SEARCHING FOR CREDIBLE ELECTORAL TOOLS

All democratic countries must be legal states. In the simplest of terms, if we adhere to the meaning of the legal state or the rule of law, we are already adhering to good governance. However, good governance mechanisms offer us more than this, and can make a strong contribution towards sustainable human development. In practice, good governance can be hard to define, but nevertheless always enshrines the two fundamental principles of accountability and transparency. Definitely, Thai people are quick to follow the global recognition of these principles, not only because these terms sound sophisticated but also because they have proved significant in achieving good governance at all levels, from individual institutions to whole nation states. As a legal professional, I would like to concentrate in this short article on the implementation of the principles of rule of law that create good governance.

The well-accepted characteristics of the rule of law can be clearly understood through five key elements: (a) separation of powers; (b) judicial control of the legality of administrative acts; (c) judicial control of the constitutionality of laws; (d) protection of human rights, and (e) independence of the judiciary.

A legal state requires checks and balances among the three branches of government- legislative, executive and judicial - in order to guarantee the government of laws, not of men. In modern democracies these functions are implemented by Parliament, which has the legislative power to make laws, the Executive, which administers laws and executes the business of government, and the Judicature, which has judicial power as exercised by the courts. Such separation of power can be seen as the first element of the rule of law.

Under the supremacy of law, authorities must exercise their powers in accordance with well-established laws and not stray beyond the legal boundaries. Consequently, judicial review of the legality of administrative acts is necessary to comply with the rule of law. In Thailand, as in most countries ruled by civil laws, the Administrative Court is established to exercise its jurisdictional power over administrative disputes, leaving jurisdiction over civil disputes to the Court of Justice, according to a dualistic jurisdiction structure.

Despite these safeguards. whilst the authorities are legitimately exercising their powers, it is nevertheless possible that some laws might be passed with no sound reasons. Should this happen, the rule of law is subverted. To avert such a calamity, the legal state must create an organ (such as a constitutional court or tribunal), with the ultimate authority to rule on constitutional matters, thus protecting the constitutionality of laws.

The last key element of the rule of law is the independence of the judiciary. If the balance of power is usurped, for example if the legislature were to enact laws without inspection by the judiciary, that law may legitimize the infringement or violation of human rights by fully legal means. So the judiciary must function independently and be totally free from the influence of political organisations. As mentioned earlier, the concept of judicial independence is an intrinsic and defining element of the legal state.

I would like to offer some background to Thailand’s legal system, which has been heavily influenced by both of the world’s dominant systems: common law and civil law. Under the common law system, judges have the authority to decide on the laws and their judgments set a precedent for all future decisions. In other words, the common law draws abstract rule from specific cases. Most former British territories or colonies follow the common law legal system. The court’s procedures under common law is referred to as ‘accusatory’, involving verbal trial in the presence of both parties. In Thailand, this system is employed by the Court of Justice, and in particular by the Civil Court of law which settles civil disputes between individual parties.

The second system - civil, or continental law - originates from Roman law. It is developed by codes of law including statutes, regulations and ordinances, and is implemented by legislative bodies, That is, civil law begins with abstract rules which means that the judges have to apply the rules to decide specific cases. The court’s procedure under this civil law system is called ‘inquisitorial’, involving written documents. It does not normally allow both parties to stand before the court. The procedures of Thailand’s Administrative Court follow this inquisitorial system, in which administrative disputes between the public and individuals are adjudicated.

Thailand’s legal system was set up as a civil law system, but in its application, there is a strong tendency to follow common law practices. And therein lies the problem. In drafting a new constitution by incorporating elements from various sources and combining them with other elements of previous constitutions, the Thai legal system has evolved over time into a ‘mix-and-match’ affair, ridden with inconsistencies.

But all this is generally shrugged off by an uninformed Thai public which allows governments to act with impunity and create more obstacles to the constitutional drafting process. For example, the previous government issued a Royal decree concerning the situation in the deep South, without allowing those injured through conflict access to the Administrative Court, which has competence to adjudicate such cases. Thus it cannot be said that in such instances, Thailand followed the principles of the rule of law.

What happened in the South is proof that we have neglected the law. Many people were taken into custody without reasonable cause, leading to frustration and anger that is now very difficult to control. We must remember that the people look for justice, and they need a court that will protect their rights against the irrational actions of government officials. For the Administrative Court, it is of utmost importance to provide justice to parties impartially, since we know that injustice sows the seed of social turmoil. In other words, ‘to provide justice to people is a virtue without equal’.

The fatalism associated with Thai culture itself must bear the brunt of the blame - people do not want to get involved - there is little enthusiasm for challenging the actions of political élites. The citizens only take action when it benefits them personally. So how do we change this?

Change must begin at grassroots level. We must teach children how to think, how to be logical and analytical. Even today, Thai law students still learn by rote: with a good memory, they can pass their examinations. They are not asked for their opinions even though critical thinking lies at the very core of a lawyer’s job. The lack of a broader perspective and ability to comprehend the spirit of the law is a weak point that needs to be urgently resolved.

