C H A P T E R 1/ The control of Maladministration in Thailand: A study of the methods of Ombudsman (Commission for counter corruption)
Introduct
Son
Thailand
is a unified
and
indivisible
Kingdom
which
adopted a democratic regime of Government with the king as the Head of the state, while there is Parliamentary democracy with elected members forming the legislature. The majority political party or a coalition of like-minded political parties form the Government. The king as head of the state shall experience the political and sovereign powers through the National Assembly, the council of ministers and the Judiciary.
A democratic
regime of Government
in Thailand
consists of (a) the legislature, (b) the judiciary and (c) the executive like in all democratic Governments. The legislative powers is exercised by the National Assembly
which
consists of the Senate and the House of Representatives. The Judiciary is vested with the powers of trial and adjudication of cases in accordance with the law and in the name of the King. Administrative (Executive) powers are exercised by
322
the council of Ministers.
In order
to understand
the problem of maladmin-
istration in Thailand it is necessary to review its political history, the development of its Administrative law over the years its Constitution and the existing control mechanism on Administration in Thailand and its drawbacks.
1. Political
history
of
Thailand
Absolute monarchy prevailed in Thailand from 1219 A.D. to 1932 A.D. Phokhunbangklanghao was the first King of Thailand who built Krung Sukhotai, the capital of Thailand in the year 1219 A.D. In 1932 a popular revolution changed absolute
monarchy
into
a democratic
polity. The
people's
party known as "Kua Rat" masterminded and led that revolution, wherein soldiers and the general public participated and forced the King to promulgate the first Constitution of B.E. 2475 (1932 A.D.) . The people's party played a major part in establishing the political and economic structure of Thailand and attempted
to develop
the party
into a mass
political party. The attempt misfired when the leaders with the party
indulged
in
intraparty
disputes. Field
Marshal
P-Pibulsongkram, one of the key leaders of the party succeeded
in establishing
a separate
political
party
called
"Saha Pak" and formed his cabinet. His party had the active
323
support of the armed forces:. This lasted five years and in 1937 there was a
COLIR^ de
etat_ by Field Marshal Sarit Tanarat
and his accomplices and formed
the National
Social Party. •
After
Sarit's death general Thanom Kitikajorn took over the
office. ^ '' Field Marshal Thanom Kitikajorn and his accomplices established and ruled a despotic regime for over ten years. On October 14, 1973 that regime was overthrown by a movement of the students and the public. This day is known as the "Tragedy Day". Then King Phmipol assigned the drafting of a democratic
constitution
to Prime Minister
Sanya
Thammasak. The Constitution drafted by Sanya Thammasak came into force in 2517 B.E. (1974 A . D . ) . created
a democratic
environment
This
constitution
in the Thai
political
system. But a coalition Government could not stop a couE___de ^•lA.L in 1976, engineered
by the armed
force. Tanin
Krai-
vichien was appointed as the Prime Minister. The commanders of the army overthrew this Government too. General Kraiengsaak Chamanand
was appointed
as Prime Minister
and
a new
Constitution was promulgated in 2521 B.E. (1978 A.D.), which contained
a
"transitional
clause" to retain
the power
of
Senate to control the Government. The Senate was composed mostly of soldiers and public authorities. General Kraiengsaak's Government
resigned
in 1980. The King
appointed
general Prem Tinnasulanand as Prime Minister with the approval of both the Senate and the House of Representatives. 324
General Prem was popular and a conscientions candidate for the various constituent political parties to head the new Government. General Prem
dissolved
the Government and de-
clared general election. The result of the election was that no single political party secured enough votes to form the Government. General Prem
therefore, was once again
conscientions choice and
he formed
the
the Government. His
Government did not last long. Consequently another
general
election with no clear majority for any political party and another
invitation to General Prem to form the Government.
He declined the offer and the leader of Chattachai party was appointed as Prime Minister by the political parties (2) The Chattachai's Government was overthrown, accused with ant corruption, in February
ramp-
1991. Anand Panyalachun was
chosen by the army to form the Government. A new constitution was promulgated
in 2534 B.E. and
in the next year
(1992) general election was held.
Political
parties supported
by the army
secured
sufficient votes to form a Government and General
Sujinda
Kraprayoon became Prime Minister. He soon became unpopular amongst politicians and the general public. A popular uprising against his Government became bloody street fights and people including students The Government
tried
openly defied Government orders.
to quiet the mob with bullets. Many
32!
people were killed. The Prime Minister resigned and Anand Panyalachun was appointed Prime Minister who held another general election in 1992. A coalition Government consisting of the democratic party, social party, the solidarity party, The New Aspiration Party and the Phalang Dhamma Party was formed in the same year.^'^^ Thus the political history of Thailand was one of instability, coup, revolutions and concentrations of power in the hands of few powerful individuals.
The present
Thai
Constitution
The law of the constitution of a country seeks to establish its fundamental, basic or apex organs of Government and administration, and to describe their structure, composition, powers and principal function, to define the inter-relationship to these organs with one another, and to regulate their relationship with the people, more particularly, the political relationship.^ -^
A significant aspect of th« relationship between the Government and the people is the guaranteeing of certain fundamental rights to the people. Modern Constitutions lay a good deal of emphasis on people's fundamental rights which are inherent in a human being and which no Government should seek to take away either by legislation or by executive
326
action. The Judiciary is endowed with the function of protecting these rights and act as the guardian thereof. If the legislature passes any law or the executive takes any action, so as to infringe any of the fundamental rights, then the courts may declare such a law or action as unconstitutional . Some of these basic rights are: freedom of person, freedom of speech, right to equality , freedom of conscience etc .^• ^ In the Indian Constitution Article 13 gives teeth to the fundamental rights and make them justiceable. The effect of Article 13 is that the fundamental rights cannot be infringed by the Government. Article 13 declares that all Preconstitutional laws shall be void to the extent of their inconsistency with the fundamental rights. According to Article 13(2), the state shall not make any law which takes away or abridges the fundamental rights, and a law contravening a fundamental right is to the extent of the contravention void. Most of the fundamental rights are claimed against the state and its instrumentalities and not against private bodies^^-^ articles 12 to 35 of t ^ Indian Constitution deals with fundamental rights and are reminiscent of some of the provisions of the Bill of Rights in the U.S. Constitution^ •^ \
Besides the concept of a constitution,
there is also the all important concept of constitutionalism. Modern political thought draws a distinction between constitutionalism and a "constitution". A country
327
may have
a
"constitution"
but
not
necessarily
"constitutionalism".
The u n d e r l y i n g d i f f e r e n c e between the two c o n c e p t s is that a constitution
ought not merely to confer
p o w e r s on the v a r i -
ous o r g a n s of the G o v e r n m e n t , but also those
powers. Constitutionalism
Government
but
insists
upon
recognises
limitations
Governmental
powers. Constitutionalism
balances
putting
and
executive trolled of
under
some
the p e o p l e .
on either
tain
of
restraints
"Power
corrupts
If a C o n s t i t u t i o n
oppressive
the basic f r e e d o m s
his dignity
permeated
with
and
of
not making
personality,
inbuilt r e s t r i c t i o n s ernmental o r g a n s .
on the
uncon-
corrupts
it might
powers lead
to
Therefore,
to
it s h o u l d
conferred
the
freedom
power
to
a Constitution
powers
and
and
them
i n d i v i d u a l , and
'constitutionalism';
upon
unrestrained
Government.
for
checks
Jeopardise
absolute
confers
the
need
legislature
powers
and
restrain
placed
envisages
the
and
to
the
being
the legislature or the e x e c u t i v e
authoritarian,
presume
power
and a r b i t r a r y . Unlimited
absolutely".
an
the
to seek
by
main-
should
be
have
some
it on
Gov-
^^
Sali_ent„...fe.alui._es_....of_..J..he...J.ha,l.„C In revolution. power
Thailand Each
one
each was
Constitution made
with
a
^^ view
represents to
one
concentrate
in the hands of the e x e c u t i v e and the b u r e a u c r a t s . The
present
Constitution
has Provisions
328
recognising
rights,
liberties and duties of the subjects. They are as follows: Section 24 : All persons shall enjoy rights and liberties subject to the Provisions of the Constitution. Section 25 : All persons are equal before the law and shall enjoy equal protection under the law. Section 26 : All persons shall enjoy political rights. The exercise of the political rights shall be in accordance with the provisions of law. Section 27 "• Every person shall enjoy full liberty to profess a religion, a religious sect or creed, and to exercise a form of worship in accordance with his belief; provided that it is not contrary to his civic duties and to public order or good morals.
In exercising the liberty referred to in paragraph one, every person is protected from any act of the State, which is derogatory to his rights or detrimental to his due benefits, on the grounds of professing a religion, a religious sect or creed or of exercising a form of worship in accordance with his belief different from that of others. Section 28 : No person shall be inflicted with a criminal punishment unless he has committed an act which the law in force at the time of commission provides it to be an offence and imposes a punishment therefore, and the punishment to be inflicted on such person shall not be more than that provid-
329
ed by the law in force at the time of commission. Section 29 : An alleged offender or an accused in a criminal case shall be presumed innocent. Section 30 : Every person shall enjoy the liberty of his person. Arrest, detention or search of a person, irrespective of any circumstance, shall not be made except by virtue of law. Section 31 : In the case where the alleged offender or the accused in a criminal case is indigent and unable to provide his own advocate, that person is
entitled to obtain legal
aid from the state as provided by law. Section 32 :In
the case where any person was inflicted with
a criminal punishment by a final judgement, if it appears from the judgement of the court reviewing the case thereafter that he did not commit the alleged offence, he shall be entitled to compensation and to recover any right he had lost by virtue of the results of the judgement upon the condition and in the manner provided by law. Section 33 : Forced labour shall not be imposed except by virtue of the law specifically enacted for the purpose of averting imminent public calamity or by virtue of the law which provides for its imposition during the time when the country is in a state of armed conflict or war, or when a state of emergency or martial law is declared. Section 34 : Every person shall enjoy the liberty of dwell-
330
ing .
Every person is protected for his peaceful habitation in and for possession of his dwelling place. The entry into a dwelling place without the consent of its possessor or
the search thereof shall not be made except by virtue of
law . Section 35 : The property right of a person is protected the extent and the restriction of such right shall be in accordance with the provisions of the law. The succession is protected. The right of succession of a person shall be in accordance with the provisions of law. Section 36 : The expropriation of immovable property shall not be made except by virtue of the law specifically enacted for the purpose of public utility, natural defense, exploitation of natural
resources, town and county
planning,
agriculture and industrial development, land reform or other public interests and fair compensation shall be paid in due time to the owner thereof as well as to the person having the right therein, who suffers loss by such expropriation, as to be specified by law. The
amount
of
compensation
under
shall be fairly assessed with due regard
paragraph
one
to the ordinary
purchasing and buying price, mode of acquisition, nature and situation of the immovable property and loss of person whose property is expropriated.
331
The
law
on
expropriation
of
immovable
property
shall certainly specify the purpose of the expropriation and shall clearly determine the period of time to fulfill that purpose of such immovable property.
The
immovable
property,
if
not being
used
to
fulfill that purpose within the period of time prescribed by law, shall be returned to the original owner or his heir, unless it is used for other purposes according to paragraph one, pursuant to the provisions of law.
The return of the immovable property to the original owner or his heir under paragraph 3 and the claim of compensation paid shall be in accordance with the provisions of law. Section 37 : Every person shall enjoy the liberty of speech, writing
(expression), printing, publication
and any other
method of communication.
The
restriction
on such
liberty
shall
not
be
imposed except by virtue of the law specifically enacted for the purpose of maintaining the security of the state or safeguarding the liberties, dignity or reputation of other persons or maintaining public order or good moral or preventing deterioration of mind or health of the people. 332
The newspaper owner or
the owner of other
mass-
communication must, subject to the conditions presented by law, and be a person of Thai nationality.
No grant of money
or other
properties shall
be
made by the state as subsidy to a private newspaper. Section 38 : Every person shall enjoy the liberty of education, provided that such education is not contrary to his civic duties under the Constitution, and the law relating to the organisation of educate and establishments. Section 39 : Every person shall enjoy the liberty to assemble peacefully and without arms.
The
restriction
on such
liberty
shall
not
be
imposed except by virtue of the law specifically enacted for the cause of public meetings and for securing public convenience in the use of public places or for maintaining public order during the time when the country
is in a state of
armed conflict or war, or when a state of emergency or martial law is declared. Section 40 : Every person shall enjoy the liberty to form an association, union, league, cooperative or any other group
The
formation,
incorporation
or
condition
of
incorporation, management and dissolution of an association, 333
union, league, cooperative or any other group shall be in accordance with the provisions of law. Section 41 : Every person shall enjoy the liberty to form a political party for the purpose of carrying out political activities through the means of a democratic regime with the King as Head of State as provided in the constitution.
