Services / Administrative cases
Challenging a rule is not challenging an order
An administrative order affects the person who receives it; a rule affects everyone within its scope. That difference gives a challenge to a rule both a different way of counting time and a different kind of judgment at the end.
Rule-making sits in section 9(1)(1)
Section 9, first paragraph, subsection (1) of the Establishment of Administrative Courts and Administrative Court Procedure Act B.E. 2542 (1999) gives the Administrative Court jurisdiction over disputes concerning an unlawful act by an administrative agency or state official, whether the making of a rule, an order, or any other act. The wording puts rule-making first, alongside orders, so whether a rule can be challenged at all is not a matter of interpretation.
The grounds of unlawfulness
Subsection (1) sets out the grounds as a series: acting without power or beyond the scope of the duty; not in accordance with law; not in accordance with the form, procedure or method laid down as essential for that act; in bad faith; amounting to unfair discrimination; creating unnecessary steps or imposing an undue burden on the public; or an improper exercise of discretion.
Two grounds that fit rules particularly well
Of those grounds, the two that fit rule-making most directly are acting without power or beyond the scope of the duty, which sets the rule against the enabling provision it was made under, and creating unnecessary steps or imposing an undue burden on the public, which weighs what the rule demands against what it is meant to achieve.
The judgment, and Gazette publication
Section 72, first paragraph, subsection (1) empowers the court to revoke a rule or an order, or to prohibit an act, in whole or in part, where the claim is of unlawful action under section 9(1)(1). The third paragraph provides that where a final judgment revokes a rule, the result of that judgment is published in the Government Gazette, and that publication operates as the revocation of the rule.
Retrospective or not, the court decides
The second paragraph of section 72 carries a power with real practical weight: in making an order under subsection (1), the court may determine whether it takes effect retrospectively or not, or from some point in the future, and may attach conditions, according to the justice of the case. A claimant should therefore say from the outset what temporal effect they are asking for, rather than simply asking for revocation.
PREPARE
What to bring
- The rule itself and the date it came into force
- The enabling provision the rule was made under
- The procedure the law lays down for making such a rule
- How the rule bears on the claimant
- The burden the rule creates against what it aims at
QUESTIONS
Questions this raises
The rule has been in force for years. Can it still be challenged?
The first paragraph of section 52 provides that proceedings concerning the protection of the public interest or a person's status may be filed at any time, and the second allows the court to accept a case filed out of time where it would benefit the public at large or there is other necessity. A challenge to a rule, which by its nature reaches many people, is therefore a case where both paragraphs are worth considering from the start.
Must I wait until the rule is applied to me?
Section 9(1)(1) sets rule-making and orders side by side in the same provision, so they are two routes rather than one. What has to be shown in a challenge to a rule is harm arising from the rule itself, which is a different set of facts from harm arising from an order later made under it — and waiting for an order can mean having to run both routes at once.
LAW
The legislation
- Administrative Court Procedure Act B.E. 2542 (1999), section 9
- Administrative Court Procedure Act B.E. 2542 (1999), section 72
ENQUIRIES
