The Duty of The State On State Indictment to Perform Its Duties As Prescribed By Chapter 5 of The Constitution of The Kingdom of Thailand B.E. 2560 : A Case Study of Court Jurisdiction

Abstract

           The duty of the State is independently stipulated in Chapter 5 of the Constitution of the Kingdom of Thailand B.E. 2560 (2017) so as to guarantee that major rights of people shall be concretely protected by duty performance of the State, and to provide the people and community with rights to follow and accelerate relevant State authority to perform duty of remedy, as well as, to allow them to submit their petition to the Court in accordance with Section 7 (4) and Section 45 of the Organic Act on Procedures of the Constitutional Court B.E. 2561 (2018). The objectives of this article are : to study on the duty of the State as prescribed by the Constitution of the Kingdom of Thailand in comparison to the Constitution of the Republic of France and the Kingdom of Spain ; and to analyze the differences between Court jurisdiction and procedure of filling petition to the Constitutional Court and Administrative Court of the Kingdom of Thailand in case involving a dispute in relation to neglecting duty of a State authority or performance of duty with unreasonable delay as provided by laws concerning procedure of both Courts in order to consider whether the Constitutional Court or Administrative Court shall adjudicate such case effectively and appropriately. 

                The study reveals that the Constitution of the Republic of France and the Kingdom of Spain generally provide that State shall perform duty in response to protect rights and freedom of the people. The Constitutions of both countries do not provide specific chapter stipulating duty of the State. According to the result of the study on the Court jurisdiction, it was found that jurisdiction of the Administrative Court regarding matter of the case and petitioners is wider than the Constitution Court’s. As for procedure of Court filing, it is provided by law that the petitioner is required to proceed with all steps before submitting the petition to the Constitutional Court that takes a long period of time whereas the petitioner is not required to proceed any steps before submitting petition to the Administrative Court if the case concerns with protection of public interest. As a result of this, there was only 1 case submitted to the Constitutional Court. Although the Constitutional Court’s judgement shall not only oblige the parties but also all relevant State authorities, the possibility that a case shall be admitted by the Court is dramatically low due to unclear provisions of law regarding requirements of a petitioner and a number of steps to be completed before case submission. Consequently, duty of State should not be independently prescribed in specific chapter to allow the people to accelerate and follow duty performance of State authority, but the people should be allowed to exercise their rights to accelerate and follow the case based on the provisions of the Constitution under the Chapter of Rights and Freedom, and appeal to the Ombudsman for their right protection as prescribed by the Constitution. As for case adjudication, it should be fallen into the jurisdiction of the Administrative Court since the duty of State authority is performed based on administrative act so that specific jurisdiction of the Constitutional Court shall be maintained in order to adjudicate cases in accordance with specific provisions stipulated by the Constitution.