Our Practice Areas
Administrative Law and Public Sector Litigation
Confronting a government agency can be a daunting prospect, particularly for foreign individuals, expatriates, and international businesses operating within Thailand’s unique legal and regulatory landscape. However, the Thai legal system provides a robust and essential framework specifically designed to protect private interests, ensure government accountability, and offer a clear path for seeking justice. This framework is known as administrative law, and its primary forum is the Administrative Court. This comprehensive guide serves to demystify the process of holding Thai administrative bodies accountable, explaining the court’s foundational principles, the types of disputes it adjudicates, the step-by-step legal process for filing a claim, and the critical importance of strategic legal counsel. For any foreign entity navigating issues from permit denials to public contract disputes, understanding this system is the first step toward safeguarding your rights and interests in the Kingdom.
The Foundation of Administrative Justice in Thailand
The Principle of Judicial Review: Holding State Power Accountable
The modern system of administrative justice in Thailand is a relatively recent, yet transformative, development. Prior to 2001, the country lacked a specialized judicial body dedicated to resolving disputes between the state and private citizens. This absence made it difficult to independently and effectively review the actions of executive and administrative bodies, creating a significant gap in the system of checks and balances.
A historic turning point came with the promulgation of the Constitution of the Kingdom of Thailand, B.E. 2540 (1997), which mandated the creation of a separate administrative court system. This constitutional vision was realized through the Act on Establishment of Administrative Courts and Administrative Court Procedure, B.E. 2542 (1999). Consequently, the Supreme Administrative Court and the Central Administrative Court were formally inaugurated on March 9, 2001, marking a new era of governmental accountability.
The core mission of the Administrative Court is to exercise “Judicial Review” over the actions of the administration. This means the court possesses the authority to examine and adjudicate whether an act, rule, order, or even an omission by a government agency or official is lawful. In this capacity, the court acts as a guardian of the “Rule of Law,” ensuring that the rights and freedoms of individuals and businesses are not infringed upon by unlawful state action. Its role extends beyond resolving individual disputes; it also sets legal precedents that promote a culture of “Good Governance” and transparency within the Thai bureaucracy. The court’s establishment was not merely a procedural reform but a fundamental shift in the balance of power, reflecting a broader societal demand for a systemic mechanism to hold state authority accountable.
Scope of Jurisdiction: Who Can Be Sued in the Administrative Court?
To ensure that its oversight is comprehensive, the law defines the entities that fall under the court’s jurisdiction in exceptionally broad terms. This ensures that nearly every form of state power can be subject to judicial scrutiny. The two key categories are “Administrative Agencies” and “State Officials.”
An “Administrative Agency” (หน่วยงานทางปกครอง) is a wide-ranging term that encompasses state organizations at all levels. This includes ministries, departments, and other government bodies at the national level; regional administrative bodies such as provincial and district offices; and local government entities like provincial administrative organizations, municipalities, and sub-district administrative organizations (tambon). The definition also explicitly includes state-owned enterprises established by specific acts or royal decrees. Critically, it extends to “other state agencies” and any entity, even one that appears private in form, that has been “assigned to exercise administrative power or to carry out administrative functions”.
A “State Official” (เจ้าหน้าที่ของรัฐ) is defined just as broadly. The term is not limited to civil servants under the Civil Service Act but includes all employees, staff, and other individuals working within an administrative agency. It also covers committees, such as dispute resolution panels, and any person or body empowered by law to issue rules, orders, or resolutions that affect the rights and obligations of others.
This expansive jurisdiction is built on a crucial legal doctrine: the court examines the function of the power being exercised, not the form of the organization wielding it. This principle is of paramount importance for foreign businesses and investors, especially those engaged in Public-Private Partnerships (PPPs) or contracting with Thailand’s many state-owned enterprises. A state-owned energy company or a public utility operator cannot evade the Administrative Court’s jurisdiction by claiming it is a corporate entity. If the organization is performing a public function or exercising power delegated by the state, any disputes arising from that function fall squarely within the competence of the Administrative Court. This “function over form” doctrine provides a critical layer of legal certainty and protection, preventing the state from using corporate structures as a loophole to avoid accountability and ensuring that disputes are heard by the specialized court designed to balance public interest with private rights.
