ปัญหากฎหมายเกี่ยวกับการอุทธรณ์โต้แย้งคำสั่งลงโทษทางวินัย กรณีคณะกรรมการป้องกันและปราบปรามการทุจริตแห่งชาติชี้มูลความผิดทางวินัย

Abstract

Whereas the law on Civil Service as a specific law for civil service disciplinary proceedings and the law on Prevention and Suppression of Corruption as a special law have prescribed the right to appeal against disciplinary penalty orders differently. The Civil Service Act, B.E. 2551 (2008) provides that the disciplinary punished person is entitled to appeal on both points of fact, points of law and the discretion to impose a disciplinary penalty. And the Merit System Protection Commission, as an organization that has the authority to consider and adjudicate the appeals against disciplinary penalty orders of the civil servants, has an appellate authority comprehensively in consistent with the principles of Appeal and the consideration and adjudication on the appeal against the administrative orders according to the law on Administrative Procedure which is a central law for the administrative consideration. The Organic Act on Counter Corruption B.E. 2542 (1999), Section 96 provides that the disciplinary punished person according to the offenses base resolved by the National Anti-Corruption Commission is entitled to appeal the discretion to impose a disciplinary penalty of the superior only and the authority of the Merit System Protection Commission has been limited under the law on Civil Service to consider and adjudicate the appeals against the discretion to impose a disciplinary penalty of the superior only.

From which the abovementioned related laws have prescribed about the right to appeal against disciplinary penalty orders differently, it inevitably caused problem with the unity of the legal system on the appeal and the consideration and adjudication on the appeal against disciplinary penalty orders, problem in enforcing the appeal system even though the appellant cannot be given fair treatment absolutely yet imposing unnecessary legal conditions before bringing the case to be filed with the Administrative Court to revoke the disciplinary penalty orders and problem of inequality and delay in upholding justice to the disciplinary punished person.

After studied and analyzed the involved problems, it founds that related laws which prescribed about the right to appeal against disciplinary penalty orders differently have caused the problems as mentioned above truly. The Researcher suggests that the Organic Act on Counter Corruption B.E. 2542 should be amend in some of the relevant section on the principle that the National Anti-Corruption Commission is an independent organization under the constitution exercising its authority to investigate and point out the grounds for disciplinary offense and also an external administrative monitoring organization when the superior has considered and ordered disciplinary offenses according to the offenses base resolved by the National Anti-Corruption Commission, such disciplinary penalty order shall be final in the administrative proceeding and the disciplinary punished person should be given the right to bring the case to be filed with the Supreme Administrative Court directly. เท the adjudication of the Supreme Administrative Court, the National Anti-Corruption Commission should be summoned or assigned to be one of the parties in all cases. เท order to provide the same practical method, it should be submitted to the General Meeting of Judges in the Supreme Administrative Court to regulate and prescribe the rules and procedures or submitted to the President of the Supreme Court to consider and give the suggestion in the proceedings in the case of filing to revoke the disciplinary penalty order according to the offenses base resolved by the National Anti-Corruption Commission as the case may be. If it is implemented as the Researcher suggested, it will create a mechanism to regulate and monitor the use of the authority of the National Anti-Corruption Commission and the problems as already mentioned above will be resolved.