Samak Sundaravej - Court Decision

Court Decision

The Senate President lodged a complaint with the Constitutional Court of Thailand (ConCourt) on 2 June 2008, and the Election Commission of Thailand (ECT) submitted a similar complaint 29 July 2008. The complaints requested the ConCourt to decide whether the premiership of Samak Sundaravej is terminated upon Section 91, Section 182 Paragraph One (7) and Section 267 of the Constitution of the Kingdom of Thailand (2007).

On 9 September 2008, 15.30 hours, the ConCourt with Justice Chat Chonlaworn sitting as the President rendered its decision as follows:

1. The essence of the first complaint (Senators' Complaint) could be summarised as follows: as Samak was a holder of the political position as a Prime Minister, he was under the subject of Section 267 of the Constitution of the Kingdom of Thailand (2007) prohibiting the Prime Minister and Ministers from having any position in a partnership, a company or an organisation carrying out business with a view to sharing profits or incomes or being an employee of any person. However, Samak, who acknowledged the purpose of Section 267, continued to work for the Face Media Co., Ltd. as emcee of two cookery shows, Chim Pai Bon Pai (Tasting and Grumbling) and Yok Khayong Hok Mong Chao (All Set at 6 am), and ceased from such works just when the ECT received a complaint concerning the case. Therefore the Senators exercised their right under Section 91 requesting the President of the Senate to submit their complaint to the ConCourt to make a decision as said.

2. The essence of the second complaint (ECT's Complaint) could be summarised as follows: On 17 April 2008, Senator Ruangkrai Leekijwattana lodged with the ECT a complaint that Samak, pending his premiership, worked for Face Media Co., Ltd. which was a private company having commercial purpose. This was in breach of Section 267 of the Constitution of the Kingdom of Thailand (2007) and led to the termination of his premiership as of the date the said prohibited act was performed. The ECT has appointed an inquisitorial panel to look into the case and discovered that it was a prima facie case, so it unanimously resolved to forward the case to the ConCourt to make a decision as said.

3. Samak, after having received a quo warranto, represented to the accusation through submitting the letters dated 30 June, 14 and 25 August 2008 to the ConCourt, stated that:

• 3.1) he received no remuneration for being the emcee of both cookery TV programmes, but only 5,000 Baht as travelling costs.

• 3.2) he held no interests, shares or positions in the Face Media Co., Ltd. as well as received no salaries or other benefits from the said company.

• 3.3) as being the emcee of both programmes, he has been invited, not employed. This meant he was not an employee under the definition prescribed in the Labour Protection Act, BE 2541 (1998) and the Announcement of the Ministry of Interior Re: Labour Protection (No. 111).

• 3.4) as he has been seen on the said programmes after having assumed the premiership, those shows were pre-recorded for months and he has already ceased from being the emcee prior to having been in office.

4. The Constitutional Court considered that:

• 4.1) The spirit of this Constitution is to prevent against the conflict of interest which may cause the condition of misconduct—the condition compelled to choose between self-interest and public interest—to be occurred. Should a holder of the position offered by the public be mindful on his own interest beyond the public interest, he could conduct an abuse of his power. Therefor, the accomplishment of the spirit of the Constitution is not only to construct the term "employee" through the definition under the Civil and Commercial Code, the law on labour protection or the law on taxation, as each law contains different spirit and purposes of enforcement; as well as the said laws are at the lower class than the Constitution. The term "employee" under the Constitution holds broader meaning than that of any other laws, and should be interpreted in a general path. For which the Official Dictionary of Thai Words by the Royal Institute, 1999 Version defined the term "employee" that "a person who works for any job; a person who agrees to work for other person, irrespective of how he is called."

• 4.2) Samak gave an interview in the Sakul Thai Magazine vol 47 (Tuesday 23 October 2001) pp 37 that he was monthly paid 80,000 Baht for being the emcee of the said programmes. And pursuant to the letter Samak replied to the Face Media Co., Ltd. on 25 December 2007 that he will do this work without receiving anything as usual, this kind of letter has never been made by Samak prior to being enquired by the ECT. As well as the affirmation of Samak that he had received only the travelling costs from the Company was in contrary to the witnesses' testimonies and to the taxation evidences showing that what Samak previously received was the payments for working, not only the travelling costs as he represented.

• 4.3) As Samak defended himself that the programmes aired after he was in office and were pre-recorded months before he came in; however, in one of the said programmes Samak stated that: "...Came again those people who wanted to find a person to replace Mr Samak as boisterously appeared on the news. Yes, that group, the group which delivered an ultimatum to Mr Samak to resign. They newly discovered that the programme 'Tasting and Grumbling' was in breach of law. Because, as I assumed the premiership...and you know, they said that it told that I was unable to be a temporary employee, permanent employee...But, I have to fill my words into your ears that after having been in the premiership for three months, I am engaging in such work still. Because I have got some counsels from the top legal advisers that..." This was a defence contrary per se.

• 4.4) These were the clear traces of guilt. According to the conclusion of fact, it could be concluded that Samak was an employee to the said Company. Moreover, three Constitutional judges deemed that Samak portrait and the picture of rose apple mocking Samak’s nose using as a logo of the "Tasting and Grumbling" programme as well the status of being an emcee and the use of the name "Tasting and Grumbling", a popular quote of Samak, were the acts of engaging in a joint affair with a commercial purpose which were in breach of Section 267 of the Constitution. And another six judges deemed that it was not necessary to further decide as to what position Samak held in the said Company, as he was manifestly breached the law.

5. Therefore, the ConCourt, by the unanimous resolution, held that Samak has performed the acts in breach of Section 267 of the Constitution of the Kingdom of Thailand (2007) which individually led to the termination of his premiership in accordance with Section 182 Paragraph One (7) of which, and called forth the vacating from office of the entire Council of Ministers under Section 180 Paragraph One (1). However, as the premiership has individually been terminated, all Ministers other than Samak could remain in office as a caretaker government and continuing their functions until the new Council of Ministers is sworn in.