A Typology of Administrative Disputes in Thailand
The Act on Establishment of Administrative Courts and Administrative Court Procedure clearly outlines the categories of cases that the court is empowered to hear. These can be classified into four primary types of disputes.
This is the most common type of case filed in the Administrative Court. It concerns disputes arising from an “administrative order” (คำสั่งทางปกครอง), which is defined as an official act by an authority that creates, alters, transfers, reserves, suspends, or otherwise affects the legal status or rights of a specific person or entity.
An administrative order is considered “unlawful” if it meets one or more of the following criteria :
- It was issued without legal authority or outside the scope of the agency’s powers (ultra vires).
- It was not issued in the correct form or did not follow the essential procedures and methods prescribed by law.
- It was made in bad faith, involved an abuse of power, or constituted unjust discrimination.
- It created an unnecessary procedural step or imposed an excessive burden on the public.
- It involved an improper exercise of discretion (abuse of discretion).
It is essential to understand the court’s role in these cases. The court does not substitute its own judgment for that of the administrative agency to decide if a policy was “good” or “wise.” Instead, it acts as a referee, ensuring that the agency followed the “rules of the game” as laid down by the law.3 The claimant’s burden is to demonstrate a specific legal or procedural flaw in the decision-making process, not simply to argue that they are dissatisfied with the final outcome.
Common examples relevant to businesses and individuals include:
- Unfair Disciplinary Actions: A civil servant is dismissed without being given an adequate opportunity to respond to the allegations against them.
- Wrongful License Revocation: A government agency revokes a business license for reasons not supported by law or without providing the legally required prior notice.1
- Arbitrary Permit Denial: An application for a construction permit or business registration is rejected based on unwritten rules or an unreasonable exercise of discretion.4
- Unjust Transfer Orders: A government official is transferred to another position with the intent to punish or demote them without a valid administrative reason.
2. Claims for Damages: State Liability for Wrongful Acts (Section 9(3))
1. Challenging Unlawful Administrative Orders (Section 9(1))
This category of cases deals with claims for compensation when an individual or business has suffered damages due to the actions of an administrative agency or state official.3 Such liability can arise from several sources:
- The lawful exercise of power (e.g., property damage caused by a public infrastructure project).
- An unlawful rule, administrative order, or other command.
- The neglect of a duty prescribed by law or an unreasonable delay in the performance of such a duty.
The cornerstone of this area of law is the Act on Liability for Wrongful Acts of Officials, B.E. 2539 (1996). This Act establishes a vital principle of vicarious liability: if an official’s wrongful act occurs during the performance of their duties, the state agency they belong to is directly responsible for compensating the injured party. The claimant sues the agency, not the individual official, unless the official acted with gross negligence or willful misconduct. This legal structure serves two purposes: it protects officials who perform their duties in good faith from personal lawsuits, allowing them to serve the public interest without fear, and it simplifies the legal process for the victim by providing a clear defendant with the financial capacity to pay damages.
Examples of state liability cases include:
- Damage from Public Construction: A homeowner’s property develops cracks due to vibrations from pile driving for a new expressway or mass transit line built by a state agency.
- Land Expropriation Disputes: A landowner disagrees with the amount of compensation offered by a state committee for land seized for a public project.
- Official Negligence: A person is injured in a traffic accident caused by a state agency’s failure to properly maintain a road surface or traffic signals.
- Wrongful Seizure of Assets: A government body freezes a company’s bank account or seizes its property without proper legal authority.
3. Disputes Over Administrative Contracts (Section 9(4))
Disputes involving “administrative contracts” (สัญญาทางปกครอง) form another key area of the court’s jurisdiction. An administrative contract is fundamentally different from a standard private civil contract. It is defined by two primary characteristics:
- At least one of the parties is an administrative agency or a person acting on behalf of the state.
