Legal Problems on the Ombudsman’s Composition and Selection Process under the Constitution of the Kingdom of Thailand B.E. 2560 (2017)

Abstract

         This research aimed at (1) to study concept and theory of examination of a governmental exercise of power (2) to study history and concept of an ombudsman establishment to examine and supervise government (3) to study composition and selection process of the ombudsman of Thailand comparing with the ombudsmen of other countries, namely, the French Republic, the Federal Republic of Germany and the Republic of Indonesia, (4) to study legal problems on the Ombudsman’s Composition and Selection Process, and (5) to provide approach to properly address problems on the composition and selection process of the ombudsman. This research methodology is qualitative research conducted through the documentary research method, textbooks, articles, and researches in Thailand and abroad, electronic data, thesis, including the laws related to the composition and selection process of the ombudsman. In this thesis, the author has systematically collected the information, using both analytical and synthetic methods to obtain information that can be a guideline in proposing and amendment to the laws.

          The findings of research reveal that 1) concept of administrative control is a basis concept necessary to a limitation of the administrative power and to a protection of rights and freedom of citizens from a violation of the administrative power. The ombudsman is one of the agencies that have roles and duties to examine powers or actions of the government agencies or officials. Furthermore, the study found that the basic theory of the work of the ombudsman comprises of a principle of rule of law consisting of the principle of the separation of powers, principle of the protection of basic rights of citizens and legally binding actions of government agencies, and principle of legitimate actions of the government to be under the principle of lawfulness; 2) Sweden was the first country to establish the office of Ombudsman. It dates back to 1809, created by the constitution. The concept of an establishment of the ombudsman which was initially formed by the democratic country. The ombudsman has roles and duties to examine the use of powers of the administrative or government. It is an important mechanism to address problems from government administration and enhance a transparency of government agencies and officials. This mechanism is an important evolution of the examination of the use of administrative power. Ombudsmen in some countries also take another role similar to prosecutor or as a protector of rights in others; 3) the Constitution of the Kingdom of Thailand 2017 (B.E. 2560) provides that there shall be three Ombudsmen of Thailand appointed by the King upon the advice of the Senate from two persons with knowledge, expertise and experience related to the  administration of State affairs in the position not lower than a Director-General or an equivalent Head of a Government agency; or a Head of a State agency at least comparable to a Department as prescribed by the Selection Committee, and holding such position for a period of not less than five years; and one person having experiences in the operation of a public undertaking for a period of not less than twenty years. Nature of experiences and operations for of a public undertaking as referred shall be in line with the announcement issued by the Selection Committee, mainly based on the purpose to bring in qualified persons with experiences in the operation of a public undertaking for better performing duties as the Ombudsman.
In contrast, in the foreign countries, there is one Ombudsman in the French Republic, assisted by 3 adjoints and a delegate (Délégué général) responsible for negotiation and cooperation with other government agencies on his behalf, and
3 groups or “Collège” of persons can be appointed for assistance. Meanwhile Ombudsman of Germany applies a system of Petitions Committee of the German Bundestag composed of 28 members including Chairman, Deputy Chairman and members, formed by the majority party of the German Bundestag, that act as the ombudsman, also there is a Parliamentary Commissioner for the Armed Forces responsible for handling complaints related to defense and army affairs; but the Ombudsman of the Republic of Indonesia has the highest number of the ombudsmen of 9 persons who works for  National Ombudsman and Regional/Local Ombudsman; 4) The fact that the ombudsman of Thailand has only 3 persons as provided by Constitution of the Kingdom of Thailand 2017 (B.E. 2560) and not being able to appoint a specific team of assistant ombudsmen causes delays and not being thorough in solving the problems of people suffering. The structure of the ombudsman of Thailand is different from ombudsmen of other studied countries. First, the Ombudsman of the French Republic, called "People's Rights Defender", has power to grant power or appoint assistants for specific works. Second, the Ombudsman of the Republic of Indonesia has the highest number of the ombudsmen of 9 persons. Lastly, the Ombudsman of Germany applies a system of complaint committee of the German Bundestag, formed by the majority party of the German Bundestag, that act as the ombudsman composed of 28 members including Chairman, Deputy Chairman and members; and 5) it is proposed to revise and amend the provisions of related laws in this study aiming at improving a work of the ombudsman, as an independent organization under the constitution, proceed more effectively. When compared to the laws and regulations on Ombudsman in France, Germany and Indonesia, the laws and regulations related to the structure of the ombudsman of Thailand should be amended to grant power of the ombudsmen of Thailand to be responsible for a specific field and let the ombudsman being able to set up a team of assistants to perform duties in different regions on his behalf to consider complaints or mediate disputes. If the complaints are insolvable or meet the solution, the team of assistants will transfer them to the central Ombudsman for further consideration. Also, the laws and regulations should stipulate qualification of the ombudsman to be a person that has specific knowledge such as law and finance. Furthermore, the ombudsman selection committee should include academics and representatives from public sectors.