United States Warden System

UNCLASSIFIED (U) U.S. Department of State Foreign Affairs Manual Volume 7 Consular Affairs
7 FAM 070
WARDEN SYSTEMS
(CT:CON-533; 09-19-2014) (Office of Origin: CA/OCS/L)
7 FAM 071 INTRODUCTION
(CT:CON-533; 09-19-2014)
a. A well organized and efficient warden system is essential for a post to carry out its primary function of U.S. citizen protection in times of crisis. The Consular Section Chief (or equivalent) is responsible for management of the post’s warden system, including periodic testing, updating warden contact
information, recruitment of wardens to ensure adequate coverage of the consular district, and periodic meetings and/or conferences with wardens.
b. Wardens assist consular sections in disaster preparedness by alerting U.S. citizens to emergency situations and passing on information from the post or Department. Wardens are also a valuable asset that can provide post with key information, both about specific individuals and for situational awareness, from the local community or area. Because of privacy concerns, they (and their alternates) must sign a Memorandum of Agreement (see 7 FAM Exhibit 070.2) committing them to safeguard names and other identifiers of the U.S. citizens whom they are to notify in cases of emergency. The Consular Section Chief must also provide wardens and alternates with a description of duties. (See 7 FAM Exhibit 070.3.)
c. Posts often have both a consular warden system for the private U.S. citizen community and an administrative warden system for the official U.S. citizen community. See 12 FAH-1 H-245.10, 12 FAH-1 H-324 and, 12 FAH-1 Annex K 3.3 which describe the use of both systems in evacuation planning. For the purposes of this subchapter, we are speaking of the consular warden system.
d. A warden system provides a reliable way for you to reach U.S. citizens in the event of an emergency, disaster, or threat, and to distribute other information of interest to the private U.S. community (changes in section work hours and procedures, voting information, physicians list, etc.). Posts can issue a Message for U.S. Citizens, Security Message for U.S. Citizens, or Emergency Message for U.S. Citizens depending upon the circumstances (see 7 FAM 058). Hereinafter all three will be referred to as Messages unless there is a distinction to be made. A good warden system supplements these Messages for the local U.S. community and provides a valuable set of eyes and ears in an emergency. We no longer refer to these Messages as Warden Messages. This change was made to reflect the ease of electronic communication and the ability of resident
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communities to hear from us directly, and in many cases instantly.
e. The classic warden system is composed of a pyramidal contact system designed to reach the U.S. citizen population (see 7 FAM Exhibit 070.1, Typical Phone Tree), including the following groups:
Key non-U.S. Government U.S. citizens/non-citizen nationals grouped by organization (warden chosen by position in U.S. community) The U.S. resident community grouped by location (warden chosen by geography or neighborhood)
U.S. citizen tourists (warden chosen because of key contacts at popular tourist spots or hotels)
NOTE:
During World War II, air raid wardens guarded the coast and alerted the public to danger. The term “warden” currently refers to someone who has the charge or care of someone or something. The Department uses the term to refer to individuals, usually but not always U.S. citizens resident in the host country, who volunteer to facilitate communication between the U.S. embassy/consulate and the U.S. citizen community.
7 FAM 072 AUTHORITIES
(CT:CON-381; 07-08-2011)
The legal authority for the warden system primarily consisting of private citizens is founded upon a variety of statutes and regulations.
(1) 22 U.S.C. 4802(b) Overseas Evacuations, requires the Secretary of State to “develop a mechanism whereby United States citizens can voluntarily request to be placed on a list in order to be contacted in the event of an evacuation, or which, in the event of an evacuation, can maintain information on the location of United States citizens in high risk areas submitted by their relatives.”
(2) 31 U.S.C. 1342, the Anti-Deficiency Act, limits the use of voluntary services by the United States except for emergencies involving the safety of human life or the protection of property.
(3) See also 12 FAH-1 Annex K.
7 FAM 073 POST’S MANAGEMENT ROLE
(CT:CON-400; 02-16-2012)
In managing your warden system, remember that:
The Consular Section Chief must execute a written Memorandum of Agreement from the Warden and Alternate Warden (7 FAM Exhibit 070.2)
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The Consular Section Chief must provide the Warden and Alternate Warden with a Description of Warden Responsibilities (7 FAM Exhibit 070.3) The Consular Section Chief is responsible for annual testing of the Warden System The Consular Section Chief must assess the effectiveness of the warden system periodically
The Consular Section Chief must meet with wardens periodically. Many posts are successful in organizing annual warden conferences to renew contacts and update wardens on their responsibilities. Your CA/OCS/ACS country officer can share some best practices.
7 FAM 074 AN EFFECTIVE WARDEN SYSTEM
(CT:CON-400; 02-16-2012)
a. Warden systems vary a great deal between large and small posts, as well as between large and small U.S. communities. In establishing a warden system tailored to the needs and communication capabilities at your post, you may want to consider the following ideas that other posts have used successfully:
Note:
Post should not rely on the Department or other posts to be able to disseminate information to the U.S. citizen community on the affected post’s behalf during a crisis via any mechanism outside of the Smart Traveler Enrollment Program (STEP).
(1) Many posts make broad use of the Internet and email to communicate with the American community, including wardens. This includes both the use of a ListServe email and use of the post home page. The Department encourages innovation by posts. However, technology-based information dissemination tools should enhance, not replace a well established warden system.
(2) One post designed a geographic warden network using computerized mapping software. This methodology – dubbed the “geographic approach” – is based on mapping and analyzing the distribution of U.S. citizens by postal code, then aggregating postal code areas to define warden zones that have roughly equal numbers of U.S. citizen households. The techniques developed on this project provided a logical method for defining warden zones within the overall framework of CA’s ALMA/ACS system. The experience and the methods used on this project could be applied at other posts that wish to implement a geographic warden network. The post was ably assisted by the Office of the Geographer and Global Issues (INR/GGI), which supplied digital map information
(3) Other posts abandoned the traditional fax-based cascade-style warden system in favor of an internet-based LISTSERV email system. This change increased one post’s ability to communicate with American citizens by a factor of eleven and in a fraction of the time the old system required. 7 FAM 070 Page 3 of 10
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Note: The Department may not be able to distribute information on post’s
behalf via a local LISTSERV during a crisis.
(4) In cooperation with the Voice of America one post drew up contingencies for the broadcasting of phoned-in emergency messages on a specific frequency of the AM band. All wardens were informed of this alternative medium for communicating emergency information and have passed this information to the American households in their zones.
(5) Some posts designate a specific embassy telephone extension for callers who wish to hear a recording of the latest Message.
b. In deciding how many wardens to appoint and where best to position them, you should take into account may depend on how many U.S. citizens live in or visit your consular district, where they are located geographically, place of employment, language skills, etc. (See Form DS-5506, Local U.S. Citizen Skills/Resources Survey). Consider too, your communication strategy for reaching U.S. citizens who have limited or no access to information technology.
7 FAM 075 ASSESSING THE UTILITY OF YOUR
WARDEN SYSTEM
(CT:CON-533; 09-19-2014)
a. The Consular Section Chief must periodically assess of the utility of post’s
warden systems. Ask yourself:
• Would I be able to issue a Message if I could not go into the
embassy/consulate?
• Do I have essential information at remote locations outside the office? • Is the essential information in the duty book?
• If the consular officer(s) at post is/are away, who else at post knows how to
use/activate the warden system?
• Are all American Citizen Services (ACS) section staff trained in how to
use/activate the warden system?
• Are other consular staff cross-trained in its use?
• In a crisis, visa staff may be shifted to assist ACS. They should be trained
before a crisis, not during
• Do enough people have access the tools need?
• What would I do if I lost Internet service, electricity, or phone service?
• Has the consular section planned with the Public Affairs Officer (PAO) on a
strategy for using the media to disseminate emergency information?
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• In the event of a crisis, or other event that results in post’s closure or suspension of operations, can the Department or another designated post disseminate information to the local U.S. community on post’s behalf?
b. Testing Your Warden System: In evaluating your warden system consular officers must to take into account various factors, including speed, redundancy, and effectiveness. Speed reflects the measurement of the time required to transmit a message from the embassy to all registered U.S. citizens; redundancy reflects the number of sources by which an American citizen could obtain information included in a Message; and effectiveness reflects the measured percentage of registered U.S. citizens who both received and understood the test message.
7 FAM 076 WARDEN OUTREACH
(CT:CON-400; 02-16-2012)
a. The Consular Section Chief must engage in periodic outreach to wardens. An annual warden conference is a good way for wardens to get to know one another, to learn more about their responsibilities, and to better understand the role of the consular section in protecting U.S. citizens. When planning a warden meeting utilize consular and other embassy staff as speakers. Include wardens in a discussion of how to improve U.S. citizen registration in your district and how to prepare for emergency situations.
b. You should:
Detail your plans for disseminating information
Solicit feedback and ideas from your wardens
Deal head-on with concerns about over-burdening your wardens Discuss how an evacuation might work so that everyone will have a better idea how to prepare and what to do
Provide handouts showing the elementary steps of pre-crisis preparedness Discuss privacy concerns
c. After the Warden Conference, draft a letter of thanks to each warden from the ambassador.
d. Some posts supplement their warden meetings with an electronic newsletter to keep wardens up to date on issues affecting travel, consular procedures, and routine updates to the consular information program.
e. See 7 FAM 058 for guidance regarding preparation of Messages for the local U.S. community..
7 FAM 077 YOUR WARDEN SYSTEM DURING A CRISIS
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(CT:CON-400; 02-16-2012)
a. Consular Section Chiefs must ensure that post’s warden system is effective ina crisis by keeping warden system resources up to date. See also 7 FAM 1800, Consular Crisis Management.
b. If your post decides it must temporarily suspend services to the public, or if you become aware of a threat to the safety of U.S. citizens , you should notify the Department and seek clearance on a Message. CA/OCS must also consider the possibility of issuing a Travel Warning. We do not always issue a Travel Warning when a post closes temporarily; however, the Department will issue a Travel Warning when it approves a request for Authorized or Ordered Departure status (12 FAH-1 Annex K Addendum 1.3). Always keep in mind the “no double standard” policy—that generally, if security threat information is shared by the Department with the official U.S. community, it must also be made available to the non-official U.S. community if the underlying threat applies to both official and non-official U.S. citizens. See 7 FAM 052 for a more detailed explanation of the “no double standard policy.”
7 FAM 078 MAINTAINING TIES WITH WARDENS
(CT:CON-400; 02-16-2012)
The Consular Section Chief must engage the U.S. expatriate community at post. This can be done through participation in American Chamber of Commerce (AmCham) events, Overseas Security Advisory Council (OSAC) meetings, and town halls. Look at ways to connect with the community and to provide information.
Call a town hall meeting for the private U.S. community and ask for feedback on how your system works from their point of view. Some posts have used town halls as a means to introduce post’s Principal Officer and heads of sections and has each, including consular, explain the role they play in representing U.S. citizen interests abroad.
Invite wardens to your town halls and be sure to publicly thank them. Include wardens in embassy/consulate functions as appropriate throughout the year. Volunteers appreciate the recognition.
7 FAM 079 UNASSIGNED
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7 FAM Exhibit 070.1 Typical Phone Tree (CT:CON-381; 07-08-2011)
Consular Section
UN PEACE CORPS Non USG AmCits
International School Resident AmCits
U.S. BUSINESS NORTHRIDGE SOUTHRIDGE Tourists
HOTELS RESTAURANTS
UNHCR UNICEF Parents N-Z Parents A-M CAPITOL REGIONAL YOUTH HOSTELS
NORTH SOUTH
7 FAM Exhibit 070.2
WARDEN MEMORANDUM OF AGREEMENT
(CT:CON-106; 06-06-2005)
U.S. EMBASSY/CONSULATE CITY, COUNTRY
MEMORANDUM OF AGREEMENT
I, (Name of Consular Section Chief), wish to express the appreciation of the U.S. Government and your fellow citizens for your acceptance of your appointment as a warden. I, (Name of Warden), hereby acknowledge that I understand and agree to the terms set forth below pertaining to information provided to me by the U.S. Embassy in my capacity as a warden insofar as some of the information is subject to the provisions of the Privacy Act of 1974, as amended.
In particular, I understand:
a) That the information provided to me under the terms of this memorandum is to be accorded the full protection of the Privacy Act of 1974, as amended. Access to information must be limited to wardens and authorized alternates.
b) That storage and control of the information provided to me must be adequate to prevent access by unauthorized persons.
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c) That no dissemination of, or access to, the information provided to me by the U.S. Embassy/Consulate shall be permitted except in accordance with my duties as a warden. Further, the information provided to me shall be returned to the Embassy/Consulate upon completion of my tenure as a warden.
I further acknowledge and understand that my services as a warden are offered by me and accepted by the U.S. Embassy/Consulate in (City, Country) as gratuitous.
(Signature) (Signature) Name Name Warden Consular Officer Date Date
7 FAM EXHIBIT 070.3 DESCRIPTION OF WARDEN DUTIES (CT:CON-400; 02-16-2012)
U.S. Embassy/Consulate City, Country, Date DESCRIPTION OF WARDEN RESPONSIBILITIES
Recommend an alternate warden from the list of U.S. citizens in your warden zone. The alternate warden will also sign a Memorandum of Agreement with the Consular Officer after being approved by the Consular Section Chief.
With the alternate warden, agree how you will operate the warden notification system within your warden zone. Notify each other if one of you will be absent or out of the country. If both of you will be away at the same time, please designate a second alternate and immediately notify the warden coordinator in the Embassy’s consular section by email (EMAIL ADDRESS) or by fax (TELEPHONE NUMBER). The alternate warden and second alternate must sign a Memorandum or Agreement with the U.S. embassy/consulate. In your message, please provide the alternate warden’s name, address, and contact numbers, and length of time that s/he will cover during your absence. This way, the warden zone will be covered at all times.
Regularly update the list of names, street addresses, phone/fax numbers, and email addresses of U.S. citizens in your warden zone. Report all changes to the Embassy’ warden system coordinator at the above email address, fax number, or our postal address (EMBASSY/CONSULATE ADDRESS).
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In the event of a crisis, our foremost concern is your safety. Do not put yourself at personal risk to deliver messages, information or services to us or others. When you are in a safe location, you should contact the Consular Section so that we can confirm your well being and whereabouts. Be aware of your surroundings and report information that can help consular officers assess the situation. This will help the Embassy and the Department of State understand where there are needs to be met and how best to respond.
The Consular Section transmits Messages to U.S. citizens electronically, but there may be instances during crises where local infrastructure fails or inhibits the delivery of timely messages by the Consular Section. If necessary, Messages for the local U.S. community may be relayed from the embassy or consulate to you for dissemination by any means available to you.
Distribute Emergency Messages, Security Messages, or Messages for the local U.S. community as relayed from the embassy or consulate to the members of your warden zone. The embassy/consulate will relay Messages to you via email, fax, or telephone. Arrange the fastest mode of dissemination of information possible in your warden zone (this might include forwarding the Warden email to a group-em- mail list, a cascade telephone system, faxing, or “buddy” system, depending on the distribution of citizens within your zone.
IN THE EVENT OF AN EMERGENCY
Remain at home or office for emails, telephone calls, or faxes. If possible, the embassy will email information directly to your email address. You can then distribute this message by the means you have previously set up. In addition, identical information will promptly appear on the embassy’s or consulate’s Web page at (WEB ADDRESS). Wardens who do not have Internet access can call (PHONE NUMBER) and press (INSERT OPTION NUMBER) as soon as they hear the embassy/consulate recording. You will hear our pre-recorded warden message by pressing (OPTION NUMBER.)
Distribute Messages from the embassy or consulate regarding the status of the emergency and suggested actions to be taken. Messages must be transmitted verbatim without interpreting, paraphrasing, or expanding the message.
Coordinate with embassy/consulate personnel in choosing assembly areas and movement routes, should it be necessary to move people to a central location to facilitate communication, documentation, and/or evacuation.
Report back to the embassy or consulate the results of efforts to contact the members of your warden zone, information as provided by the local U.S. community, and any situational information about your zone via (EMAIL ADDRESS) or by fax (FAX NUMBER). Wardens who do not have Internet access
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may call (PHONE NUMBER) press (INSERT OPTION NUMBER) as soon as they hear the Embassy/Consulate recording, and then press (INSERT OPTION NUMBER) to leave a recorded message.
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Usufruct – non-ownership that provides control and right to benefits

