Pre-Litigation Procedures in Administrative Litigation: A Study of the Failure or Undue Delay of Administrative Agencies or State Officials to Perform Duties as Prescribed by Law

Abstract

This article examines the issue of pre-litigation procedures in administrative cases concerning the failure of administrative agencies or state officials to perform duties as prescribed by law, or their undue delay in performing such duties, under Section 9 paragraph one (2) of the Act on Establishment of Administrative Courts and Administrative Court Procedure B.E. 2542 (1999). The study focuses on the problem that Thai law does not clearly prescribe specific pre-litigation procedures for such cases, in contrast to certain types of administrative disputes where preliminary procedures are explicitly required. The absence of clear legal provisions has led to inconsistent practices. In particular, claimants are often uncertain whether they may directly file a case before the Administrative Court or whether they must first submit a request or notification to the relevant administrative authority to provide an opportunity for review and remedy prior to judicial proceedings. This inconsistency reflects a lack of legal clarity and affects the practical exercise of the right to bring a case, potentially undermining individuals’ access to administrative justice. This article analyzes relevant Thai legal provisions and administrative court decisions, and further conducts a comparative study of French administrative law. In particular, it highlights the principle of administrative inaction and the requirement of a prior administrative request. Under French law, clear and systematic pre-litigation procedures are established, requiring individuals to submit a request to the administrative authority before initiating judicial proceedings in cases of administrative inaction or unreasonable delay. Such legal frameworks contribute to enhancing legal certainty and ensuring the effective protection of individuals’ rights to access administrative justice.