Another interesting point in reasoning of the Court, which is evident from the reading of the text of the decision, is that the condition of necessity stipulated in Section 29 was not substantially examined. It is true that if the Court would look first at the issue whether there was at all a restriction of constitutional rights and freedoms, the Court would not need to go to examine all the conditions listed in Section 29. Since the Court had not done that, it had to go through the process of justification of the emergency decrees in the light of Section 29. The peculiarity of the Court’s reasoning lies exactly in the way and the depth of that justification. The Court explained this position by the ambiguity of the complaint itself. At the same time, the Court has explicitly accepted that the decrees had been truly issued to ensure stability and the strength of Thai economy. However, there is nothing in the text of decision which would point out how the Court made this finding. It can be an act of faith, or a presumption that the government was right unless the other party proves the otherwise – we can only guess. It seems that the wording of the decree was a sufficient indication of the true intentions of the government. The intention itself appears to be a sufficient element of the legitimacy of the measures at issue.

The second argument of the defendants that the measures at the dispute had significantly limited the freedom of public to choose between financial services, was not discussed in the text of the decision of the Court. The third argument that the measures represented a restriction of the rights and freedoms without being of general applicability was mentioned. The reasoning of the Court seems to imply that the Court has agreed that there was a restriction of the rights, and tried to prove that the measure was not of a particular, but of general application. The second part of Section 29, which requires a generality of law provisions, is applicable only where there is a restriction of the rights. The Court by allowing this issue to take a significant part of its reasoning, has indicated that there was a restriction. However, the Court did not indicate clearly what was the restriction. Since it is a question whehther there was indeed any restriction of the constitutional rights and freedoms in this particular case, it appears that this part of the Court’s reasoning does not make much sense without showing what the restriction consisted of. The civil obligation to pay one’s debt (even though not to the original creditor but to its successor) can hardly be considered in itself to be a violation or even restriction of constitutional rights. Rather, it is an integral part of it. It would be very helpful for the lawyers if the Court would clarify its position on this important issue. It is true that the question was about the legitimacy of transfer of the creditor’s rights. However, it is still difficult to see where there was a violation or restriction of the constitutional rights of the defendants, as long as their obligations as a debtor are not substantially affected by that transfer

Part 8

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