The
formation,
incorporation,
management
and
dissolution of a political party shall be in accordance with the provisions of the law on political parties.
A political party shall prepare an account showing its assets and liabilities and shall publicly declare sources of its income and expenditure in accordance with the provisions of law. Section 42 : Every person shall enjoy the liberty of communication by lawful means.
The censorship, detention or disclosure of communication between persons including any other act disclosing a statement in the communication between persons, shall not be made except by virtue of the law specifically enacted for the purpose of maintaining public order or good morals or security of the state. Section 43 : Every person shall enjoy the liberty of trav-
334
elling and the liberty of making the choice of his lesidence within the Kingdom.
The restriction
on such
liberties
shall
not
be
imposed except by virtue of the law specifically enacted for the purpose of maintaining the security of the state, public order, public welfare, town and county planning or welfare of the youth.
No person of Thai nationality shall be deported or prohibited from entering the kingdom. Section 44 : Family rights, dignity or reputation and right of privacy of every person shall be protected. Section 45 : Every person shall have right to present a petition upon the conditions and in the manner as provided by law. Section 46 "• The right of a person to sue a governmental agency which is a juristic person to be liable for an act done by its officials is protected. Section 47 : Persons who are in the Armed forces, the police and other government officials, local government officials and employees of state organisations shall enjoy the same rights and liberties under the constitution as those accorded to ordinary persons unless such enjoyment is restricted by law, bye laws or reputations issued by virtue of the law
335
specifically
enacted
is so far as it is concerned
with
politics, efficiency or discipline. Section 48 : The right of a person to engage in an enterprise or an occupation and fair and free competition shall be protected
The restriction on such rights under paragraph one shall be imposed only by virtue of the law specifically enacted for the purpose of maintaining security and safety of state or economy of the country protecting the people on public utilities, maintaining public order and good morals, organising the rule on occupation, consumer protection, town and county planning, natural resources or environmental conservation, public welfare or for the purpose of preventing monopoly or eliminating unfair competition. Section 49 : No person shall exercise the rights and liberties as prescribed in the constitution, against the nation, religions, the King and the constitution.
Constitutional
safeguards
at
a
glance
Merely providing a set of rights and duties would not suffice. Effective machinery and mechanism for enforcement of these rights are imperative. The Thai constitution merely state the rights. Enforcement of the rights are left to the legislature and the executive. Experience of the
336
working
of other
constitutions
point
towards
effective
regulatory and enforcement mechanisms. Constitutional safeguards are imperative. An independent judiciary fundamental safeguards. custodian
Judiciary
of the constitution
ensures the
is considered as the
and guardian of the people
against misuse of its provisions. Though sections 45 and 46 of the Thai constitution gives right to petition in accordance with law and sue the governmental machinery, yet it is subject to the provisions of other laws. It means that it is not a constitutional
safeguard as such but a safeguard
provided by the ordinary
law of the land, which can be
withdrawn any time through the amending process without a constitutional amendment. This is a major Thai
constitution.
Safeguards
for
draw back of the
upholding
the
basic
(fundamental) rights are to be incorporated in the constitution itself. In the Indian Constitution Article 32 and 226 have given such safeguards. They are in the form of writs and other remedies. Similar remedies are
available in Eng-
land where there is no written constitution.
Independent
judiciary
In Thailand judiciary is not independent from the executive. The King has power to appoint judges and the judges will hold office during the pleasure of the King. In India
the
judiciary
is independent
337
of the executive. The
Indian Constitution provides sufficient safeguards against the executive from interfering with the independence of the Judiciary ^ •'•^ -'
Legislature
and its
In this
functions
modern
age
the
legislative
functions
assume greater importance due to various factors political, social
and
economical, even
in the area of
International
relations. The old concept of sovereign functions is only a part of the whole realm. A number of laws are necessarily to be enacted. The enacted legislations need to be supplemented and strengthened
by rule, and regulations which
functions
for reasons of soundness and expediency have to be entrusted with other
agencies of government
leaving open scope for
full fledged subordinates (delegated) legislation. Delegated legislation may be made while using the discretionary power of the administrators. Where there are
discretionary powers
there is the likelihood of their misuse. To check misuse of discretionary powers, adequate control mechanism is imperative. The Thai Constitution provides that in case of misuse or abuse of powers by the officials, a petition to the higher officers may be made. The inherent danger official bias is overlooked.
338
namely
An control
indeperident
mechanism
against
judiciary official
can
be
an
effective
bias. Judicial
Process
will withstand official bias, maladministration and corruption .
Quasi Judicial Tribunals With the proliferation of laws, to cope up with the overall developments and the
consequent increase in the
volume of judicial process, many of the developed countries have established
Quasi Judicial tribunals to ensure speedy
remedies of quiescence. Thailand lags behind in establishing such tr ibunals.
Judicial review Judicial prominent
place
review
of
administrative
in the control
mechanism.
action
has a
It not only
provides an effective and efficient tool for the protection of the rights of the people, but also provides means for !:he promotion of those rights. The Thai constitution does not provide for such a tool.
The Thai Constitution provides for the foimation of Constitutional
tribunals as a control
legislation which many conflict rights of the people but
mechanism
over a
with the constitutional
it does not ensure an effective
check as the judicial intervention through review would have done in a given situation. The constitutional
tribunals
consists of the President of the National Assembly and the President of the Senate amongst other members. The procedure to be followed by the constitutional tribunal is cumbersome. The tribunal can meet only when atleast on-fifth of the members of the House form an opinion that a bill is inconsistent with the Constitution and they shall submit their memorandum to their respective Presidents of the Assembly, Senate, House of Representatives
and
they will
refer
the
mater to the tribunal and inform the Prime Minister. There are patent flaws in the provision regarding
the constitu-
tional tribunals.
In the pursuit of an effective mechanism to prevent corruption among the administrators, it is imperative to examine the justice systems in Thailand particularly in the back ground of the constitutional dictates of the rights of the people in the constitution of 1992.
The Organisation of the Courts The Thai
judiciary
has a three-tier
system. The
Supreme Court ( S a m Dika) at the top of hierarchical pyramid, followed by the Appeal court and the courts of first instance respectively. Subject to certain restrictions,
340
appeals from the courts of the fi. I'st instance go to thie appeal court and from the appeal court, with
further
re-
strictions, to the Supreme Court. There is only one Supreme
Court, the highest and
final court of the realm, and also one appeal court.
As regards the courts of first instance, classification is to be made in accordance with the nature of their jurisdiction. They are
three in number.
The first category of the courts of first instance consists of the Civil Court, the Criminal Court, the Thonburi Civil Court and the Thonburi Criminal which are situated
Court, all of
in Bangkok. Each has civil or criminal
jurisdiction according to the name given. But the first two possess a higher
status in that not only
have they the
original jurisdiction over parts of Bangkok, but also discretionary power to accept for trial these cases from outside Bangkok i.e. everywhere in Thailand in which the cause of action may arise.
The Second category is the Provincial Court. Each province outside Bangkok has at least one Provincial Court which has both civil and criminal
jurisdiction. In some
provinces, owing to their sizeable population and the vast
341
area of land, more than one Provincial Court has been established. For Bangkok, even though the main courts of first instance are those mentioned above, yet there is a suburban area allocated to fall within the jurisdiction of a Provincial Court.
The third category trict Courts
is the District Courts. Dis-
are additional
courts
whose
jurisdiction
is
only over small cases i.e. civil cases in which the value of the claim does not exceed 10,000 baht, and criminal cases in which the offence charged carries the maximum punishment of not more than three years
imprisonment and or fine
not
exceeding 60,000 baht. The following chart will give a clear picture of the organisation of the courts.
The Supreme Court The Appeal Court
Bangkok
The Civil Court
Other Provinces
The Criminal Court
Provincial Court
The Thonburi Civil Court
District Court
The Thonburi Criminal Court A Provincial Court
34:
Three District Coui'ts
The Present
Judicial
Service
At present
there are 518 Judges and 42 trainee
Judges for the 110 Courts throughout the country : 22 judges for the Supreme Court, 54 for the Court remainder
of Appeal, and the
for the Courts of First instance. The later in-
cludes some 20 judges attached to Ministry of Justice.
The Judicial Service Commission The Judicial
Service Commission
is designed
for
two purposes, (i) to uphold the independence of the Judiciary and (ii) for the administrative control of judges. The Commission is composed of eleven members three are ex-officio, namely the President of the Supreme Court, the Chief Judge of the Court of Appeal, and the Under Secretary of State .for Justice: four are elected from the senior judges of the Supreme Court, and other four are elected from the list of retired
judges. Retired
judges qualify
for
the
posts, no matter what ranks they held while in Service.
The last eight numbers are elected for a term of two years by judges of all Courts throughout the country. The Commission is presided over by the president of the Supreme Court by virtue of his office as head of Judiciary.
343
Under the Judicial Service Act, 1945, as amended, appointments, promotions, transfer and removals of judges, shall be made by the King upon the recommendation
of the
Judicial Service Commission submitted through the cabinet . In these matters the Minister of Justice acts as intermediary between the Judicial service Commission and the Cabinet.
As all the members of the Judicial Service Commission are judges having long experience and most of them are chosen by judges, the Commission
is in the best
possible
position to do justice to all judges in their profession. It also helps to endure the impartiality in their dispensation of justice. Above all it places judges beyond fear of consequences when called upon to do justice between the citizen and the State: it enables judges to act as the steadfast guardian of fundamental
rights of man as enshrined
in the
Constitution.
Security
of
Tenure
of
Office
By virtue of the Judicial Service Act, 1945, as amended, judges enjoy great security of tenure. A judge may be dismissed from the service only on proven misconduct or incapacity or infirmity. In a case of misconduct the accused judge
has full
opportunity
to defend
himself
against
the
charge that has been made against him at the board of disci344
pline which consists of three judges. If, on the report of the Board, the having regard
Judicial
Service
Commission
is satisfied,
to all circumstances of the case, that the
dismissal or retirement of that judge is desirable in the public interest, their decision will be final, but they must advise the King to do so through the cabinet.
The Selection
of
Judges
In Thailand all judges are professionals. Political considerations play no part in the appointment of judges. The judicial appointment has been made by nomination, by the Magistrate' Courts Act, 1956. However, the method
of
election was introduced for appointment of lay magistrates; but it was never carried
into effect and was abolished by
the Magistrates' Courts (Amendment) Act, 1960.
All judges of the Courts of First Instance, whether they are of Provincial Courts, or of Magistrates' Courts are of equal rank and
interchangeable
among these Courts.
Further, no one can be appointed as a judge in a Court of First Instance unless he has undergone a minimum training of one year as a judge trainee. The judge-trainees are recruited by an open competitive examination system comprising of written and oral tests.
Candidates for this examination must be at least twenty-five years old with an LLB. degree and a degree of Barrister at-Law.
The competitive examination for designed to fulfill a double purpose
judge-trainee
is
: First, to eliminate
candidates not likely to be suitable, and second, to provide guidance
for setting up an order of seniority on their
appointments. The examination
is conducted
by a board of
examiners, usually consisting of a number of judges of the Supreme Court and of the Court of Appeal.
This competitive examination
is held approximately
once a
year, and is generally regarded as the hardest of all law examinations held in the country. There are usually over two hundred candidates at each examination but only few qualify.
The Judiciai'y
-
Judges in Thailand are career
judges, instead of
being appointed from the ranks of the Bar as in England and most Common Law countries. Judicial career starts at relatively young age in Thailand. Most judges start their career in late twenties or early thirties. The first year
in the
judicial career will be spent as a judge-trainee whereby the newly recruited judge- trainee is assigned to a senior judge
J46
in the Central Civil Court or the Central Criminal Court as his "pupi 1-master " .cofnmonly called "tutor". The Judge-trainee sit with his tutoi- while learning the skills and techniques of the profession. Since skills and techniques are quite individual, in the course of 12 months on the criminal side of the work and 6 months on the civil side of the work. In addition to "practical" training, in the course of the training, the judge-trainee has to attend a six-month afternoon course on the "academic" side of his profession. The academic training consists of 67 topics lasting 187 lecturehours .
Civil Procedure The civil procedure in court is regulated by the Code of Civil Procedure which postulates four main principles, that is to say, the requirement of trial in open court, the Rule of Natural Justice the paramount importance of compromise, the hybrid system of the adversary and the inquisitorial rules on examination of witnesses.
