was enacted in
pursuant of the provisions of the Act of Parliament was within the power of the
Executive. All draft laws however had to
be made by the responsible Minister according to customary rule as ever and
they shall be forwarded to the Council of Ministers for approval.[10] If the Council of Ministers approved any draft
law, it shall be forwarded further to DLR for consideration. Upon the completion of examination of DLR,
the bill or draft Act of Parliament shall be submitted to the National Assembly
for approval before presenting to the King for His Signature and then
publication in the Government Gazette.[11] In case of subordinate legislation, the examined
draft shall be returned to the Council of Ministers for approval of the texts
once again. Upon approval of the Council
of Ministers, it shall be published in the Government Gazette and became
effective. This change becomes constitution convention of Thailand up to the
present time regardless of the changing of the Constitution.
[11] Particularly to the Act of
Parliament, the bill may firstly be submitted to the House of Representatives for
consideration. The bill passed by the
lower House shall then be submitted later to the upper House for consideration.
Prior to 1997 Constitution, the bill
might be submitted only by the Council of Ministers or members of the House of
Representatives.[12] After 1997 Constitution, the right to submit
the bill to the House of Representative has extended to the people having the
right to vote; at least 50,000 in number[13], and to the Presidents
or Chairpersons of the independent organizations under the Constitution if such
bill related to scope of work of their organizations. When the bill passed by the both Houses, it
shall be presented to the King for His Signature and the Prime Minister or other
Portfolio Minister shall countersign His Royal Command in accordance with the
principle “the King can do no wrong”. At
the completion of the aforesaid process, the bill shall be published in the
Government Gazette and become law.
[12] It should be noted, according
to Thai constitutional convention, that the King may veto the bill passed by
the both Houses. In exercising such
power, His Majesty may return that bill to the Houses for reconsideration
within ninety days or withhold that bill until the period of ninety days has
passed. In such case, if the lower House
reaffirms that bill, it shall be published in the Government Gazette and become
law without the King’s signature. Though
there is such constitutional convention, the King has never exercise His veto
power.
[13] The consideration of the bill
by each House shall be made in three readings.
In the First reading, the principle and justification of the bill shall
be discussed amongst the members of the Houses as to whether they should be
accepted and then vote for acceptance shall be made. There is constitutional convention that the
Council of Ministers shall resign en masse if any bill proposed by the
Council of Ministers is objected in the first reading. If the acceptance passed by majority of votes
of either House in the first reading, it shall be deliberated further in detail
in the Second reading by the Standing Committee or the Extraordinary Committee,
as the case may be, depending on the resolution of the Houses. It is constitutional convention that the
consideration of the Second reading shall begin after the expiration of the
period of seven days. During that
period, members of the lower House may submit their motions for revision of any
provision of the bill as they think fit.
[14] In the Second reading,
amendment of the text of the bill may be made by the Committee as it deems
appropriate, but all motions of the members in relation to that bill shall be
taken into consideration. The period for
second reading is normally thirty days.
The Committee may ask for extension of that period once for any bill
other than a money bill, but not exceeding thirty days. When the Committee finishes its
consideration, the bill shall be submitted to the full bench of the House for
consideration section by section. If a
member or even single member of the Committee does not agree with the
resolution of the Committee on any issue, he may make a reservation on that
issue so as to be debated in the full bench.
In this regard, only amended texts and reservation shall be debated and the
full bench may revise the amended texts by majority of votes.
[15] At the completion of section by
section consideration in the Second reading, the House shall continue consideration
that bill in the Third reading. At this
stage, the Speaker of the House shall ask the members as to whether the bill should
be enacted as law or not. No debate allows
at this stage. The bill shall be
approved by simple majority of vote of the members of either House.
[16] In
urgent and necessity case, the Council of Ministers may enact the Emergency
Decree which becomes law instantly as if the Act of Parliament after its
publication in the Government Gazette.
This kind of law shall however be submitted to the both Houses for approval
without delay as from the date it comes into force. If either House fails to give approval
thereto, that Emergency Decree shall come to an end, but this is not prejudice
to any act which have been done prior to its ending date. If that Emergency Decree relates to taxes or
State money, it shall be submitted only to the lower House for approval.
[17] In the case where there is
necessary to enact any Act of Parliament for an implementation of any
international obligations in which Thailand is a party therewith, the Council
of Ministers with proposal of Portfolio Minister shall, prior to submit that
bill to the National Assembly for consideration, submit such international
obligations to the Joint Sitting of the National Assembly for approval first
since Thailand adopts dualism in an acceptance of international obligations to
be domestic law. If the Joint Sitting of
the National Assembly approves such international obligations, the Council of Minister
shall then submit the bill drafted in accordance with that international
obligations to the National Assembly for approval. Any act which is contrary to, or inconsistent
with, this process is deemed unconstitutionality.[14]
[18] As for subordinate legislation
which may be issued by the Executive in accordance with the provisions of the
Act of Parliament, there are many forms of subordinate legislation in Thai
legal system, viz. the Royal Decree, Ministerial Regulation, Rule, Regulation,
Notification and Determination. The
procedure for the issuance of each form of subordinate legislation is a bit differences.