Foreigners in Thailand are often uninformed about land ownership, rights to habitation, legal aspects of property use – limitations and advantages, and how to safeguard their interests while putting down sometimes considerable sums of money in Thailand for something they are not permitted by Thai law to actually own. The initial impression becomes one where the foreigner thinks there are no real alternatives in the country to controlling property or enjoying benefits of using it, including making a profit. This is where the usufruct may be what’s needed.
The Thai word for usufruct is สิทธิเก็บกิน (sitti kep kin), which literally translates as the right to retain and eat, ostensibly hailing in derivation from a farmer having partial control over a piece of farmland owned by someone else but the farmer has the right to plant crops, gather them, eat or otherwise gain profit from them. In non-farming terms, a usufruct, as applied in Thailand, is defined and stipulated in Thailand’s Civil and Commercial Code, Sections 1417-1428.

Section 1417. An immovable property may be subjected to a usufruct by virtue of which the usufructuary is entitled to the possession, use and enjoyment of the property.
He has the right of management of the property.
The usufruct of a forest, mine or quarry entitles the usufructuary to the exploitation of the forest, mine or quarry.
Section 1418. A usufruct may be created either for a period of time or for the life of the usufructuary. If no time has been fixed, it is presumed that the usufruct is for the life of the usufructuary. If it is created for a period of time, the provisions of Seciton 1403 parag. 3 shall apply mutatis mutandis. (Section 1403 reads, “If it is granted for a period of time, the period may not exceed thirty years; if a longer period is stipulated, it shall be reduced to thirty years. The grant may be renewed for a period not exceeding thirty years from the time of renewal.”
Section 1419. If property is destroyed without compensation being paid, the owner is not bound to restore it; but, if he does so to any extent, the usufruct revives to that extent.
If any compensation is paid, the owner or the usufructuary must restore the property so far as it is impossible to do so, having regard to the amount of the compensation received, and the usufruct revives to that extent; but, if restoration is impossible, the usufruct come to an end and the compensation must be divided between the owner and the usufructuary in proportion to the damages suffered by them respectively.
The same rules apply mutais mutandis in case of expropriation as well as in case of partial destruction of the property or of partial impossibility to restore the property.
Section 1420. When usufruct comes to an end, the usufructuary must return the property to the owner.
The usufructuary is liable for the destruction or depreciation in value of the property, unless he proves that the damage was not caused by his fault.
He must replace anything which he has wrongfully consumed.
He is not bound to give compensation for depreciation in value caused by reasonable use.
Section 1421. The usufructuary must, in the exercise of his rights, take as must care of the property as a person of ordinary prudence would take of his own property.
Section 1422. Unless otherwise provided in the act creating the usufruct, the usufructuary may transfer the exercise of his right to the third person. In such case the owner of the property may sue the transferee direct.
Section 1423. The owner may object to any unlawful or unreasonable use of the property.
If the owner proves that his rights are in peril, he may demand security from the usufructuary, except in the case of donor who has reserved to himself the usufruct of the property given.
If the usufructuary fails to give security within a reasonable time fixed for the purpose, or if, in spite of the owner’s objection he continues to make use of the property unlawfully or unreasonably, the Court may appoint a Receiver to manage the property in his stead. Upon security being given the Court may release the Receiver so appointed.
Section 1424. The usufructuary is bound to keep the substance of the property unaltered, and is responsible for ordinary maintenance and pretty repairs.
If important repairs or measures are necessary for the preservation of the property, the usufructuary must forthwith inform the owner thereof and permit them to be carried out. In case of default by the owner, the usufructuary may have the work carried out at the owner’s expense.
Section 1425. All extraordinary expense must be borne by the owner, but in order to meet these or expenses coming under the foregoing section he may realize part of the property unless the usufructuary is willing to advance the necessary funds without charging interest.
Section 1426. The usufructuary shall, for the duration of the usufruct, bear expenses for the management of the property, pay taxes and duties, and be responsible for interests payable on debts charged upon it.
Section 1427. If required by the owner, the usufructuary is bound to ensure the property against loss for the benefit of the owner; and if the property is already insures he is bound to renew such insurance when due He must pay the premiums of the insurance for the duration of his usufruct.
Section 1428. No action by the owner against the usufructuary or his transferee in connection with the usufruct or vice versa may be entered later than one year after the usufruct comes to an end. But in an action by the owner who could not have known of the end of the usufruct, the prescription of one year shall run from the time when he knew or ought to have known of it.