- The contract’s subject matter involves a public service, such as a concession, the provision of public utilities, or the exploitation of natural resources.
The most distinctive feature of an administrative contract is the inherent “inequality of the parties.” By its nature, the state, as the guardian of the public interest, retains certain “special privileges” (เอกสิทธิ์) not found in private agreements. These may include the right to unilaterally amend the contract’s terms or even terminate it if the public interest fundamentally changes, even if the private party has not breached the contract.
However, this extraordinary power is not absolute. It is balanced by a corresponding right: the private party is entitled to receive fair and just compensation for any damages incurred as a result of the state’s exercise of these special privileges. It is this unique balance between public interest and private contractual rights that necessitates adjudication by the Administrative Court, which possesses the expertise in public law to weigh these competing interests properly.
Common examples of administrative contract disputes include:
- Public Procurement Disputes: A company that participated in a government tender challenges the bidding committee’s decision, alleging it was inconsistent with the Terms of Reference (TOR) or public procurement laws.
- Concession Agreements: A dispute arises over the terms for increasing toll fees in a highway concession or the interpretation of rights and duties in a telecommunications concession.
- Construction Contracts: A construction firm sues a government agency for unpaid invoices or challenges an order to terminate a public infrastructure project.
- Government Scholarship Agreements: A dispute over the repayment terms for a government scholarship recipient who fails to fulfill their contractual obligation, such as returning to public service for a specified period.
4. Compelling Government Action: Suing for Neglect of Duty (Section 9(2))
The law provides a powerful remedy not only for wrongful actions but also for damaging inaction. This category of cases allows individuals and businesses to sue an administrative agency or state official for “neglecting a duty required by law to be performed, or for performing such duty with unreasonable delay”. This provision is a potent tool against bureaucratic inertia, transforming what might be seen as a mere public service expectation into a legally enforceable right.
In a bureaucracy, significant harm can arise from neglect, endless delays, or a simple failure to respond to citizens’ requests. The law addresses this directly with a clear mechanism. If an individual submits a written request for an agency to perform its legal duty and the agency remains silent, the law establishes a waiting period of 90 days. If, after these 90 days, the agency has still not taken action, a cause of action legally arises, and the individual can file a case with the Administrative Court. This prevents government agencies from indefinitely ignoring legitimate requests from the public.
Examples of such cases include:
- An agency’s failure to issue a building permit or business license to a fully qualified applicant within the timeframe stipulated by law or regulations.
- A municipality’s neglect of its duties to collect waste, maintain drainage systems, or repair damaged public roads, causing nuisance or danger to residents.
- A police officer’s refusal to accept a formal complaint from a member of the public without a valid legal reason.
The Legal Journey: A Claimant's Step-by-Step Guide
While the Administrative Court system is designed to be accessible, navigating it requires strict adherence to specific procedures and conditions.
The Path to Court: Initiating a Case
The process of filing a case involves several key steps that must be followed precisely.
First, a claimant must satisfy any “conditions precedent,” which typically means exhausting all available internal administrative remedies before turning to the court. For example, a civil servant who has received a disciplinary order must first appeal that order to the relevant internal body, such as the Merit System Protection Committee, before they can file a case with the Administrative Court. Filing a lawsuit prematurely, without having completed these mandatory internal steps, is a common reason for the court to reject a case.
Second, the claimant must draft a formal complaint, also known as a plaint. While there is no rigid official form, Section 45 of the Act requires that the complaint be in writing, use polite language, and contain five essential elements :
- The name and address of the plaintiff (the person or entity who has been aggrieved).
- The name of the defendant administrative agency or state official.
- A detailed description of the acts constituting the cause of action, including a clear narrative of the facts and circumstances that led to the dispute.
- The relief sought by the plaintiff (the “prayer for relief”), which clearly states what the plaintiff wants the court to order (e.g., to revoke an order, to pay a specific amount in damages, to compel the agency to act).
