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ส่วนที่ 1 เอกสารวิชาการหมายเลข 5
1 ตุลาคม 2549 21:36 น.
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เอกสารหมายเลข 5
เอกสารวิชาการ
(5) การด้อยพัฒนาของวงการวิชาการไทย
ในการเขียน รธน.ก่อนการเปลี่ยนแปลงการปกครอง พ.ศ. 2475
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ส่วนที่ 5.1 รัฐธรรมนูญญี่ปุ่นในสมัยเมจิ (ค.ศ. 1889-พ.ศ. 2432)
รัชสมัยเมจิ (พระเจ้า Mutsuhito ค.ศ. 1867-1912 ครองราชย์ 44 ปี) ตรงกับสมัยรัชกาลที่ 5 (พระจุลจอมเกล้าฯ ค.ศ. 1868-1911 ครองราชย์ 42 ปี) กษัตริย์เมจิพระราชทานรัฐธรรมนูญเป็น gift ให้แก่ชาวญี่ปุ่นในปี 1889 คือ เมื่อพระองค์ท่านครองราชย์ได้ 23 ปี
รธน.ญี่ปุ่น สมัยเมจิ ให้บทบาทพระมหากษัตริย์ในการช่วยพัฒนาระบอบประชาธิปไตย
The Constitution of the Empire of Japan
CHAPTER I. THE EMPEROR
Article I.
The Empire of Japan shall be reigned over and governed by a line of Emperors unbroken for ages eternal.
Article II.
The Imperial Throne shall be succeeded to by Imperial male descendants, according to the provisions of the Imperial House Law.
Article III.
The Emperor is sacred and inviolable.
Article IV.
The Emperor is the head of the Empire, combining in Himself the rights of sovereignty, and exercises them, according to the provisions of the present Constitution.
Article V.
The Emperor exercises the legislative power with the consent of the Imperial Diet.
Article VI.
The Emperor gives sanction to laws and orders them to be promulgated and executed.
Article VII.
The Emperor convokes the Imperial Diet, opens, closes and prorogues it. And dissolves the House of Representatives.
Article VIII.
The Emperor, in consequence of an urgent necessity to maintain public safety or to avert public calamities. Issues, when the Imperial Diet is not sitting. Imperial Ordinances in the place of law.
Such Imperial Ordinances are to be laid before the Imperial Diet at its next session, and when the Diet does not approve the said Ordinances, the Government shall declare them to be invalid for the future.
Article IX.
The Emperor issues or causes to be issued, the Ordinances necessary for the carrying out of the laws, or for the maintenance of the public peace and order, and for the promotion of the welfare of the subjects. But no Ordinance shall in any way alter any of the existing law.
Article X.
The Emperor determines the organization of the different branches of the administration, and salaries of all civil and military officers, and appoints and dismisses the same. Exceptions especially provided for in the present Constitution or in other laws, shall be in accordance with the respective provisions (bearing thereon).
Article XI.
The Emperor has the supreme command of the Army and Navy.
Article XII.
The Emperor determines the organization and peace standing of the Army and Navy.
Article XIII.
The Emperor declares war, makes peace, and concludes treaties.
Article XIV.
The Emperor declares a state of siege.
The conditions and effects of a state of siege shall be determined by law.
Article XV.
The Emperor confers titles of nobility, rank, orders and other marks of honor.
Article XVI.
The Emperor orders amnesty, pardon, commutation of punishments and rehabilitation.
Article XVII.
A Regency shall be instituted in conformity with the provisions of the Imperial House Law.
The Regent shall exercise the powers appertaining to the Emperor in His name.
CHAPTER II. RIGHTS AND DUTIES OF SUBJECTS
Article XVIII.
The conditions necessary for being a Japanese subject shall be determined by law.
Article XIX.
Japanese subjects may, according to qualifications determined in laws or ordinances, be appointed to civil or military or any other public offices equally.
Article XX.
Japanese subjects are amenable to service in the Army or Navy, according to the provisions of law.
Article XXI.
