Criteria for the Consideration of Serious Circumstances Contributing to Inequitable Administrative Procedures

Abstract

The purpose of this study was to investigate concepts, theories and legal principles pertaining to the impartiality as stipulated in general principles of laws vis-à-vis serious circumstances that potentially contribute to the inequitable consideration of administrative procedures in the legal systems of Thailand, the United Kingdom, France and Germany, respectively. In doing so, a synthesis was conducted in regard to the interpretation and deliberation of serious circumstances conducive to the inequitable consideration of administrative procedures per the deliberations of the court, the council of state, and the administrative procedure law so as to propose criteria and guidelines for the consideration of serious circumstances that could inadvertently lead to the inequitable consideration of administrative procedures of the concerned officials and committee members in charge of the consideration of inequitable administrative procedures.

The findings revealed seven aspects of serious circumstances potentially leading to inequitable administrative procedures as follows: 1) the official has an antagonistic attitude toward the case or the person concerned; 2) the official is having or used to have legal issues or conflicts against the opposing party; 3) the official used to express his/her ideas relating to the case under consideration publicly; 4) the official takes part in the administrative procedures in multiple stages; 5) the official is directly concerned with the actions on which factual information is based for the administrative procedures; 6) the official has received valuable goods or any other benefits from the opposing party, and 7) the officials are in conflict with one another as regards their authority or designated roles. Therefore, to render the performance of administrative duties by administrative officials unambiguous, the Administrative Procedure Act B.E. 2539 should be amended where the term "severe conditions that could compromise the impartiality of administrative consideration" is stipulated in paragraph four of Section 16 of the Administrative Procedure Act B.E. 2539. Such stipulation will encompass all seven aforementioned characteristics of severe conditions that could compromise impartiality, as well as amend the provisions of the said section to enable the issuance of a Royal Decree based on the proposal of the Administrative Procedure Committee, which will establish criteria for considering the seven types of severe conditions that could compromise impartiality. This will provide concrete guidelines for administrative officials in carrying out their duties. Furthermore, the provisions should authorize the issuance of a Royal Decree based on the proposal of the Administrative Procedure Committee to define additional characteristics, beyond the aforementioned seven of severe conditions that could compromise impartiality. The procedure is intended to support the continuous development of legal principles concerning subjective impartiality in a manner consistent with the socio-legal context in Thailand.