The first principle is common and self-explanatory requiring no further discussions. The second consists of the Rule of Natural Justice, which in turn is twofold. In the first place, one cannot be a judge of his own cause; a judge will be precluded from trial if he has some vested interest
34;
in the case before him and in the second place both sides must be heard. From the second part of the rule, it necessarily follows that notice of the action must be given to defendant at the outset of the action, allowing him sufficient to answer the plaintiff's claim, and both sides must be permitted to state their own cases. The third principle of compromise by the parties involved stands almost always to be the best solution. And fourthly, the system of examining witnesses is one of a hybrid between the adversary and the inquisitorial systems. It seems that the court may take an active role or a passive one at the trial on its own consideration.
Appeal
Subject to certain conditions, as a general rule, the party discontented with the Trial Courts judgement is entitled to the appeal Supreme Court. Appeal
to Appeal Court and then to the to the Appeal Court must be made
within one month from the date of the decision of the Court of first instance, so must appeal to the Supreme Court from the date of the decision of Appeal Court. If neither side appeals within the time limit, then the decision of the Trial Court or the Appeal Court, as the case may be, becomes final. While the case
is on appeal, the losing part/ can
apply for stay of execution but it has to be done in a
348
separate motion.
The restrictions on appeals fall into two categories "• Restrictions on point of fact and those on point of law. Appeals on point of fact is restricted by the monetary value of the claim. Appeal on a claim amounting to not more than 20,000 baht and 50,000 baht are barred to the Appeal Court and the Supreme Court respectively. As regards appeal on the point of law, less restrictions are placed, the main requirement is that it must be on the point already raised in the lower court and must also be material and relevant to the case.
The last point to be made is that the Supreme Court is the highest and final appellate court and in civil cases no appeal, in whatever
form it is, lies further. In
contrast, in criminal cases, final as the decision of the Supreme Court may be the accused convicted may seek a royal pardon.
Specialised Courts Apart
from
these
courts
mentioned
above, there
exists three other types of specialised courts. They are the Juvenile Courts, the Labour Courts, and Tax Courts.
349
As for the Juvenile Courts, which are less than ten in numbei's, the first to tuention is the Central Juvenile Courts situated in Bangkok. The remainders just spreads out in large provinces, and under supei'visory power, in so far as administration
is concerned, of the Central
Juvenile
Court. Their Jurisdiction covers cases where a child or a young offender is involved and where a minor's interest is affected in civil matters.
The last type of specialised
court is the Tax
Court. It is one in number i.e., the Central Tax Court. As of riow, the Central Tax Courts jurisdiction covers that entire nation. The majority of cases involve disputes between the private citizen and the Tax Department or
the
Customs and Excise Department, whose domicile is in Bangkok. Since it is always the private citizen who is the plaintiff and the law require that an action must be brought within the court of the defendant's domicile, all tax cases are now being tried in the Central Tax Court in Bangkok.
There connection with
is an anomaly the appeal
in the procedural
from the Labour
rules in
Coui't and Tax
Court. Since appeal on point of fact is prohibited or stiin9e 1"!11 •/ r es t r i c t ecJ , as t hie case may be, pr ac t i ca 11 y o n 1 y appeal on point of law is allowed. Therefore, the law pre-
J50
scribed
that appeal from both courts lies to the
Supreme
Court for it is thought that points of law should be dealt with there.
For the sake of clarity, it may be added
that
there is no separate administrative courts and all administrative cases fall within the jurisdiction courts. There is a Constitutional
of ordinary
Court chaired by
President of Parliament to which constitutional
the
issues may
be referred for determination. But so far there is hardly any case referred to the Constitutional Court.
The Judicial Independence as Recognised by the Legislature As in other civilised democratic countries, Thailand regards the Judiciary as of supreme importance in the sense of social
justice protector
and as the
last resort
upon which lives and liberty of its citizen depend. The Judiciary would, however, become meaningless if its independence and freedom of judicial discretion were not recognised and granted by the Legislature. The Judiciary is not a selfcontained institution; it cannot exist and work without the authorisation of the Legislature, the supremacy of which has never been in doubt. Fortunately, the Thai Judicial independence as well as its freedom for its judges to exercise their discretion
in performing
351
their
judicial duties
have
been guaranteed by all of the Constitutions throughout out democratic history.
To take a few examples, Article 165 of
the Constitution of 1949 provided that the judges enjoyed absolute freedom to try cases and
to adjudicate them ac-
cording to the law; Article 19 of the Interim Constitution of 1959 had provisions to the same effect, so does Article 161 of the drafted Constitution, which is expected to come into force in the near future. Further, Article 161 of the Constitution of 1949 provided that the Courts of law were the sole authority for trial and adjudication.
Moreover, apart from the fact that
the
judges
enjoy their independence fully as above stated, their position is also well secured by the judicial Service Acts, 1954 and 1957, the details of which
are referred to under the
topic "The Judiciary as related to the Executive".
The Judge's attitude towards the Enactments Restricting Fundamental Rights of the People Of all people in our society the judge must act as the final protector of the citizens rights to life liberty and property under the law. He, therefore, must always keep his critical eyes on any legislative enactment which imposes restriction on the people's right and freedom. Of course, sometimes when the situation of the country demands, some
352
rights and liberties of the subjects may have to be curtailed. However, the Judiciary sensibly
never denies these
occurrences. On the contrary, it accepts such impositions as a fact having a valid and effective enforcement towards the restriction as such, and at the same time, whenever possible, he will also try his best to interpret the restrictions in favour of the subject. Taking two examples: Case No. 1557/1960 in which it was held by the Supreme Court that the ordinary courts were competent to admit and to enquire into a complaint about the alleged unlawful detention by the police and if thought fit, to issue a writ of habeas corpus., even though the case, its merits being considered, must be submitted to the Courts. In addition, the court said that courts of law, whether ordinary or military, must always be competent
to investigate
into all complaints about
the
unlawful detention of the executive authorities. As the law Courts are the only State's authority whose functions are to protect
the subject
from
any
infringement
of
fundamental
rights and liberties of the people. Thus, on the one hand, the Judiciary will enforce the law as enacted by the Legislature: on the other hand, it tries its best to protect the subject's rights and liberty from being unduly curtailed.
As regards the other case, i.e. cases number 326327/1962 in which there was a question whether or not the
353
police officer were empowered by Proclaimation of the Revolutionary
Party No.12 to detain Commanist suspect
nitely. The Supreme Court
interpreted
indefi-
the Proclamation
in
such a way that the period of the detention by the police under the Proclamation was extended to such time as deemed reasonably necessary for investigation purposes only. Detention of the accused indefinitely for any other
purposes
would amount to the violation of the basic human rights to the Thai people. That would surely not be the intention of the Government which was supposed to administer the country for the welfare of the people.
The Limited Powers of the Judiciary as Related to the Legislature In certain countries, especially
the common
law
countries, the law courts are the legislative as well as the judicial author ity .^ •'•^ ^ when considering a question of law in a case submitted to them they can make laws as long as they do not conflict with these already enacted by Parliament or previously established in the Common Law principles. However, that is not the case for our Judiciary. Our
law
courts have no power to make laws as such. They can only interpret the already existing law when involved in a case before them. This is perhaps because the concept of the separation of powers is applied more strictly in this coun-
354
try than in those countries above mentioned. Moreover, Section 4 of the Civil and Commercial Code in effect provides that the courts must decide cases according to the law, if there be no laws already enacted local customs, other principles of law by way of analogy, or the general principles of the law must then be applied respectively.
As regards the Constitution
B.E. 2535
(1992).
Article 206 sets up a Constitutional Tribunal of nine members presided over by the speaker of the Upper House of Parliament. The other members are the Speaker of the House of representatives, the President of the Supreme Court, the Chief Judge of the Court of Appeal , the Director - General of the Department of public Prosecution, and four other legally qualified persons appointed by Parliament.
The functions of the Tribunal
are of
judicial
nature, since Article 206 of the Constitution provides-" "On the application of any provisions of an Act of Parliament to a case, if the Court is of the view that provisions are in conflict or inconsistent with the provisions of the Constitution, it must adjourn the case and then refer its opinion to the Constitutional Tribunal for their decision.
355
The decisions of the Tribunal on such matters are final and applicable affect
any
to all cases concerned, but do not
law court's decisions which
have already
been
made and become final."
The wisdom of the Legislature in connection with the provision of the Article is doubtful, for it raises a number of problems some of which are: a. Should the constitutional problems be exclusively considered and decided by the tribunal other than the court of law? If so, would that infringe the very function of the law court? b. What does the society gain from such a tribunal? c. Is it justifiable to say that the fact that the Constitutional Tribunal be composed mostly of
non-judicially
trained persons, that is the Director General of the office of Public
Prosecution; two
judges, that
is the
President of the Supreme Court and the Chief Judge of the Court of appeal; and four lawyers appointed by the Parliament raises a doubt about the merits and impartiality of the Tribunal?
Admittedly the Constitution is the Supreme law of the
land
safeguarding
and guaranteeing
fundamental
rights
and liberty of the people; any provision of an Act of Par-
356
liament which conflict with the Constitution must be null and void. But when a question of the unconstitutionality of an Act actually arises, and the impartiality of the Tribunal, which is to answer the question is suspected obviously, the only question which must then be asked is whether there should be the Tribunal as such at all.
The Judiciary and the Executive Since the first Constitution in 1932, Thailand has adopted the traditional classification of the threefold Governmental powers; however, the rigid separation of powers has not been followed. These powers are somewhat interdependent and overlapping, but the Judiciary
is strictly
independent of both the Legislature and the Executive- the legislature by and with consent of the Assembly of People's power; the legislature by and with consent of the Assembly of the People's Representatives; the Executive through the Council of Ministers, and the Judiciary through the law courts. The responsibility for the administration of justice is generally shared at the law courts, the ministry
of
justice and the ministry of interior. The Ministry of Justice is responsible for the law reforms, the administrative work of the courts, while the Ministry
of Interior
charge of the enforcement of the criminal
is in
law, i.e. the
investigation and prosecution of crimes, and treatment and
357
rehabilitation of prisoners.
It is not always possible to delimit judicial and administrative
functions.
The
law
courts
perform
certain
functions which can be regarded as administrative, e.g. the execution and enforcement of judgments, the issue of summons and warrants, and the grant of bail or remand. Judges have some non-judicial functions which are ancillary or incidental to the judicial power an are necessary in order to make it effective. The President of the Supreme Court, the Chief Judge of the Court of Appeal, and Chief Judges of various courts, e.g. have a dual capacity; generally, as a judge in their courts and the head of their offices. They are responsible for all kinds of work in the courts, judicial as well as administrative.
Many administrative bodies are so-called
entrusted with the
"quasi-judicial" power, which can be
equally
regarded as being within the scope of the judicial power. An "Inquiry
official", who examines criminal
cases
before
sending them for prosecution, has authority in certain cases of petty offenses or of similar offenses or offenses punishable only with fine, to settle the cases out of the court. In these cases, if the punishment
imposed by law is not
imprisonment, or the "Inquiry official" is of the opinion
358
that the offender should not be imprisoned, the offender may pay the maximum fine prescribed by the law or the sum fixed by the "Inquiry official". If the settlement is approved by the official incharge of the prosecution, the offender shall not be prosecuted. This measure entrusts the "Inquiry official" with a function similar to that of the law courts with criminal jurisdiction.
Judicial Independence and the Executive The interference
independence
has
been
of
judges
recognised
by
from
the
successive
executive Constitu-
tions. Further, the Judicial Services Acts provide that appointment, promotion, transfer and removal of judges shall be made by the King upon the recommendation of the Judicial Service Commission; and judges can be removed only on the ground of inability or misbehaviour. In practice the Minister of Justice puts forward these matters for the consideration of the Commission who has the last word.
The Judicial Service highest governing authority
Commission, which
is the
inside the Judiciary, consists
of eleven members, presided over by the President of Supreme Court, who is officio member, the Chief Judge of the Court of Appeal and the Under-Secretary of State for Justice are also ex-officio members. The other members of the committee
359
are four senior judges, who are elected for a term of two years by all members of the Judicial Service. By its nature, composition and method employed in performing its function, the Commission
is an administrative body
independent
from
the Minister of Justice. The system aims at preventing any interference of the Executive with the proper functions of the Judiciary .
The Minister
of Justice, having power
to make
orders and regulations for administration of justice, has no direct control or otherwise, on the members of the Judiciary. He is responsible for all the administrative work of the courts, and decides whether a new court should be established, or whether
new judges should be recruited. He may
also, on certain conditions request a judge in one court to sit temporarily
in another court. The Minister
provides
buildings
court
and
other
of Justice
facilities,
including
administrative staff for the courts.