The main points of this legal provision is the right of possession, use and enjoyment of a property, and right of management. Limitations of a usufruct include maximum duration of thirty years with a maximum equal, single renewal possible. If not for the lifetime of the usufructuary then the duration is as stipulated between the actual property owner and the usufructuary; under current Thai law in no case can it be longer than thirty years with maximum extension for the same duration . In addition, the usufructuary is not permitted to destroy the property, and at the end of the usufruct, is required to restore the property to the condition that it would normally be in as if the usufructuary was the owner taking care of the property. A disadvantage of a usufruct is that it likely affects the value of the property and ability of the owner to negotiate its sale. The terms of the usufruct would ostensibly contain provisions, limitations and options that address this point.
Online there are various samples of a standard usufruct, including that on Samuiforsale.com . One of the two forms shown is a memorandum for a lifetime usufruct, a copy which will be retained by the Land office. Obviously such legal agreements are to be made through a reputable attorney/lawyer. Another detailed example of what can be done with a usufruct, partly in anecdotal form by the foreigner involved, is available online at http://retiringinthailand.net/usufruct-legalised-on-chanote/. This author personally found this online resource particularly insightful as it offers a close personal view of the process and principals involved in getting a usufruct actually drawn up and legally executed in a way that protects the rights of the foreigner – as told by the foreigner.
References and citations:
Latin roots and original meaning of usufructus – (This is an academic narrative replete with Latin references)
http://penelope.uchicago.edu/Thayer/E/Roman/Texts/secondary/SMIGRA*/Ususfructus.html

Note the following from http://penelope.uchicago.edu/Thayer/E/Roman/Texts/secondary/SMIGRA*/Ususfructus.html:

Ususfructus

Article by George Long, M.A., Fellow of Trinity College
on pp1221‑1222 of

William Smith, D.C.L., LL.D.:
A Dictionary of Greek and Roman Antiquities, John Murray, London, 1875.

USUSFRUCTUS and USUS were Personal Servitutes [Servitutes.] (Dig. 8 tit. 1 s1). Ususfructus is defined to be “jus alienis rebus utendi fruendi salva rerum substantia (Dig. 7 tit. 1 s1). Accordingly Ususfructus comprehended the “just utendi” and the “jus fruendi“. Usus comprehended only the “jus utendi.” The complete distinction between Ususfructus and Usus will only appear from a statement of what each is.

ususfructus was the right to the enjoyment of the fruits of a thing by one person, while the ownership (proprietas) belonged to another. It could be established by Testament, which was the common case, as when the Heres was required to give to another the ususfructus of a thing; and it could also be established by contract between the owner of a thing and him who contracted for the Ususfructus. He who had the Ususfructus was Usufructuarius or Fructuarius, and the object of the Ususfructus was Res Fructuaria. The utmost limit of Ususfructus and Usus was the life of the person who had the right. Thus the Ususfructus and Usus were generally life estates; but not more (Dig.45 tit. 1 s38 § 12).

There might be Ususfructus both in Praedia Rustica and Urbana, in slaves, beasts of burden and other things; and a Ususfructus of a whole property (omnium bonorum) might be given; or of some aliquot part (Dig. 32 tit. 2 s37, 43).

If the Ususfructus of a thing was bequeathed to a person, all the “fructus” of the thing belonged to the Fructuarius during the time of his enjoyment. Consequently if the Ususfructus of a piece of land was given to him, he was intitled to collect and have for his own all the fructus that were already on the land, and all that were produced on it during the time of his employment. But as he only acquire the ownership of the fructus by collecting them (perceptio), he was not intitled to fructus, which existed on the land at the time when his right ended, and which he had not collected: quidquid in fundo nascitur, vel quidquid indeed percipitur, ad fructuarium pertinet (Dig. 7 tit. 1 s59, § 1; tit. 4 s13).

He was bound not to injure the land, and he was bound to cultivate it properly. As to quarries and mines, he could work them for his benefit, if he worked them properly (quasi bonus paterfamilias). If after the bequest of the ususfructus, minerals were found on the land, he could work them. He could be compelled to plant new trees in the place of those which died, and generally to keep the land in good condition. If the ususfructus was of aedes, the fructuarius was intitled to all the rents and profits which he received during the time of his enjoyment. He could be compelled to keep a house in repair, but it seems to be doubtful how far he was bound to rebuild the house if it fell down from decay: at any rate he was liable for all moderate and reasonable expenses which were necessary for the maintenance of the property.

The Fructuarius could not alienate the right to the ususfructus, though he might give to another the usus of his right; and he might surrender the right to the Ususfructus to the owner of the thing. He could not subject the thing to servitutes; nor could the owner do this even with the consent of the fructuarius. The Fructuarius could make such changes or alterations in the thing as would improve it, but not such as would in any way deteriorate the thing, or even render the maintenance of it a greater burden. Consequently he had greater power over cultivated land than over houses or pleasure-grounds, for a part of the value of houses or pleasure-grounds and things of the like kind consists in opinion, and must be measured by the rank, wealth, and peculiar disposition of the owner.

The fructuarius could maintain or defend his rights by action and by interdicts. On the completion of the time of the Ususfructus, the thing was to be restored to the owner, who could generally require securities from the fructuarius both for the proper use of the thing and for its restoration in due time. This security was in some cases dispensed with by positive enactments, and in other cases by agreement; but it could not be dispensed with by testament.

Originally there could be no Ususfructus in things unless they were things corporeal and such as could be restored entire, when the time of Ususfructus had expired. But by a Senatusconsultum of uncertain date, there might be quasi ususfructus of things which were consumed in the use, and in this case the fructuarius in fact became the owner of the things, but was bound to give security that he would either restore as much in quantity and value as he had received, or the value of the things in money (Dig. 7 tit. 5 s7; and compare Randall v. Russell, 3 Mer. 190). It is generally supposed that this Senatusconsultum was passed in the time of Augustus, and a passage of Cicero (Top. 3) is alleged to show that it did not exist in the time of Cicero: “Non debet ea mulier, cui vir bonorum suorum usumfructum legavit, cellis vinariis et oleariis plenis relictis, putare id ad se pertinere. Usus enim non abusus legatur.” The only difficulty is in the words “id ad se pertinere,” which are usually translated “these things, (the cellae vinariae, &c.) are not objects of Ususfructus,” from which it is inferred that there was at that time no Ususfructus in things which were consumed in the Use. But if this is the sense, the words which follow, “for the usus, not the abusus (power to consume) is the object of the legacy,” have no clear meaning. These words simply signify p1222that an Usus is given, not an Abusus; but this does not prove that an abusus could not be given. Puchta shows that the phrase “res pertinet ad usufructuarium,” which exactly corresponds to the phrase in Cicero, does not mean “that the thing is an object of ususfructus,” but that “it belongs to the fructuarius.” In the Digest (7 tit. 1 s68) the question is, whether the young child of a female slave belongs to the fructuarius (an partus ad fructuarium pertineat), and it is answered in the negative, with the following explanation: “nec usumfructum in eo fructuarius habebit.” The passage of Cicero therefore will mean, that wine and oil in the testator’s possession are not given to her by a bequest of the ususfructus of his property, for it is usus, that is, the enjoyment of the future fruits, which is given, and not “abusus” or the power to consume fruits which already exist. In other words the testament gives the woman a Ususfructus in all his property, that is a right to gather the fruits, but he does not give the wine and oil, which are fruits already gathered, to the woman to be her property as if she had gathered them during her Ususfructus. Puchta contends that “abusus” does not necessarily signify that there could be “abusus” only in the case of things “quae usu consumuntur“: he says that in the place of wine and oil Cicero might have given the young of animals, as an example without altering his expression. If this interpretation is correct, Puchta contends that the Senatusconsultum as to Quasi ususfructus is older than the time of Cicero.

Usus is defined (Dig. 7 tit. 8 s2) by the negation of “frui“: “cui usus relictus est, uti potest, frui vero non potest.” The title of the Digest above referred to is “De Usu et habitatione,” and the instances given under that title mainly refer to the use of a house or part of a house. Accordingly the usus of a house might be bequeathed without the fructus (Dig. 7 tit. 8 s18): it has been already explained what is the extent of the meaning of Ususfructus of a house. The usus of a thing implies the power of using it either for necessary purposes or purposes of pleasure. The man who was intitled to the usus could not give the thing to another to use, though a man who had the usus of a house could allow another to lodge with him. A man who had the usus of an estate could take wood for daily use, and could enjoy the orchard, the fruit, flowers, and water, provided he used them in moderation, or as it is expressed “non usque ad compendium, sed ad usum scilicet non abusum.” If the usus of cattle (pecus) was left, the usuarius was intitled to a moderate allowance of milk. If the usus of a herd of oxen was bequeathed to a man, he could use the oxen for ploughing and for all purposes for which oxen are adapted. If the usus was of things which were consumed in the use, then the usus was the same as Ususfructus (Dig. 7 tit. 5 s5 § 2; s10 § 1). Usus was in its nature indivisible, and accordingly part of a Usus could not be given as a legacy, though persons might have the fructus of a thing in common (Dig. 7 tit. 8 s19). As to his duties the usuarius was in most respects like the fructuarius. In some cases Usus is equivalent to Ususfructus, as where there can be no usus of a thing without a taking of the Fructus. As to Usus in the English system, see Slanning v. Style, 3 P. Wms. p335, and Hyde v. Parratt, 1 P. Wms. p1.

(Inst. 2 4; Dig. 7 tit. 1, &c.; Frag. Vat. de Usufructu; Mühlenbruch, Doct. Pandect. § 284, &c.; Ueber das alter des Quasiususfructus, Von Puchta, Rhein, Museum für Jurisprudenz, vol. III p82).