- The signature of the plaintiff.
Finally, the complaint must be filed with the court. Claimants have several modern and convenient options for filing, including submitting the documents in person at the appropriate Administrative Court, sending them by registered mail, or using the court’s electronic case filing system (e-Litigation).
Critical Deadlines: Navigating the Statute of Limitations
The single most critical and unforgiving aspect of filing an administrative case in Thailand is the statute of limitations, or “อายุความ.” This is the legal time limit within which a lawsuit must be filed. It is a strict, jurisdictional requirement, and failure to file within the prescribed period will result in the court dismissing the case, permanently extinguishing the right to seek a remedy for that claim.
The complexity of this area creates a significant strategic challenge at the very outset of any potential legal action. The first and most crucial task for a legal advisor is not to draft the complaint, but to correctly diagnose the legal nature of the government’s wrongful act. This is because different types of administrative cases are subject to vastly different time limits. For instance, if a government agency fails to make a payment on a public construction project, is this a “breach of an administrative contract,” which has a five-year statute of limitations? Or could it be construed as an “unlawful administrative order” to withhold payment, which has a drastically shorter 90-day deadline? The initial legal classification of the dispute directly determines which deadline applies. An incorrect diagnosis can lead a claimant to believe they have years to file a claim when, in reality, their window of opportunity may only be a few months. This high-stakes analytical challenge underscores why immediate consultation with a lawyer specializing in administrative law is not merely advisable but essential to preserve one’s legal rights.
The statutes of limitation for the main categories of administrative cases are summarized below.
Case Type | Statute of Limitations | Governing Section |
|---|---|---|
Unlawful Administrative Order | 90 days from the date the cause of action is known or should have been known. | Section 49, Act on Establishment of Admin. Courts |
Wrongful Act / State Liability | 1 year from knowing of the wrongful act and the responsible party (but not exceeding 10 years from the event). | Section 51, Act on Establishment of Admin. Courts |
Administrative Contract | 5 years from the date the cause of action is known or should have been known (but not exceeding 10 years from the event). | Section 51, Act on Establishment of Admin. Courts |
Neglect of Duty | 90 days after the expiration of a 90-day waiting period that begins on the date the written request was submitted. | Section 49, Act on Establishment of Admin. Courts |
The Court Process: Understanding Thailand's Inquisitorial System
The procedure within the Administrative Court is fundamentally different from that of Thailand’s Courts of Justice (which hear civil and criminal cases) and from the legal systems in many common law countries like the United States or the United Kingdom. The Administrative Court operates under an “Inquisitorial System,” whereas the Courts of Justice use an “Adversarial System”.
In an adversarial system, the judge acts as a neutral umpire, and the burden of presenting all evidence and arguments falls entirely on the opposing parties. The court’s decision is based on the evidence the parties choose to submit.
In the inquisitorial system, however, the panel of judges takes an active, investigative role in seeking the truth of the matter. The court is not limited to the evidence presented by the plaintiff and the defendant; it has the power to proactively call for additional documents, summon witnesses, and gather any evidence it deems necessary to reach a just and factually complete decision. The proceedings are heavily reliant on documentary evidence.
The adoption of this system is a deliberate choice rooted in an understanding of the inherent “inequality of power” between the state and a private party. A government agency has vast resources, personnel, and exclusive access to all internal documents, memos, and records related to a case. A private individual or a foreign company, by contrast, faces a significant information disadvantage. In a purely adversarial system, the burden of proof would be nearly impossible to meet without extensive discovery procedures, which are not a prominent feature of the Thai legal system.
The inquisitorial system functions as the “great equalizer” in this context. It empowers the court to level the playing field by ordering the state agency to produce the relevant files and information necessary for the case. The judge’s duty is to ascertain the objective truth, not merely to decide which side presented a more persuasive case with the limited evidence available to them. For any potential claimant, especially a foreign entity, this procedural safeguard is a deeply reassuring feature, demonstrating that the pursuit of justice is not solely dependent on their ability to extract evidence from a potentially uncooperative government body.