To ensure that the Under-Secretary
of State for
Justice will not use his office to interfere with the Judiciary, it becomes a tradition that the person who takes this office
will
temporarily
be
transferred
from
the
Judicial
Service : and the approval of the Judicial Service Commission is therefore required by law for transfer. After a few
360
years he will be transferred back to the Judicial Service, having replaced by another
judge. The practice, it is be-
lieved, will provide an Under-Secretary with judicial spirit and experience, who will not do anything likely to be harmful to the prestige of the Judicial Service to which he belongs and is strongly attached. The justification of his appointment
to the Commission
is probably
that
he is the
person who is best informed as to the conduct and ability of all members of the Judicial service. Having no staff of its own, the Commission has to depend on the Under-Secretary of State for Justice.
To
maintain
the
judicial
independence,
every
Constitution of Thailand since 1940 has forbidden the establishment of a special tribunal outside the organization of the law courts to try any particular case. The application of an extraordinary procedure
with any particular case is
also prohibited. A judge may not be a member of any political party and he shall not take part in any political propaganda for the election of members of the National Assembly. It has also been a practice that the Judiciary has no duty to advise the Executive on legal problems which do not come before the courts in the ordinary course of litigation.
361
Judicial Control over the Executive The Thai Constitution
is founded on the rule of
law. The primary meaning of rule of law is that everything must be done according to law. Applied to the powers of Government, this requires that every
Government
authority
which does some act which would otherwise be a wrong, or which infringes a man's liberty, must be able to justify its action as authorised by law. Every power, i.e. e\/ery
act of
act which afflicts
governmental
the legal rights,
duties, or liberties of any person, must be shown to have a strictly legal pedigree. The affected person may always resort to the court of law, and if the legal pedigree is not found to be perfectly in order the court will invalidate the actions.
The Constitution of Kingdom of Thailand B.E. 2534 guarantee the right to sue the administrative organ which is the juristic person. In considering
whether
or
not the
administrative organ is the juristic person it is imperative to look on the Civil and Commercial Code. Section 68 of the Civil and Commercial
code provides,"A
Juristic person
can
come into existenece only by virtue of the provisions of this code, or other law. Section 72 of the code states that juristic persons are as follows:
362
(1) Public bodies are Ministries and Departments, Local Administration and Municipalities; (2) Monasteries; (3) Registered partnerships; (4) Limited companies; (5) Associations; (6) Authorized foundation.
The
Supreme
Court
held
in
the
judgement
No.
724/2490 that the Government was not a juristic person.
In appeal of the administrative decision to the courts, the aggrieved person may appeal within the provisions of law.
(a) Provisions
requires that the appeal
against
the decision to the higher authorities or commission is necessary before bringing the case to the court of justice.
Under some Statutes, a private individual who is not satisfied with a decision of public authority must carry an appeal to Commission or higher
authority
prescribed by
law before bringing the case to the court for review. In Revenue Code, the tax-payer may ask the court top revise a
363
revenue authority's assessment after having paid the amount and appeal to the higher authority prescribed by law before bringing the case to the court for review. In Revenue Code, the tax-payer may ask the court to revise a revenue authority's assessment after having paid the amount and appeal to the higher authority has been rejected.
(b)
No provision is made for filing any appeal
against the administrative decision.
Some statutes may not provide for judicial review, for
example, Act on the Undertaking
of Finance Business,
Securities Business and Credit Foncier Business, B.E. 2526.
Section 57 of the Bank of Thailand stipulates that "if the condition or operation of any company is such that damage may be caused to public interest, the Bank of Thailand shall have power to order such company to rectify the condition or operation in compliance with the standard and within the period of time prescribed by it; or if, after the Bank of Thailand has ordered that such rectification be made, the company does not take such action, the Bank of Thailand with the approval of the Minister shall then have power to order
the company
to remove
its chairman of the
Board, its directors or managers who are directly responsi-
364
ble for having caused the company's condition or operation to be of such a nature. In the event the Minister deems that the condition or operation of any company
is such
that
serious damage may be caused to public interest, the Minister shall have power to order such company to be placed under
control
1 icense
or
order
the
withdrawal
of
its
"
The Nationality
Act. B.E. 2508
condition of revocation of Thai
nationality
prescribe
the
in section 19
thus. "The Minister is empowered to revoke Thai nationality from a person who has acquired Thai nationality by naturalization if it appears that: (1) The naturalization was effected by concealment of facts or assertion of a falsehood in an essential matter; (2) There is evidence that he still uses his former nationality; (3)
He commits any act prejudicial
to the security or
conflicting with the interests of State; (4)
He commits any act contrary to the public order or good moral;
These provisions are not prescribed with conditions that the law courts have jurisdiction
365
to review the
administrative
decision. However, the Supreme Court held that the courts had power
to keep administrative authorities within
legal powers by declaring their ultra
wires
their
acts illegal and
void .
(c) Statutory finality In some statutes, the provisions are made
in a
statute by which the orders passed by administrative Commissions and other authorities are made final. For example, in section 50 of patent Act B.E. 2532 provides, "where it has been decided by the Director General that a license shall be granted to the applicant under section 46 or 47. the Director-General shall set forth the royalty and condition for the exploitation of the patent and the restrictions on the rights of the patentee and the applicant. If no agreement has been reached by the parties within the period by the Director-General, the Director-General shall fix the royalty and prescribe
the conditions and restriction
as he deems
appropriate .
The decision of the Director-General
made under
the first paragraph of the section is appealable to the Board within 8 days from the date on which such decision is received. The decision of the Board shall be final."
366
In the Labour relation Act B.E. 2518, section 24 provides. "When there is a labour dispute which cannot be settled
in any undertaking other than those under
section
23, if the Minister considers that the labour dispute which cannot be settled may affect the economy of the country or public order, he is empowered to order that the matter be referred to the Labour Relations Committee for decision within thirty days from the date the order is received. The decision of the Labour Relations Committee shall be final
Again, under
the
Rent
Control
B.E. 2479 the Rent Control Committee or
in Emergency
Act
its sub-committee
may allow the increase of a fair and reasonable rent, an appeal against such allowance to the Minister of Interior. In this regard. The Supreme Court held that the statutory finality will not affect the power of court to review the administrative pressly order
made
decision. Unlike for
India, provisions are ex-
filing appeals or
passed by administrative
revisions against
tribunals and
the
statutory
authorities and jurisdiction of civil courts is also ousted. The causes for review are as follows: 1 ) Review of the matter of fact In England, findings of fact are the domain where a deciding authority can fairly expect to be mastered in its
367
own house, provided only that the facts are not collateral or jurisdictional, the findings will in general be exempted from review by courts, which will in any case respect the decision of the body that saw and heard the witness or took evidence directly. Just as the courts look jealously on decisions by other bodies on the matter of law, as they look indulgently on their decisions on the matter of fact.
But the limit of this indulgence is reached where findings are based on satisfactory evidence. It is one thing to weigh conflicting evidence which might justify a conclusion either way. It is another thing altogether to make insupportable findings. This is an abuse of power and may cause grave injustice. At this point, therefore, the court is disposed to intervene.
In Thailand, the Court of Justice does not review in the matter of law. However, if it appeared to the court that the findings of fact is illegal, the court of Justice has power to review in the matter of fact.
2) Review
on
the
ground
of
procedural
require-
ments . Procedure is important. It can provide or fail to provide
protection
for
368
interests adversely
affected
by
administrative
action;
or
can
hinder
or
assist
efficient
administration. It must always remain within any
relevant
statutory limits.
It is very common for a statute conferring a power on a public authority to require it to follow a specified procedure. There may, for example, be a duty to consult, to ascertain the views of those affected, to hold a public inquiry. It must also be noted that a statute may well impose procedural objection as the party dealing with the administration as well as on the administration.
A statute
or
Statutory
rule, which
imposes a
procedural obligation may state what the effect is of failure to observe that obligation. But it does not generally do so. That means that it is upto the courts to say what will be the effect of such failure.
In
the
judgement
147/2521. according
of
the
to notification
Supreme
Court
of the Ministry
No. of
Interior on labour protection 15th April 2515 requires that the labour disputes arbitration must notify the accusation of labour disputes in writing. In this case the court held that
the decision of Labour
enforced
when
it complied
369
Relations Committee could be
with such
rules. Therefore
the
Labour Relations Committee did not notify the plaintiff to know the accusation
in writing, the court
revoked
that
decision.
(3) Review on unauthorised delegation of powers. In some cases, where function to a particular
statute
has entrusted
agency the function
should
a be
exercised by that agency and not delegated by it to another , which is known as the Principle dejegates gate
non,__prote.st
dele-.
in Common Law system.
In the judgement of Supreme Court No. 2072/2519, the plaintiff appealed that the decision of Labour Relations Committee was illegal because all the persons who were appointed as Labour Relations Committee did not come from the side of the employers and the employees. But there were retired authorities. The Court held that the decision was issued by the Committee legally.
Where the public bodies evade the compliance
of
its obligations, there is no doubt that the public bodies would be liable for breach of contrast or specific performance to the same extent as a private individual. For example, in the judgement
of Supreme Court No. 300/2515, the
department of Post and Telegraph
370
hired
the
plaintiff's
building. When the contract of
hire was extinguished at the
end of the agreed period, the defendant, the hirer, remained in possession of the building. The Court held that plaintiff could sue against defendant.
5)
Liability in Torts
Unlike
in India, the Parliament of Thailand
not enact the special statutes governing
did
the liability of
Government in tort.
Where public bodies shall be liable in any tort committed by employers or
administrative authorities, the
Civil and Commercial Code provides, as follows"-
Section compensation
76 A. Juristic
person
is bound
for any damage done to other
manager or other representatives
to make
persons by
its
in the exercise of their
functions.
Section 425. An employer
is jointly
liable with
his employees for the consequences of a wrongful act committed by such employee in the course of his employment.
Section 426, The employer who has made compensation to a third person for a wrongful act committed by his
371
employee is entitled to reimbursement from such employee.
The hindrance
to establish administrative
courts
in Thailand.
The main hindrance
leading to failure to estab-
lishing administrative courts in Thailand are as follows:
(1)
Misunderstanding of the principle of separa-
tion of powers.
The doctrine of separation of powers has emerged in several forms at different periods. Its origin is traceable to Plato and Aristotle. In the 16th and 17th centuries, French philosopher John Bodin and British politician Locks respectively had expressed their views about the theory of separation of powers. But it was Montesqieu who for the first time formulated this doctrine systematically, scientifically
and clearly
in his books'Tsoria
des Loia
"(The
spirit of Laws), published in the year 1748. Writing in 1748, Montesquieu said: "when the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be
no liberty, because
apprehensions
may arise, lest the
same monarch or Senate should enact tyrannical
372
laws, to
execute them in a tyrannical manner. Again, there is no liberty if the judicial power be not separated from the legislative and the executive. Where it joined with the legislative, the life and liberty of subject would be exposed to contrary control; for the judge would be then the legislator. Where it joined to the executive power, the judge might behave with violence and oppression."
According
to WADE
and
PHILIPS, separation
of
powers may mean three different things: (1) that the same persons should not form part of more than one of three organs of Government, example the Ministers should not sit in Parliament; (2) that one organ of Government should
not control or
interfere with the exercise of its function by another organ; (3) that one organ of the Government should not exercise the functions of another, example the Ministers should not have legislative powers.
But, in Thailand, it is understandable that ^there the legislative powers are vested
in the legislature, the
executive powers in the Government and the judicial powers in the court of justice since the first Constitution drafted. In fact, the regime of Thailand
37:
was
is parliamentary
system with two powers, such as the executive powers and the legislative powers, are vested in two organs and it can be said that a member of the Cabinet is appointed by the King under Section II and the petition councillors who are appointed by the King under Section 28. In addition, there is the official of the Judicial Council having as its duties the responsibility for the official affairs of the Judicial Council and especially the following powers and duties. (1) to be responsible for the administrative works of the Judicial Council (Council of State) and to carry out the study and to compile various data concerning the works of the Judicial Council (Council of State). (2) to provide assistance and advice in connection with legislative drafting to state agencies and state enterpr ises; (3) to consider and prepare draft legislation as entrusted by the Council of Minister or the Prime Minister and to submit recommendation on the need for new legislation or revision and amendment or the repeal of existing legislation ; (4) to give opinion or to carry out other works in connection with the law to State Agencies, State Enterprises, or as requested by foreign Governments or international institutions; (5) to coordinate with the office of the Regional Petition
374
Committee under Section 67 and to provide training for administrative officials and to prescribe rules on the performance of duties of such office concerning administrative works; (6) to monitor the performance of duties of State Officials after the Petition Committee has given its decision or Prime Minister in the capacity of the head of Government has issued an order under this Act; (7) to analyse the cause of the
Petitions, including the
principles of laws and rules and practices to be applied to the Petitions; (8) to publish important decisions of the Petitions Council or the Regional Petition Committee which are the basis of Public Administration for the purpose of dissemination, except where the matter is confidential affecting national safety or public interest, which should not be disclosed; (9) to make annual report on the result of the works and on the obstacles in the performance of duties of the Law Council, the Law
Reform
Commission, and
the
Petition
Council, for submitting to the Council of Ministers; (lO)to compile data on the Thai and foreign legal systems, and the Thai and foreign legal research works or other research works relating to law for the purpose of performing the duties under the Act.
