Review of the legitimacy of Section 44 Orders issued by the National Council for Peace and Order (NCPO)

Abstract

     National Council for Peace and Order (NCPO) is the 13th revolutionary committee of Thailand and has the status of the sovereign. They are an administrative agency under Section 3 of the Act on establishment of the Administrative Courts and Administrative Court Procedure, B.E. 2542 [1999]. The any order issued by the NCPO is entirely legal. The Administrative Court is part of the judicial process to examine the exercise of state power, but the court does not have the power to examine the legality of NCPO orders issued under Section 44 of the (Interim) Constitution of the Kingdom of Thailand, B.E. 2557 [2014]. Although that interim constitution was superseded by the Constitution of the Kingdom of Thailand, B.E. 2560 [2017], Section 279 in the new constitution’s transitional provisions states that the NCPO’s orders retain their legal status. In the event that an announcement or any NCPO order may be contrary to the Constitution, it is the power of the Constitutional Court to adjudicate the matter. The Administrative Court does not have the power to examine the exercise of such power, despite being NCPO orders being administrative orders under Section 5 of the Administrative Procedure Act, B.E. 2539 [1996]. The contrary to the principles of พฤษภาคม - สิงหาคม 256239 administrative law that is public law, stipulates rules about public administration, administrative actions, control of the exercise of administrative power as well as control and examine of administrative actions to be in accordance with the legality of administrative acts. The administration must be under the law that will have the effect of protecting and increasing protection of the rights and freedoms of people. Even though, According to Section 279 of the Constitution of the Kingdom of Thailand B.E. 2560 which provides to be considered for revision of some errors from NCPO’s order as mentioned above by the Prime Minister’s order or the resolution of the Cabinet. There is no confirmation that the person holding the said position will approve it and whose receives unfair orders will not have any mechanism in the administrative justice system to remedy the error. Therefore, Under Section 265 of the 2017 Constitution, the NCPO’s Section 44 powers will lapse when a new cabinet takes office following a general election. The provisions of Section 279 should be amended to allow the person who received the administrative order of NCPO to be able prosecute in the administrative court. That’s for restoring the righteousness.