1. Administrative Court of Thailand

2. Roundtable for ASEAN Chief Justice on Environmental Law and Enforcement on 7-10 December 2012 Melaka, Malaysia Presented by Prapot Klaisuban, PhD Judge of The Administrative Court of Thailand Session 9 Common Challenges for ASEAN Justices : Key Legal Issue #4 : Expert Witness and Scientific Evidence in Environmental Cases

3. Fundamental Principles 1. The Constitution of the Kingdom of Thailand B.E. 2550 (2007) guarantees all citizen’s basic rights to seek legal redress 2. Thailand has Dual Court System (parallel) under the Constitution of the Kingdom of Thailand 3. Fundamental principle apply in the Thai Administrative Law is an inquisitorial system

4. Jurisdiction of the Administrative Court Section 9 of the Act on Establishment of Administrative Court and Administrative Court Procedure, B.E. 2542 (1999) Administrative Courts have the competence to try and adjudicate or give orders over the following matters: (1) The case involving a dispute in relation to an unlawful act by an administrative agency or State official, whether in connection with the issuance of a by-law or order or in connection with other act, by reason of acting without or beyond the scope of the powers and duties or inconsistently with the law or the form, process or procedure which is the material requirement for such act or in bad faith or in a manner indicating unfair discrimination or causing unnecessary process or excessive burden to the public or amounting to undue exercise of discretion;

5. Jurisdiction of the Administrative Court (cont.) (2) The case involving a dispute in relation to an administrative agency or State official neglecting official duties required by the law to be performed or performing such duties with unreasonable delay; (3) The case involving a dispute in relation to a wrongful act or other liability of an administrative agency or State official arising from the exercise of power under the law or from a by-law, administrative order or other order, or from the neglect of official duties required by the law to be performed or the performance of such duties with unreasonable delay;

6. Jurisdiction of the Administrative Court (cont.) (4) The case involving a dispute in relation to an administrative contract; (5) The case prescribed by law to be submitted to the Court by an administrative agency or State official for mandating a person to do a particular act or refraining therefrom; (6) The case involving a dispute in relation to the matters prescribed by the law to be under the jurisdiction of Administrative Courts.

7. Jurisdiction of the Administrative Court (cont.) The following matters are not within the jurisdiction of Administrative Courts: (1)Action concerning military disciplines; (2)Action of the Judicial Commission under the law on judicial service; (3)The case within the jurisdiction of the Juvenile and Family Courts, Labour Courts, Tax Courts, Intellectual Property and International Trade Courts, Bankruptcy Courts or other specialised Courts.

8. The Powers of the Judge 1.Inquiry of facts from the pleading 2.Inquiry of facts by the Court in other procedures According to the Act on Establishment of Administrative Court and Administrative Court Procedure, B.E. 2542 (1999) and Rules of the General Assembly of Judges of the Supreme Administrative Court on Administrative Court Procedure, B.E. 2543 (2000), the competence of Administrative Court to inquire the facts has been divided into two parts:

9. Inquiry of facts by the Court in other procedures Since the competence of the Court to inquire the facts is not limited only from evidence presented by each party in the pleading but also in some circumstances, the Court may examine and inquire into the facts as is appropriate. (Section 55 paragraph three of the Act on Establishment of the Administrative Court and Administrative Court Procedure, B.E. 2542 (1999) and Clause 50 paragraph one of the Rules of the General Assembly of Judges of the Supreme Administrative Court on Administrative Court Procedure, B.E. 2543 (2000))

10. Inquiry of facts by the Court in other procedures (cont.) Namely: 1.Inquiry of facts from each party and the witness concerned with the case 2.Inquiry of facts from document or object 3.An appointment of an expert witness 4.The inspection of place, person or any other object 5.Transfer of an issue to another Administrative Court to hear evidence

11. An Appointment of an Expert Witness 1)The Court shall have the power to appoint an expert for studying, examining or analyzing any matter in connection with the case, provided that it is not the determination of a question of law, and then preparing a report or giving statements to the Court. (Clause 55 paragraph one of the Rules of the General Assembly of Judges of the Supreme Administrative Court on Administrative Court Procedure, B.E. 2543 (2000))

12. An Appointment of an Expert Witness (Cont.) 2)The Court shall take these qualifications into account: - Impartiality - knowledge - experience - working record - principle and theory expert presents – at an acceptable level - conflict of interest of such expert (Clause 6 last paragraph of the Recommendation of the President of the Supreme Administrative Court on Administrative Case Proceeding concerning Environmental Issue)

13. Central Administrative Court Judgment No. 1414/2544 The Plaintiff filed that he was aggrieved from the Defendant’s rice mill located in nearby the Plaintiff’s house. The dust arising from the Defendant’s rice mill caused grievance and disturbance to the Plaintiff. As a result, the Plaintiff and his family member experienced physical health and mental health problems until the filing dates for seven years. The Plaintiff served a complaint on agencies concerned with this matter since B.E. 2537 (1994) but to no avail. This case had the one critical issue the Court needed to consider whether the dust and nuisance arising from grinding of rice exceeded the maximum standard. To settle the said issue, the Court appointed Department of Pollution Control as an expert in order to measure noise and dust level arising from such rice mill. Remanded the case to Administrative Court of First Instance for further proceedings.

14. Example of Thai cases filed to the Administrative Court of Thailand 1. Cobalt-60 case 2. Map Ta Phut case 3. Mae Mao case 4. Klity Mine case 5. Thai-Malaysia Gas Pipeline case 6. Mae Mao Shell Cemetery case 7. Nhong Sang Power Plant case 8. Udon Potash Mine case 9. Hin Krud – Boa Nok Power Plant case

15. Example of Thai cases filed to the Administrative Court of Thailand (cont.) ■ A judge in a court may have no specialized knowledge of a specific practice (based on scientific, technical or other specialized expertise) ■ Expert witness can be both powerful and quite misleading for a case, therefore the qualifications and the supported opinion of an expert witness must be carefully scrutinized by a court.

16. Example of challenges needed to be tackle for a future disputed cases after ASEAN integration 1. Energy security 2. Tran ASEAN pipeline 3. ASEAN grid line 4. Single Market and Production Base (free flow of goods, services, investment, capital and skilled labor) 5. Competitive Economic Region (competition policy, consumer protection, intellectual property rights, taxation, E-commerce) 6. Equitable Economic Development (SME Development)

17. Problems for Thai Administrative Court to be considered 1. Limitation on expert witness fee 2. There must be prepared to evaluate whether there should be registered expert witness for a Thai Administrative Court