Japanese subjects are amenable to the duty of paying taxes. According to the provisions of law.
Article XXII.
Japanese subjects shall have the liberty of abode and of changing the same within the limits or law.
Article XXIII.
No Japanese subject shall be arrested, detained, tried or punished, unless according to law.
Article XXIV.
No Japanese subject shall be deprived of his right of being tried by the judges determined by law.
Article XXV.
Except in the cases provided for in the law, the house of no Japanese subject shall be entered or searched without his consent.
Article XXVI.
Except in the cases mentioned in the law, the secrecy of the letters of every Japanese subject shall remain inviolate.
Article XXVII.
The right of property of every Japanese subject shall remain inviolate.
Measures necessary to be taken for the public benefit shall be provided for by law.
Article XXVIII.
Japanese subjects shall, within limits not prejudicial to peace and order, and not antagonistic to their duties as subjects, enjoy freedom of religious belief.
Article XXIX.
Japanese subjects shall, within the limits of law, enjoy the liberty of speech, writing, publication, public meeting and associations.
Article XXX.
Japanese subjects may present petitions, by observing the proper forms of respect, and by complying with the rules specially provided for the same.
Article XXXI.
The provisions contained in the present Chapter shall not affect the exercise of the powers appertaining to the Emperor, in times of war or in cases of a national emergency.
Article XXXII.
Each and every one of the provisions contained in the preceding Articles of the present Chapter, that are not in conflict with the laws or the rules and discipline of the Army and Navy, shall apply to the officers and men of the Army and of the Navy.
CHAPTER III. THE IMPERIAL DIET
Article XXXIII.
The Imperial Diet shall consist of two Houses, a House of Peers and a House of Representatives.
Article XXXIV.
The House of Peers shall, in accordance with the Ordinance concerning the House of Peers, be composed of the members of the Imperial Family, of the orders of nobility, and of those persons who have been nominated thereto by the Emperor.
Article XXXV.
The House of Representatives shall be composed of Members elected by the people, according to the provisions of the Law of Election.
Article XXXVI.
No one can at one and the same time be a member of both Houses.
Article XXXVII.
Every law requires the consent of the Imperial Diet.
Article XXXVIII.
Both Houses shall vote upon projects of law submitted to it by the Government, and may respectively initiate projects of law.
Article XXXIX.
A Bill, which has been rejected by either the one or the other of the two Houses, shall not be again brought in during the same session.
Article XL.
Both Houses can make representations to the Government, as to laws or upon any other subject. When, however, such representations are not accepted, they cannot be made a second time during the same session.
Article XLI.
The Imperial Diet shall be convoked every year.
Article XLII.
A session of the Imperial Diet shall last during three months. In case of necessity, the duration of session may be prolonged by Imperial Order.
Article XLIII.
When urgent necessity arises, an extraordinary session may be convoked, in addition to the ordinary one.
The duration of an extraordinary session shall be determined by Imperial Order.
Article XLIV.
The opening, closing, prolongation of session and prorogation of the Imperial Diet, shall be effected simultaneously for both Houses.
In case the House of Representatives has been ordered to dissolve, the House of Peers shall at the same time be prorogued.
Article XLV.
When the House of Representatives has been ordered to dissolve, Members shall be caused by Imperial Order to be newly elected, and the new House shall be convoked within five months from the day of dissolution.
Article XLVI.
No debate can be opened and no vote can be taken in either House of the Imperial Diet, unless not less than one third of the whole number of the Members thereof is present.
Article XLVII.
Votes shall be taken in both Houses by absolute majority, In the case of a tie vote, the President shall have the casting vote.
Article XLVIII.
The deliberations of both Houses shall be held in public. The deliberations may, however, upon demand of the Government or by resolution of the House, be held in secret sitting.
Article XLIX.
Both Houses of the Imperial Diet may respectively present addresses to the Emperor.
Article L.
Both Houses may receive petitions presented by subjects.
Article LI.
Both House may enact. Besides what is provided for in the present Constitution and in the Law of the Houses, rules necessary for the management of their internal affairs.
