Key Note Speech on “The Role of Court in the Development of the Rule of Law in Thailand” 20 ธันวาคม 2552 22:36 น.        Excellency.        Dear Rector        Honorable Guests,        Ladies and Gentlemen.         First of all, I would like to congratulate Thammasat University on its 75th anniversary of inauguration. Thammasat is the leading academic institution that continuously produces the elites and eminence scholars for Thailand. Thus there is no need to reiterate about the roles and achievement of Thammasat since those have been well recognized by the Thai society.         As an alumnus, I wish congratulate and to be a part in its mission of nation’s building. I hope that Thammasat eternally be the leading academic institution and the “Creator of Eminence Scholars” for Thai society.         Today, I was invited by Thammasat to give a speech on “Judicial Roles in Upholding Justice in Contemporary Thai Society”, which is under the topic of “Law in the Changing World”. I have pondered on the issue to be dealt with today for the world is enormously changing and the court has bigger roles.         Ladies and Gentlemen, the concept of “The Rule of Law”, on often called Niti-Dharma by Thai people, originally found in the United Kingdom, especially from the authoritative work of Albert Venn Dicey (1835-1922), “Introduction to the Study of Law of the Constitution (1915)”. Dicey tried to compare “The Rule of Law” with “Rechtsstaat Theory” or “l'État de droit”. He determined to use this concept to counter the legislative power of the Parliament, which known as the Supremacy of Parliament.         Even though the two concepts originated from different sources, but the core objectives of both are similar, they are the principle of the supremacy of law aiming to use law as a frame to restrict the exercise of state. (The well-accepted characteristics of the rule of law can be clearly understood through five key elements (a) separation of powers; (b) judicial control of the legality of administrative acts; (c) judicial control of the constitutionality of laws; (d) protection of human rights, and (e) independence of the judges)         In conclusion, the law is the source, framework, and limitation of the employment of power of the state agency in executing its assigned duty.         However, in order to maintain the stability of the Rule of Law, written law is by far the most effective legal tool which the court can use to fight against illegality. The Administrative Court, one of Thai judiciary institutions, obligates to sustain the Rule of Law by applying the legal provision into a case filed. Particularly, the dispute arises from the implementation of such legal provisions by the executive.         Thai legal system and Thai courts, particularly the Administrative Court, are much more fortunate on the matters of upholding of justice, protection of the Rule of Law, and maintaining the Rule of Law. When looking through the past and present written laws, we find that Thai legal system has continuously transformed the unwritten laws into the written laws from the past until now; for instance, the principle of impartiality or the rule of non-bias (nemo iudex in re sua) that appeared in the principle “Indabhāsa” of the Code of King RAMA I of 1666 “Royal Manuscripts with the Three Seals”, which is influenced by Agati 4 of Buddhist morality, or in the present legal system it is in the Administrative Procedure Act 1996 (B.E. 2539). The above examples indicate that the courts of Thailand have many major tools for upholding the Rule of Law or Rechtsstaat.         Although there are the written laws in the legal system, the said written laws are not complete and applicable to all cases. Firstly, we have to understand the role of the court in resolving the dispute, so it is important for the court to acquire or even create legal tools to perform its duties by basing on the concept of the equity. We call this “the General Principles of Law”.         Prof. Dr. Pridi Branomyong, the Senior Statesman and the first founder of (The University of Moral Science and Politics), changed to the present-day “Thammasat University”, and Dr. Pridi is the person who pushed for the establishment of the Administrative Court in Thailand. He stated about the importance of the general principles of law in his commentary on administrative law back in 1931.         Therefore, the Administrative Court has the important duties to create and lay down the principle of the administrative law under the frame of the provisions of the constitution and other provisions of the written laws enacted by the Parliament.         The mission of the administrative judges is not only to interpret the written laws as provided for the exercise of power of the state authorities but also have the duty to fill the loophole in the law, by creating the general principles of law, and administrative law principles, which is in line with and suitable for the government system, society, and culture of our nation.         Especially, in our country which public law is a fairly new concept. The role of Administrative Court in creating and exploring the general principles of law in public law is increasingly and undeniably important to the development of public law in Thailand.        The process in the creation of the general principles of law has existed in some countries for some times, such as, Conseil d’État, which has created many general principles of law, and the Constitutional Council which creates the principle of law having the binding force of the constitution. For the countries in the Common Law system such as the United Kingdom, or the United States the Supreme Court of which founds such a principle as in Marbury v. Madison (1803). The creation of general principles of Law is generally recognized in both Civil Law and Common Law countries.         When a society changes, its law adapts to suit such change as well. It is natural that the law is more complexed than it was in the past. Such complexity of law is the cause of the gaps of law in the present. It is not that the law is lacking, vice versa it originates from the overwhelming contents. Eventually such complexed law cannot be efficiently enforced. On top of that, this situation could also harm the rights and liberty of the people. For this reason, there is a call for the court, particularly the Administrative Court, to step forward and to fill such gaps in the law to uphold the Rule of Law or Rechtsstaat .         