According to Law – for Pattaya Expat August 2015

According to Law

16 July 2015 for August 2015 issue

Thai labor laws and working in Thailand – legally or surreptitiously

The labor law in Thailand rests upon eight major legal frameworks, beginning with the Civil and Commercial Code, Book III, Title VI, verbatim:

“TITLE VI
HIRE OF SERVICES
Section 575. A hire of services is a contract whereby a person, called the employee, agrees to render services to another person, called the employer, who agrees to pay remuneration for the duration of the services.
Section 576. The promise to pay a remuneration is implied, if, under the circumstances if cannot be expected that the services are to be rendered gratuitously.
Section 577. The employer may transfer his right to a third person with the consent of the employee.
The employee may have a third person render the services in his place with the consent of the employer.
If either party acts contrary to this provision, the other party may terminate the contract.
Section 578. If the employee either expressly or impliedly warrants special skill on his part, the absence of such skill entitles the employer to terminate the contract.
Section 579. Absence of the employee from service for a reasonable cause and during a reasonably short period does not entitle the employer to terminate the contract.
Section 580. If no time for payment of remuneration is fixed by the contract or by custom, the remuneration is payable after the services have been rendered; if fixed by periods, the remuneration is payable at the end of each period.
Section 581. If after the end of the agreed period the employee continues to render services and the employer knowing thereof does not object, the parties are presumed to have made a new contract of hire on the same terms, but either party can terminate the contract by giving notice in accordance with the following section.
Section 582. If the parties have not fixed the duration of the contract, either party can terminate it by giving notice at or before any time of payment to take effect at the following time of payment. But no more than three-month notice need be given.
The employer can, on giving such notice, immediately dispense with the services of the employee by paying him his remuneration up to the expiration of the notice.
Section 583. If the employee willfully disobeys or habitually neglects the lawful commands of his employer, absents himself for services, is guilty of gross misconduct, or otherwise acts in a manner incompatible with the due and faithful discharge of his duty, he may be dismissed by the employer without notice or compensation.
Section 584. If a hire of services is one in which the personality of the employer forms an essential part such contract is extinguished by the death of the employer.
Section 585. If a hire of services comes to an end, the employee is entitled to a certificate as to the length and nature of his services .
Section 586. If the employee has been brought from elsewhere at the expense of the employer, the employer is bound, when the hire of service comes to an end, unless otherwise provided in the contract, to pay the cost of the return journey, provided that:
(1) The contract has not been terminated or extinguished by reason of the act or fault of the employee, and
(2)The employee returns within a reasonable time to the place from which he has been brought.”

Like many provisions of the Civil and Commercial Code, and indeed some provisions of the Criminal Code, wording is generic and is not sufficient to define particular circumstances and nuances thereof. Thus the Labor Law is far more applicable and requires a cursory glance if you employee anyone. As an expatriate you probably have Thai staff dealing with other Thais, but for your own protection and in anticipation of any future personal dealings with the law, it behooves you to read both the code and the law. In addition to the labor act there is (thanks for Thailawyers.com for posting this information online) the Labour Protection Act 1998, the Labour Protection Act (No.2) 2008, “the Labour Protection Act (No.3) 2008, the Labour Relations Act 1975, the Act on Establishment of Labour Courts and Labour Court Procedures 1979, the Social Security Act 1990 and the Compensation Act 1994. The Department of Labour Protection and Welfare, under the Ministry of Labour and Social Welfare, is charged with implementing labour laws and performing labor inspections throughout the country.”

If you have been resident in Thailand and rather than employing people are seeking to be employed, the labor law is significantly less prominent in your life. As a prospective employee, though, you do need to appreciate local nuances and “the ropes.” The English teaching industry here is one area where “the ropes” are indeed a bit slack – depending. For example, recently a local English language teaching contractor was in desperate need of teachers and was promising commissions to anyone who could find teachers for them urgently. While Thailand has generally been requiring TEFL certification this is not always the case. Such as in this instance cited. Apparently the contractor was desperate because its back was against the wall and it had to provide manpower. There are many instances of this happening, which means that if you are willing to live under rural conditions and work in a challenging environment, then teaching may be your bag. But don’t expect the best of conditions or a warm welcoming committee. Recently one “I gotta have a job” native English spaker traveled thirteen hours by bus only to discover a disheveled program, a director who could not care less, and no schedules or teacher materials.

According to Law – for Pattaya Expat September 2015

According to Law – Pattaya Expat

pattayaexpatmag@gmail.com

20 August 2015

‘Knowledge of law’ is a bit different from saying ‘knowledge of the law,’ as the word ‘the’ suggests that we are speaking of all laws in general and some sort of expertise in most facets of jurisprudence or law enforcement. At first glance the difference might be seen as nit-picking but a word here or there or not there can make a world of difference.

The more generic ‘knowledge of law’ simply means that a person should have an overall common sense grasp of what it legal and what is not as well as some specific knowledge of certain laws that fall within the personal interests of an average citizen. Immigration, for example, is important around the world and some knowledge of how it applies to you – either as a holder of a visa, illegal alien or natural born citizen wary of foreigners. If you have some knowledge, in this case, of what ‘the’ law says about immigration as it relates to you, that makes you knowledgeable and perhaps while not an authority at least someone who knows what he or she is talking about: this kind of person is becoming more and more difficult to find these days; too many people holding opinions and expressing them that are way off the mark.

One exception to the immigration aspects is here in Thailand where everyone knows that the maximum overstay fine is 20,000 Baht. While that is still over $600, it could be a drop in the bucket for someone who wants to stay but can’t justify a visa. Perhaps he or she is working upcountry at a local school, earning around 30,000 Baht a month, and given the fact that a year can go by without any police coming around, the income of 350,000 Baht plus more than makes up for the fine. As well, for some nationalities the length of permitted stay is too short. Many of these visitors have the financial resources to easily weather the fine and are willing to pay it just for having had the pleasure of staying in the kingdom as long as they want to or feel the need to.

Knowing the law and enforcing it are entirely two different kettles of fish, so to speak. While there is probably a law or regulation or statute or rule that governs almost anything you can think of, it sometimes appears that the one you need to be on your side has either never been enforced before or it has usually proven not worth the time or effort by the police and courts. One of the favorite scams in Thailand illustrates this – that of jet ski rip-offs. The modus operandi is to rent you a jet ski and when you turn it back in the owner proclaims you have damaged it and repair will cost $2,000 or more. Now the normal situation is that the jet ski incurred no damage while you were renting it but knowing that you are going to be here for a short stay you are an ideal mark for the con artist. He knows you cannot afford to spend the time arguing and facing possible delays of not boarding a plane and so on and thus he pushes all the levers at his disposal to bilk you out of money he wants just because he is a lazy S.O.B. and you are a foreigner who may be upset and never come back but a bird in the hand for him is worth two in the bush. So what if you never come back! Short-sighted? Oh, absolutely? Rare? No.

  1. A big secret in this particular scam, and many more where you are taken to the police station, is that the entire issue does not belong in the police station! That’s right. It is a civil matter and not a criminal one. The owner/renter is claiming damages for something covered under civil law. However, if his claims are likely fraudulent then he is violating criminal law himself. This is an instance of the detailed part of certain laws that you ought to be familiar with. Whether you are directly involved in such a scam as a victim, or whether you want to provide a few words of advice to someone who is facing it or who you wish to warn, here are a couple of steps to take when such a situation arises:
  1. Even if the other party insists you go to the police, you can go but at the station calmly and politely remind them that the matter is civil, not criminal, and that the owner/renter should be filling out a legal complaint at his lawyer’s office and not at the police station. Explain to the police that you sincerely appreciate their kindness in helping to try to resolve this conflict but that you firmly believe this to be a civil matter…and ask them, indeed, whether or not they agree. Nine times out of ten they will but even then possibly try to work with the guy claiming you did something you did not do to resolve the problem by financial compromise. There is no need, in most cases, to do this.
  2. Also kindly remind the owner/operator that it being a civil matter you would love to sit down with his lawyer, or even go to court, and that you have a legal representative in Thailand representing your interests. This may or may not be accurate – recall that strategy is important here.
  3. The strategy in standing up for civil consideration and not criminal is first, it is not a criminal case, and secondly you want to absolve yourself as efficiently as possible. In this circumstance while at the police station, for example, calmly insist that the other party write a formal legal letter accusing you of damaging the jet ski, together with evidence, and that your representative will be glad to deal with the matter. Remember, again, that police have absolutely no say in this and that they will back off if they see a dead end – pun not intended but do exercise wisdom and caution. Be respectful at all times to the police and the con artist you are facing. Such people hate it when you seem to be so fair that they feel guilty – and this happens.

Thailand 2014 Interim Constitution

Translation of the Constitution of the Kingdom of Thailand (Interim), B.E. 2557 (2014) Unofficial translation[1]

CONSTITUTION OF THE KINGDOM OF THAILAND

(INTERIM)

B.E. 2557 (2014)

                       

SOMDET PHRA PARAMINTHARAMAHA BHUMIBOL ADUYADEJ

SAYAMINTHARATHIRAT BOROMMANATTHABOPHIT

Given on the 22nd Day of July B.E. 2557 (2014)

Being the 69th Year of the Present Reign

Phrabat Somdet Phra Paramintharamaha Bhumibol Aduyadej Mahitalathibet Ramathibodi Chakkri Narubodin Sayamintharathirat Borommanatthabophit is graciously pleased to proclaim that:

