Is the enactment of legislation affecting the rights of the public without soliciting opinions lawful

Abstract

Background and Aims: This academic article aims to analyze the legal validity issues surrounding the enactment of laws that affect the rights and liberties of the public without soliciting the views of relevant stakeholders or potentially affected citizens. The study is conducted within the framework of Section 77 of the Constitution of the Kingdom of Thailand, B.E. 2560 (2017); the Act on Criteria for Drafting Legislation and Evaluating the Efficacy of Laws, B.E. 2562 (2019); the rule of law; and the principle of public participation. It examines the legal status of the public consultation process and the potential legal consequences of failing to adhere to these established criteria. Section 77 of the 2017 Constitution mandates that the State must solicit the views of relevant parties prior to enacting any law, conduct a comprehensive and systematic impact analysis, disclose the consultation results to the public, and incorporate these findings into every stage of the legislative process. These requirements reflect the intent to elevate the legislative process by grounding it in transparency, public participation, and social responsibility.

Methodology: This study examines the concepts and legal principles regarding the enactment of laws that affect citizens' rights. It covers the concepts of the rule of law and the exercise of legislative power; the constitutional protection of rights and liberties; and Section 77 of the Constitution of the Kingdom of Thailand, B.E. 2560 (2017). It analyzes whether a failure to solicit public opinion renders the enactment of a law unlawful, particularly in cases involving severe impacts on rights, while also considering exceptions and situations of urgent necessity. The study evaluates the legislative process and employs a legal analysis to derive conclusions and recommendations.

Results: The study reveals that enacting legislation affecting public rights without soliciting opinions can give rise to issues regarding both procedural and substantive validity. However, determining the legal consequences requires a case-by-case analysis that takes into account the significance of the procedural flaw, the impact on rights and liberties, and relevant legal provisions. Ultimately, conducting high-quality public consultations and comprehensive impact analyses will enhance the quality of legislation, uphold the rule of law, and foster confidence in the exercise of state power.

Conclusion: Public consultation is not merely a technical step in the legislative process; it is an integral part of a safeguard system that interlinks the rule of law, the protection of rights and liberties, public participation, and the principle of proportionality. In a democracy, good legislation is not simply that which is enacted in accordance with proper formalities; it must be rational, necessary, respectful of rights and liberties, and inclusive of public participation. This ensures that the exercise of legislative power is rational, transparent, and accountable, while comprehensively considering the impact on the public. Enacting laws that affect citizens' rights without such a process may give rise to issues regarding both procedural and substantive validity, necessitating review under the Constitution and relevant laws. The following recommendations are proposed: 1. Establish clear, transparent, and verifiable standards for public consultation; 2. Promote comprehensive participation by the public and stakeholders; and 3. Develop guidelines regarding the legal consequences that affect the public.