375
In the office of Judicial Council, there is Secretary General of the Judicial Council, the superior official of the office of the Judicial Council, with the duties to generally supervise the performance of official affairs in its organ. He is appointed by the King if he,possesses knowledge and experience in law legislative drafting and public administration, upon the recommendation of Council of Ministers and with the approval of the House of Representative and the Senate respectively.
Law Counpji.llors ^Like Coqncll
d'Etat.
in France, the Judicial Coun-
cil has another important role in legal matters which are administered by the Law Councillors. Its functions are as follows: (a) to draft laws, bye-laws, rules, regulations or notifications upon direction by the Prime Minister pr resolution of the Council of Ministers; (b) to give legal advice to the State Agency or State Enterprise or upon direction by the Prime Minister or resolution of the Council of Ministers; (c) to submit opinions or remarks to the council of ministers on the need for new legislation or the revision and amendment or the repeat of existing legislation.
376
In its performance of dutie«5 «<=: mc.r.f ? ^ u V- VI uui_xtjs as mentioned above, the Law Councillors meet as a Committee, each of which consists of not less than three LawCouncillors. In case of important matters, it is brought before the meeting of the Law councillors which must consist of.not less than one-half of the total number of the Law Councillors, its decision on the matter under consideration take into account the necessity, possibility and scope of such legislation, the consistency with the principles of the law and provisions of the Constitution and other laws, the efficiency of administrative organisation and machinery for law enforcement, the impact which may.occur on the public administration, and the burden or inconvenience of the public or individual who will be subject to such legislation and sh«ll revise it so as to be appropriate. In the case where the Law CounQjiliors are of the opinion that any draft legislation is defective in respect of the substance of established principles or have an opinion contrary to or inconsistent with that of
the State
agency or private individual, it has the duty to correct the draft. The Law Councillors may submit opinion requiring the revision of such principle before proceeding further or may revise it in accordance with the above mentioned criteria and report to the cabinet for further consideration. The
377
decision on the matter under consideration is made by majority votes. Each Law Councillor has one vote; in case of tie of votes, the chairman of the meeting has a casting vote.
Recruitment of the Law Councillors A person who is eligible for appointment as Law Councillor shall be a person of knowledge and experience in law, political science, economics, social science, or public administration and posses any one the following qualification;
(1) serving or having served in a position not lower than a Director-General or equivalent; (2) serving or having served in a position not lower than a Supreme Court judge or its equivalent or a position not lower than a Supreme Military Court judge; (3) being or having been for not less than five years a Law Lecturer in a State educational institution at University level; (4) having been a law councillor under the judicial council Act., 8.E. 2476 (Council of State Act 8 .E . 2476); (5) possessing
knowledge in the work of and having worked
inlegislative drafting for not less than ten years and possessing experience and ability which are useful the work of the Law Councillors.
378
to
The Law Councillor .can hold office for a term of three years from the date of appointment, where a Law Councillor is appointed during the term of Law Councillors already appointed. not withstanding whether it is a new or an additional appointment, the appointee can hold office for as long as the term of office of the Law Councillor.
In addition to vacating office at the end of the term, a law councillor vacates office upon; a ) death; b) resignation; c) being imprisoned by a final judgement or a lawful order to a term of imprisonment except for an offence committed through negligence or a petty offence; d) being a incompetent or quasi-incompetent person; e) being a bankrupt.
2. Petition Councillors As mentioned
above, in judicial council Act, B.E.
2522, the judicial council follows the model of cc_uR£.iJ. d__'Et8t of France, especially its form of organization and powers and duties, Moreover, several French principles of administrative law are imported into the legislation as follows;
379
Beuffandeau. a former president of ContentJeu.,
Sec:Uon_,_cfu
described the principle aene.raux...dy._drail as;
'•Unwritten rules of law, which have legislative validity and consequently are binding upon the administration in the exercise of nouvoir
r.eg_lML^JltS.l.rj§. oi" administra-
tive discretion, in so far as they have not been overruled by some express legislative provision customary administrative law, as they have, for the most part, only recently been recognized by the administrative courts. These principles are really a creation of the courts inspired by ideals of justice ( e q u a l i t e ) in order to ensure the protection of the individual rights of citizen".
These principles may be compared with the English principles of natural justice { au_d_i eitaj,_am_m_aj:J,_em_ and freedom from bias) but, unlike English law, tratj_f
dra_it_sdminisz.
has refused to confine itself to restricted procedur-
al rules, and it has considered itself free of to recognize a new "general principle" when it consider this desirable.
Section 51 of the Judicial council Act, B.E. 25222 provides that the petition Council shall have the powers to recommend to the Council of Ministers for resolution pre380
scribing rules in the performance of official duties which bind upon the state agencies to perform such rules.
(2) Principle of Act du Government
It is enacted in section 20 (1) and (2) of the Judicial Council. B.E. 2522. that where the matter concerning the policy for which the Government is responsible to National Assembly, it is not under jurisdiction of the petition Council.
Powers and duties of Petition Council Under section 7 of the judicial council Act, B.E. 2522 the petition Council has the following powers and duties; (a) to consider petitions under the provisions of this act; (b) to submit opinion to the Prime Minister that an order relating to local administration may be issued under section 27 of this Act; (c) to consider appeals on the point of law against decisions of committees established
under other laws sub-
jects to the Royal Decree allowing appeals against the decisions of such committee to the petition Council; (d) to report on the implementation of the order procedure for the Prime Minister to take in case the implementa-
381
tion thereof has been ineffective; (e) to submit recommendations to the Council of Ministers in order for a resolution of the Council of Ministers to be passed prescribing rules on the performance of official duties under section 51; (f) to submit opinions and remarks under (1) (c) of this Act. (g) to carry out duties of law councillors under section 40; (h) to carry out duties as prescribed in the provisions of other laws.
Appointment of Petition Councillors The King may appoint Petition Councils, upon the recommendation of the cabinet and with the approval of House of Representatives and the Senate respectively,. In case the National Assembly is unicameral, approval of such Assembly is required.
A person who is eligible for appointment as petition Councillor shall be person with knowledge and experience in law, political science, economics, social science, or public administration and shall possess any one of the following qualification; (1) having been a law councillor years;
382
for not less than two
(2) having
been a petition
councillor
under
the Petition
Act, B.E. 2492; (3) Serving or having served for not less than two years in a position
not lower
than Supreme Court
Judge or
its
equivalent or a position not lower than a Supreme Military Court Judge; (4) serving or having served for not less than three years in a position not lower than a Director-General or its equivalent; (5) being or having been for not less than six years a lecturer
teaching
Constitutional
Law,
Administrative
Law, or other subj'ect relating to public administration in a State educational institution at University level; (6) having experience in Public Administration for not less than ten years; that is, in accordance with the rules prescribed in the Royal Decree. The person who has been appointed
a political
office, member of a local assembly, executive member or person
responsible
for
the
administration
of a political
party, or person engaging in occupation or profession which conflicts with his performance of duty
of the
Petition
Council. A petition councillor falling within the prohibital specification shall vacate his office.
383
The Petition Councillor can hold office for a term of three years from the date of appointment, and an outgoing Petition Councillor may be reappointed due to prerogation of the National Assembly, the expiration of term or of the House of Representative, or for
other
dissolution causes, the
Petition Councillors whose term expire at such period shall continue to perform their duties until the new petition Councillors are appointed.
The Petition Committee has the following powers; (1) to issue a letter of inquiry to a State official concerned requesting the State agency or State official to explain facts or opinion on the performance of official duties of the State agency or State official concerned. (2) to require a State agency concerned to send materials, documents or other evidence relating to the case or to send a representative or State official attached to such State agency
to furnish explanation or statements for
the consideration of the Petition Council. (3) to issue a written order
requiring
the petitioner
to
produce evidence for the consideration. (4) to issue a written order requiring any person concerned with the petition to give his statements or produce evidence for consideration.
384
The Regional Petition Committee In any locality where the number of petitions submitted is considerable and it is appropriate to consider the petitions in that locality on a permanent basis, the Secretary-General of the Judicial Council may submit a recommendation to the President of the Judicial Council for the establishment of a Regional Petition Committee. The regional council have the following powers (1) to consider the petition in the area within its jurisdiction . (2) to carry out any work on behalf of a Petition Committee as entrusted by a Petition Committee. (3) to carry out duties as prescribed in the provisions of other laws. The performance of duties of the Regional Petition Committee must be in accordance with the rules of the Petition Council, and by such rules the Regional Petition Committee may be entrusted with the power to prescribed rules.
Appointment of Regional Petition Councillor A person who is eligible for appointment as regional petition councillor shall be a person with knowledge and experience in law, political science, economics, social science, or public administration following qualifications.
and possessing any one of the
(1) possessing any one of the qualification under section 30 (1) ( 2 ) , or (4) of the Judicial Council Act, B.E. 25221. (2) having been a Mayer, Local Councillor, member Local Assembly or Local administrator
of the
in the position
specified in the Ministerial Regulation; that is. either one or several positions for a consecutive period totaling not less than four years. (3) serving or having served as the petition Commissioner attached to a Petition Committee. (4) Serving or having served in a position not lower than a Chief Judge of Changwat or
its equivalent or Military
Court Judge. (5) serving or having served as chief of a regional administrative unit in the position as specified in the Ministerial Regulation for a period totaling
not less than
three years, or being or having been a local official in the position as specified in the ministerial Regulation for a period totaling not less than five years. (6) being or having been for not less than four years as lecturer
teaching
Constitutional
Law,
Administrative
Law, or other subjects relating to Public Administration in a State educational institution at University level. (7) having experience in Public Administration for not less than six years; that is, in accordance with the rules prescribed in the Royal Decree. 386
The Regional Petition Councillor shall hold office for a term of three years from the date of appointment and may be reappointed. It is noticeable that there is no any establishment of the Regional Petition Committee in the present time.
Procedure in the Petition to the Councillors 1. Commencement
of
Proceeding
The Judicial Act, B.E. 2522 guarantees the right complaint in section 18 which provides that every person has the right
to petition
the petition Council
in accordance
with the provision of this Act, However, this submission of petition under this Act does not adversely affect the right to petition which such person has under any other laws. And members of the Armed Forces or the Police Force who wish to submit petition concerning the military services or the police service, must-comply with the laws, bye-laws or regulations on such matters.
The matters which the Petition Council may consider have the following Characteristics: (1) it is a matter which the petitioner has suffered injury or damage or may suffer injury or damage which in unavoidable; and 387
(2) the injury of damage under (1 ) is the consequence of the act or omission of a State official; (a) neglecting
or failing
to perform
the duties as
prescribed by laws; (b) delaying the performance of duties for unreasonable period; (c) acting beyond the scope of his duties or in conflict with or contrary to the law; (d) failing to follow the steps or procedure prescribed by law for such matter; or (e) acting dishonestly or without justifiable reasons.
Important exceptions The following petitions shall not be accepted for consideration; (1) a petition of the nature which directly concern the policy for which the Government
is responsible
to the
(2) a matter which the cabinet or Prime Minister
in the
National Assembly.
capacity
of the head of the Government
has given
the
final decision. (3) a matter which a court proceeding has been instituted or which the Court has given the final judgement. (4) a matter
for which all means of seeking redress pre388
scribed by law for the injury or damage caused have not been exhausted. (5) a matter which the Petition Council has given its final decision, except the case in which new evidence has been discovered as prescribed under section 50.
The petitioner may re-submit a petition which has been finally
decided
by the Petition
Committee
for
review within five years from the date of the decision, if he can prove to the satisfaction of the Petition Committee that new evidence has been found which would alter the case on facts on which the Petition Committee had based its final decision. (6) a matter which the petitioner has omitted in his petition under
section
46. Section
46 provides
"If the
petitioner, after having received a written notice from the Petition Committee requiring him to appear and give statements and other relevant evidence, fails to comply with the notice within the time prescribed by the Petition Committee
without
any
justifiable
Petition Committee shall have the power such petition from its petition list
reason, the to dispose of
"
(7) a matter for which the prescription period has elapsed, subject to the conditions under section 23. In filling the petition, the petition shall;
389
(1 ) have name and address of the petitioner (2) specify
cause
leading
to the submission
of the
petition together with the facts and circumstances. (3) be written in polite and courteous language (4) have signature of the petitioner; if the petition is submitted on behalf of another
person, then the
document of authorization for such act must also be attached.