The aforementioned are the issues of the Rule of Law and the duty to follow the Rule of Law. In the present world of change, each court relentlessly has to be alert, follows the changes, and studies the complexity of law. Evidently, a case filed to the court is more complicated and requires new approaching techniques. For example, the linkage of telecommunication network or GMO engineering issue which require technical knowledge. Though not an expert on technical issue, the court still has to acknowledge such a matter and develop the principles of law applicable to the dispute in order to protect justice.         The Administrative Court independently develops and founds significant general principles of the law. The court has to keep informed of the complexity of the current business world. This includes the principle of “Conflict of Interests” stipulated in the “case” where the court held that the privatization process of one of our public enterprise was unlawful due to one of the committee laying the groundwork for privatization of that public enterprise, is also a board member of a private company which is, a business partner of that public enterprise. Therefore such action was constituted a ground for the conflict of interest.         Nevertheless, the role of the Administrative Court is not only to protect the rights of individual but also to take care of the interest of the state that is the common interest of the society. In trial and adjudication process, the court has to find the balance to ensure equity between the interest of the individual and of the state .         Ladies and Gentlemen, the environmental problem of our present world is the main issue that we pay attention. From the past, the Administrative Court played a significant role in the protection of rights and remedies to correct the damage caused by the action of the state officials.        The Administrative Court lays down the principle of liability through many cases, such as the case which is known as “Cobalt-60” where the court held that the defendant (a state agency) fails to exercise its official duty to prevent the removal of radioactive Cobalt-60 from the permitted location causing damages to the plaintiffs. So the defendant had to pay the plaintiffs’ compensation. And for “another case” the Administrative Court determined that the defendant, as a regulating body, failed to perform its official duty to rehabilitate the contaminated (a small community) and to claim financial compensation from the polluter for environmental damage. So the court orders the defendant to pay compensation for the plaintiff for their lost of opportunity to earn a living and lost of their right to live in a clean environment. As you can see, in the environmental disputes, the Administrative        Court has attempted to set out the principle of state liability that forces the state to take a responsibility even though it is not the direct cause of such damage.         The Thai Administrative Court has often confirm the attempt to found general principles of law through many court judgments, for instance, under the principle of equity and inclusiveness the state agency should not deny the request of the disable for work if his disability does not affect the work efficiency of such person. The state official is not allowed to issue an order if he has any interest in the process of order issuance, due to conflicting to the principle of impartiality. The passing of ministerial regulation shall follow the spirit of the enabling act to satisfy the interest of the general public. Should there be any problem in exercising the right of an individual, such problem should not        outweigh the interest of the public by following the principle of proportionality the passing of such a law is lawful in itself.         The administrative principle is the legal principle that generates the good governance principle or the principle of decent execution of public service for the society.         The other matter that seems to be mentioned at present day is the issuance of laws to bar people from the access rights to court, especially these laws on national security. It is proper to ponder whether such a concept is correct or not. Since the right to access to the court is one of the fundamental rights, everyone deserves to be entertained without any restriction. It is true for some countries that the judicial review is questioned when the national security issues arise. However the global trend on such an issue weighs on the approval of the people rights to access to the court. It is to say that “the reassurance of the rights in access to court” is “the general principles of law” and “the principle of law which has the binding force of the constitution” which is well recognized by various nations, like Germany which guaranteeing such rights in Article 19 of the Basic Law which is the Constitution. And in this seminar we are fortunate to have an expert from Germany who certainly can clarify this point.         The aforesaid is a vision on the role of the court, by looking at the changes occurred in Thai society. However, there is one thing that we could not overlook; the changes occurring in Thai are not the things that could be excluded from the changes around the world. In globalization era, the court has to put an effort to trace changes, be the changes in business, international trade , intellectual property, or other changes of the society, and understand the legal mechanism in the various international dimension, and develop the principles of law that cope the scope of the world changes.         In conclusion, it is hard to narrate in detail, the role of the court in the development of the Rule of Law, what I could only say here is that the court has to be alert, constantly keep pace with the world development, and continuously create principle of law to suit the actuality since no matter how much the world changes, the role of court still remains; to establish the rightness and justice and thereby brings about peace to the society.         Ladies and gentlemen, the duty to create equity and the Rule of Law in society did not entirely belong to the judiciary. In fact, every part of the society is also obligate to this duty as well. Universities, Faculties of Law are undeniable the most important institution that create jurists and lawyers to serve the society, to create justice in the society, and to form a legal profession with moral and legal accountability. I believe that it is the time for our academic institutions to join force together and reform our curriculum to match the dynamic society we live in.        Ladies and Gentlemen, equity and the Rule of Law can not practically enforce if we can not keep up with the changes in the world. The Law might be the framework for our path, but every pace we take shall fill with Rightness and Justice. Because “The Law is the Art of Rightness and Justice” (Jus est ars boni et aequi).        Thank you พิมพ์จาก http://public-law.net/view.aspx?ID=1415 เวลา 22 พฤศจิกายน 2567 19:44 น. Pub Law Net (http://www.pub-law.net)