Whereas the National Council for Peace and Order comprising military and police forces respectfully informed His Majesty that severe political conflict had emerged and continued within the precinct of Bangkok Metropolitan and the contiguous areas for the extended period of time and had hastily spread throughout almost all regions of the country.  This situation had not only broken the unification of the people but also instituted harmful attitude amongst Thais.  The use of illegal force and lethal weapons against whom having different attitudes came out several times.  Public safety and living conditions of the people became hardship accordingly.   National economic and State administration had then been interrupted and the exercise of the sovereign powers through the legislative, the executive and the judiciary had likewise been disrupted thereby.  Law enforcement was failure.  This sort of perplexity had never been found.  Though the government tried to solve the problem through the existed legal mechanisms and measures, e.g. applying the laws relating to the maintenance of public peace and order, dissolving the House of Representatives and running the general election; and such third parties as private entities, the Constitutional Organizations, political parties, the armed forces and the Senate tried to figure out the conflict by means of peaceful negotiation, these tries however came to no avail.  In addition, the new legal and political conflicts unveiled and made the problems more complicated.  The divergence of thoughts had broadened widely and became more seriously till the portrayal of riot was foreseeable.  This chaotic situation might be harmful to lives, properties and living conditions of the public at large, works and debts of farmers; especially rice farmers, national economic development, prevention of natural disasters, trust in sovereign powers and confidence of foreign investors.  Further, criminals took this chance to do more crimes and ignited much unrest which inevitably undermined national security and reliance of the public to the democratic regime of government with the King as the Head of State.  The National Council for Peace and Order therefore had no choice to deal with the problems other than seizing and taking control of the State administration on the 22nd Day of May B.E. 2557 (2014). In addition to declaring the Constitution of the Kingdom of Thailand B.E. 2550 (2007), except the provisions of Chapter II The King, come to an end, the National Council for Peace and Order planned to restore national peace and order and the plan was divided into three phases.  The first and most urgent phase was to deter the use of illegal force and lethal weapons, to cease public mistrust and to alleviate economic, social, political and administrative problems accumulated for more than six months.  The second phase was to bring into force the Interim Constitution in order to establish the National Legislative Assembly to exercise the legislative power and the Council of Ministers to exercise the executive power so as to restore national peace and order, public unification and justice, to solve economic, social, political and administrative problems and to enact urgent and necessity legislations.  The National Reform Council and other necessary entities shall be established to drive political and other reformations systematically.  The new Constitution laying down appropriate political system, measures for prevention and suppression of corruption and efficient, effective and fair measures for examination of the exercise of State powers shall also be drafted and completed within this phase.   All these missions shall be handed on to the representatives and the Council of Ministers under the new Constitution in the last and final phase.  For the completion of the restoration plan as mentioned above, regard shall be had to fundamental principles rather than symbolic procedure of the democratic regime of government.  In order to facilitate the restoration process, peaceful atmosphere and harmony shall be created and maintained so as to bring back public pleasure, meanwhile the unclear, inefficient and unfair rules and procedures which were the causes of conflict shall be reviewed in compliance with real public needs.  Though the completion of the restoration process as planned might take a period of time, but value arising therefrom would be better than letting the crisis went along disorderly.  Be it, therefore, commanded by the King that the following provisions shall be promulgated as the Interim Constitution of the Kingdom of Thailand until the new Constitution drafted under the provisions of this Constitution comes into force.[2]

Section 1. Thailand is one and indivisible Kingdom.

Section 2. Thailand adopts a democratic regime of government with the King as the Head of State.

The provisions of Chapter II The King of the Constitution of the Kingdom of Thailand B.E. 2550 (2007) which still in force by the Notification of the National Council for Peace and Order No. 11/2557 dated 22nd Day of May B.E. 2557 (2014) shall be continued in force as an integral part of this Constitution, but, subject to section 43 paragraph one, anywhere in those provisions which refer to the National Assembly or the President of the National Assembly shall mean the National Legislative Assembly or the President of the National Legislative Assembly under this Constitution, as the case may be.

Section 3. Sovereign powers belong to Thai people.  The King as the Head of State shall exercise such powers through the National Legislative Assembly, the Council of Ministers and the Judiciary under the provisions of this Constitution.

Section 4. Subject to the provisions of this Constitution, all human dignity, rights, liberties and equality of the people protected by the constitutional convention under a democratic regime of government with the King as the Head of State, and by international obligations bound by Thailand, shall be protected and upheld by this Constitution.

Section 5. Whenever no provision under this Constitution is applicable to any case, it shall be done or decided in accordance with the constitutional convention under a democratic regime of government with the King as the Head of State, but such constitutional convention shall not contrary to, or inconsistent with, this Constitution.

In the case where the question concerning the decision under paragraph one arises in the affairs of the National Legislative Assembly, it shall be decided by the National Legislative Assembly.  If the question does not arise in the affairs of the National Legislative Assembly, the National Council for Peace and Order, the Council of Ministers, the Supreme Court or the Supreme Administrative Court may request the Constitutional Court to make decision thereon, but the request of the Supreme Court or the Supreme Administrative Court shall be approved by the plenary session of the Supreme Court or the Supreme Administrative Court and on the matter related to the trial and adjudication of cases.

Section 6. There shall be the National Legislative Assembly, consisting of not more than two hundred and twenty members as appointed by the King from the persons of Thai nationality by birth of not less than forty years of age in accordance with the recommendation of the National Council for Peace and Order.

The National Legislative Assembly shall act as the House of Representatives, the Senate and the National Assembly.

Section 7. In making of recommendation for the appointment of the members of the National Legislative Assembly, regard shall be had to knowledge, experience and varieties of persons from various groups in public sector, private sector, social sector, academic sector, professional sector and other sectors which may be beneficial to the performance of duties of the National Legislative Assembly.

Section 8. A member of the National Legislative Assembly shall not be under the prohibitions as follows:

(1) being or having been a person holding any position in a political party within three years prior to the date of appointment as a member of the National Legislative Assembly;

(2) being a Buddhist priest, novice, monk or clergy;

(3) being bankrupt or having been dishonestly bankrupt;

(4) having been under suspension of the right to vote;

(5) having been expelled, dismissed or removed from official service, State agency or State enterprise on the grounds of dishonest performance of duties or deemed as having committed dishonest acts or malfeasance in official service;

(6) having been ordered by a judgment or an order of the Court that his assets shall vest in the State on the grounds of unusual wealth or an unusual increase of assets;

(7) being under suspension of the right to hold political position or having been removed from office;

(8) having been sentenced by a final and conclusive judgment for an offence related to malfeasance in office, an offence related to malfeasance in judicial office, an offence related to narcotics drugs or an offence related to gambling as he was a croupier or host;

(9) having been sentenced by a final judgment to imprisonment except for an offence committed through negligence or a petty offence.

No member of the National Legislative Assembly shall be a member of the National Reform Council or a Minister at the same time.

Section 9. A member of the National Legislative Assembly vacates office upon:

(1) death;

(2) resignation;

(3) being disqualified under section 6 paragraph one or being under the prohibitions under section 8;

(4) being removed from office by the resolution of the National Legislative Assembly under section 12;

(5) failing to vote at the meeting of the National Legislative Assembly more than the number of votes as prescribed by the rule of the National Legislative Assembly on meeting.

A question related to vacating from office of a member of the National Legislative Assembly under paragraph one shall be decided by the National Legislative Assembly.

Section 10.      The King appoints, in accordance with the resolution of the National Legislative Assembly, a member of the National Legislative Assembly to be President of the National Legislative Assembly and not more than two members to be Vice-Presidents of the National Legislative Assembly.

The Head of the National Council for Peace and Order shall countersign the Royal Command appointing members, President and Vice-Presidents of the National Legislative Assembly.

Section 11.      The members of the National Legislative Assembly shall be representatives of Thai people and shall devote themselves to the performance of duties in good faith for public benefit of Thai people.

Section 12.      If a member of the National Legislative Assembly disgraces the dignity of members of the National Legislative Assembly or obstructs any member of the National Legislative Assembly in the performance of his duties, not less than twenty five members of the National Legislative Assembly may request the President of the National Legislative Assembly to remove that member from office.

The resolution of the National Legislative Assembly under paragraph one shall be made by the votes of not less than two-thirds of the total number of the members.

Section 13.      At a meeting of the National Legislative Assembly, the presence of not less than one-half of the total number of the members shall constitute a quorum.

The National Legislative Assembly shall have the power to issue the rule on election and the performance of duties of the President, the Vice-Presidents and its Committee, meeting, introduction and deliberation of bills and Organic Law bills, submission of motions, discussion, making resolutions, interpellation, peace keeping and other related matters for the performance of its duties.

Section 14.      The King has the power to enact an Act by and with the advice and consent of the National Legislative Assembly.

A bill may be introduced by not less than twenty five members of the National Legislative Assembly, the Council of Ministers or the National Reform Council under section 31 paragraph two.  A money bill shall be introduced only by the Council of Ministers.

A money bill under paragraph two means a bill with the provisions dealing with the imposition, repeal, reduction, alteration, modification, remission or regulation of taxes or duties, or the allocation, receipt, custody or payment of State funds, or the transfer of expenditures estimates of the State, or the raising of, or guaranteeing or redemption of, loans or any binding of State’s properties, or currency.

In case of doubt as to whether any bill introduced to the National Legislative Assembly is a money bill, the President of the National Legislative Assembly shall have the power to make decision thereon.

If a bill introduced by members of the National Legislative Assembly or the National Reform Council, the Council of Ministers may, before the National Legislative Assembly adopts the principle of that bill, draw that bill for its consideration.

An enactment of the Organic Act shall be made in accordance with the provisions of this section, but an introduction thereof shall be made only by the Council of Ministers or the person having charge and control of the execution of such Organic Act.

Section 15.      The Prime Minister shall present the bill or Organic Law bill approved by the National Legislative Assembly to the King for His signature within twenty days as from the date of receiving such bill from the National Legislative Assembly and the bill shall come into force as an Act or Organic Act upon its publication in the Government Gazette.

If the King refuses His assent to the bill or Organic Law bill either returns it to the National Legislative Assembly or does not return it within ninety days, the National Legislative Assembly must reconsider such bill.  If the National Legislative Assembly resolves to reaffirm the bill by the votes of not less than two-thirds of the total number of existing members, the Prime Minister shall present such bill to the King for His signature once again.  If the King does not sign and return the bill within thirty days, the prime Minister shall cause the bill to be promulgated as an Act or Organic Act in the Government Gazette as if the King had signed it.

Section 16.      At a meeting of the National Legislative Assembly, every member shall have the rights to interpellate a Minister on any matter under his authority, but the Minister shall have the right to refuse a reply if he is of opinion that the matter should not be disclosed yet on the ground of safety or vital interest of the State or that interpellation is prohibited by the rule of the National Legislative Assembly.  The quorum of the National Legislative Assembly in this case may be different from the quorum as prescribed by section 13 paragraph one if so prescribed by the rule on meeting.

If there is a matter which involves an important problem, not less than one-third of the total number of the members of the National Legislative Assembly may submit a motion for general debate with the Council of Ministers, but the vote of confidence or no-confidence shall not be made.

Section 17.      In the case where there is an important problem in the administration of State affairs in regard which the Council of Ministers deems it advisable to take opinions from members of the National Legislative Assembly, the Prime Minister may give a notice to the President of the National Legislative Assembly requesting that a general debate be held at a sitting of the National Legislative Assembly.  In this case, no resolution shall be passed by the National Legislative Assembly on the issue put in the debate.

Section 18.      At a sitting of the National Legislative Assembly, words expressed in giving statements of fact or opinions, or the casting of votes by any member, are absolute privileged.  No charge or action in any manner whatsoever shall be brought against such member.

