คำแปลคำวินิจฉัยของศาลปกครองไทย
คำแปลคำวินิจฉัยของศาลปกครองไทย
Considerations for the Decision Whether to Allow Industrial Mining in the Area of the National Reserved Forests
The Plaintiffs resided in the vicinity of the National Reserved Forests and were aggrieved by the Defendants No. 1 to No. 3 granting a permit to the Defendant No. 6 to make use or reside in the National Reserved Forests for industrial mining, and by the Defendants No. 4 and No. 5 renewing the Defendant No. 6’s concession certificate. The Supreme Administrative Court found that there remained unresolved disputes with the local residents and no approval had been obtained from the Subdistrict Administrative Organization Council. Therefore, the issuance of the permit was not in compliance with Clause 8(5) of the Regulation of the Royal Forest Department on the Permission to Make Use or Reside in the National Reserved Forests, B.E. 2548 (2005), and the renewal of the concession certificate was inconsistent with Clause 27(4) of the Regulation of the Department of Primary Industries and Mines on the Operations Concerning with the Application for, the Issuance of, the Renewal of, and the Transfer of a Concession Certificate, B.E. 2547 (2004). Moreover, in making the renewal decision, the Defendants did not take into account the considerations proposed in the rapid health impact assessment (Rapid HIA), and the fact that the ancient monument was registered including a cave nearby the concession certificate area. As a result, the grounds and justification for exercising the discretion were inappropriate and incompatible with the changing context of the community and the environment. Ultimately, the Court held that the permit and the renewal decision were unlawful, and accordingly affirmed the judgment of the Administrative Court of First Instance that revoked both of them.
อ่าน 33
อ่านรายละเอียด
The determination of Wat Phra Mahathat’s compound: it’s not unnecessary, it’s not an expropriation; it’s lawful!
The Supreme Administrative Court ruled in favor of the Defendant affirming the lawfulness of the determination of the whole area of Wat Phra Mahathat Woramahawihan (‘Wat Phra Mahathat’) to be the compound of the ancient monuments. The Court held that the decision would enable the Defendant to adequately protect the ancient monuments from demolition, which includes the overall landscape/outlook of the surroundings. Furthermore, the Court acknowledged that while the determination might interfere with the Plaintiff’s right to property and impose certain obligations, the action was essential for the public interest to prevent the monuments from demolition, whether intentional or unintentional, thus preserving the nation’s identity, which would be difficult to restore once lost. Accordingly, the Court held that the determination of the area did not constitute a disproportionate or unnecessary burden on the Plaintiff. It did not amount to a deprivation or limitation of property rights akin to expropriation, nor was it unconstitutional. Therefore, the Court decided that the Defendant’s action was lawful.
อ่าน 173
อ่านรายละเอียด
Lawful Deportation of Foreign Nationals Due to Lack of a Work Permit
The Working of Alien Act, B.E. 2551 (2008) and the Immigration Act, B.E. 2522 (1979) prohibit foreign nationals with tourist visas from working in the Kingdom of Thailand without a work permit. It appeared that the Plaintiff’s employer was an international firm that could enjoy the benefits of the investment promotion certificate as stated in the Investment Promotion Act, B.E. 2520 (1977) in establishing the affiliated company called Y. (Thailand) Co., Ltd., yet the said company did not apply for permission to bring the Plaintiff who was a foreign national into the country to work for the newly established company in accordance with Section 24 or Section 25 of the aforesaid legislation. Given that the officials of the Defendant No. 4 found out that the Plaintiff entered the country with a tourist visa to work for the said company without a work permit, the Defendant No. 3 issued an order to register the Plaintiff’s name to the internal watchlist database of foreign nationals with previous issues that shall be banned from re-entering the country in accordance with Section 12 paragraph one (3) of the Immigration Act, B.E. 2522 (1979). When the Plaintiff subsequently re-entered the country in October B.E. 2560 (2017) with a tourist visa to work while the said company still had not yet acquired a work permit for the Plaintiff, the Defendant No. 3 lawfully issued an order to the Plaintiff to depart the country. The Plaintiff also had no standing to sue for a revocation of the order that added the Plaintiff’s name to the internal watchlist database since it was not deemed as an ‘administrative order’ that directly affected the Plaintiff’s rights according to the Administrative Procedure Act, B.E. 2539 (1996) but was rather deemed as an internal process of administrative agency in providing relevant information for the immigration officers in exercising their discretion in decision-making to issue an administrative order.
