A required number of the MPs, however, before the ratification takes place, can challenge this decree in the Constitutional Court. The Court has interpreted these provisions as preventing any other person to challenge the process of passing the emergency decrees even after the ratification took place. From the text of the Court’s decision it is clear that the defendants challenged exactly the legality of the decrees in relation to the first part of Section 218 which requires that the decree must be issued for the purpose of maintaining national and public safety, or national economic security, or averting public calamity. It is apparent that the Court was reluctant to accept that any defendant after passing all the filters of admissibility of complaints in the Constitutional Court, can challenge the reasons for passing emergency decrees, and by doing that to force the judges of the Court to go into deep questions of economic policy and general politics. The way to avoid this burden is to declare that no one else except a one-fifth of the MPs can challenge the rationale of the emergency decrees. It is noteworthy that the Court was not unanimous in deciding this issue. One judge, Mr. Pricha Chalermwanit, was dissenting.

The question is what was the underlying reason of the Court in making such a narrow interpretation of Sections 218 and 219. From the reading of those sections one can see that the Constitution does not specify who can and who cannot bring a complaint to the Court against the rationale of an enacted emergency decree. The only thing it specifies is who can bring a complaint before the enactment. Thus, the Court used creativity in its interpretation of the Constitution. The narrow interpretation of the provisions has the result that a citizen can complain against an emergency decree if it violates his rights, but she or he cannot complain about the rationale of the decree. In other words, it does not mean that the Court limits its responsibility to check whether a complained measure violates the rights of citizens or not, but it means that a complainant does not have the right to challenge the rationale of the decrees. He cannot claim that the measure enforced by a decree, meets the needs of maintaining national and public safety, or national economic security, or averting public calamity. What he can only do is to claim that that measure violated his constitutional right according to Section 28 which allows to bring such a claim to a court(6). It seems that the Court has reasoned that its review of governmental actions cannot go so far as to judge whether the government truly acted to meet the needs of maintaining national and public safety, or national economic security, or averting public calamity.

Part 5

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(6) Section 28 states: “A person can invoke human dignity or exercise his or her rights and liberties in so far as it is not in violation of rights and liberties of other persons or contrary to this Constitution or good morals. A person whose rights and liberties recognised by this Constitution are violated can invoke the provisions of this Constitution to bring a lawsuit or to defend himself or herself in the court.”