The petition
is submitted
to the
administrative
unit of the petition Council or may be submitted to any petition counciller or any regional petition councillor or the Chahgwat Governor, NaiAmphes, Kamnen, Phuysi Ban, or any official of the Petition Council under section 65 for further submission to the administrative unit of the Petition Council and sent by registered post and, for the purpose of counting the prescription period under section 23, for the posting date of the petition shall be deemed to be the date the petition was submitted. Any Government office having received a petition may, if it is of the opinion that the petition is within the competence of the Petition Council , send such petition to the petition Council tion .
390
for considera-
The submission of a petition shall be made within ninety days from the date the petitioner
knows or ought to
know the cause leading to his petition, or from the date after one hundred and twenty days from the date the petitioners sent a letter requesting State Officials to perform the duties as prescribed by law and not having received any explanation from such State Officials or having received one but which is an unreasonable explanation, as the case may be.
The Petition petition which
Council
is submitted
may
after
proceed
to
consider
the prescription
a
period
has expired, if the Petition Council is of opinion that the case will be for the public benefit or raises an important issue which ought to be resolved, and submit it to the Prime Minister in order that appropriate directive may be issued.
The proceeding is divided into three stages (i) Investigatory Stage (a)
When the Office of Judicial Council obtains the petition, the Secretary-general
of Judicial Council may
assign one of the secretaries of Petition Commission to investigate concerning
and summarise the petition
sions of law.
391
the matter
of fact and
law
in accordance with the provi-
(b) Where Secretary-General
is of the opinion
that the
petition does not comply with section 18 or section 21, he may
reject
the petition. And
the petitioner
who
disagree with such directive can appeal to the President of Judicial Council.
The Secretary of Petition Commission must examine the petition as to whether
it is in accordance with the
powers of the Judicial Council
and the Rules of Petition
Council or not, if the petition is patently defective, he may notify the petitioner to amend it.
Where the Secretary of Petition Commission is of the opinion that the petition complies with the provisions of law, he may send it to the Secretary-General and a copy to the concerned state agency. The concerned
state agency
must submit an answer which would furnish explanation on the issues raised by the petitioner, within fifteen days from the date of receiving such copy. If need be, the State agency may request the Office of the Judicial Council, in writing
to extend
the time-limit
to not
less than
ninety
days.
After
the secretary
of Petition
Commission
col-
lects the fact concerning the petition, he will consolidate
392
the facts and the provisions of law concerned in the summary record and submit to the Secretary-General.
( ii) Trial Stage The consideration of petitions shall be completed without delay, but adequate opportunity
shall be given to
the petitioner State official or State agency concerned has to furnish explanation or evidence to substantiate such explanation.
In considering petitions, the petition councillors have freedom in expressing their opinion. The petition councillors meeting as a Committee, each of which performs the duties in the name or the petition Council, and each of which shall consist of a Chairman and at least four petition councillors.
In case an important legal matter
or the conse-
quence of a decision of the Petition Committee would affect the administration of public affairs which have adverse effect on the public or the Government administrative system as a whole, the petition councillors in the Committee considering such petition
or
the Secretary-General
of the
Judicial Council may request that the meeting of the Petition Council be held to consider such matter
393
In considering petitions, if the petition Committee has decided that: (1)
the petition under consideration is not within its competence under section 19 or section 20, the SecretaryGeneral
of the Judicial
council
will dispose of such
petitions. In case the petition councillors who are members of the Committee consider such petition or the Secretary-General opinion
that
such
of the Judicial Council petition
contains
is of the
problems
which
should be accepted for consideration, such petition may be submitted for consideration of the Petition Council. (2)
In case there are issues indicating
that there is
corruption or official misconduct or there is
BLIMM
.f.§.Q..L€ case of a criminal offence or breach of discipline, the Petition Committee notifies the office of the Commission of Counter corruption, inquiry official, or the superior of the person under suspicion, for further action .
Additionally, while considering petitions, if the petition Committee deems temporary
remedial
measure
it appropriate or
process
for
to prescribe a the
petitioner
pending the decision, regardless of whether or not there is a request from the petitioner , the Petition Committee may sent its opinion on the action to be taken and the reason to
394
the Secretary for further submission to the Prime Minister in the capacity of the head of the Government t^ithout delay, if the Prime Minister agrees with such submission, the Pri me Minister may order such remedy
in accordance with hi
s au~ thority under the law on State Administration and other laws as he may deem appropriate.
In considering petitions, there commissioner
who
is
responsible
for
is a petition
investigation
of
the
facts in each case and has duties to summarize the facts, the provisions of laws concerned, and to submit his opinion on the case to the Petition Committee for consideration. The record is submitted to the Petition Commission when the trial is complete.
(3) Decision Stage The decision of Petition Committee must be in accordance with the opinion of the majority of the petition councillors in such committee. If any petition councillors has adissenting opinion, he has the right to record his dissenting opinion in the decision of the Petition Committee .
The decision of Petition Committee contains the following: (1) name of the petitioners;
(2) cause of the petition; (3) factual details of the petition; (4) reason for the decision; (5) recommendation to the Prime Minister in the capacity of the head of the Government
to issue orders for
remedy under section 48 which recommendation
the
specified
clearly as to what order the Prime Minister should issue in such case; (6) recommendation or other remark concerning the prescription of rules on the performance of official
duties
under section 51 , the enactment of new legislation or the revision
and amendment
or
the repeal
of
existing
Committee
must be
legislation.
The decision
of
the
Petition
signed by the petition councillors participating
in the
consideration of such petition.
Under
the
Judicial
Council
Act, B.E. 2522, the
Petition Council has power to recommend to the Cabinet for a resolution prescribing rules on the performance of official duties as follows: (1) Prescribing the steps and procedure which State officials must comply with before issuing an order, permit, preliminary
decision or final decision under
396
their
statutory powers and duties; (2) prescribing the order, per.it. preliminary decision or final decision of a State official
in connection with
the rights or duties of a person or which is important to the performance
of an official
duty
appropriate
statement and reasons. (3) prescribing any bye-law, rule, regulation, notification or order lished
which applies to the general
in the Government
public
Gazette prior
be pub-
to its coming
i nto force .
In
submitting
such
recommendation, the
Petition
Council may take into account the efficiency in the performance of official duties, the responsibility
of officials
who act on behalf of the State in providing public services for benefit of the public as a whole, rights and duties of individuals relating understanding
between
to
the
members
Government of
authority
the public
and
and
the
official
acting on behalf of the State.
After the Petition Committee has reached a decision on a petition, the Secretary-General
of the Judicial
Council shall submit the decision to the Prime Minister as soon as possible, but not longer than seven days from the date of the decision. After having received the decision of
397
the Petition Committee, the Prime Minister may issue necessary order without delay. In case the Prime Minister agrees c.ith the decision, either
dis-
in whole or in part, the
Prime Minister shall have the power to issue an order that he does not agree with the reasons.
Where there is a recommendation of the Petition Committee as mentioned above, the Prime Minister
in the
capacity of the head of the Government has power to issue any of the following orders; (1 ) in case a State official neglects to perform his duty or unreasonably
delays preforming
his duty, to order
the
head of State agency concerned to take measure to ensure that the State officials under him perform the duty within the prescribed time and with the rules. (2) in
case a State official acts beyond the scope of his
duty or act contrary to or inconsistent with the law or fails to act in accordance with the steps or procedure prescribed by law for such matter or acts dishonestly or without justifiable reason, to order the revocation of such act or to order the responsible officials to revoke such act; (3) in case of emergency
and
necessity, not
withstanding
whether it is a case under (1) or ( 2 ) , to issue a new order
or an order
rectifying
398
the act of
the State
official .
In submitting
the recommendation
to the Prime
Minister for the issuance of order under case as mentioned above, the petition Committee shall clearly give the reason and evidence substantiating the recommendation, if it is the case for Prime Minister to issue an order under ( 2 ) , it shall clearly state whether
or
under
order
what
conditions
such
not and to what extent or will
have
effect. If it is the case for Prime Minister
retrospective to issue an
order under ( 3 ) , it shall be clearly shown to the Prime Minister that issuance of a new order or an order rectifying the act of the State official shall
include
the effective
is urgent and necessary and
date and conditions
for
such
order. In addition, in the case for the Prime Minister to issue an order under ( 4 ) , the Petition Committee must also consider whether or not and to what extent the issuance of a new order rectifying the act of the State official by the Prime Minister might affect the direct responsibility of the official concerned affecting the State administration.
A study of the structure, powers and functions of the Legislature, Executive and Judiciary in the context of the constitution of 1992 will
not be projecting
the true
nature of the Thai polity. It is imperative to understand
399
the people
of
given. This tion
does
Thailand
for
is significant
not make
any
whom
constitutional
because
the
distinction
rights
1992 Thai
between
are
Constitu-
a Thai
natural
citizen and a naturalized Chinese migrant. The ethnic groups in Thailand were not vested
with all the rights which w« jer e
conferred as the King's subjects, before 1992.
Thailand's administrative system bears the mark of her modernising
King's and Princess of the
late
nineteenth
and early twentieth centuries. Entry into the civil services is by examination, administrative courts cover much official behaviour Modern
and
most
state
administrative
outright
forms
sale of office
functions
employees
as practiced
or
are
directly
in
Thailand
the
farming
in the
also out
seventeenth
salaried
and
prevailed.
more
Such
beyond
traditional
differences
discover
such
formal
the broader
the
century
courts
reflect
twentieth
similarities
revenue in Eng-
official
Thailand's
seldom conduct
adoption
of
the West and we must
century
impediments
in the use of office
the exercise of informal power.(12)
400
of
the
revenue farm-
in Thailand, officials were
legal and administrative devices from look
preclude
of
land. Prior to the twentieth century, however ing was common practice
salaried.
to and
In
contemporary
Thailand
the
business
elite
is
largely Chinese, not Thai and thus for ethnic reasons formal positions of authority are seldom open to them. Instead members of the Chinese Commercial Community have established fairly stable relations with individual clique leaders in the Thai military and bureaucracy advance their
in order to protect and
entrepreneurial concerns. Many of the trans-
actions that provide the cement for these informal coalition are quite
illegal, but the relationships
are, of course,
enormously rewarding for members of Thai bureaucratic elite who oversee
the
licensing
and taxing of enterprises. De-
prived of the privilege of outright office holding, Chinese businessmen in Thailand have nevertheless managed quite well albeit through corruption- to share quite falsomely in the decision which affect them. ^•^•^•'
Thai politics since the revolution of 1932, when the monarchy was shunted aside as the central ruling institution, has centered
around
the power
struggles of small
military-bureaucratic cliques. The limited
"circulation" of
elites that has occurred has followed on the hills of couj?, de_EtaA
confined largely to Bangkok and distinguished both
by narrow range of participation and by a lack of bloodshed. The scenario of these coups was so standardised as to have become virtually and institutionalised means by which rival
401
military civilian coalitions achieved power.
Just as the military
is the chief
institution
during the transfer of power, the bureaucracy is the chief institution in the day to day exercise of power. Collaboration between the two is reflected in the fact that a majority of the members of the ruling cabinets between 1932 and 1958 had bureaucratic backgrounds^ ^'^ ^. The small thin stratum of about one thousand person at the very apex of the social pyramid from which cabinet members are characteristically drawn is no larger, and perhaps even smaller
than
comparable stratum from which the ruling elite was recruited in early Stuart England. Although this Thai elite is drawn from a wider social base than was the case in aristocratic England, the game of politics in both system is nevertheless confined to a very large following from the base of the social
pyramid
^ 1 ^ ^ . The peasantry
comprising
80% of the
population, remain largely quiescent. It is composed largely of independent small holdings rather than debt-ridden tenements and it is not yet much affected by elite mechanisations in Bangkok. Both politically and economically Bangkok is tied to its rural hinderland only in a most tenuous way. As long as relative security peasants continue
and adequate subsistence of
to that small
sector
of the population
that is directly affected. Since 1932 there has been a
402
National Assembly. Except for brief periods its main function has been to legitimize the existing elite's claim to rule. Until atleast 1970 there were no real political parties to organize
the competition
and define
issues. Many
members of the Assembly were appointed and Government patronage and intimidation sufficed to keep most of them in line. Although Thailand also has secondary associates such as citizen groups and trade unions, most of the groups are personal creations of Government official and act as appendages to the clique structures in the administration ^^^^. Thus the existence of an Assembly and secondary associations do
not
impede
the
domination
of
military-bureaucratic
cliques.
