Administrative order that is obviously and seriously unlawful which legally is considered as if it was never issued : perspectives from foreign law and the judgments of the Supreme Admintstrative Court in series of cases involving the civil service examinations

Abstract

     The concept of void administrative acts is a concept that has long been developed through theoretical writings, laws and court judgments of several European countries. According to the administrative procedural laws of the Federal Republic of Germany, the Republic of Italy, the Republic of Portugal, and the Kingdom of Spain, the concept of void administrative acts is explicitly recognized by the law. It is generally stated that an administrative order is null if it has serious and obvious defects, and in some cases the causes of nullity are specifically prescribed by law. While French administrative law does not explicitly specify the concept of void administrative acts and does not use the term ‘void administrative act’ there is a theory of administrative acts that do not exist in law, developed by the Council of State. The French Council of State considers, on a case-by-case basis, which defects in an administrative act are considered obvious and serious that the act shall be considered to not exist at all in law. For Thailand, although the Administrative Procedure Act B.E. 2539 (1996) does not recognize the concept of void administrative acts, this concept is recognized by Thai administrative law textbooks, legal opinions of the Administrative Procedure Committee, and especially by the judgments of the Supreme Administrative Court. From the past to the present, the Supreme Administrative Court has applied the concept of a void administrative act in adjudicating cases. Instead of using the term ‘void administrative act’, it uses the term ‘administrative order that is obviously and seriously unlawful,’ which legally is considered as if the administrative act was never issued, has no legal effect, is not valid or legally binding, and is invalid from the outset. This principle has been applied in three cases: the Phajook Subdistrict case; the case of the Chief District officer program recruitment, where selected candidates were found to have cheated; and a series of cases involving the recruitment of local government organization employees, where the process was found to have severely conflicted with general examination standards. The development of the principle can be found throughout the cases. It is worth examing the facts the Supreme Administrative Court considers when determining that an administrative order is obviously and seriously unlawful, as if it was never issued, has no legal effect, is not valid or legally binding, and is invalid from the outset. The study found that in cases of the civil service examinations where were found to have cheated, whether by the candidates or the exam organizers, or due to substandard examination procedures - such as the creation of exam questions, grading, and score processing being carried out by individuals instead of an educational institution or other entity nominated by the Committee on Local Government Personnel as the examination standard requires - the examination is considered dishonest and seriously unlawful. Consequently, the resulting selection announcement and the government official appointment orders will be deemed obviously and seriously unlawful as if the administrative act was never issued.