Constitutional Court rejects marriage law petition

On 31 December 2019, the Constitutional Court of Thailand decided not to accept a petition made by two LGBT couples and the Foundation for SOGI Rights and Justice (For-SOGI) on 22 November 2019, requesting the Court to rule whether the current Thai marriage law violates the 2017 Constitution.

The two couples with representatives from LGBT rights organizations in front of the Constitutional Court

The Court ruling stated that the submission of the petition was not in accordance with Articles 46, 47, and 48 of the 2018 Organic Law on the Rules and Procedures of the Constitutional Court.

The Organic Law states that an individual whose rights have been violated may petition the Court to rule on a case within 90 days after filing a petition with and receiving a ruling from the Ombudsman. However, Article 47 states that said violation of rights must not be an instance for which other legislation has specified the procedure, which has not been completed. The Court stated that the refusal of the Registrar at the Phasi Charoen District Office to register the marriage of the couples is an administrative act for which the Constitution has specified other procedures.

The Court also stated, as one of the reasons for its rejection, that the Rights and Liberties Protection Department of the Ministry of Justice is already in the process of proposing a Civil Partnership Bill. However, this bill has long faced criticism from NGOs and LGBT rights activists for not giving same-sex couples the same rights as heterosexual couples, and is seen as relegating the LGBT community to the position of second-class citizens.

The lack of marriage equality has meant that same-sex couples in Thailand face issues such as not having the power of attorney to make medical decisions on behalf of their partners. They are unable to adopt a child together or to have access to assisted reproductive technology. In cases where one partner dies, the other is not able to inherit or make legal decisions about their partner’s assets, and in cases where one partner is not a Thai national, they are not entitled to a marriage visa in order to take residence in Thailand with their partner.

Earlier this year, Taiwan became the first country in Asia to legalize same-sex marriage. Meanwhile, Thailand’s plan for a Civil Partnership Bill does not appear to be making any progress, but a group of LGBT rights organizations is now pursuing an amendment to the Civil and Commercial Code to have the definition of marriage changed from being between a man and a woman to between two persons.

Meanwhile, yesterday, the Supreme Court of the Philippines also rejected a petition to legalize same-sex marriage. The petition was filed by radio show host and lawyer Jesus Falcis, who sought to challenge the definition of marriage as a “permanent union between a man and a woman” in the country’s Family Code and clauses declaring homosexuality as grounds for separation, and was once lauded as historic in the predominantly Catholic country. It was first rejected in September 2019 on the grounds that Falcis did not have a partner and was not seeking marriage, and therefore cannot claim to be a victim of existing laws. A motion for reconsideration was denied yesterday (6 January) “with finality,” on the grounds that no substantial argument was presented “to warrant the reversal of the questioned decision,” preventing further motions from being submitted in the case.