Administrativo

Chapter 19

Administrative Law – Judicial Review of Official Actions
Far more has been accomplished for the welfare and progress of mankind by preventing bad actions than by doing good ones. William Lyon Mackenzie King

In simple terms, the Rule of Law requires that government operate within the confines of the law; and that aggrieved citizens, whose interests have been adversely affected,be entitled to approach an independent court to adjudicate whether or not a particular action taken by, or on behalf of, the state is in accordance with the law. In these instances, the courts examine a particular decision made by an official, or an official body, to determine whether it falls within the authority conferred by law on the decision-maker. In other words, the courts rule as to whetheror not the decision is legally valid. In so doing, the judges do not substitute their own discretion and judgement for that of the government. They simply rule whether the government or its officials have acted within the ambit of their lawful authority. Thus, the judges do not “govern” the country and, do not “displace” the government when government decisions are challenged in the courts.Correcting abuses of administrative law in Thailand
The Thai bureaucracy designed a vast system of administrative law, creating many opportunities for rent-seeking and other forms of corruption. Under the 1946 Constitution, the final right to interpret the Constitution was vested not in the courts, but in the Parliament. As a result, any judgment against the government could be overturned on thebasis that the courts had improperly interpreted the Constitution. The position was soften in 1991, but the Constitutional Tribunal appointed then was part of the Executive, not of the judiciary, and judges found it unwise to raise constitutional issues. The new 1997 Constitution has brought political interference in this way to an end, establishing the Constitutional Court asan independent,full-time body. For the first time in Thai history, judges of the Constitutional Court are considered to be judicial officials rather than political appointees or civil servants. 1997 Constitution of the Kingdom 2 of Thailand, Article 259.

With the increasing dominance of the private sector in many countries, and the emphasis of government activity shifting from direct participation (throughgovernment-owned corporations) to regulation (as often as not, of privatised activities), the role of the courts is, if anything, becoming even more important. Decisions of government regulators impact directly on the private sector interests that they are regulating, and the private sector will look to the courts with greater frequency to shield it from excessive or abusive use of regulatory powers. Attimes the courts will be expected to go further, and actually review the legality of decisions being made in the private sector itself, applying the principles of administrative law (previously applicable only to official institutions), where these decisions impact significantly on the public interest.1

What is “administrative law”?
In general terms, administrative law is the law governing theadministration of government business. It governs both central and local government and public bodies in their exercise of statutory or other public powers, or when performing public duties. In both civil and common
1 This has already happened in the sporting area. Before apartheid ended in South Africa, New Zealand rugby officials decided to send a sporting team to the Republic, in defiance ofthe world-wide boycott of sporting contacts with the racist regime. In a watershed case, this was challenged by two rugby players. They argued successfully that the courts should review the lawfulness of the decision, applying the principles of administrative (public) law, on the grounds that such a tour would have widespread negative effects on New Zealand’s international standing. The tour was...