Administrative Litigation under Section 101 of the Organic Act on Anti-Corruption B.E. 2561: Civil Servants Subject to NACC Disciplinary Resolutions

Abstract

Section 101 of the Organic Act on Anti-Corruption B.E. 2561 introduces a significant shift in the procedural rights of civil servants subjected to disciplinary action based on resolutions issued by the National Anti-Corruption Commission (NACC). Unlike the previous requirement under Section 42 of the Act on the Establishment of Administrative Courts and Administrative Court Procedure B.E. 2542 (1999), which mandated exhaustion of administrative appeals before judicial review, this provision allows civil servants to choose between two paths: either directly filing a case with the Administrative Court within ninety days from the date of punishment, or first appealing the exercise of discretion in penalty determination. The previous obligation to pursue internal administrative remedies prior to administrative litigation is thus removed.

           However, the provision’s wording gives rise to several interpretive challenges. These include the precise meaning of “date of punishment,” whether it is permissible to simultaneously appeal the discretion exercised in determining the penalty and file a case with the Administrative Court, and the scope of judicial review when the disciplinary order has already been appealed. In particular, questions arise as to whether the Administrative Court’s review is confined to the penalty’s proportionality or extends to the full factual and legal foundation of the order.

           The study finds that the term “date of punishment” should be interpreted in accordance with the legal effect of an administrative order—namely, that such an order becomes binding upon the recipient from the date of its notification, pursuant to Section 42 of the Administrative Procedure Act B.E. 2539 (1996). With regard to the right to challenge a disciplinary order, a number of rulings by the Supreme Administrative Court have taken differing positions. After analyzing several of these rulings, the author argues that a civil servant subject to disciplinary action may not simultaneously appeal the exercise of discretion in determining the penalty and file a case with the Administrative Court. This is because the wording of Section 101 of the Organic Act on Anti-Corruption B.E. 2561 indicates that the appeal process must be completed prior to judicial proceedings. In cases where both processes are initiated, the civil servant must choose to terminate one before proceeding with the other.

           Nonetheless, if the authority responsible for reviewing the appeal fails to act within a reasonable time or beyond the period prescribed by law, the disciplined civil servant should be entitled to file a case with the Administrative Court immediately upon expiration of the relevant timeframe. The Administrative Court also retains the power to review the disciplinary order in its entirety—on both factual and legal grounds—because it functions as a judicial body whose authority to review the NACC’s findings is not constrained in the same manner as the appeal authority, which is limited under Section 101 of the Organic Act on Anti-Corruption B.E. 2561.