Article LII.
No member of either House shall be held responsible outside the respective Houses, for any opinion uttered or for any vote given in the House. When, however, a Member himself has given publicity to his opinions by public speech, by documents in print or in writing, or by any other similar means, he shall, in the matter, be amenable to the general law.
Article LIII.
The Members of both Houses shall, during the session, be free from arrest, unless with the consent of the House, except in cases of flagrant delicts, or of offenses connected with a state of internal commotion or with a foreign trouble.
Article LIV.
The Ministers of State and the Delegates of the Government may, at any time, take seats and speak in either House.
CHAPTER IV. THE MINISTERS OF STATE AND THE PRIVY COUNCIL
Article LV.
The respective Ministers of State shall give their advice to the Emperor, and be responsible for it.
All Law. Imperial Ordinances and Imperial Rescripts of whatever kind, that relate to the affairs of the State, require the counter-signature of a Minister of State.
Article LVI.
The Privy Councillors shall, in accordance with the provisions for the organization of the Privy Council, deliberate upon important matters of State, when they have been consulted by the Emperor.
CHAPTER V. THE JUDICATURE
Article LVII.
The Judicature shall be exercised by the Courts of Law according to law, in the name of the Emperor.
The organization of the Courts of law shall be determined by law.
Article LVIII.
The judges shall be appointed from among those who possess proper qualifications according to law.
No judge shall be deprived of his position, unless by way of criminal sentence or disciplinary punishment.
Rules for disciplinary punishment shall be determined by law.
Article LIX.
Trials and judgments of a Court shall be conducted publicly. When, however, there exists any fear that such publicity may b prejudicial to peace and order, or to the maintenance of public morality, the public trial may be suspended by provision of law or by the decision of the Court of Law.
Article LX.
All matters that fall within the competency of a special Court shall be specially provided for by law.
Article LXI.
No suit at law, which relates to rights alleged to have been infringed by the illegal measures of the administrative authorities, and which shall come within the competency of the Court of Administrative Litigation specially established by law, shall be taken cognizance of by a Court of law.
CHAPTER VI. FINANCE
Article LXII.
The imposition of a new tax or the modification of the rates (of an existing one) shall be determined by law.
However, all such administrative fees or other revenue having the nature of compensation shall not fall within the category of the above clause.
The raising of national loans and the contracting of other liabilities to the charge of the National Treasury, except those that are provided in the Budget, shall require the consent of the Imperial Diet.
Article LXIII.
The taxes levied at present shall, in so far as they are not remodeled by a new law, be collected according to the old system.
Article LXIV.
The expenditure and revenue of the State require the consent of the Imperial Diet by means of an annual Budget.
Any and all expenditures overpassing the appropriations set forth in the Titles and Paragraphs of the Budget, or that are not provided for in the Budget, shall subsequently require the approbation of the Imperial Diet.
Article LXV.
The Budget shall be first laid before the House of Representatives.
Article LXVI.
The expenditures of the Imperial House shall be defrayed every year out of the National Treasury, according to the present fixed amount for the same, and shall not require the consent thereto of the Imperial Diet, except in case an increase thereof is found necessary.
Article LXVII.
Those already fixed expenditures based by the Constitution upon the powers appertaining to the Emperor, and such expenditures as may have arisen by the effort of law, or that appertaining to the legal obligations of the Government, shall be neither rejected nor reduced by the Imperial Diet, without the concurrence of the Government.
Article LXVIII.
In order to meet special requirements, the Government may ask the consent of the Imperial Diet to a certain amount as a Continuing Expenditure Fund, for a previously fixed number of years.
Article LXIX.
In order to supply deficiencies, which are unavoidable, in the Budget, and to meet requirements unprovided for in the same, a Reserve Fund shall be provided in the Budget.
Article LXX.
When the Imperial Diet cannot be convoked, owing to the external or internal condition of the country, in case of urgent need for the maintenance of public safety, the Government may take all necessary financial measures, by means of an Imperial Ordinance.