Potential Outcomes and Available Remedies
The Power of the Court: Types of Enforceable Orders
The court can tailor its orders to fit the specific circumstances of each case. The primary types of remedies include:
- Revocation (เพิกถอน): The court can order the revocation or nullification of an unlawful rule or administrative order, either in its entirety or in part. This is the fundamental remedy for cases challenging the legality of a government decision, such as an order to reinstate a wrongfully revoked business license or to cancel an unfair disciplinary action.
- Injunction (ห้ามการกระทำ): In situations where a pending action by an agency would cause irreparable harm, the court can issue an injunction to prohibit the agency from proceeding with that action.
- Mandamus (สั่งให้กระทำการ): In cases involving neglect of duty, the court has the authority to order the administrative agency or official to perform the specific duty required by law within a timeframe deemed appropriate by the court.
- Compensation (ใช้เงินหรือส่งมอบทรัพย์สิน): In cases of state liability or administrative contract disputes, the court can order the state agency to pay monetary damages to compensate for losses suffered or to return property that was wrongfully taken. The court can also specify the terms and methods of payment in its judgment.
The practical impact of these powers is significant. They ensure that the court’s decisions translate into real-world justice. For example, in a case where a company’s business license was unlawfully revoked, the court’s judgment would not stop at declaring the revocation illegal. It would also include an enforceable order compelling the agency to return the license to the company. Furthermore, the court could order the agency to pay financial compensation for the lost profits the company suffered during the period its operations were forced to halt.3 This ability to make a claimant whole is a cornerstone of the court’s function.
Strategic Legal Counsel
The Paradox of Accessibility: Why Expert Counsel is Crucial
The Thai Administrative Court system presents a unique “paradox of accessibility.” On one hand, its procedures are intentionally designed to be accessible to the general public; for instance, there is no legal requirement to be represented by a lawyer, and the methods for filing a complaint are straightforward. On the other hand, the substantive law and procedural intricacies that determine a case’s success are profoundly complex. This can create a misleading sense of simplicity, where the ease of initiating a case belies the legal sophistication required to win it.
Attempting to navigate this system without deep legal expertise can lead to irreversible errors, particularly in the following critical areas:
- Case Diagnosis: As discussed, correctly identifying whether a government action constitutes an “unlawful administrative order,” a “wrongful act,” a “breach of an administrative contract,” or “neglect of duty” is the foundational step. Each category has different legal requirements and, most importantly, different statutes of limitation.
- Deadline Compliance: The statutes of limitation are strict and varied. A miscalculation of the start or end date by even a single day can result in the permanent loss of the right to sue.
- Drafting the Prayer for Relief: Formulating the “คำขอ” (the relief sought) is a legal art. Requesting a remedy that is outside the court’s legal authority to grant is a waste of time and resources and can weaken the entire case.
- Evidence Strategy: Although the court operates under an inquisitorial system, the initial presentation of evidence is crucial. A well-organized, systematically presented, and compelling documentary case helps the court to quickly and accurately grasp the facts and legal issues at stake.
For these reasons, seeking advice from a lawyer with specialized expertise in Thai administrative law is not merely an option but a decisive factor in the outcome of a case. Engaging an expert from the outset ensures that every step—from the initial case assessment and complaint drafting to the presentation of evidence and legal arguments—is handled correctly and effectively.
Navigating these complexities requires proven expertise. An established specialist can provide the confidence that a case is built on a solid legal foundation from its inception. In this regard, it is noteworthy that Jirawat Leelawanich, the founder of JIRAWAT & ASSOCIATES, is recognized by Global Law Experts as its designated Administrative Law specialist in Thailand. This international acknowledgment underscores our firm’s demonstrated proficiency in this highly specialized and critical area of law.
Conclusion: A Mechanism for Fairness and Accountability
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