·
The
Royal Decree shall be proposed by the Minister having charge and control of the
execution of each law and shall be approved by the Council of Ministers. After that, it shall be signed by the King,
countersigned by Portfolio Minister and published in the Government Gazette.
·
The
Ministerial Regulation shall be proposed by the Minister having charge and
control of the execution of each law and shall also be approved by the Council
of Ministers and published in the Government Gazette.
·
The
other left shall be issued only by the Minister having charge and control of
the execution of each law and published in the Government Gazette.
[19] In 1933, the Department of
Legislative Redaction had been transferred from the Ministry of Justice to the
Office of the Prime Minister so as to be central legal agency of the democratic
government, and it had been renamed as the “Office of the Council of State” by
the Council of State Act of 1933.[15] Nevertheless, the Office of the Council of
State still had the powers and duties in making draft laws as same as its
ancestor, but upon request of the Prime Minister, the Council of Ministers and
other government agencies instead of His Majesty.
[20] The aforesaid legislative
process has been used for more than 65 years until there was a significant
change in 2003 when the government of that day applied the new public
governance into the administration of State’s affaires. As a result of the Royal Decree on Good
Public Governance of 2003, whenever the new government takes office and states
its policy to the National Assembly, the government shall then prepare the
State Administration Plan which is a 4 years strategic plan for that government
within ninety days as from the date it states policy to the National Assembly. Thereafter, the government shall, within 120
days as from the date the State Administration Plan comes into force, prepare
the Legislative Plan which identify all laws which must be enacted, repealed or
revised for the accomplishment of the State Administration Plan.[16] It should be noted that the preparation of
the Legislative Plan is not prejudice to the conventional legislative
process. It has just a schedule for
preparation and submission of a bill to the Parliament.
[21] An innovation for law making
process in Thailand emerged in 2004, particularly to the preparation of the
bill or draft Act of Parliament. By
resolution of November 24, 2004, the Council of Ministers laid down a mandatory
requirement for preparation of the bill that prior to prepare the bill,
Portfolio Minister shall conduct regulatory impact assessment (RIA) and the
regulatory impact assessment statement (RIS) shall be submitted altogether with
the bill for consideration of the Council of Ministers.
[22] The objective of the RIA is not
for deregulation, but better regulation.
It has been made along the same line with the RIA of OECD. Portfolio Minister has to clarify the
following prerequisites prior to make a proposal for legislation:[17]
|
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
|
What are the objectives
and goals of the mission?
Who should be
responsible for the mission?
Is legislation required
for the achievement of the mission?
Is the proposed
legislation duplicated with others?
What are burdens of
individual caused by the proposed legislation and Is that legislation value
for money?
Are responsible agencies
ready for the enforcement of the proposed legislation?
Which agency should be
responsible for the proposed legislation?
What are working process
and audit method?
Is there guideline for
the enactment of subordinate legislation?
Is there public
consultation on the proposed legislation and what are the results and
responses?
|
[23] In 2005, the RIA had been
annexed as an integral part of the Regulation on Rules and Procedure for
Submission of the Matter to the Cabinet which was issued under the Royal Decree
on Submission of the Matter to the Cabinet and the Rules and Procedure for
Cabinet’s Meeting of 2005.
[24] Under such Regulation, once the
RIS and draft bill have been made, they shall be submitted to the Council of
Ministers for policy approval first. The
bill together with its RIS, if approved, shall be forward to the Office of the
Council of State for consideration. The
Office of the Council of State shall examine the bill of its constitutionality,
compatibility with other legislations, suitability of the proposed mechanism
and legal form and shall prepare the explanatory memorandum of the examined
bill for consideration of the Council of Ministers and the National
Assembly. The complete bill and its
explanatory memorandum shall be delivered to the Council of Ministers for
consideration once again. If the Council
of Ministers approves the complete bill this time, the bill shall be forwarded
to the government’s whip for political coordination before introducing to the
House of Representatives. In many cases
however the Council of Ministers always orders the Office of the Council of
State to send the complete bill and its explanatory memorandum to the
government’s whip directly.
[25] Additionally, when the 2007
Constitution came into force, it required all who having the right to submit a
bill to the Parliament to submit the Explanatory Memorandum to the Parliament
altogether with a bill,[18] and the RIS was
deemed to be an integral part of the Explanatory Memorandum. This became the new constitutional convention
since then.
