Academic journal article The George Washington International Law Review

Suing the Sovereign under Thai Law

Academic journal article The George Washington International Law Review

Suing the Sovereign under Thai Law

Article excerpt

I. INTRODUCTION

Before dealing with the issues raised in the practicum, it is useful to give a general idea of the mechanisms of control over Thai administrative power and certain remedies provided by the Thai Constitution (1997). Thailand has adopted the parliamentary system and the concept of separation of powers into legislative, executive, and judicial branches. According to the parliamentary system, public administration is controlled not only by the government, but also by the parliament, its committees, and the courts.

In addition, the Constitution provides certain mechanisms of control of administration, such as Ombudsmen and Human Rights Commission. The Ombudsmen and the Human Rights Commission have wide power of investigation and recommendation to the administration, but if the administration fails to comply with their recommendation, they do not have the power to enforce it. They may report this failure to the prime minister or minister in charge to take action. In case no further action is taken, they can only prepare reports and submit opinions and suggestions to the parliament and eventually to the public. It should be noted that bringing a lawsuit to court automatically excludes relief from the Ombudsmen and the Human Rights Commission.

Regarding Thai Courts, they are divided into four separate systems as follows:

1. Constitutional Court: competent to adjudicate cases concerning the implementation or interpretation of the Constitution and other cases provided in the Constitution and the law.

2. Military Court: competent to adjudicate criminal cases where military officials are involved.

3. Administrative Court: competent to adjudicate "administrative cases," such as cases involving a dispute in relation to an unlawful act, order or regulation, certain torts committed by state agencies and their officials, and including disputes regarding state contracts that are classified as "administrative contracts."

4. Ordinary Court of Justice: competent to adjudicate cases outside the jurisdiction of other Courts, especially ordinary civil and criminal cases.

Unlike the U.S. Court of Federal Claims, Thai Administrative Courts have jurisdiction, not only over civil matters concerning monetary claims, but also over cases involving a dispute in relation to an unlawful act, order, or regulation. Moreover, certain cases, though involving state agencies or their officials, are excluded from the jurisdiction of Administrative Courts especially cases within the jurisdiction of the specialized courts such as tax, intellectual property, and international trade courts.

According to the Act on Establishment of Administrative Courts and Administrative Court Procedure (1999) (Administrative Courts Act), Thai Administrative Courts are divided into two levels: (1) Supreme Administrative Court and (2) Administrative Courts of First Instance. The Supreme Administrative Court and the Central Administrative Court have been functioning only since March 9, 2001. In cases where there is a dispute over the competent jurisdiction among the Court of Justice, the Administrative Court, the Military Court, and any other Court, it shall be decided by a committee1 chaired by the president of the Supreme Court of justice called the "Committee to Resolve Conflicts of Jurisdiction or Competence between Different Courts."2 Now I will discuss the four specific issues raised in the practical exercise respectively.

II. FORUM AND REMEDIES

In the old days, Thailand adopted the common law principle that "the king can do no wrong." The government agencies thus enjoyed immunity from private suits. The citizens could seek relief from the courts only by bringing a lawsuit against officials. That might be a reason why the Civil and Commercial Code, promulgated in 1925, conferred legal personality to government agencies in order to make them subject to civil responsibilities arising from the wrongful acts of their officials. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.