In the case mentioned in the preceding clause, the matter shall be submitted to the Imperial Diet at its next session, and its approbation shall be obtained thereto.
Article LXXXI.
When the Imperial Diet has not voted on the Budget. Or when the Budget has not been brought into actual existence, the Government shall carry out the budget of the preceding year.
Article LXXII.
The final account of the expenditures and revenue of the State shall be verified and confirmed by the Board of Audit, and it shall be submitted by the Government to the Imperial Diet, together with the report of verification of the said Board.
The organization and competency of the Board of Audit shall be determined by law separately.
CHAPTER VII. SUPPLEMENTARY RULES
Article LXXIII.
When it has become necessary in future to amend the provisions of the present Constitution, a project to the effect shall be submitted to the Imperial Diet by Imperial Order.
In the above case, neither House can open the debate, unless not less than two- thirds of the whole number of Members are present, and no amendment can be passed, unless a majority of not less than two-thirds of the Members present is obtained
Article LXXIV.
No modification of the Imperial House Law shall be required to be submitted to the deliberation of the Imperial Diet.
No Provision of the Present Constitution can be modified by the Imperial House Law.
Article LXXV.
No modification can be introduced into the Constitution, or into the Imperial House Law, during the time of a Regency.
Article LXXVI.
Existing legal enactments, such as law, regulations, Ordinances, or by whatever names they may be called, shall, so far as they do not conflict with the present Constitution, continue in force.
All existing contracts or orders, that entail obligations upon the Government, and that are connected with expenditure, shall come within the scope of Article LXVII.
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ส่วนที่ 5.2 ร่างรัฐธรรมนูญของไทย ในสมัยรัชกาลที่ 7 (พ.ศ. 2468-2477)
ร่าง รธน.ฉบับแรก ของไทย ห่างจาก รธน.ญี่ปุ่นสมัยเมจิ 37 ปี แต่สาระไม่อาจเทียบกันได้
(1) พ.ศ. 2469 ร่าง รธน.ฉบับแรก โดยพระยากัลยาณไมตรี มี 12 มาตรา
OUTLINE OF PRELIMINARY DRAFT
ARTICLE I.
The Supreme Power throughout the Kingdom shall be vested in His Majesty the King
ARTICLE II.
The King shall appoint a Premier who shall be responsible to the King for the entire executive work of the Government. He may be dismissed by the King at any time.
ARTICLE III.
The Premier shall appoint and may remove on his own responsibility the Ministers of State at the heads of the various Government Ministries. He shall be responsible to the King for the entire work of each Ministry. He shall also be charged with the duty of carrying out the general Policies of the Government as directed by the King and of co-ordinating for this purpose the work of the Separate Ministries.
ARTICLE IV.
Each Government Minister shall be responsible directly to the Premier for the work of his own Ministry. He shall assist in carrying out the general policies directed by the Premier.
ARTICLE V.
The Cabinet shall be called together and presided over by the Premier, and shall be composed of all the Ministers of States. It may discuss matters of common interest, but the responsibility for all decisions shall rest with the Premier.
ARTICLE VI.
The Premier will refer to the King for decision all questions of large general policy, In all matters he shall be subject to the direct control of the King.
ARTICLE VII.
The King shall appoint a Supreme Council of five members. The Premier shall be a member exofficio, but no other Cabinet officer shall be a member. The Supreme Council shall exercise no executive power whatsoever. Its function shall consist solely in giving to the King when called upon to do so advice on questions of general policy or on questions other than the detailed executive work of the Government. It shall have no power to advise as to appointments nor as to details of administration. It shall however have the power to interpolate the Premier or any Cabinet officer.
ARTICLE VIII.
The King shall appoint and may remove at any time the members of the Privy Council.
ARTICLE IX.
Within three days of ascending the throne the heir apparent shall be provisionally chosen by the King with the advice and consent of the Privy Council. The choice shall be limited to sons of a King and a Queen or to those of Royal Blood, but shall not be otherwise limited either by rank or seniority. The choice of heir apparent shall not be irrevocable, but shall be freshly made by the King with the advice and consent of the Privy Council at the end of each five year period thereafter.