อ่าน 180
อ่านรายละเอียด
Administrative Dispute Over Compensation for Damages from a Roadside Tree
During the season of heavy rain and unusually strong winds, government agencies are expected to anticipate the possibility of trees falling in highway areas. The occurrence of falling trees in these areas, which posing a danger to road users, does not constitute a natural disaster qualifying as force majeure. Consequently, the government agency’s failure to prevent the incident, resulting in a tree falling and damaging the Plaintiff’s vehicle, constitutes a breach of duty. Therefore, the agency is liable to compensate the Plaintiff for the damages incurred. Even if the injured party does not file a lawsuit with the Court within 90 days after the expiration of the 180-day period from the date the government agency issued the acknowledgment letter, they may still exercise their right to claim by filing a lawsuit within one year from the date they became aware of the violation and the liable party. This date marks when they knew or should have known the cause of action, provided it does not exceed ten years from when the cause of action arose. In such cases, the court is entitled to accept the lawsuit for consideration and judgment.
อ่าน 238
อ่านรายละเอียด
The Legality of the Ministerial Regulation Prescribing Inappropriate Hairstyles and Attire for Students
The Plaintiffs were students of public schools aggrieved by the Defendant No. 2’s Regulation, which prescribed some hairstyles and the use of cosmetics as ‘inappropriate for students.’ They filed the case with the Supreme Administrative Court, requesting the revocation of the said rule. The Court held that even though the disputed Regulation was intended to foster good behavior, it did not take any changes in the social context and the development of children’s identities and personalities into consideration. Accordingly, it did not give primary importance to the best interests of the child, and thus contradicted the Child Protection Act, B.E. 2546 (2003). Furthermore, the Defendant No. 2 had issued a ministerial regulation pursuant to the Act, which empowered schools to set out their own rules on students’ behavior, including attire and hairstyles. Therefore, the disputed clause, issued under the Announcement of the Revolutionary Council, could not remain enforceable by virtue of the transitional provision of the said Act and was deemed to be revoked by the Child Protection Act, B.E. 2546 (2003). Ultimately, the aforementioned Regulation constituted an unreasonable restriction of the liberty over a person’s body, which was prohibited by the Constitution, and therefore was unenforceable.
อ่าน 322
อ่านรายละเอียด
A Harbour Master's order that conflicts with the Intent of the Law
The Navigation in the Thai Waters Act, B.E. 2456 (1913) was designed to regulate navigation in Thai waters, ensuring the safe and orderly use of public waterways and preventing actions that could obstruct or endanger navigation. While the Defendant No. 2 had the authority to issue orders under this Act, such orders needed to align with its intent. In this case, the Plaintiff initially built a house that encroached upon a public canal, obstructing navigation. In response, the Defendant No. 2 ordered the Plaintiff to remove the house, which the Plaintiff complied with. However, the Defendant No. 2 subsequently issued another order instructing the Plaintiff to restore the canal to its previous state. The Plaintiff challenged this second order, arguing that it was unlawful. The Supreme Administrative Court ruled that the order caused the canal to revert to a shallow state and altered its usability as a waterway, which was inconsistent with the intent of the Act. Therefore, the order was found to be an undue exercise of discretion, imposing an excessive burden on the Plaintiff. Consequently, the Court ruled that the order of the Defendant No. 2 was unlawful and revoked it.
