The Control of Usage of Discretionary Power by Administrative Court of Thailand

Abstract

The role of Thai Administrative Court on controlling of usage of discretionary power is essential in maintaining people’s freedom and rights and public interest. From comparative studying on Thai administrative court’s judgment on controlling of usage of discretionary power and those of foreign administrative courts, it is found that there is standard and quality in judgment as most judgment is acceptable and there is tendency that the court’s judgment follows French Conseil d'  État. However, it is found that there are problems in judgment on legal cases on controlling of usage of discretionary power by administrative court as followings; lack of clarification on reasons why the court rules, and lack of consistency of judgments. This is caused by lacking law which can be applied as reference point in giving reasons in legal cases on controlling of usage of discretionary power. To clarify this law does not present in both the Administrative Procedure Act B.E. 2539 and the Act on Establishment of Administrative Courts and Administrative Court Procedure B.E. 2542. Therefore, these two acts should have been revised following German administrative procedure act and German administrative court procedure act. Following German law will help solve the problem of lacking clear law which can be used by Thai Administrative Court in deciding legal cases on controlling of usage of discretionary power. This would provide clarification and standard on Thai Administrative Court’s judgment. Moreover, there is clear cut in how the court can control usage of discretionary power and at what extent.