[26] In addition to RIA which is an ex
ante assessment of the outcome of the bill, the Royal Decree on Review of Law,
B.E. 2558 (2015), generally known as the “Sunset Law,” has been issued as a
mandatory requirement for all Minister to conduct review of all legislations
under his responsibility, both Act of Parliament and subordinate legislation, every
five years for the compliance with the dynamic changing of domestic, regional
and global situation. In academic
perspective, this measure is an ex post evaluation of legislation. Under section 9[19] of that Royal Decree,
all Portfolio Ministers shall conduct law review within the following arenas:
(1) justification and necessity to have such law
in current context;
(2) matter to be improved, revised or repealed
for the compliance with the changing of national and global situation in term
of economics, social, politics, public administrations, science and technology
and environment so as to strengthen national competitiveness capability and to
enhance sustainable development;
(3) matter to be improved, revised or repealed
for the compliance with, or the implementation of, international obligations in
which Thailand is bound under international law;
(4) matter to be improved, revised or repealed
so as to lessen adverse effect to, or burden of, the public arising from that
law;
(5) the supervision or control of activities
under the law through committee or commission system, licensing and permission
system, registration system or any other similarity shall be employed as
necessity;
(6) efficient and effective one stop service;
(7) measure for prevention and suppression of
corruption arising from the enforcement of that law;
(8) other matters which are capable to lessen
unnecessary burden of the public in living or in practicing occupation, reduce
inequality and provide better lives to the public.
Part III
[27] As you may know that political
situation of Thailand is fluctuating after she became democratic regime of
government 83 years ago. There were many
extraordinary situation where the country had been
governed by the patriots who were not elected by the general election. The Legislatives during these extraordinary
periods were unicameral. The legislative
process of the country however still based on the constitutional convention as
I have mentioned in Part II above. Laws
shall be prepared by the responsible Minister and they shall be submitted to
the Council of Ministers for policy approval.
After that, the texts shall be examined by the Office of the Council of
State. A bill or draft Act of Parliament
shall then be submitted to the Legislatives for consideration. The process for consideration in the
Legislatives composes of three readings as the constitutional convention
thereon. Due to the Legislatives in the
extraordinary circumstance is unicameral, the bill passed by the Legislatives
in the 3rd reading shall be submitted to the King for His
Signature. When the signed bill is
countersigned by the responsible Minister and publication in the Government
Gazette, it shall come into force.
Conclusion
[28] The
legislative process of Thailand in general seems like legislative process of
any other democratic country, but it has specific character of its own. It is a mixed culture between an inheritance of
the absolute monarchy of the old days and constitutional conventions which having
been evolved through the past years since 1932.
Since 2005, the RIA initiative has enhanced more transparency,
responsiveness, public consultation and stakeholders’ participation into
legislative process. The Sunset Law
which has just come into force in the early of September this year (2015) is
the newest tool annexed to the process so as to be a mandatory measure for
review of legislation to meet with super dynamic change of the World today.
*************
[1]Full-time
Law Councilor, Office of the Council of State of Thailand.
[2]Maung
Htin Aung, A History of Burma, Thai Edition translated by Petcharee Sumitra.,
Martin Stuart-Fox, A history of Laos, Thai Edition translated by Chiraporn
Vinyaratn.
[3]King
Prajadhipok’s Institute, Research on Public Consultation of Stakeholders in Law
Making Process of the Executive, 2008, p.12.
[4]1804-1868,
generally known as “King Mongkut”.
[5]Office
of the Council of State, 60th Year of the Office of the Council of
State, 1993, pp.1-4.
[6]1853-1890,
generally known as “King Chulalongkorn”.
[7]1880-1925,
son of King Rama V, generally known as “King Vajiravudh”.
[8]Published
in the Government Gazette, Vol. 40, dated October 28, 1923.
[9]Office
of the Council of State, Research on Proposal for Efficiency Enhancement of
Thai Legislative Process, 2006, pp.9-11.
[10]The
Office of Secretary-General of the Council of Minister is responsible for
secretariat work of the Council of Ministers.
[11]It
is the duty of the Office of Secretary-General of the Council of Ministers to
publish the bill signed by the King and countersigned by Portfolio Minister in
the Government Gazette.
[12]There
is no specific rules and practices for members of the lower House in making a
bill. In practice, members of the lower
House make a bill themselves. The
Secretariat of the House has no official duty in bill drafting of members.
[13]Under
the 2007 Constitution, this number decrease to 10,000. The
bills submitted by the people have been prepared by practicing lawyers since
the Council of State has duty to prepare draft law for the Executive only.
[14]Council
of State’s Legal Opinion No. 413/2526 (1983).
[15]This Act was
repealed and replaced by the Council of State Act, B.E. 2522 (1979). The Council of State under the 1979 Act has
the powers and duties in law drafting and examining of draft laws as the former
organization, but the additional power was adjudicative power. The Council of State had the power to rule the
administrative case. This additional
power had been transferred to the Administrative Court in 1999 when the
Administrative Court had been established by the Act on Establishment of Administrative
Court and Administrative Court Procedure, B.E. 2542 (1999). The Council of State has performed its
original powers and duties in law drafting and examining of draft laws since
then.
[16]Section
13-15 of the Royal Decree on Good Public Governance, B.E. 2546 (2003).
[17]Office
of the Council of State, Regulatory Impact Analysis Manual (13th
ed.), 2009.
[18]Section
142 paragraph five of the 2007 Constitution.
[19]http://lawdrafter.blogspot.com/2015/09/translation-royal-decree-on-revision-of.html
ไม่มีความคิดเห็น:
แสดงความคิดเห็น