อ่าน 245
อ่านรายละเอียด
The Legality of the Royal Pardon Decree
The Plaintiff was sentenced to death for committing an offense under Section 289 (4) of the Criminal Code. He had previously received the Royal Pardon twice. According to Section 13 (1) and (5) of the Royal Pardon Decree on the occasion of the Birthday Anniversary of His Majesty King Bhumibol Adulyadej the Great, National day of the Kingdom of Thailand and Thai Father’s Day, B.E. 2563 (2020), the Plaintiff was not eligible for a Royal Pardon under this Decree. The Plaintiff argued that the said provisions were enacted in violation of legal principles and inconsistent with the provision of the Constitution of the Kingdom of Thailand regarding human dignity, rights, liberties, and equality of the people. The Plaintiff then filed a plaint with the Supreme Administrative Court, requesting the Court to revoke Section 13 (1) and (5) of the Royal Pardon Decree. The Supreme Administrative Court held that a Royal Decree issued by the King’s Royal Prerogative as the Head of State as stipulated in Section 179 of the Constitution of the Kingdom of Thailand is the exercise of Royal Prerogative power, which does not the exercise of administrative power as an administrative agency or a State official under Section 3 of the Act on Establishment of Administrative Courts and Administrative Court Procedure, B.E. 2542 (1999) that falls within the jurisdiction of the Administrative Court.
อ่าน 318
อ่านรายละเอียด
No constitutional right to bear arms—discretion on issuance of a firearm licence
Given that the Constitution of the Kingdom of Thailand, B.E. 2550 (2007), did not recognise the right to bear arms as a constitutional right, the local firearm registrar shall have discretion over the issuance of a firearm and ammunition licence in accordance with Section 7 and Section 9 of the Firearms, Ammunition, Explosives, Fireworks, and the Imitation Firearms Act, B.E. 2490 (1947). Without the recognition of the inherent right to bear arms in the Constitution of the Kingdom of Thailand, B.E. 2550 (2007), the rejection order of an application for a licence for a firearm and ammunition shall not be deemed as an administrative order that may affect the rights of the parties in the manner that requires the local firearm registrar to give the parties an opportunity to sufficiently know the facts and to present their evidence opposing thereto before issuing the administrative order according to Section 30 paragraph one of the Administrative Procedure Act, B.E. 2539 (1996). In other words, when the Plaintiff submitted an application for a licence for a firearm and ammunition, the said application did not have any rights as its legal basis; thus, the rejection of firearm licence issuance by the Defendant No. 1 was just as an affirmation of the fact that there was no such right of the Plaintiff to be affected by the administrative proceeding to begin with. Providing that the Plaintiff already acquired five firearms, the Defendant No. 1 lawfully exercised his discretion to reject the issuance of the new licence for the firearm and ammunition on the basis that the firearms in possession of the Plaintiff are deemed to be far beyond necessary for the purpose of defending oneself and one’s properties.
อ่าน 167
อ่านรายละเอียด
One does not simply make a claim of unfair discrimination merely because other wrongdoers went unpunished
The Supreme Administrative Court upheld the Defendant No. 1’s orders regarding the Plaintiff’s installation of two signboards, deeming the orders lawful. The Court first ruled the installation of the signboards unlawful, as they violated the Building Control Act, B.E. 2522 (1979) and the relevant Ministerial Regulation. The Court then affirmed that the Defendant No. 1 had acted within its authority. Additionally, the Court rejected the Plaintiff’s allegation that the Defendant No. 1 intentionally targeted the Plaintiff, as no action was taken against other instances except the Plaintiff, which constituted an unfair discrimination. In response to this allegation, the Court stated that whether or not the Defendant No. 1 takes enforcement action against violations of the Law on Building Control depends on the particular circumstances and evidence of each case. Moreover, for a claim of unfair discrimination to be valid, one must have a particular legal entitlement that was denied due to discriminatory treatment. Unfair discrimination is not a case where a person, having committed an unlawful act, alleges that other wrongdoers have gone unpunished. Accordingly, the Court ruled the Plaintiff’s claim inadmissible.
อ่าน 182
อ่านรายละเอียด
Negligence and Liability in Road Maintenance State Liability in Road Safety and Traffic Law Compliance
The Department of Highways is the administrative agency responsible for constructing, renovating, and maintaining expressways, national highways, and concession highways to ensure safe, unobstructed travel for road users. Although the Department's failure to provide adequate road lighting constituted a neglect of official duty, the accident was ultimately caused by the injured party’s choice to ride a motorcycle in a restricted traffic lane marked by a prohibition sign. Consequently, the injury was deemed a direct result of the injured party’s own negligence, and the Department of Highways was not found liable for tort against the injured party.
อ่าน 222
อ่านรายละเอียด

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