Services / Administrative cases
When an agency does nothing, when can you sue?
An agency's silence is something that can be litigated rather than waited out indefinitely. But getting to court runs through a particular mechanism, and that mechanism starts with a letter the aggrieved party has to write.
Silence is within the court's jurisdiction
Section 9, first paragraph, subsection (2) of the Establishment of Administrative Courts and Administrative Court Procedure Act B.E. 2542 (1999) gives the Administrative Court jurisdiction over disputes concerning an administrative agency or state official neglecting a duty the law requires them to perform, or performing that duty with unreasonable delay. The wording covers two different situations: not acting at all, and acting but too slowly.
A duty the law requires them to perform
The condition to establish before anything else is that there really is a duty the law requires to be performed. A matter on which the agency has a discretion whether to act is a different thing from one the law obliges it to do. Preparing the case therefore begins with identifying the provision that imposes the duty, and showing how the claimant is aggrieved or harmed by its non-performance.
The written-request mechanism in section 49
Section 49 requires an administrative case to be filed within ninety days of the day the cause of action was known or ought to have been known, or from the expiry of ninety days after the claimant wrote to the agency or official asking them to perform the duty the law imposes and received no explanation, or received one the claimant considers unreasonable. That second route is the mechanism made for silence.
Two ninety-day periods, read in order
In a case of silence the structure of section 49 is therefore two consecutive periods: first, ninety days from the written request, which is the agency's opportunity to answer; then a further ninety days in which to file, running from the expiry of the first. Without a written request at the outset there is no starting point for the first period, and the date on that letter is the one to keep.
The order the court can make
Section 72, first paragraph, subsection (2) empowers the Administrative Court, in a case brought on neglect of duty or unreasonable delay, to order the head of the agency or the official concerned to perform the duty within a time the court fixes. The relief is therefore not merely a declaration that the agency was at fault but an order to act, with a deadline the court sets itself.
PREPARE
What to bring
- The provision imposing the duty said to be neglected
- The application or matter filed, and the date it went in
- The written request to perform the duty, and proof of sending
- Any explanation received in reply
- The harm the delay has actually caused
QUESTIONS
Questions this raises
I filed long ago but never sent a written request.
The second route in section 49 runs from the date of a written request to the agency to perform the duty, not from the date the matter was first filed. Never having sent one does not mean the right is lost; it means the clock has not started. What can be done is to send a request that states plainly which duty is to be performed, and then track the two periods section 49 sets.
They replied, but the reply does not answer the point.
Section 49 names two cases side by side: receiving no explanation, or receiving one the claimant considers unreasonable. A reply that misses the point therefore sits within what the provision already contemplates. What to do is keep the request and the reply together, because setting one against the other is what shows whether the explanation answered anything.
LAW
The legislation
- Administrative Court Procedure Act B.E. 2542 (1999), section 9
- Administrative Court Procedure Act B.E. 2542 (1999), section 49
- Administrative Court Procedure Act B.E. 2542 (1999), section 72
ENQUIRIES