The privilege under paragraph one extends to all Committees of the National Legislative Assembly, the printers and publishers of the minutes of the sitting upon the order of the National Legislative Assembly or its Committees, the persons permitted by the presiding member to give statements of fact or opinions at the sitting as well as the persons who broadcast the sitting through radio, television or other means with the permission of the President of the National Legislative Assembly.  But this privilege does not extend to a member of the National Legislative Assemble who expresses words at a sitting which is broadcasted through radio, television or other means if such words appear out of the precinct of the National Legislative Assembly and constitute a criminal offence or a wrongful act against any other person who is not a Minister or a member of the National Legislative Assembly.

In the case where a member of the National Legislative Assembly is retained or detained, such member shall be released upon request of the President of the National Legislative Assembly.  In the case where a criminal charge is brought against a member of the National Legislative Assembly, the Court shall try the case as usual unless the President of the National Legislative Assembly requests for the suspension of that trial.

Section 19.      The King appoints the Prime Minister in accordance with the resolution of the National Legislative Assembly and not more than thirty-five other Ministers as recommended by the Prime Minister to constitute the Council of Ministers having the duties to carry out the administration of State affairs, to conduct reformation in all aspects and to strengthen unification and harmonization of Thai people.

Before taking office, a Minister must make a solemn declaration before the King in the following words: “I, (name of the declarer), do solemnly declare that I shall be loyal to the King and shall faithfully perform my duties in the interests of the country and of the people.  I shall also uphold and observe the Constitution of the Kingdom of Thailand in every respect.”

The King has the prerogative to remove the Prime Minister from office in accordance with the recommendation of the President of the National Legislative Assembly made by the resolution of the National Legislative Assembly as introduced by the National Council for Peace and Order, and to remove the Minister in accordance with the recommendation of the Prime Minister.

The Royal Command appointing and removing the Prime Minster shall be countersigned by the President of the National Legislative Assembly.

The Prime Minister and Minister shall have the right to attend, and to give statements of fact or opinions to, the sitting of the National Legislative Assembly or the National Reform Council, but having no right to vote.  In this case, the provisions on privilege under section 17 shall apply to the giving of statements of fact or opinions of the Prime Minister and Minister under this section mutatis mutandis.

Section 20.      The Prime Minister and Minister shall have the qualifications and not being under the prohibitions as follows:

(1) being of Thai nationality by birth;

(2) being of not less than forty years of age;

(3) having graduated with not lower than a Bachelor’s degree or its equivalent;

(4) not being or having been a member of a political party within three years prior to the date of appointment, and not being under the prohibitions under section 8;

(5) not being a member of the National Legislative Assembly, the National Reform Council, the Constitution Drafting Committee or local assembly or local administrator;

(6) not being a judge of the Constitutional Court, a judge of any Court, a State Attorney, a commissioner of the Election Commission, an Ombudsman, a commissioner of the National Counter Corruption Commission, a commissioner of the State Audit Commission, the Auditor-General or a member of the Human Rights Commission.

The Prime Ministership or the Ministership terminates upon disqualifications or being under the prohibitions under paragraph one or upon the provisions of section 9 (1) or (2).

Section 21.      In case of emergency and necessary urgency in order to maintain national security, public safety, national economic security or to avert public calamity or there is necessary to have a law on taxes, duties or currency which requires an urgent and confidential deliberation, the King has the prerogative to issue an Emergency Decree which shall have the force as an Act.

When the Emergency Decree comes into force, the Council of Ministers shall introduce such Emergency Decree to the National Legislative Assembly without delay.  If the National Legislative Assembly approves such Emergency Decree, it shall continue to have the force as an Act.  In case of disapproval, such Emergency Decree shall lapse.  In this case, the lapsed Emergency Decree shall not affect any act done through the period of its enforcement.  If the lapsed Emergency Decree has the effect of amending or repealing any provision of any Act, the provision that in force before the amendment or repeal shall continue to be in force as from the day such Emergency Decree had lapsed.

An approval or disapproval of the Emergency Decree shall be published in the Government Gazette.  In case of disapproval, it shall be effective as from the date of its publication in the Government Gazette.

Section 22.      The King has the prerogative to issue a Royal Decree which is not contrary to the law, the prerogative to grant a pardon and other prerogatives in accordance with the constitutional convention under a democratic regime of government with the King as the Head of State.

Section 23.      The King has the prerogative to conclude a peace treaty, armistice and other treaties with other States or international organizations.

A treaty which provides for a change of the territories of Thailand or the external territories that Thailand has sovereign rights or jurisdiction thereon under any treaty or an international law, or requires an enactment of an Act for its implementation or has wide scale effects on economic or social security of the country, shall be approved by the National Legislative Assembly.  In this case, the National Legislative Assembly shall complete its deliberation within sixty days as from the date of receipt of such matter.

The treaty with wide scale effects on economic or social security of the country under paragraph two means a treaty related to free trade or customs cooperation area, to the use of natural resources, to waive the rights in any natural resources of the country, wholly or partly, or other matters as prescribed by law.

If there is in doubt whether any treaty is a treaty under paragraph two or paragraph three, the Council of Ministers may request the Constitutional Court to make a decision thereon.  In this case, the Constitutional Court shall have a decision within thirty days as from the date of receipt of the request.

Section 24.      The King appoints and removes officials in the military service and civil service who hold positions of Permanent Secretary of State, Director-general and their equivalents, judges, positions of the Constitutional Organs established by the Constitution of the Kingdom of Thailand B.E. 2550 (2007) and other officials as prescribed by laws, except in the case where they vacate office upon death.

Section 25.      All laws, Royal Manuscripts and Royal Commands related to State affairs shall be countersigned by a Minister; provided that otherwise prescribed by this Constitution.

Section 26.      Judges are independent in the trial and adjudication of cases in the name of the King in accordance with the Constitution and laws.

Section 27.      There shall establish the National Reform Council to study and provide recommendation for reform in the following fields:

(1) politics;

(2) administration of State affairs;

(3) laws and judicial procedure;

(4) local administration;

(5) education;

(6) economy;

(7) energy;

(8) public health and environment;

(9) mass communication;

(10) social;

(11) others,

with a view to setting up of a democratic regime of government with the King as the Head of State which is suitable for Thai context, establishing the trustworthy and fair election system, establishing the efficient mechanism for prevention and suppression of corruption, eliminating economic and social inequality for sustainable development, enabling State mechanism to provide public services thoroughly, efficiently and effectively, and strengthening law enforcement rigorously and fairly.

Section 28.       The National Reform Council consisting of not more than two hundred and fifty members as appointed by the King from the persons of Thai nationality by birth with not less than thirty-five years of age in accordance with the recommendation of the National Council for Peace and Order.

The King appoints, in accordance with the resolution of the National Reform Council, a member of the National Reform Council to be the Chairperson of the National Reform Council and not more than two members of the National Reform Council to be the Vice-Chairpersons of the National Reform Council.

The Head of the National Council for Peace and Order shall countersign the Royal Command appointing members of the National Reform Council, the Chairperson and the Vice-Chairpersons of the National Reform Council.

Section 29.      A member of the National Reform Council shall not being under the prohibitions under section 8 (2) (3) (4) (5) (6) (7) (8) and (9), and the provisions of section 9 shall apply to the vacation from office of a member of the National Reform Council mutatis mutandis, but the power to make a decision under section 9 paragraph two shall be the power of the National Reform Council.

Section 30.      The National Council for Peace and Order shall select the persons to be appointed as members of the National Reform Council in accordance with the following rules:

(1) there shall establish the Selective Committee for each field of reform under section 27 to nominate the qualified persons in each field, and there shall establish the Provincial Selective Committee in each province to nominate the qualified persons whom domiciled in each province;

(2) the Selective Committee for each field of reform shall be appointed by the National Council for Peace and Order from the persons having apparent knowledge and experience and being generally accepted persons in each field;

(3) the Selective Committee shall propose the list of the nominees whom having qualifications under section 28 and not being under the prohibitions under section 29 and having apparent knowledge and experience in each field to the National Council for Peace and Order.  In this case, no member of the Selective Committee shall be nominated;

(4) in the nomination under (3), regard shall be had to varieties of persons from each group of persons in public sector, private sector, social sector, academic sector, professional sector and other sectors which shall be beneficial to the performance of duties of the National Reform Council, apportion of persons from each province, gender opportunity and equality of the nominees and the conferment of the socially underprivileged persons;

(5) the Provincial Selective Committee shall consist of the members as prescribed by the Royal Decree;

(6) the Nation Council for Peace and Order shall select not more than two hundred and fifty persons to be appointed as members of the National Reform Council from the list of nominees proposed by the Selective Committees under (1).  In this number, one nominee nominated by each Provincial Selective Committee shall be selected.

The number of members of each Selective Committee, the selection procedure and period of selection, the number of the nominees and other necessary matters shall be prescribed by the Royal Decree.

Section 31.      The National Reform Council shall have the powers and duties as follows:

(1) to study, analyze and propose the guideline and proposal for the reform of any field under section 27 to the National Legislative Assembly, the Council of Ministers, the National Council for Peace and Order and other related agencies;

(2) to give advice or recommendation to the Constitution Drafting Committee for the purpose of Constitution drafting;

(3) to deliberate and approve the Draft Constitution proposed by the Constitution Drafting Committee.

For the purpose of (1), if the National Reform Council is of opinion that it is necessary to have an Act or Organic Act comes into force, it shall prepare and introduce that bill to the National Legislative Council for deliberation.  If it is a money bill or Organic Law bill, it shall be submitted to the Council of Ministers.

The National Reform Council shall give advice or recommendation under (2) to the Constitution Drafting Committee within sixty days as from the date of its first meeting.

The provisions of section 13 and section 18 shall apply to the performance of duties of the National Reform Council mutatis mutandis.

Section 32.      There shall establish the Constitution Drafting Committee to prepare the Draft Constitution, consisting of thirty-six members appointed by the Chairperson of the National Reform Council from the following persons:

(1) the Chairperson of the Committee as proposed by the National Council for Peace and Order;

(2) twenty persons as proposed by the National Reform Council;

(3) persons as proposed by the National Legislative Assembly, the Council of Ministers and the National Council for Peace and Order, five persons each.

An appointment of the Constitution Drafting Committee under paragraph one shall complete within fifteen days as from the date of the first meeting of the National Reform Council.