(Note : Or perhaps a period longer than five years may be desired). Should the King die before any choice has been made, the heir apparent shall be chosen immediately after the Kings death by the Privy Council. In all cases three quarters of the members to the Privy Council then within the Kingdom shall be necessary to elect.
ARTICLE X.
The judicial power, subject to the supreme power of the King, shall be vested in the Supreme or Dika Court and in such inferior Courts as the King may form time to time create.
ARTICLE XI.
The supreme legislative power shall rest in the King.
ARTICLE XII.
Changes in this fundamental law may be made only by the King with the advice and consent of three quarters of the members of the Privy Council.
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(2) พ.ศ. 2474 (9 มีนาคม)-ร่าง รธน. ฉบับที่2 โดยนาย Raymone B.Stevens และพระยาศรีวิสารวาจา กรรมการร่างรัฐธรรมนูญ
รัชกาลที่ 7 กำหนดพระราชทาน รธน. ในวันที่ 6 เมษายน 2475 วันครบรอบสถาปนาราชวงศ์จักรีครบ 150 ปี
AN OUTLINE OF CHANGES
IN THE FORM THE GOVERNMENT
There is submitted herewith, in accordance with the wish of His Majesty, an outline of a new constitution, together with a brief explanation.
In general the plan involves the beginning of a parliamentary form of government. In theory His Majesty still remains the Chief Executive and Law-giver. As Chief Executive, however, He acts through a Prime Minister who is responsible to His Majesty for the administration of the Government. The Prime Minister and Cabinet is under the plan also subject to certain supervisory powers of the Legislative Council.
His Majesty as Law-giver will act with the aid of the Legislative Council composed in a substantial part of elected representatives.
It is not assumed that the plan presented herewith is either complete or perfect. It is put forth as a basis for consideration and is limited to certain main principle. Obviously many details would have to be worked out later.
The Government under this proposal would be as follows:-
(a) The monarch.
(b) Supreme Council.
(c) Prime minister and Cabinet.
(d) Legislative Council.
SUPREME COUNCIL
The Supreme Council will be retained with certain modifications. It should be a small body of not more than 6, and shall be appointed be His Majesty. The term of office shall be as at present-during His Majestys pleasure-and not for a fixed period.
The Supreme Council should act purely as an advisory body to His Majesty on matters of general policy.
No member of the Supreme Council shall at the same time serve as Prime Minister or member of the Cabinet. Furthermore the Council shall not sit with the Cabinet.
If members of the Cabinet may also serve as members of the Supreme Council the influence and position of the Prime Minister might be seriously weakened.
PRIME MINISTER AND CABINET
Appointment.
The Prime Minister shall be selected by His Majesty and shall be responsible to His Majesty for the administration of the Government.
There should be no limitation upon the Kings power of selection. He should be free to select the most capable man for the position without regard to any factors except his qualifications for the Office.
If the Prime Minister is to be responsible for the administration of the Government he should have the right to choose his Cabinet Ministers. A complete delegation to the Prime Minister of the power of appointment would be however too drastic a change. It is therefore suggested that the choice of the Prime Minister should be subject to confirmation by His Majesty.
Term of Office
The Prime Minister and cabinet members shall be appointed for a fixed period and at the expiration thereof their resignation must be offered to His Majesty. They should however be eligible to re-appointment. The term of office should be the same as that for the Legislative Council, so that a new Council and a new Prime Minister and Cabinet or a re-appointed Prime Minister and Cabinet should come into office at the same time. This plan would permit Changes to be made as a matter of course and without compelling His Majesty to exercise his sovereign power of removal. His Majesty would also have the right at any time to request the resignation of the Prime Minister, Whenever the Prime Minister resigns, either voluntarily or on request, the members of his Cabinet shall also tender their resignations.
The Prime Minister shall preside over Cabinet meeting and will ordinarily be the sole means of communication between His Majesty and the Cabinet.
LEGISLATIVE COUNCIL
Composition.
