Thus, there are several interesting points in the reasoning of the Court. First of all, it can create a precedent by which the government will avoid the scrutiny of the Court in respect of the legality of emergency decrees, since the Court has limited its own power to review emergency decrees on the issue of their conformity with Section 218, part 1. The affected parties have no right to ask the Court to examine whether the government when issuing an emergency decree was correct in assessing the dangers to national and public safety, or to national economic security, or of public calamity, and also in imposing some burdens on the citizens. Secondly, it appears that if the required number of the members of parliament requests so, the Court is obliged to look at these issues. Therefore, the position of Thai constitutional court is quite unique. It does neither represent judicial activism of close control of the Executive, no is bound to a limited vision of judicial review as covering procedural aspects only.

It is true that compared with the requirements of Section 29, Section 218, part 1 may be interpreted as not providing any further benefits to the citizens suffering from governmental measures. Section 218 speaks about the dangers to national and public safety, to national economic security, and of public calamity. Section 29 speaks about the necessity to restrict the rights by enacting a law, about a purpose of the law being stated in the constitution, about the necessity of the restriction itself, about the inviolability of the essential substances of the rights, about the general application of the law and not being restricted to any particular person or group of persons, and finally about the necessity of a reference to the constitutional provision authorising the restriction. All these elements of Section 29 can be raised by the complainants as a defence against emergencies decrees. Moreover, the requirement of the necessity of the restriction itself can be compared with the requirements of section 218, part 1. It seems that in order to prove that the restriction was necessary the government somehow should appeal to the reasons of maintaining national and public safety, or national economic security, or averting public calamity. If the requirement of necessity is identical with the requirements set up in Section 218, part 1, then there is little reason why the Court should bother itself with denying its duty to inquire into the legality of the decrees under Section 218, part 1.

It appears, however, that the requirements of Section 218 are stricter than the requirements of Section 29. The requirements of Section 218 limit the types of necessities, which the government can use to justify the measures under emergency decrees. There is even a stronger reason for the Court’s refusal to examine the applicability of section 218 to the case. This section, if to be applied calls on judges to evaluate the governmental policy and the strength of its reasons. Section 29 can be applied in the same way, but may be not. Section 29 is more general in its content. It is necessary to emphasize once again that the provision of Section 218 are still more specific (despite its broad language concerning maintaining national and public safety, or national economic security, or averting public calamity), than the requirement of necessity laid down in Section 29. It is true that if there is a will of judges the Court can use the requirement of necessity in Section 29 to strike down any measure of the government as unnecessary. It appears from the case under consideration, however, that if judges of the Court are unwilling to take the role of examiners of the necessity of governmental actions within Section 218, it will be more difficult to do within Section 29 whose content is much less specific.

Part 7

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