If a member of the Constitution Drafting Committee vacates office by whatever reason, the remaining members shall continue their duties.  In this case, it shall be deemed that the Constitution Drafting Committee consists of the remaining members, but the Chairperson of the National Reform Council shall, in accordance with the rules as prescribed in paragraph one, appoint a new member of the Constitution Drafting Committee to fulfil the vacancy within fifteen days as from the date the member of the Constitution Drafting Committee vacates office.

The provisions of section 18 shall apply to the performance of duties of the Constitution Drafting Committee mutatis mutandis.

Section 33.      A member of the Constitution Drafting Committee shall be a person of Thai nationality by birth of not less than forty years of age and not being under the prohibitions as follows:

(1) being a person holding political position, but not including a member of the National Council for Peace and Order, a member of the National Legislative Assembly or a member of the National Reform Council;

(2) being or having been a member of, or holding any position in, political party within three years prior to the appointment;

(3) being under the prohibitions under section 29;

(4) being judge or a person holding any position in Constitutions Organs under the Constitution of the Kingdom of Thailand B.E. 2550 (2007).

For the prevention of conflict of interests, no member of the Constitution Drafting Committee shall hold any political position within two years after vacating office.

Section 34.      The Constitution Drafting Committee shall propose the Draft Constitution to the National Reform Council for deliberation within one hundred and twenty days as from the date of receipt of the advice or recommendation of the National Reform Council under section 31 (2).

The Constitution Drafting Committee shall, in preparing the draft Constitution, take the advice or recommendation of the National Legislative Assembly, the Council of Ministers, the National Council for Peace and Order and comments of the public and related agencies into its deliberation.

Section 35.      The draft Constitution shall cover the following matters:

(1) the principle of being one and indivisible Kingdom;

(2) the democratic regime of government with the King as the Head of State which is suitable for Thai context;

(3) the efficient mechanism for prevention, examination and suppression of corruption in both public and private sectors, including mechanism to guarantee that State powers shall be exercised only for national interest and public benefit;

(4) the efficient mechanism for prevention of a person whom ordered by a judgment or any legal order that he commits any corruption or undermines the trustworthiness or fairness of an election from holding any political position stringently;

(5) the efficient mechanism which enabling State officials; especially a person holding political position, and political party to perform their duties or activities independently and without illegal manipulation or mastermind of any person or group of persons;

(6) the efficient mechanism for strengthening the Rule of Law and enhancing good moral, ethics and governance in all sectors and levels;

(7) the efficient mechanism for restructuring and driving economic and social system for inclusive and sustainable growth and preventing populism administration which may damage national economic system and the public in the long run;

(8) the efficient mechanism for accountable spending of State fund which shall be in response of public needs and compliance with financial status of the country, and the efficient mechanism for audit and disclosure of the spending of State fund;

(9) the efficient mechanism for prevention of the fundamental principle to be laid down by the new Constitution;

(10)   the mechanism which is necessary for further implementation for the completion of reform.

The Constitution Drafting Committee shall deliberate the necessity and worthiness of the Constitutional Organs of, and other organizations to be established by the provisions of, the new Constitution.  In case of necessity, measures to ensure the efficient and effective performance of each organization shall be addressed.

Section 36.      The Constitution Drafting Committee shall propose the Draft Constitution to the Chairperson of the National Reform Council.  In this case, the Chairperson of the National Reform Council shall convene the meeting of the National Reform Council for deliberation of the Draft Constitution within ten days as from the date the Chairperson of the National Reform Council receives the Draft Constitution.

A member of the National Reform Council may submit a proposal for amendment of the Draft Constitution within thirty days as from the date the meeting under paragraph one adjourned.  Each proposal for amendment of the Draft Constitution shall be endorsed by not less than one-tenth of the total number of members of the National Reform Council.  A member who proposes or endorses any proposal for amendment of the Draft Constitution shall not propose or endorse any other proposal submitted by other members.

The Constitution Drafting Committee shall also propose the Draft Constitution to the Council of Ministers and the National Council for Peace and Order for their recommendations.  The proposal for amendment of the Draft Constitution may be submitted by the Council of Ministers or the National Council for Peace and Order within thirty days as from the date of receipt of the Draft Constitution.

The proposal for amendment of the Draft Constitution shall be submitted directly to the Chairperson of the Constitution Drafting Committee.

Section 37.      The Constitution Drafting Committee shall deliberate the proposal for amendment of the Draft Constitution within sixty days as from the expiration of the submission period under section 36 paragraph two.  In this case, the Constitution Drafting Committee may make an amendment to the Draft Constitution as appropriated.

The amended Draft of the Constitution made under paragraph one shall be introduced to the National Reform Council for its approval or disapproval, and the National Reform Council shall have the aforesaid resolution within fifteen days as from the date of receipt of the Draft of the Constitution from the Constitution Drafting Committee.  In this case, the National Reform Council is unable to make any amendment to the Draft of the Constitution; provided that an unnecessary mistake has been found and the Constitution Drafting Committee agrees upon or the Constitution Drafting Committee is of opinion that it is necessary to make such amendment for the completion of the Draft of the Constitution.

If the National Reform Council approves the Draft of the Constitution under paragraph two, the Chairperson of the National Reform Council shall present the Draft of the Constitution to the King for His signature within thirty days as from the date the approval has been made.  When His signature has been given, the Draft of the Constitution shall come into force as the Constitution upon its publication in the Government Gazette.  The Chairperson of the National Reform Council shall countersign His Royal Command.

In the case where the King refuses His assent to the Draft of the Constitution and either returns it to the National Reform Council or does not return it within ninety days, the Draft of the Constitution shall lapse.

Section 38.      In the case where the National Reform Council is unable to finish its deliberation on the Draft Constitution within the prescribed period, or where it does not approve the Draft of the Constitution, or where the Draft of the Constitution is lapsed under section 37, the National Reform Council and the Constitution Drafting Committee shall be expired.  In this case, the new National Reform Council and Constitution Drafting Committee shall be appointed to exercise the powers and duties as prescribed by this Constitution.

If the Constitution Drafting Committee fails to finish the Draft Constitution within the period as prescribed by section 34, that Constitution Drafting Committee shall be expired and the new Constitution Drafting Committee shall be appointed within fifteen days as from the expiry date of its predecessor.

The Chairperson, Vice-Chairpersons and members of the National Reform Council and the Chairperson, Vice-Chairpersons and members of the Constitution Drafting Committee which are expired under paragraph one or paragraph two shall not be the Chairperson, Vice-Chairpersons and members of the new National Reform Council or the Chairperson, Vice-Chairpersons and members of the new Constitution Drafting Committee, as the case may be.

Section 39.      Upon the completion of the Draft Constitution, the National Reform Council and the Constitution Drafting Committee still existence for the purpose of drafting Organic Bills or other bills as necessary.  In this case, the National Reform Council may appoint its Committees to deliberate the necessary bills.  Upon the new Constitution comes into force, the existence and the performance of duties of the National Reform Council and the Constitution Drafting Committee shall be in accordance with the provisions of the new Constitution.

Section 40.      Salaries, emoluments and other benefits of the President and Vice-Presidents of the National Legislative Assembly, Chairperson and Vice-Chairpersons of the National Reform Council, persons holding position in the National Council for Peace and Order, members of the National Legislative Assembly, members of the National Reform Council and members of the Constitution Drafting Committee shall be prescribed by the Royal Decree.

Section 41.      The provisions on qualifications or prohibitions of the person holding political position in any law shall not apply to the persons holding position in the National Council for Peace and Order, members of the National Legislative Assembly, members of the National Reform Council, members of the Constitution Drafting Committee, political officials under the law on political officials and political officials of the National Assembly under the law on administration of officials of the National Assembly.

Section 42.      The National Council for Peace and Order under the Notification of the National Council for Peace and Order No. 6/2557 dated 22nd Day of May B.E. 2557 (2014) shall be the National Council for Peace and Order to exercise the powers and duties under this Constitution.

In case of necessity for the benefit of the performance of duties, the Head of the National Council for Peace and Order may change or add a person holding position in the National Council for Peace and Order, but the total number of members shall not exceed fifteen members.  In this case, the Head of the National Council for Peace and Order may order any agency to be secretariat unit of the National Council for Peace and Order as appropriate.

If the National Council for Peace and Order is of opinion that the Council of Ministers should perform any matter under its powers and duties under section 19, the National Council for Peace and Order shall inform the Council of Ministers to proceed therewith.

If it is appropriate, the Head of the National Council for Peace and Order or the Prime Minister may ask for joint sitting between the National Council for Peace and Order and the Council of Ministers so as to consider or solve any problem related to the maintenance of peace and order or national security or to consider any other matter from time to time.

Section 43.      Before the existence of the National Legislative Assembly, if any law prescribes as to whether any matter shall be approved or acknowledged by the House of Representatives, the Senate or the National Assembly, the Head of the National Council for Peace and Order shall have the power to give approval or to acknowledge such matter in place of the House of Representatives, the Senate or the National Assembly.

Prior to the date the Council of Ministers under this Constitution takes office, all powers and duties of the Prime minister and the Council of Ministers shall be exercised by the Head of the National Council for Peace and Order.

Section 44.      In the case where the Head of the National Council for Peace and Order is of opinion that it is necessary for the benefit of reform in any field and to strengthen public unity and harmony, or for the prevention, disruption or suppression of any act which undermines public peace and order or national security, the Monarchy, national economics or administration of State affairs, whether that act emerges inside or outside the Kingdom, the Head of the National Council for Peace and Order shall have the powers to make any order to disrupt or suppress regardless of the legislative, executive or judicial force of that order.  In this case, that order, act or any performance in accordance with that order is deemed to be legal, constitutional and conclusive, and it shall be reported to the National Legislative Assembly and the Prime Minister without delay.

Section 45.      Subject to section 5 and section 44, the jurisdiction of the Constitutional Court is to decide whether any law is contrary to, or inconsistent with, this Constitution as well as the jurisdiction conferred thereto by the Organic Act on Ombudsmen and the Organic Act on Political Party.  In case of the Ombudsmen, the matter to be submitted to the Constitutional Court is restricted to the matter that any law is contrary to, or inconsistent with, this Constitution.

The rules of procedure and judgment of the Constitutional Court shall be in accordance with the law on such matter.  In the absence of that law, it shall be made in accordance with determinations of the Constitutional Court on rules of procedure and judgment which is in force prior to the date this Constitution comes into force if it is not contrary to, or inconsistent with, the provisions of paragraph one or this Constitution.