The weakness of these institutions simply reflects the fact that there are no independent, cohesive centres of power outside the Government that could provide a base of operation for them. The outcome of the clique struggles that dominate
Thai
politics
depends
overwhelmingly
on
control
over key units of the military and the bureaucracy popular
or
parliamentary
support
counting
for
with
little. In
such a non-electoral system, the scope of political conflict was narrowed to that small elite's stratum which demands the financial, administrative and especially the coersive sinews of the state. How is political competition structured within
403
the narrow confines of the Thai political elite?
The unit
of competition is the personal clique organised according to the Patron-client model; these cliques are not motivated by policy or ideological differences but are rather concentrated around a more or less amoral quest for power and spoils. In Thailand the clique represents a kind of pyramiding of patron-client
ties. Being an informal
network of vertical
personal ties a clique is particularly dependent on leadership for its stability. The weakness of formal standards of procedure (e.g. Selection, Promotion) makes personal security contingent upon personal alliances. In addition, the fact that political competition
is confined to a narrow fairly
homogeneous elite with few ideological or policy differences means that cleavage within the elite is more often determined by clique allegiances than by impersonal or categorical ties
^^'^K
The personal bond between patron and client may spring from a variety of reasons such as family ties, the personal
links between military
or bureaucratic
superiors
and their subordinates, the affection of students for their teachers, childhood
friendships, school
ties or
perhaps
more utilitarian motives of mutual profit or gain.
The main basis of patronage in Thailand is Govern-
404
ment employment, either civil or military. There is no group of landed magnates who could
assemble
large
followings
independent of the Government. Maintaining a sizeable clientele in Thailand depends on manipulating powers of office. In particular
a strategically
placed patron can
influence
the promotion and assignment of his followers, can provide them with financial opportunities through state enterprises and can use his discretionary
decision making powers to
attract new allies. The clientele of an upwardly
mobile
official is likely to expand at a rate commensurate with his growing capacity to distribute rewards.
Beyond the all-two-human desire to become rich and reward friends, it is the clique structure of elite-based politics that promotes corruption and patterns it in certain ways. Within ruling elite, cliques
as the units of politi-
cal competition, are created, maintained
and
expanded
manipulating the prerogatives of state offices in order
by to
attract and hold powerful allies. Some of these manipulations stay within the bounds of legality; much of it however, is distinctly corrupt. The distribution of high posts, financial opportunities and Government controlled privileges represent the major stakes of political competition and also provides
the
^ ^®-* .Corruption
adhesive
agent
inevitably
405
for
competing
cliques.
results when the political ne-
cessity of these distributive process clashes with
forn^al
regulations. Such corruption must be viewed, not as random greed, but as the consequence of a narrowly elitist political order that encourages clique-conflict over the spoils of office- a conflict that is unchecked by any extra bureau-
cratic
forcesS^'^\
Administration as politics The elitist clique-based nature of the Thai ruling class has meant that "the fundamental questions of politics have revolved around political status-how shall the rewards of goods, prestige and power be distributed ruling class ^^^^",
within
the
This struggle is not found in electoral
contests or legislative battles, but in the civil and military administrative apparatus. Cliques serve as the "political parties" of an oligarchic order, in that they are liance network of office holders whose political the bureaucracy. A cabinet minister
al-
arena is
thus becomes a clique
leader with a constituency that is composed of his subordinates and other office-holders with whom he has close personal ties. His success can be gauged by how well he protects and advances the particularistic
interests of his
clients. In this sense the transfer of a particular agency or function from one ministry to another, or a shift in relative shares of the administrative budget, signifies the
406
outcome of a political struggle between cliques rather than an administrative decision designed to make the bureaucracy more efficient.
There
is thus as much politics in Thailand
as
anywhere else. The difference is that most of it is located in administration^ ^•'-^. Uhereas the Legislature is often the main stage of politics in the industrialised west, with parties and interest groups as the main actors, in Thailand the bureaucracy is the stage of politics and clique are the main actors.
According to James Scott ^^^•>,
"A bureaucrat's in-
fluence and connections are more decisive for his success than his administrative skills or his technical competence It also helps explain why loyalty is more highly rewarded than the ability
to make
"technically" correct decisions,
and why , especially at higher echelons merit or seniority criterion are less influential for career success than the quality of one's personal alliance network. In a political arena
it is scarcely
connections over
and
surprising
political
administrative
loyalty
that power, influence, should
take
precedence
skill, training and experience. Or to
put it differently. There are no basic structural distinctions that would lead us to expect a markedly
407
different
pattern of politics and corruption
in Thailand
than in
early Stuart England".
"The basic building blocks of a clique are personal ties between individuals. For an ambitious Thai Military or Civilian official the problem is how to assemble a loyal and well placed clientele that will protect him and extent his influence. In piecing together a following larger than merely his closest friends; moreover against
other
potential
the official competes
patrons attempting
clienteles of their own unless the patron
to
mobilise
is so powerful
that he overshadows his rivals, he must offer
competitive
tangible inducements to attract new followers. Here is where corruption enters, since these inducements may take the form of political promotions, opportunities for profits or the promise of such benefits. Although many
rewards, (e.g.
promotion assignments etc.) can be granted within the law, others violate
even
the
relatively
permissive
Thai
legal
order. Thus the diversion of the public funds, management of state enterprise, and kick backs from Government contracts are a natural part of cl ique-building^'^ ^ .
As a political
arena, the Thai bureaucracy
is
highly personalistic . It is impossible to discuss the high incidence of nepotism
and personal
408
favouritism
in Thai
administration without reference to the personal
nature of
authority relationships.
"The influence of a particular not simply a function of how his post
Thai official is in the
is
formal
organisation of Government. His standings depends just
as
heavily upon the quality of his personal connections with other holders and the strength (not just numerical) of his own clientele. Thus behind the formal system of bureaucratic ranks lies an equally elaborate but
informal system
of
personal status that often serves to undermine formal authority. "<^24)_
Seized with the constitutional, political, ethnical and
the bureaucratic-power
clique
background,
let us
examine the laws and the institutions set up for control of corruption and maladministration
in Thailand.
Counter Corruption Act. B.E. 2518 (1975 A.D.) Efforts to certain corruption and maladministration in Thailand commenced more than 700 years ago. It was written in the stone inscription, dated back to our first city state Sukhotai, that any citizen who was wronged by the State officials could ring the royal bell and have
his
grievance redressed by the King. This inscription has been
409
regarded by many to be our first Constitution.
From the great revolution of 1932 until the present day at least nine Governments have had the institutions set up to prevent corruption and maladministration as one of their major policies, but without any significant The office of the Auditor
result.
General which was to have an
effective check on the Government's spending was reformed and finally dissolved
for various reasons. It was in 1975
that a piece of Legislation was enacted by the Thai Parliament. The law is
Counter
Corruption Act B.E. 2518 (1975
A.D. )
The Counter Corruption Act B.E. 2518 was given the royal assent on the 14th day of February. B.E. 2518, being the 30th year of the present Regime.
"Whereas it is expedient to have a law as counter corruption; Be it, therefore, enacted by the King, by and with the advice and consent of the National
Legislative
Assembly, acting as the National Assembly, as follows"reads the Preamble. This Act came into force from the day following the date of its publication in the Government Gazette, V o l . 9 2 , Part March.B.E. 2518
410
5 2 , special
issue
dated
3rd
The commission There shall be the commission of Counter Corruption called
C.C.C. in brief consisting of the chairman and
not less than five but not more than nine members with the Secretary-General as a member and secretary ex officio.
The Chairman and members shall, with the approval of the Senate and the House of Representatives, he appointed by the Royal Command from persons of integrity and having knowledge and experience in various branches of learning or affairs/25)
The chairman
and
members
shall
not be Senator,
members of the House of Representative, manager, director, advisor, agent or employee of any person, partnership, company or organisation which carries out its business for profit/^^\
The chairman and members shall hold office for a term of two years and may be re-appointed for another term but not more than two consecutive terms.
In the case where the term of the chairman or a member expires during the prerogation of the National Assembly, the expiration of term or dissolution of the House of 411
Representatives, such term of office shall be extended
to
the first meeting day of the succeeding session of" the National Assembly . ^ ^'^ \
Vacation of office In addition to vacating office at the end of the term under
section 6, the Chairman or a member
vacates
office upon1 . resignation 2. being removed from office by Royal Command with
the
approval of the Senate and the House of Representatives; 3. being a bankrupt 4. being an incompetent or quasi incompetent person 5. being under any prohibition under section 5. 6. being imprisoned by a final judgement except for a petty offence or offence committed through negligence When
the chairman
or
a member
vacates
office
before the end of term, another person may with the approval of the Senate and the House of representatives, be appointed by the Royal Command. In such case, the appointed chairman or member shall hold office only for the remaining term of his predecessor .^^ ^.
At a meeting of the Commission if the Chairman is unable to attend or is not present, the members present
412
shall elect one among themselves to preside over the meeting.C29)_
At each meeting, the presence of
not
less than
one-half of the total number of members shall be required to constitute the quorum.
The decision shall
be by majority
of votes. In
casting votes, each member shall have one vote; in case of a tie the chairman
shall
cast
another
vote
as
casting
vote.(30)
Duty of the Commission There shall
be the office of the Commission of
Counter Corruption called
"O.C.C.C", in brief, having
the
duty to implement the resolutions of the Commission and perform other administrative duties.^
'.
There shall be Secretary General of the Commission of Counter Corruption having the duty of general supervision of he official functions of the office of the Commission of Counter Corruption and there may also be a Deputy Secretary General
to assist
him
in the performance
duties .
413
of the official
The
appointment
of
the
Secretary
General
shall
require approvals of the Senate and the House of Representat i ves(32)
The S e c r e t a r y G e n e r a l and d e p u t y S e c r e t a r y may
not hold 33 )^. years*^( ^-^
office
for
more
than
four
General
consecutive
Duties of the Commission The Commission shall have the duties as follows: 1. to submit measures for Counter Corruption to the Council of Ministers; 2.
to submit
to the Council
of
Minister
for
consideration
and order that any Governmental office, state agency or state
enterprise
official
attached
corruption accordance
be
required
thereto,
to declare with
such
to
who
instruct
has
his assets
been and
any
state
suspected
of
liabilities
in
particulars, procedure
and
within
there
is an
such time as it thinks far , 3. to investigate allegation
or
and
inquire
into
a reasonable
facts when
cause
to
suspect
any
state
official of corruption; 4. to submit recommendation to the Council of Ministers for the purpose
of revising
the
performance
of
official
works or devising schemes of works and projects of the
414
Government agencies for counter corruption; 5. to submit within
a report on performance of official dutie
its
jurisdiction
together
with
remarks
to
s the
Prime Minister, President of the Senate, and President of the Huse of Representatives within October
of each
year and publish it later in the annual report .<^ ^ ' ^ ) . Powers of the Chairman In the performance of duties under this Act, the Chairman or member entrusted by the chairman shall have the powers as follows: 1. to inquire in writing from any Governmental office, state agency, or state enterprise any fact in respect of the performance of official duties or any work; 2. to issue summons requiring a person involved in a case under" investigation or inquiry to give statement or deliver
any account, document
or material
which
is
necessary for the inquiry, for supplementing his consideration, or to instruct such person to give statement, deliver
any account, document
or material
which
is
necessary for the inquiry, to the official entrusted in writing for this purpose. A summons shall be served between sunrise and sunset or sent by registered post dressee .
to the domicile or office of the ad-
In a case where the summons is delivered by hand, if the addressee is not found, the summons may be given to any person who is over twenty years of age and resides or works in the house or office of the addressee^^^^
The Commission may appoint
a sub-committee
to
conduct an inquiry or carry out any matter as entrusted by the "Commission" .
In a case where a member of the Commission or a member of a sub-committee has direct or indirect interest in any matter, he shall not take part in the investigation or inquire into such matter (36)
The Chairman, members of the Commission, members of sub committee, and officials shall declare their assets and
liabilities to the Prime Minister
such particulars, procedure
in accordance
and within such
with
time as pre-
C 3 7 •)
scribed in the Ministerial Regulation.^
In conducting an inquiry under
this Act, if the
Commission is of the opinion that there is a reasonable ground to suspend
the alleged State Official, it shall
report its findings to the Council of Ministers for consideration. If the Council of Ministers is of the opinion that
416
he should be suspended, the superior official of the alleged person shall implement the opinion of the Council of Ministers forthwith.