The Legislative Council should be large enough to be representative of the public. On the other hand it should not, at the beginning, be too large, since a numerous body is unwieldy and slow to act.
It is suggested that the Council should be not more than 75 or less than 50. solely of elected members or of a combination of the two. A purely appointed Council would not have sufficient independence and would not be considered by the public as representative. On the other hand a Council composed entirely of elected members might not have sufficient number of persons of experience and judgment in public affairs. It is therefore suggested that at the start the Legislative Council should be equally divided between appointed members.
Of the members appointed by His Majesty not more than half should be at the same time Government officials. With this limitation His Majesty should be free to select such members as he deems.fit.
The Prime Minister and members of the Cabinet shall be members of the Legislative Council ex-officio.
If the Legislative Council is to exercise some power of supervision over the administration, together with the right to pass a vote of lack of confidence, it is essential that the Prime Minister and members of the Cabinet should have at least the right to sit and speak in the Council. Whether they should also have the right to vote is a debatable question. If the underlying purpose is eventually to establish a Parliamentary Government, then these executives should be full-fledged members of the Council.
Election and Qualifications of Voters.
The method of election shall be indirect, that is, the voters of each Amphur shall choose electors who will meet together and elect by ballot the representatives for the Monthon, Since the Amphur districts vary in population from 70 thousand to as low as 3,4 and 5 thousnad the number of electors must be based on population.
Voters must be nationals and reside in the Amphur or Amphurs where the voting takes place. They must also pay a certain amount of tax.
The Monthons, of which there are ten, also very in population from Nakorn Rajasrima with 2,800,000 to Puket with only 24,000. The number of representatives from the Monthons should also vary according to the population in order that the Legislative Council may approximate a truly representative body.
The election of the members of the Council shall be by majority vote. In case any Monthon fails to elect its representative or representatives His Majesty shall fill the vacancy by appointment.
Qualifications of members of the Council.
They must be Siamese nationals and at least 30 years of age, able to read and write and must pay a certain amount of tax. No elected member shall at the same time hold any other Government position.
Term of Office and Meetings.
Members of the Legislative Council should be elected for a fixed period of either 4 or 5 years. This term should be the same as that fixed for the period of office for the Prime Minister and Cabinet.
The Legislative Council should meet at least once each year. It may be called in a special session at any time by His Majesty and may also be dissolved by His Majesty.
Functions of the legislative council
1. Legislative
All laws proposed by the Prime Minister must be submitted to the Council for is approval. The Council may adopt amendments or alterations, Furthermore the Council may initiate legislation.
The Budget shall be submitted to the Council by the Prim Minister, In case of disagreement between the Council and the Prime Minister over the Budget the matter shall be referred to His Majesty.
Treaties and agreements or arrangements with Foreign Powers do not have to be submitted to the Council.
His Majesty has power of Veto on any legislation approved by the Council Furthermore His Majesty may in any emergency or whenever in His opinion the public interest or security requires it, enact legislation without reference to the Legislative Council. In case of any veto His Majesty shall in a message to the Council set forth the reasons for His action.
2. Administrative.
The Council may interpolate the Ministers on any matters affecting the Government. The Ministers are bound to give explanation unless incompatible with public interest.
The Council may, by 2/3 majority, pas a vote of lack of confidence in the Prime Minister, In such case the Prime Minister and Cabinet must tender their resignations to His Majesty, His Majesty may accept or refuse to accept as he deems proper in the public interest.
3. Organisation.
The Council may select its own presiding officer and shall adopt rules for its deliberation and work.
Ordinarily all meetings of the Council shall be in public. The Council may, however, by a majority vote, go into executive session which shall be secret.
RSP : SP
8.12.74
(ต่อมา 3 เดือน)
คณะราษฎร์ปฏิวัติเปลี่ยนแปลงการปกครอง วันที่ 24 มิถุนายน 2475
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พิมพ์จาก http://public-law.net/view.aspx?ID=975
เวลา 25 พฤศจิกายน 2567 21:52 น.
Pub Law Net (http://www.pub-law.net)
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