Regarding setting up independent organizations, my own concern is mainly over the appointment process. When looking for people to fill the most senior roles in key agencies such as the Election Commission or the National Counter-Corruption Commission, it is critically important to choose the right people - men and women of courage and integrity, with an understanding of the spirit of the law. It is necessary to select people not simply because of their previous profession, but more for the suitability of their experience for their positions in these agencies.

In Europe in the past, good governance could be realized via the good performance of two key organizations: an effective administrative court which is able to monitor and control the activities of the government and its agencies, and ensure that there is full compliance within the law; and an accounting court which controls public finances and ensures that agencies will be accountable for their financing.

The social structures of modern states have become more complicated, and so independent organizations were established in order to ensure good governance. However, this increase in the number of organizations is alone not enough if those principal bodies are prevented from functioning to their full capacities.

The Administrative Court itself fully understands its paramount roles. The Court was established in recognition of the fact that when citizens plead a case against a government entity in the Court, in most cases, the government body has access to official documents which confer advantage over the opposing party. Because cases are presented in writing, the party having more supporting documents has a better chance of a favorable outcome. This automatically puts the power in the hands of the government’s officials, who hold all of the official records. It is therefore necessary to have a separate Administrative Court which has expertise in law and public administration. Additionally, the Court requires administrative procedures suitable for the special characteristics of administrative cases.

The Supreme Administrative Court’s origin can be traced back to the Council of State, which was established by King Rama V more than 130 years ago. King Rama V gave the council two roles: one was as legal adviser to the government and its agencies in the drafting of laws, the other was its adjudicative function as an administrative court. This council was revived as the Council of State after the revolution of 1932 led by Pridi Banomyong. The Council had two functions : drafting laws and adjudicating administrative disputes. However, the latter function was subject to specific legislation which had never been enacted. Forty-seven years later in 1979, we developed the adjudicial concern and in 1999, the Administrative Court was established. The most important reason why it took so long to establish the Administrative Court is that its detractors failed to understand the principle of the Council of State. Therefore King Rama V’s Council of State could not be well-established in the manner of the current French Conseil d’ E’tat. Instead, the Supreme Administrative Court has evolved in the form of the German court system.

The Administrative Court is given judicial power to balance private and public interests, protect the rights of the individual, and lay down proper standards for public administration. The Court, as an organ which is crucial to good governance, commits to providing justice to the people with fair, speedy and impartial performance. •

CONSTITUTION ISSUE 1 JUN-SEP 2007 Ackaratorn Chularat Supreme Administrative Court President, President, International Association of Supreme Administrative Jurisdictions, Vice President of the Constitution Tribunal, Visiting Professor at Thammasat University Faculty of Law
		GUEST WRITERS: THE LEGAL STATE-ENFORCING GOOD GOVERNANCE by Ackaratorn Chularat

