The Recent Coup in Thailand and its Legal Consequences
       

As a result of numerous inquiries regarding the current political situation, the imposition of martial law and its legal consequences, we are providing a neutral and unbiased summation of the facts and applicable legal precedent currently available for the better understanding of the public.
       
       On September 19, 2006, the Council for Democratic Reform under the Constitutional Monarchy (the “CDRM”), consisting of the heads of the armed forces and the national police, took control of the national administration. The reasons given by the CDRM were that the previous government was incapable of administering the country due to rampant corruption and the manipulation of independent organizations by politicians resulting in conflict among different groups and social disunity. The CDRM has confirmed that it has no intention of administering the State by itself and will return power to the Thai people as soon as possible.
       
       Constitution Abolished / Acts of Parliament Intact
       
       Soon after taking control, the CDRM issued its Announcement No 3, repealing the 1997 Constitution, widely known as the “People’s Constitution”, and dissolving the National Assembly (consisting of the 200-member Senate and the 500-member House of Representatives), the Cabinet, and the Constitutional Court. However, the CDRM did not dissolve the Privy Council or the Courts of Justice, Administrative Courts or Military Courts. The Courts retain their jurisdiction to adjudicate cases pursuant to the law and the CDRM’s Announcements.
       
       In addition to the Constitution having been abolished, the Constitutional Organic Acts, such as the law on State Audit, Election Commission, and Ombudsman, were automatically abolished, unless the CDRM intended otherwise. The subsequent Announcements did provide that certain laws shall continue to be in force. However, the acts of Parliament, other than the Constitutional Organic Acts, remain intact.
       
       CDRM Announcements/
       
       The CDRM has also issued a number of other Announcements and Orders. Under the Announcements, executive powers and duties are exercised as follows:
       
       1. The powers and duties of the Cabinet or the Prime Minister are exercised by the Chairman of the CDRM.
       2. The powers and duties of a Minister are exercised by the Permanent Secretary-General.
       
       With regard to legislative powers, where the law requires the approval of the National Assembly, the Senate, or the House of Representatives, the power is exercised by the Chairman of the CDRM.
       
       Legitimacy/ Legal Precedent
       
       In the past, Thailand has seen several military-backed overthrows of both elected and non-elected governments. While the West perceives such action to be undemocratic, the legitimacy of such actions has been confirmed by decisions of both the domestic courts and constitutional tribunals. The first Supreme Court decision of relevance (Supreme Court Decision No. 45/1953) was handed down after the coup of 1948. It held that once the group in question has successfully seized power to administer the country, it is therefore empowered to change, rectify, and repeal laws so as to continue to administer the nation, for if that were not the case, the nation could not exist peacefully.
       
       In addition, the Supreme Court, in Supreme Court Decision No.1662/1962, confirmed that once a particular group has taken over the power to administer the country, it has full power to administer the country. Any order it makes or enforces is deemed to be a law, even though His Majesty has not promulgated it with the advice and consent of the House of Representatives or the National Legislative Assembly.
       
       However, in a precedent setting case more specifically defining the somewhat broadly expressed Supreme Court decisions of the past, the Supreme Court, in Supreme Court Decision No. 921/1993, did not recognize the law enacted by the particular group that had taken authority, if such law provided a criminal penalty with a retroactive effect or if such law set up a committee having the power to adjudicate cases, similar to that of the courts. In such case, the Supreme Court held that certain clauses of the Announcement of the particular group that had taken power establishing an asset investigating committee was unenforceable, as it contravened the constitutional practice in the democratic regime of government with the King as the Head of State.
       
       In addition, the Council of State (Work Product No. 216/1997) has ruled that an order of the Chairman of the National Executive Council, the group that had taken authority in 1971, was lawful and had the force of law as a statute, amending the law on budgetary procedure regarding the remittance of funds to the State.
       
       New Constitution and New Cabinet
       
       It has been reported that, within two weeks as from the 20 September 2006, an interim Constitution will be promulgated, a civilian Prime Minister and Cabinet will be appointed to administer the State, and a National Legislative Assembly will be established to act as the National Assembly. In addition, the CDRM intends that a new Constitution will be drafted and promulgated within one year.
       
       We will remain attentive regarding legal developments in this time of rapid change and provide our factual and legal updates as events unfold and further information becomes available.