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Document Type

Article

Publication Date

2-15-2019

Publication Citation

26 Indiana J. Global Legal Studies 133 (2019)

Abstract

This study examines why courts made sense to those who established them and how the courts' authority is being utilized. For relatively powerless and resource-poor litigants, barriers to litigation may be many, but when these barriers are overcome, administrative courts exercise extraordinary influence, even when they fail to render a decision fully vindicating a plaintiffs legal rights. Administrative courts serve multiple functions, not only by exercising power, in the famed words of Chief Justice Marshall, "to say what the law is," 13 but also by decentering the concentrated power of Thailand's insular and tradition bound ministries as well as its politicians. Binding decisions can exercise what Michael Dowdle calls concurrent jurisdiction to counter concentrated executive or political control over policy making through authority of their own that is directed to enforcing the rule of law. Courts' convening power requires officials to engage other stakeholders and to attend to the consequences of policy from other perspectives. Finally, courts possess expressive functionality by providing a forum in which citizens' interpretations of policy and new perspectives on state authority can sometimes be communicated to others when political space is limited. 14 Each of these functions create an alternative center of power and opportunities for change. In practice, the impact of a court system depends on a web of actors that includes judges, bureaucrats, police, prosecutors, potential litigants, and supporting networks, and may extend far beyond to global sources, ideological influence, and material support.

Understanding how judges, litigants, and other actors have adapted to the administrative courts requires context. Our examination is both "top down" and "bottom up." 15 We emphasize the courts' institutional origins and development, and we consider how the courts' authority is perceived and deployed by judges, potential litigants, and their advocates. The factors influencing the mobilization of litigation and how courts draw officials and citizens together through a web of courtcentered relationships are then discussed. Parts II and III describe the history of the courts' origins to lay bare the political contingencies that determined the power given the courts as the Thai state underwent political transitions. Part II places the administrative courts in historical perspective, describing the development of courts in Thailand and their place in relation to the monarchy (the government's symbolic core) and the powerful bureaucratic state. Part III describes the constitutional and statutory powers given to the administrative courts. Part IV describes the administrative courts in action. We present a statistical overview of cases filed since the administrative courts opened in 2001 and an analysis of the courts' caseload. The caseload of the courts shows that litigation is concentrated in a few areas of government administration, and litigants typically have a continuing relationship with government regulators or are government officials themselves.

More surprising is the increasing frequency of environmental rights litigation where litigants have little familiarity with government regulation and limited means or knowledge to litigate. In Part V, we undertake a case study of one type of litigation's development to illustrate the dependence of and effectiveness of litigation for rights on a system of "support structures." 16 Thailand lacks many of the supporting institutions and practices typical of developed Western democracies, such as a politically savvy and powerful legal profession, a rightsconscious judiciary, influential public and private organizations supporting litigation for rights, and public consciousness of rights. Yet following constitutional reform, rights-oriented litigation emerged in the administrative courts through the efforts of a small, self-sustaining community of activist attorneys. We describe the career of a leading environmental litigator and his network and the mutually constructive effects of the outcomes of this litigation on the support structures for the courts.

A concluding Part VI draws on the foregoing analysis to address a question posed by many Western observers of new judicial systems: Do new administrative courts provide an alternative path for the rule of law? We find that under both democratic and military rule, the administrative courts have provided a means of accountability accessible to ordinary Thai citizens. We identify factors that influenced this possibility and provide starting points for comparisons with the courts of other developing countries as well as with judicial systems in developed democratic states.

Available for download on Thursday, February 15, 2024

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