Methodological Problems in the Application of onstitutional Principles to Fill Constitutional silences by the Thai Constitutional Court

Abstract

This research aims to examine whether the decisions of the Thai Constitutional Court concerning the filling of silences in the Constitution are consistent with the juridical methods prescribed by the Constitution itself. The study focuses on three key concepts: the Thai constitutional tradition of democratic governance with the King as Head of State, constitutional customary laws, and constitutional principles.

The study finds that the Constitutional Court has interpreted Thailand’s constitutional tradition of democratic governance with the King as Head of State, as stipulated in Section 5 paragraph 2, as having the character of constitutional customary law, without encompassing constitutional principles. In practice, however, certain Constitutional Court decisions reveal that the Court has invoked constitutional principles to fill gaps in constitutional provisions. This practice creates tensions or inconsistencies with Section 5 paragraph 2, which prescribes a specific constitutional methodology for such gap-filling.

The researcher proposes two solutions. First, the Constitutional Court should rely on Section 5 paragraph 2 in all instances of constitutional gap-filling and interpret Thailand’s democratic governance tradition in line with the provision’s purpose, allowing it to encompass constitutional principles. Second, Section 5 paragraph 2 should be repealed or revised to clarify its meaning and establish gap-filling procedures consistent with constitutional methodology.