ADMINISTRATIVE COURT TRANSITIONAL MEASURES TO CONTROL THE LEGALITY OF BY LAWS NOT SPECIFYING TRANSITIOANL PROVISIONS

Abstract

Bylaws are the product of the exercise of legal authority by administrative officers.
These rules are abstract and possess general force and effect, not intended to apply to any
specific case or individual. Issuing a bylaw alters or impacts the rights of individuals existing
at the time the rule is enacted. In addition to establishing primary rules, these provisions,
also known as permanent clauses, are intended to impose obligations on individuals indefinitely until such time as they are amended. To comply with the spirit of the law that has been enacted, administrative officers must consider potential impacts of enforcing the new bylaw and establish temporary rules to ensure smooth enforcement during the transition to new regulations. These temporary rules, known as transitional provisions, have legal effect only for a specific period and come into force concurrently with the initial enforcement of the bylaw.

However, issuing a bylaw is an exercise of legal power by an administrative officer, adhering  to the principle of changeability of rules. Individuals do not have the right to demand the repeal of a rule governing a matter. The administrative officer retains the discretion to repeal a rule at any time for any reason, within the limits prescribed by law. Consequently, the rules issued by the government to apply to individuals may sometimes be established solely to comply with the spirit of the law granting them authority. However, the absence of specified transitional provisions to appropriately accommodate individual rights existing at the time the bylaw was in force may lead to severe, unreasonable impacts on those rights, compared to
the objectives of enforcing the bylaw.

The Thai Administrative Court currently possesses the authority to oversee
the legality of bylaws in disputes involving government officials acting unlawfully, as stipulated
in Section 9, paragraph one (1) of the Act on the Establishment of Administrative Courts
and Administrative Court Procedure, B.E. 2542 (1999) and holds the power to revoke bylaws
under Section 72, paragraph one (1) of the same Act, which is an effective measure
for controlling the legality of administrative juristic acts recognized in various countries’
administrative legal systems. Yet the consequence of such revocation, which permanently
removes the legal effect of the bylaw from the legal system, may have real-world implications.
Should the court choose to protect individual rights or remedy the effects of such bylaws
by adopting annulment measures that permanently nullify the legal effect of a bylaw,
these measures are employed to control the legality of a bylaw. This is primarily because
the administration has not specified any transitional provisions, which are merely temporary
bylaws. Consequently, this may impact the enforcement of laws and the administrative provision of public services. Conversely, if the court decides to safeguard the public interest by allowing bylaws that lack transitional provisions to continue to have legal effect without adopting annulment measures, it would result in the suffering or damage of individuals affected
by the bylaw not being adequately remedied in accordance with the law’s intent. This highlights the limitations of measures to control the legality of the administrative court. Regardless of whether the court chooses to cite the aforementioned section, it is impossible to entirely avoid or rectify the impacts that may occur in reality.

To enhance the efficiency of controlling the legality of bylaws and mitigate
potential impacts arising from judicial decisions, while appropriately balancing public and individual interests, the Thai Administrative Courts should adopt guidelines akin to transitional measures employed by the French Administrative Court. These guidelines, which are designed to adjudicate cases involving the revocation of bylaws, are derived from the principle of easing the rigidity associated with adjudication and revocation of traditional administrative juristic acts. In the context of Thailand, these guidelines should be applied to disputes concerning the issuance of bylaws lacking transitional provisions. By imposing a time limit on the judgment, the revocation of a bylaw would be effective only for a specified period. This approach would establish a transitional provision or temporary measure to defer the enforcement of the bylaw during the initial phase. Consequently, individuals holding rights under the disputed bylaws might continue exercising those rights for a designated interval. This would also allow the administrative officer responsible for issuing the bylaws to continue their enforcement in accordance with the legal rationale and necessity underpinning their authority.