Varathep's appointment sets off legal wrangling

Senator Prasarn Maruekapitak believes Warathep, who received a suspended sentence over the government lottery scandal, was not qualified and that his appointment may be a violation of Article 174 (5) of the Charter.
Other legal experts said, after studying previous cases, that Varathep could retain the position since he was not in jail.
Article 174 (5) of the current Constitution says, “A minister must not have been discharged for a period of less than five years before the appointment after being sentenced by a judgement to imprisonment, except for an offence committed through negligence or a petty offence.”
Varathep was convicted by the Supreme Court’s Criminal Division for Political Office Holders in 2009 and sentenced to two years’ imprisonment, but the punishment was suspended. He was charged with misconduct over the government lottery when he was a deputy finance minister. The two-year suspension period is now over, but it’s still less than five years since the ruling.
The Constitution Court issued a judgement years ago that for imprisonment to disqualify any minister, the offender must have actually served time in jail. The court on that occasion ruled that Newin Chidchob, whose six-month imprisonment on a libel conviction had been suspended, was still qualified to hold the ministerial position since he had not been incarcerated.
However it was argued that while Newin’s case was a ruling under the 1997 Constitution, Varathep’s case was applied under the current Constitution.
The current Constitution has another clause that provides legal grounds for those who want to dump Varathep from the position. Article 182 (3) says, “An individual’s status as minister terminates upon [their] being sentenced by a judgement to imprisonment, even though the case has not been finalised or there is suspension of jail term.”
Legally speaking, Article 182 (3) could not be applied to Varathep’s case because he was not sentenced under the judgement while holding the current position. It’s a matter of qualification before taking the position in accordance with Article 174 (5).
Legal opinion, under the Thai judicial system, could be presented in various ways. Article 182 (3) could be interpreted in such a way to have him kicked out of the portfolio. Senator Prasarn and some opposition MPs will ask the Constitution Court to rule on Varathep’s qualification for office. It will be up to the court’s judges to decide which is the correct opinion.