The Mitigation of the Retrospective Effects of Judgements Revoking Administrative Acts in Thailand

Abstract

     In the context of the judicial oversight of administrative acts, if upon thorough examination, the Administrative Court determines that an administrative act is unlawful, it has the authority to revoke the act. The revocation may have a retrospective effect that extends back to the date when the administrative act was executed, treating it as though it had never existed. This measure aims to mitigate any harm resulting from the illegality of the administrative act, effectively expunging it entirely from the legal system. Excessive adherence to this principle, however, may give rise to complications, particularly conflicts with other legal principles, such as the principle of legal certainty. This conflict becomes notably evident in the adverse consequences faced by third parties who have legitimately gained benefits from the revoked administrative act. To effectively address this issue, Thai law empowers the Administrative Court, granting it the authority to mitigate the retroactive impact of the revocation judgment, as outlined in Section 72, Paragraph Two of the Administrative Court Establishment and Procedure Act B.E. 2542 (1999). This provision specifies that the Administrative Court may exercise discretion in rendering the revocation judgment either with retrospective or non-retrospective, or prospective effect, up to a designated point in time. Furthermore, the court may prescribe any relevant conditions deemed necessary for justice in a particular case. This article explores the origins of this provision, relevant legal principles, and the Thai Administrative Court’s approach in exercising the power to mitigate the retroactive effects of judgments revoking administrative acts. The objective is to understand whether Thai courts have exercised the power to mitigate retroactivity and the reasons or legal principles they rely on in making such determinations.