Emergency Decree may be against the Constitution?
The Emergency Executive Decree B.E. 2548 (2005) regarding the powers of the Administrative courts seems to go against the Constitution.
The above remark was recently made by Mr Hassavuth Vititviriyakul, president of the Supreme Administrative Court in an exclusive interview with Krungthep Thurakij newspaper.
Mr Hassavuth cited Article 218 of the Constitution which states as follows: The courts of justice have the powers to try and adjudicate all cases except those specified by this Constitution or the law to be within the jurisdiction of other courts.
Then he cited Article 223 of the charter regarding the Administrative courts: The Administrative courts have the powers to try and adjudicate cases of dispute between a state agency, state enterprise, local government organization or state official under the superintendence or supervision of the government on one part and a private individual on the other part, or between a state agency, state enterprise, local government organization, or state official under the superintendence or supervision of the government on one part and another such agency, enterprise, organization or official on the other part, which is the dispute as a consequence of the act or omission of the act that must be, according to the law, performed by such state agnecy, state enterprise, local government organization, or state official, or as a consequence of the act or omission of the act under the responsibility of such state agency, state enterprise, local government organization or state official in the performance of duties under the law, as provided by law.
There shall be the Supreme Administrative Court and Administrative courts of first instance, and there may also be the Appellate Administrative Court.
Mr Hassavuth noted that the Emergency Executive Decree was written in a way that excludes the Administrative courts from exercising their powers to try and adjudicate cases which are regarded as administrative cases and places those powers on the hands of the courts of justice.
He pointed out that the Administrative courts and the courts of justice have different systems to try and adjudicate cases with the former using the enquiry approach while the latter using accusative system.
In an administrative case in which a layman is engaged in a conflict with a state agency or a state official, the layman will be put in a disadvantageous position if the accusative system is adopted.