“ใช้บังคับเมื่อพ้นกำหนดหนึ่งร้อยยี่สิบวันนับแต่วันประกาศในราชกิจจานุเบกษาเป็นต้นไป”นับอย่างไร?

Abstract

                   The Council of State (10^th Law Committee) comments on an issue regarding the effective enforcement date for the Anti-Money Laundering Act, B.E. 2542, of which section 2 provides that this Act shall come into force after one hundred and twenty days from the date of its publication in the Government Gazette, that the effective enforcement date of the Act shall be as set forth in the act itself because it is not a matter of calculating periods of time according to the Civil and Commercial Code Title 5 book 1. Section 2 of the Act clearly states that it shall come into force after one hundred and twenty days from the date of its publication in the Government Gazette. Therefore the one hundred and twenty –day period must start on 21^st April, the first date of its publication in the Government Gazette. 

                  Opinion of the Council of State (10^th Law Committee) thereof differs from treatises and the Supreme Court precedence, i.e. the Supreme Court cases no.5470/2538, no.5809/2539 and no.2086/2553, holding that the calculation of period of time on this matter shall be governed by the Civil and Commercial Code. Sections 193/1 and 193/3 of the Civil and Commercial Code provide that the calculation of all periods of time is governed by the provisions of this Title unless otherwise provided by law, court order, regulation or juristic act and when a period of time is measured in days, weeks, months or years, the first day of such period is not included in the calculation. Therefore, the one hundred and twenty–day period must start on 22^nd April. The opinion of the Council of State (10^th Law Committee) is contended that the words used in section 2 of the Act do not demonstrate a different method of calculation, and it is unclear why the calculation of the period of time concerning the effective enforcement date of an Act is not the calculation of the period of time prescribed in the Civil and Commercial Code section 193/1.  Moreover the Note added by the Office of the Council of State saying that there are two conflicting Supreme Court judgments on this matter, i.e. the Supreme court cases no.70/2477 and no.5809/2539, and the opinion of the Council of State (10^th Law Committee) is in conformity with the Supreme Court judgment case no.70/2477, is also argued. In these two cases, the issue regarding the effective enforcement date was actually not raised before the Supreme Court. Furthermore, the words used in the Ministry of Interior Regulation referred to in the Supreme Court case no.70/2477 entirely differs from those used in Section 2 of the Anti-Money Laundering Act.

                      In practice, some of the government agencies have misinterpreted, followed this Council of State (the 10^th Committee)’s opinion and used it as a guideline for calculating periods of time for all matters. Also, in drafting legislation, the legislators have tried to use different words or phrases to avoid the consequence as set by this opinion. As a result, interpreting the legislation becomes more difficult. It is submitted that following the precedent of the Supreme Court, that is already in  accordance with the provisions and the spirit of the law, will make the interpretation and the enforcement of the law consistent and definite. Therefore, this article humbly suggests the Council of state revisit this issue.