		All democratic countries must be legal states. In the simplest of terms, if we adhere to the meaning of the legal state or the rule of law, we are already adhering to good governance. However, good governance mechanisms offer us more than this, and can make a strong contribution towards sustainable human development. In practice, good governance can be hard to define, but nevertheless always enshrines the two fundamental principles of accountability and transparency. Definitely, Thai people are quick to follow the global recognition of these principles, not only because these terms sound sophisticated but also because they have proved significant in achieving good governance at all levels, from individual institutions to whole nation states. As a legal professional, I would like to concentrate in this short article on the implementation of the principles of rule of law that create good governance. The well-accepted characteristics of the rule of law can be clearly understood through five key elements: (a) separation of powers; (b) judicial control of the legality of administrative acts; (c) judicial control of the constitutionality of laws; (d) protection of human rights, and (e) independence of the judiciary. A legal state requires checks and balances among the three branches of government- legislative, executive and judicial - in order to guarantee the government of laws, not of men. In modern democracies these functions are implemented by Parliament, which has the legislative power to make laws, the Executive, which administers laws and executes the business of government, and the Judicature, which has judicial power as exercised by the courts. Such separation of power can be seen as the first element of the rule of law. Under the supremacy of law, authorities must exercise their powers in accordance with well-established laws and not stray beyond the legal boundaries. Consequently, judicial review of the legality of administrative acts is necessary to comply with the rule of law. In Thailand, as in most countries ruled by civil laws, the Administrative Court is established to exercise its jurisdictional power over administrative disputes, leaving jurisdiction over civil disputes to the Court of Justice, according to a dualistic jurisdiction structure. Despite these safeguards. whilst the authorities are legitimately exercising their powers, it is nevertheless possible that some laws might be passed with no sound reasons. Should this happen, the rule of law is subverted. To avert such a calamity, the legal state must create an organ (such as a constitutional court or tribunal), with the ultimate authority to rule on constitutional matters, thus protecting the constitutionality of laws. The last key element of the rule of law is the independence of the judiciary. If the balance of power is usurped, for example if the legislature were to enact laws without inspection by the judiciary, that law may legitimize the infringement or violation of human rights by fully legal means. So the judiciary must function independently and be totally free from the influence of political organisations. As mentioned earlier, the concept of judicial independence is an intrinsic and defining element of the legal state. I would like to offer some background to Thailand’s legal system, which has been heavily influenced by both of the world’s dominant systems: common law and civil law. Under the common law system, judges have the authority to decide on the laws and their judgments set a precedent for all future decisions. In other words, the common law draws abstract rule from specific cases. Most former British territories or colonies follow the common law legal system. The court’s procedures under common law is referred to as ‘accusatory’, involving verbal trial in the presence of both parties. In Thailand, this system is employed by the Court of Justice, and in particular by the Civil Court of law which settles civil disputes between individual parties. The second system - civil, or continental law - originates from Roman law. It is developed by codes of law including statutes, regulations and ordinances, and is implemented by legislative bodies, That is, civil law begins with abstract rules which means that the judges have to apply the rules to decide specific cases. The court’s procedure under this civil law system is called ‘inquisitorial’, involving written documents. It does not normally allow both parties to stand before the court. The procedures of Thailand’s Administrative Court follow this inquisitorial system, in which administrative disputes between the public and individuals are adjudicated. Thailand’s legal system was set up as a civil law system, but in its application, there is a strong tendency to follow common law practices. And therein lies the problem. In drafting a new constitution by incorporating elements from various sources and combining them with other elements of previous constitutions, the Thai legal system has evolved over time into a ‘mix-and-match’ affair, ridden with inconsistencies. But all this is generally shrugged off by an uninformed Thai public which allows governments to act with impunity and create more obstacles to the constitutional drafting process. For example, the previous government issued a Royal decree concerning the situation in the deep South, without allowing those injured through conflict access to the Administrative Court, which has competence to adjudicate such cases. Thus it cannot be said that in such instances, Thailand followed the principles of the rule of law. What happened in the South is proof that we have neglected the law. Many people were taken into custody without reasonable cause, leading to frustration and anger that is now very difficult to control. We must remember that the people look for justice, and they need a court that will protect their rights against the irrational actions of government officials. For the Administrative Court, it is of utmost importance to provide justice to parties impartially, since we know that injustice sows the seed of social turmoil. In other words, ‘to provide justice to people is a virtue without equal’. The fatalism associated with Thai culture itself must bear the brunt of the blame - people do not want to get involved - there is little enthusiasm for challenging the actions of political élites. The citizens only take action when it benefits them personally. So how do we change this? Change must begin at grassroots level. We must teach children how to think, how to be logical and analytical. Even today, Thai law students still learn by rote: with a good memory, they can pass their examinations. They are not asked for their opinions even though critical thinking lies at the very core of a lawyer’s job. The lack of a broader perspective and ability to comprehend the spirit of the law is a weak point that needs to be urgently resolved. Regarding setting up independent organizations, my own concern is mainly over the appointment process. When looking for people to fill the most senior roles in key agencies such as the Election Commission or the National Counter-Corruption Commission, it is critically important to choose the right people - men and women of courage and integrity, with an understanding of the spirit of the law. It is necessary to select people not simply because of their previous profession, but more for the suitability of their experience for their positions in these agencies. In Europe in the past, good governance could be realized via the good performance of two key organizations: an effective administrative court which is able to monitor and control the activities of the government and its agencies, and ensure that there is full compliance within the law; and an accounting court which controls public finances and ensures that agencies will be accountable for their financing. The social structures of modern states have become more complicated, and so independent organizations were established in order to ensure good governance. However, this increase in the number of organizations is alone not enough if those principal bodies are prevented from functioning to their full capacities. The Administrative Court itself fully understands its paramount roles. The Court was established in recognition of the fact that when citizens plead a case against a government entity in the Court, in most cases, the government body has access to official documents which confer advantage over the opposing party. Because cases are presented in writing, the party having more supporting documents has a better chance of a favorable outcome. This automatically puts the power in the hands of the government’s officials, who hold all of the official records. It is therefore necessary to have a separate Administrative Court which has expertise in law and public administration. Additionally, the Court requires administrative procedures suitable for the special characteristics of administrative cases. The Supreme Administrative Court’s origin can be traced back to the Council of State, which was established by King Rama V more than 130 years ago. King Rama V gave the council two roles: one was as legal adviser to the government and its agencies in the drafting of laws, the other was its adjudicative function as an administrative court. This council was revived as the Council of State after the revolution of 1932 led by Pridi Banomyong. The Council had two functions : drafting laws and adjudicating administrative disputes. However, the latter function was subject to specific legislation which had never been enacted. Forty-seven years later in 1979, we developed the adjudicial concern and in 1999, the Administrative Court was established. The most important reason why it took so long to establish the Administrative Court is that its detractors failed to understand the principle of the Council of State. Therefore King Rama V’s Council of State could not be well-established in the manner of the current French Conseil d’ E’tat. Instead, the Supreme Administrative Court has evolved in the form of the German court system. The Administrative Court is given judicial power to balance private and public interests, protect the rights of the individual, and lay down proper standards for public administration. The Court, as an organ which is crucial to good governance, commits to providing justice to the people with fair, speedy and impartial performance. •



English \| Thai


	HONGSAKUL.COM \| ABOUT US \| CONTACT US \| SITE MAP