Section 46.      In case of necessity and appropriateness, the Council of Ministers and the National Council for Peace and Order shall have joint resolution to amend this Constitution and propose the draft Constitution Amendment to the National Legislative Assembly for approval.

The National Legislative Assembly shall approve or disapprove the draft Constitution Amendment within fifteen days as from the date of receipt of the draft Constitution Amendment.

The National Legislative Assembly is unable to amend the draft Constitution Amendment, except where the Council of Ministers and the National Council for Peace and Order agree upon.

The approval shall be made by a majority of votes of the existing members of the National Legislative Assembly.

If the National Legislative Assembly approves the draft Constitution Amendment, the Prime Minister shall present the draft Constitution Amendment to the King for His signature within fifteen days as from the date the approval has been given.  When His signature has been given, the draft Constitution Amendment shall come into force as the Constitution upon its publication in the Government Gazette.  The Prime Minister shall countersign His Royal Command.  In this case, section 37 shall apply mutatis mutandis.

Section 47.      All Notifications and Orders of the National Council for Peace and Order as well as Order of the Head of the National Council for Peace and Order which were notified or made between the 22nd Day of May B.E. 2557 (2014) until the date the Council of Ministers takes office under this Constitution, regardless of their legislative, executive or judicial force, as well as all acts performed in compliance therewith before or after this Constitution comes into force shall be deemed to be legal, constitutional and conclusive.  Any Notification or Order that still in force prior to the date this Constitution comes into force shall be in force until it is amended or repealed by law, rule, regulation, resolution of the Council of Ministers or order, as the case may be.

In the case where the National Council for Peace and Order has ordered any person to hold or vacate any official position as prescribed by section 24 prior to the date this Constitution comes into force, the Prime Minister shall present the King for appointment or removal.

Section 48.      All acts which have been done in relation to the seizure and control of the administration of State affairs on the 22nd Day of May B.E. 2557 (2014) of the Head of the National Council for Peace and Order and the National Council for Peace and Order, including all acts which have been done by any person in connection with the aforesaid acts, or by the person who has been entrusted or ordered by the Head of the National Council for Peace and Order or the National Council for Peace and Order, for the fulfilment of such purposes, regardless of their legislative, executive or judicial force, as well as any punishment and other acts performed in relation to the administration of State affairs and whether the actors of those act are principals, accessories, persons who employ another to commit those acts or the employed persons and whether those acts done before or after the date mentioned above, if the aforesaid acts were illegal, all related person shall be exempted from being offenders and shall be exempted from all liabilities.

Countersigned by:

General Prayut Chan-O-Cha

Head of the National Council for Peace and Order

[1]© 2014, Pakorn Nilprapunt, Full-time Law Councillor, Office of the Council of State (pakorn.nilprapunt@gmail.com)

Remark: Reference to Thai legislation in any jurisdiction shall be made to the Thai version only.  This translation has been made so as to establish general understanding about this Interim Constitution to foreigners.

[2]Published in the Government Gazette Vol. 131, Part 55 Kor, dated 22nd Day of July B.E. 2557 (2014)

Pre-law advice, 2

Expat Law – Thailand

One – pre-law advice for foreigners in Thailand or on the way there…

In 2013 some good bilingual news actually appeared in the local media relating to the rights of foreigners in Thailand. Earlier this year three major Thai government agencies – the Ministry of Tourism, Ministry of Interior (police) and Ministry of Justice announced a tourist court being set up to clear, within 24 hours according to intent, non-serious cases between tourists and Thais. Nothing was mentioned in the news about Tourist police and foreigners in Thailand as a more general sector. The reports indicated that the first such tourist court would open in Phuket coincident with His Majesty’s birthday on 5 December 2013, which was then followed by a formal announcement and story in the 4 September 2013 The Nation that such a court would be set up in Pattaya the following day. So at least Thai authorities are taking a litany of problems occurring between them and Thais (often in the guise of scams) seriously.

The new courts are still in a state of flux, however. In addition to their recent vintage, exactly how they will go about their business is not yet clear. Authorities earlier suggested that state officials would work in the ‘courts’ after normal working hours, in the evening. The other matter is whether any such claims are criminal or civil, and whether the affected tourist is inclined and able to spend valuable time trying to go through a difficult task.

Whether or not these courts do mature and become effective in expediting cases that occur between Thais and visiting expatriates, it is also in the interests of the casual visitor to the kingdom to be at least minimally aware of his or her legal position while in Thailand. Yes, we all know we are in a foreign country with a different language and different culture and different laws, but…well, one of the good things is that the laws, criminal and civil, in Thailand are closely paralleled by similar laws around the world. The important point is how to arm yourself with them so you can retain decorum, protect your rights, and more easily fight off frivolous scammers or claims that are, unfortunately, too common in the Land of Smiles. That is the purpose of this column – to begin offering you at least a layman’s perspective of Thai law, civil and criminal – so you can act as a rational and minimally informed person in any legal allegations filed against your or in any you might wish to file.

 

I don’t much do lawyer jokes anymore. My employment as the English editor for four departments (including litigation) with a premier law firm in Thailand, three years of field investigations throughout the kingdom, and before that, as a senior staff advisor for Saudi Aramco’s Government Affairs – have led me to realize that lawyers, as often as they are made the butt of jokes, usually have a tough job.

For the client, or prospective client which is the focus of this series of columns, the job of defending yourself begins well before seeing a lawyer. You need to get your ducks lined up, assess your position and make a decision on whether you need a lawyer or can work things out on your own. You can, and should, do most of this groundwork before seeing a lawyer.

This does not mean violating the old saw about a man who counsels himself having a fool for a lawyer. It does mean taking an organized look at your situation and working from there, figuring out strategy, objective and method. Simple enough whether you are in a foreign culture or not.

Being abroad makes things much more difficult since you are not familiar with how things work or what you might be subject to. But the methodology is basically the same. Sit down, go through what you are faced with, review options, talk it over with someone you can depend on.

Thailand’s two major legal guides are its Civil and Commercial Code and Criminal Code. The latter is also guided by the Criminal Procedures Code which lays out what officials and agencies are bound to do, and how, whereas the Criminal Code itself identifies rights, statutes of limitation, punishment provisions, defining what constitutes crime and liability and so on. Often the same issue can overlap both criminal and civil codes. You may, for example, want both to apply, but if they do, you have separate court cases to pursue, often over a period of five or ten years!

For expats visiting or residing in Thailand time is important, especially for tourists. You want to enjoy yourself as much as you can as cheaply as you can, so getting bogged down with local legal leapfrogging is not an option. This single fact – that your time is limited, that you are probably not familiar with Thai legal codes and that you are likely handicapped by language and personal unease at being made a scam target – is very well known to the scam artist and he depends on it to keep an advantage over you. His primary MO is to use the system as you understand it (you don’t) against you and coerce you to pay off quickly. Police, for their part, are generally prone to also wanting to get the thing over with as soon as possible, often knowing you are being cheated but wanting to avoid an ugly confrontation.

More later about non-scams but for the purpose of this first column I’ll focus on scams because they are so common and successful a method of bilking the other person worldwide and not just in Thailand. If you are a victim of a scam at home, that’s one thing; being one in Thailand is quite another.

Here are a few pointers on how to protect yourself from them, whether jet ski rentals or those roadside vendors who are generally there to rip you off.

  1. Whether or not you are a foreigner, Thailand’s laws apply to you as well as to Thais, criminal, civil and otherwise. This means you have the same rights and protections as a Thai. It does not mean they will be made evident to you, however. I was the victim of two defamation claims filed with police in the past. When the second one came in I became agitated and asked the local police staff if I could counter-file against my accusers there and then because, I felt, their accusations were sheer harassment. I was told no. Not believing it, I asked to see the station deputy commander who told me, “Yes, you can.” So I did. Thailand’s Criminal Code carries provisions for complaining against others who file false criminal complaints. I went over three of those that applied and then swore out an official complaint, keeping a copy. And, yes, it was all in Thai. Can a non-Thai speaking foreigner accomplish the same thing? Of course. The Criminal Code and the Civil and Commercial Codes appear in English online and should be read briefly by all expats who plan to spend any amount of time in Thailand. This will help spread awareness and provide increasing resources among expats to help one another in such cases.
  2. Always remain aware of your surroundings – the environment and people you are dealing with. Dark corners and inebriated irate friends do not help. If, however, you have had a few and it’s pretty certain any police will realize this quickly enough: just stick to facts and keep away from emotion, offensive gestures and appearance of anger. This won’t always be easy. The guy making silly accusations against you and demanding money might appear very angry and ready to pounce. All decent advice at this point says to extricate yourself from the situation. If you feel that your personal safety is indeed under imminent threat and that paying off the accuser is the only way to get out safely, then it is advised that you do so. You can later file criminal charges with police, or at least get them to write a daily complaint against your accuser. You would, then, need to stick around for resolution.
  3. What about minor rip-offs? And what do you view as minor? Is being cheated at the entry gate of a resort or entertainment park by being charged five or ten times what a Thai is charged significant to you? – on the spot, generally not. If you want entrance you have to pay. What I do in these cases is take down information, including photos of signs – in Thai and English – that show prices, then follow up with complaints to the local and central authorities. They will usually not respond. As a collective group of disgruntled visitors to the Kingdom, however, we can get around this by posting online a cumulative record of where we were cheated and by how much. As this list grows, we can use it to make more effective demands for change to people with the power to make it. Recently, for example, Thailand’s Department of Special Investigation cited the mayor of Patong, Phuket and his son for ivolvement in scams such as jet ski damage claims. It’s only when Thailand if faced with overwhelming and repeated claims that it will force change.

Next month – A brief look at Thailand’s Civil and Commercial Code and Criminal Code

When I hear stories of expats being locked out of the house they built for their Thai wives or more shockingly their girlfriend, I cringe. As someone who fell in love with Thailand when I first arrived, and who has survived over forty four years of marriage to a Thai, I can attest that the basic attractions of the country – whatever you wish to name – are pretty powerful. While you are living here and enjoying them or just on a short visit, time passes and you may…probably will…lose track of documentation, time sequences and who said what. Then, when you have a problem with your wife or landlord or business partner, you are often at a loss. And, of course, language is there as another barrier. Not language alone, but the cultural differences that accompany it.