When it appears from the inquiry that there is a Prima
Fac_ie case in the findings, the Chairman shall refer
the file to the superior
official
of the alleged
State
Official for disciplinary proceedings within seven days from the date of completion of the inquiry and the Chairman shall then report the matter to the Prime Minister.
If the case
constitutes
shall also be referred
a criminal
to the inquiry
offence, it
officer
within
the
period under paragraph one.
After
having
one, the superior
received
official
the
file
under
of the alleged
state
paragraph official
shall take action within 15 days from the date of receiving it.
Any action carried out by the inquiry under paragraph
two or by the Superior
officer
official of the
alleged State official under paragraph three shall be reported to the Chairman (38)
417
If there are circumstances showing that any State official has become unusually wealthy, the Commission shall conduct an inquiry and shall have the power to instruct him to declare his assets and liabilities according to such particulars, procedure and within such time as the Chairman may prescribe. If it appears from the findings of the Commission that such person is unusually wealthy and he cannot show that his wealth has been acquired legitimately, it shall be considered that he has abused his power and duties and
the Commission
shall
report
its findings with recom-
mendation to the Prime Minister for an order of dismissal.
The resolution
of
the Commission
as to whether
such person is unusually wealthy must be carried out by atleast two-thirds of the number of its members. 4
As for all the properties which the Commission has decided that they constitute the unusual wealth the Public Prosecutor shall apply to the court for a decision that such properties shall vest in the state unless such person can prove to the court that he has acquired them
legitimately
and the Civil Procedure Code shall apply mMtaJJ^s__MyA§.ndIs to the case-^^^*^^
In the case where the state official
418
under
the
inquiry under section 20 is a Judicial Officer under the law on Judicial Service, the Commission shall report its findings with recommendation to the Judicial Service Commission for proceedings under the law on Judicial Service /'^O ).
In the performance of duties under
the Act, the
Chairman, members of the Commission, members of sub committees and officials shall be officials under the Penal Code. (41)
For the execution of this Act, the Council of Ministers shall have the power to order State Officials to declare their assets and liabilities in accordance with such particulars, procedure and within such time as prescribed in the Royal Decree.
Any person who fails to give statement or deliver account, document or material as instructed under
Section
14(2) shall be liable to imprisonment for a term not exceeding six months or to a fine not exceeding ten thousand Baht or both.(^2^
No person shall disclose any statement, fact or data acquired in the course of performance under this Act, unless it is authorised by the Commission or made in the
419
course of performance of official duties or for the purpose of inspection or inquiry / "^-^ \
Any person who violates the provision of paragraph are shall be liable to imprisonment for a term not exceeding six months or to a fine not exceeding ten Thousand, Baht or both.
The Prime Minister shall have charge and control of the execution of this Act and shall have the power
to
issue Ministerial Regulations for the execution of this Act.
Such Ministerial Regulations shall come into force upon
their
Royal
Decree
publication in the
on Declaration
Government
Gazette.
of Assets and Liabilities of
State Officials B .E .2524(1981 A.D.) By virtue of Section 159 of the Constitution of the Kingdom of Thailand and Section 23 of the Counter Corruption Act.B.E. 2518, the Royal Decree was given on the 13th day of February B.E. 2524. The following are its contents :
This Royal Decree is called the Royal Decree on Declaration
of
Assets
and
420
Liabilities
of State
Officials
B.E. 2524 and was published in the Government Gazette Vol.98 Part 33 special issue dated 1st March 2524 (1981 A.D.)
When the Council of Ministers issues an order to all or certain State Officials or certain section of State Officials to declare their assets and liabilities, such state officials shall comply with the following:
(1) for a state official who is holding the position
or
performing the duty of that position on the date of the order of the Council of Ministers, the declaration of assets and liabilities in existence on the date of the order shall be completed within fifteen days from the date of the acknowledgement of the order; (2) for a state official who is recruited or appointed to the position or to perform the duty of the position after the date of the order of the Council of Ministers, the declaration of assets and liabilities in existence on the date of appointment or assumption of office shall be completed within fifteenth days from the date of appointment or assumption of office.
In the case where a state official
is unable to
submit particulars of assets and liabilities within the prescribed period and has applied
421
for an extension giving
apparent reason for necessity, if the recipient of forms of declaration satisfied
of assets and
liabilities under
Section
with the reason of necessity, he may grant
8 is one
extension of not more than fifteen days to the period under (1) and (2) and shall promptly submit a report to the Commission of Counter Corruption^'^'^ \
After having declared his assets and
liabilities
under section 3, any state official who is prosecuted for malfeasance in office shall submit particular of his assets and liabilities in existenc? on the date of the prosecution within fifteen days from the date of the prosecution^'*^-'.
After
having declared his assets and
liabilities
under Section 3, any state official who vacates office or ceases to perform the 'duty which requires a declaration of assets and liabilities but remains as a State official, shall submit particulars of his assets and
liabilities in
existence on the date of the vacation within
15 days from
the date of vacation of office or the cessation of duty, as the case may be (46)
After having declared his assets and
liabilities
under Section 3, any State official who will vacate office an account of retirement or by virtue of legal provision or
422
resignation, shall submit particulars of his assets and liabilities in existence not less than thirty days prior to the date of the vacation of office or resignation^ ^'^-^.
Assets and liabilities to be declared by a State official shall include those in foreign countries and those not under his actual possession^
The declaration
^.
of assets and
liabilities under
the Royal order is required to be made in duplicate containing identical statement and the declarer shall put in a sealed envelop and affix his signature along the seal and submit it to the following recipients: 1)
for political official under the law on political officials, to the Prime Minister;
2)
for judicial officials under the law on judicial service, to the Under Secretary of State for justice;
3)
for public prosecutors under the law on public prosecution service, to the Under Secretary of State for interior ;
4)
for officials of the National Assembly, to the Secretary-General of the National Assembly;
5)
for officials other than those in (1) to (4) who heads of Governmental
office
of departmental
are
level
upwards including members of committees or sub commit-
423
tees of a Governmental office, to appropriate Under Secretary of State; 6)
for governors, General Managers, Managing Director, Managers of State organisations under the law on establishment of State organisations, activities which belong to the state under the law on such activities and state owned commercial enterprises, to the Ministers responsible for such state enterprises;
7)
for officials and employees of a Government office, officials and employees of a state agency or enterprise other than those in (5) and (6) to their superior officials who is. head of Government office of the level of Ministry, sub ministry or department or head of state agency or enterprise, as the case may be;
8)
for
state
officials
other
than
those
in
( 1 ),(2).(3),(4),(5),(6) and (7) to the Secretary General of the Commission o Counter Corruption or person designated by the Council of Ministers.
The recipient of forms of particulars of assets and liabilities under ( 1) ,( 2 ),( 3 ),( 4 ) ,( 5 ) ,( 6 ) ,( 7 ) , and (8) shall affix his signature to the front of the envelop and send one copy to the Commission of Counter Corruption within seven days from the end of the period prescribed for the declaration of assets and liabilities under section 3,
424
section 4, section 5,or section 6, as the case may be. The other copy shall be kept as confidential official documents at the office of the Under Secretary of State, office of the Under Secretary of Sub Ministry, office of the official who is head of the Government office of departmental
level or
the equivalent, or at the office of the head of state agency or enterprise of the declarer, as the case may be.
A state official
holding many positions shall
submit forms of particulars of assets and liabilities for one position only
^^'^^.
After having received the forms of particulars of assets and liabilities under Section 8, the Secretary General of the Commission of Counter Corruption shall put it in another sealed envelop and affix his signature on the seal and keep it as confidential official document at the office of the Commission of Counter Corruption.
The assets and only
with
envelop
containing
forms
of
liabilities of a state official the authorisation
particulars
of
may be opened
of the commission
of Counter
Corruption when the state official is under an enquiry under the law on Counter Corruption or is vacating office under Section 6.^^°^.
425
Section 11 authorises the Prime Minister to be in charge and control of the execution of this Royal Decree.
By virtue of Section 17 and 26 of the Counter Corruption Act B.E. 2518, the Prime Minister issued Ministerial Regulations B.E, 2524 / ^•''^ which require that the Chairman, members of the Commission, members of the sub committees and officials shall submit return showing the assets and liabilities in existence on the date of appointment and the date of vacation in accordance with the prescribed forms and submit then through the Chairman to the Prime Minister within fifteen days from the end of the period.
The above forms of particulars of assets and liabilities shall, after acceptance by the Prime Minister, be kept at the office of the Secretary General to the Prime Minister until there is such a reason for examination as the Prime Minister may order.
426
Chapter V References, hk>tes 1.
Kamal Thongtammachat, Ihe.„,Ele.ctip..n_i....Pj^^
and
S.ti..bXll..tx.....o.f GoyeLnment, Master Press, Bangkok 1988. PP 85-87 2.
Sujin Tangsubuttre, Jhe .Leg.a_l_.S.ta.te_i. Saeng Ring Press, Bangkok (1980) P. 180
3. Chulacheeb Chivanne, Iha.i 1 and.....l.n...J.,993..i.J.he_._.P.ar..li Sy.st,em_._Suxyi.ye.s.... Monograph I PP. 4,5 4.
M.P.Jain, Indian CQnstitutiona 1 _._L-.aw..^. 4th edn. Wadhwa and company, Nagpur . PI; Wade and Philips, ConsLiLy.Lio,.naJL. and Administrative Law 9th edn. PI; K.C. Whare, Modern QonsMtyLLl.ons., Hood Philips Coagtityt^iojn ^nd Administrative Law (1978) P 10
5.
M.P.Jain, Cgn§.titut_io.Q.a_l Law 4th edn opp cit.P.l. The 'Fundamental Rights' play a noteworthy role in the area of the Indian Administration Law. A phenomenon generally discernable today in practically every democracy is the vast growth on the functions, powers and activities of Administration under the impact of the modern philosophy of a 'welfare state'. A large amount of discretion is left
in the hands of administrative
authorities. See
M.P.Jain, opp cit. P.459 6.
SMJI!.s§.d.a.ni,i v Central Bank.._of IndlA, AIR 1952 SC. 59:
427
Vaidya Verma v SM.yna.r.a..i.n AIR 1956 SC. 108 7.
M.P.Jain, Co_n.sti.tuLLQ.DM....La.w
opp. cit. P 460
8•
Ibid P .4
9.
After the first revolution in 1932 AD Thailand first Consitution Promulgated
on December
had the
10, 1932.
Thereafter each of the Governments came to power through Coup de etat brought in a new constitution such as the Constitution
of 1949, of 1951. of 1957, of 1959, of
1968, of 1972, of 1974 and 1992. This amply demonstrates the Political instability of the country. 10. See Constitution of India. Art. 11. For a full discussion in Thailand
of the Legislature
see the unpublished
and Judiciary
Ph.D thesis, l.T_h.e..__Con-.
stitutional, Mechanism in Thailand to Control AdministraLLv§..-.A
of
L a w , University
of
Pune
1995. PP 347-410. 12. James C. Scott, Comparative Political Corruption; Englewood Cliffs N.J. 1972 P. 57 13. Ibid P.22 14. Wilson David, P o 1 i 1; i c ^ i n T h a i 1 a n d . Ittaca.N.Y. Cornell University Press 1962 P. 155 15. Ibid P. 60 16 . Riggs Fred , TJhaJ.i^ji
5 0 . Honolulu,
(1966)
428
East
West
Central
Press.
17 . Ibid P. 60 18. Uilson David, Pjo.Li.tic.s„.i n Ihail.a.n.cl. O P P cit. P. 259 19. Riggs Fred, Iha,ll,and.^ The Modernisation of a Bureaucratic_. J?o Licy. • opp cit. P. 60 20. Uilson David, Pp.l.it.i.c.§_ Lo....lAaJ.l.a.Dc|.:. opp cit P. 165 21. Riggs Fred, IJD..ai.lAD.iii.._I..h.'e Modernisation of,, a Bureaucratic Policy • opp cit. P. 197 22.
James Scott, Corn£a.r.at.ive__p_^ol.i.t:i_c^^^
Pent ice
Hall Inc. Englewood Cliffs, New Jerssy . (1972) P. 62 23. Ibid P, 64 24. Ibid PP. 64,65 25. Section 4 26. Section 5 27. Section 6 28. Section 7 29. Section 8 30. Section 9 31. Section 10 32. Section 11 33. Section 12 34. Section 13 35. Section 14 36. Section 15 37. Section 17 38. Section 19
429
39. Section 20 40. Section 21 41 . Section 22 42. Section 23 43. Section 24 44 . Section 3 45. Section 4 46. Section 5 47 . Section 6 48. Section 7 49. Section 8 50. Section 9 51. given on the 27th February BE 2524 (1981) under the signature
of
General.P.Tinsulanonda,
ister .
430
then
Prime
Min-
