Administrative Court of Thailand
Administrative Court of Thailand
Session 9
Common Challenges for ASEAN Justices :
Key Legal Issue #4 :
Expert Witness and Scientific Evidence
in Environmental Cases
Presented by Prapot Klaisuban, PhD
Judge of The Administrative Court of Thailand
Roundtable for ASEAN Chief Justice on Environmental Law and Enforcement on 7-10
December 2012 Melaka, Malaysia
Fundamental Principles
1. The Constitution of the Kingdom of Thailand
B.E. 2550 (2007) guarantees all citizen’s
basic rights to seek legal redress
2. Thailand has Dual Court System (parallel)
under the Constitution of the Kingdom of
Thailand
3. Fundamental principle apply in the Thai
Administrative Law is an inquisitorial system
Jurisdiction of the Administrative Court
Section 9 of the Act on Establishment of Administrative Court and
Administrative Court Procedure, B.E. 2542 (1999)
Administrative Courts have the competence to try and
adjudicate or give orders over the following matters:
(1) The case involving a dispute in relation to an unlawful act by
an administrative agency or State official, whether in connection
with the issuance of a by-law or order or in connection with other
act, by reason of acting without or beyond the scope of the powers
and duties or inconsistently with the law or the form, process or
procedure which is the material requirement for such act or in bad
faith or in a manner indicating unfair discrimination or causing
unnecessary process or excessive burden to the public or
amounting to undue exercise of discretion;
Jurisdiction of the Administrative Court (cont.)
(2) The case involving a dispute in relation to an
administrative agency or State official neglecting official
duties required by the law to be performed or performing
such duties with unreasonable delay;
(3) The case involving a dispute in relation to a wrongful
act or other liability of an administrative agency or State
official arising from the exercise of power under the law
or from a by-law, administrative order or other order, or
from the neglect of official duties required by the law to
be performed or the performance of such duties with
unreasonable delay;
Jurisdiction of the Administrative Court (cont.)
(4) The case involving a dispute in relation to an
administrative contract;
(5) The case prescribed by law to be submitted to the
Court by an administrative agency or State official for
mandating a person to do a particular act or refraining
therefrom;
(6) The case involving a dispute in relation to the matters
prescribed by the law to be under the jurisdiction of
Administrative Courts.
Jurisdiction of the Administrative Court (cont.)
The following matters are not within the jurisdiction of
Administrative Courts:
(1) Action concerning military disciplines;
(2) Action of the Judicial Commission under the law on
judicial service;
(3) The case within the jurisdiction of the Juvenile and
Family Courts, Labour Courts, Tax Courts,
Intellectual Property and International Trade Courts,
Bankruptcy Courts or other specialised Courts.
The Powers of the Judge
According to the Act on Establishment of Administrative
Court and Administrative Court Procedure, B.E. 2542
(1999) and Rules of the General Assembly of Judges of
the Supreme Administrative Court on Administrative
Court Procedure, B.E. 2543 (2000), the competence of
Administrative Court to inquire the facts has been
divided into two parts:
1. Inquiry of facts from the pleading
2. Inquiry of facts by the Court in other procedures
Inquiry of facts by the
Court in other procedures
Since the competence of the Court to inquire
the facts is not limited only from evidence
presented by each party in the pleading but
also in some circumstances, the Court may
examine and inquire into the facts as is
appropriate.
(Section 55 paragraph three of the Act on Establishment of the Administrative
Court and Administrative Court Procedure, B.E. 2542 (1999) and Clause 50
paragraph one of the Rules of the General Assembly of Judges of the Supreme
Administrative Court on Administrative Court Procedure, B.E. 2543 (2000))
Inquiry of facts by the Court in
other procedures (cont.)
Namely:
1. Inquiry of facts from each party and the
witness concerned with the case
2. Inquiry of facts from document or object
3. An appointment of an expert witness
4. The inspection of place, person or any other
object
5. Transfer of an issue to another
Administrative Court to hear evidence
An Appointment of an Expert Witness
1) The Court shall have the power to appoint an expert
for studying, examining or analyzing any matter in
connection with the case, provided that it is not the
determination of a question of law, and then
preparing a report or giving statements to the Court.
(Clause 55 paragraph one of the Rules of the General Assembly of Judges of the
Supreme Administrative Court on Administrative Court Procedure, B.E. 2543 (2000))
An Appointment of an Expert Witness (Cont.)
2) The Court shall take these qualifications into account:
- Impartiality
- knowledge
- experience
- working record
- principle and theory expert presents – at an acceptable level
- conflict of interest of such expert
(Clause 6 last paragraph of the Recommendation of the President of the Supreme
Administrative Court on Administrative Case Proceeding concerning Environmental Issue)
Central Administrative Court Judgment No. 1414/2544
The Plaintiff filed that he was aggrieved from the
Defendant’s rice mill located in nearby the Plaintiff’s house. The
dust arising from the Defendant’s rice mill caused grievance and
disturbance to the Plaintiff. As a result, the Plaintiff and his family
member experienced physical health and mental health problems
until the filing dates for seven years. The Plaintiff served a
complaint on agencies concerned with this matter since B.E. 2537
(1994) but to no avail. This case had the one critical issue the
Court needed to consider whether the dust and nuisance arising
from grinding of rice exceeded the maximum standard. To settle
the said issue, the Court appointed Department of Pollution
Control as an expert in order to measure noise and dust level
arising from such rice mill. Remanded the case to Administrative
Court of First Instance for further proceedings.
Example of Thai cases filed to
the Administrative Court of Thailand
1. Cobalt-60 case
2.
3.
4.
5.
Map Ta Phut case
Mae Mao case
Klity Mine case
Thai-Malaysia Gas Pipeline case
6. Mae Mao Shell Cemetery case
7. Nhong Sang Power Plant case
8. Udon Potash Mine case
9. Hin Krud – Boa Nok Power Plant case
Example of Thai cases filed to the
Administrative Court of Thailand
(cont.)
■ A judge in a court may have no specialized
knowledge of a specific practice (based on scientific,
technical or other specialized expertise)
■ Expert witness can be both powerful and quite
misleading for a case, therefore the qualifications and the
supported opinion of an expert witness must be carefully
scrutinized by a court.
Example of challenges needed to be tackle for a
future disputed cases after ASEAN integration
1. Energy security
2. Tran ASEAN pipeline
3. ASEAN grid line
4. Single Market and Production Base
(free flow of goods, services, investment, capital and
skilled labor)
5. Competitive Economic Region (competition policy,
consumer protection, intellectual property rights, taxation,
E-commerce)
6. Equitable Economic Development (SME Development)
Problems for Thai Administrative Court to be considered
1. Limitation on expert witness fee
2. There must be prepared to evaluate
whether there should be registered expert
witness for a Thai Administrative Court