Background - Office of the Council of State

Prior to the change in administrative and political regime to constitutional monarchy in 1932, Thailand was administered under a regime of absolute monarchy. Sovereign power devolved to the King who was the head of State and in a position of divine authority. The King retained the sole power to enact Laws of the realm. At that time, there was no central agency specifically responsible for law drafting. The duties of law drafting was normally performed by a Royal Scribe (called “Arluk”) who, upon the completion of the draft, would then presented the draft to the King for reexamination and approval before promulgating it into law

 

When colonialist states of the West turned their fleets to South East Asia for new colonies, neighbouring countries were annexed as vassal states of those superpowers. The dominant justification for colonization was the need for assistance from ‘civilised’ and ‘developed’ colonial powers to the ‘uncivilised’ and ‘undeveloped’ countries. 

 

 

King Rama V (King Chulalongkorn) came to realize that modernisation of the country was the best resort to counter these claims and to escape the grasp of impending threats of westerners’ colonisation. His Majesty immediately put in effect the schemes for modernisation. This was aimed at (a) the construction of such infrastructures as roads, railroads, tap water system, electricity and irrigation system and (b) the reform of State administration and laws and order. 

 

At the outset, King Rama V started his modernisation scheme by enacting the “Council of State as an Advisory of the State Act” in 1874, which marked the establishment of the Council of State in Thailand. The Council of State of Thailand was designed on the model of French Council of State 

(Conseil d’Etat) to be advisory body to the King for State administration affairs and legislative drafting, and to perform the function of considering petitions submitted by the people for redress of grievance. In 1891, the King issued a Royal Proclamation establishing 12 Ministries to be responsible for each function of the State, modeled in the same way as those of the European countries. After an appointment of a portfolio minister for each Ministry, the integral legal and administrative framework of Thailand was laid down.

 

As for the then existing legal system which was perceived to be arcane and at times, uncivilised in the eyes of the Western world, the King who had profound comprehension of the concept of due process and the Rule of Law established the new legal system of the country. It was based upon the Civil Law tradition, modeled upon the legal system of countries on the European continent. Then, the four main Codes, viz. the Civil and Commercial Code, Penal Code, Civil Procedure Code and Criminal Procedure Code, were urgently drafted and enacted. It should be noted that all ad hoc Codification Committees which were responsible for the making of the Codes were chaired by Prince Rabi of Rajburi while their members consisting of experienced lawyers from England and the US which are Common Law countries and lawyers from such Civil Law countries as Belgium, France and Germany. Laws of many European countries were very influential in the drafting of Thai Law Codes, in particular, German and French laws; Japanese law was also taken into comparative study of the drafters in the drafting of Codes as well. The result of modernisation scheme of King Rama V, especially the reform of State administration and laws and order was a reply to the colonialist powers’ justifications for their intended annexation of Thailand as part of their vassal states.

 

In 1923, the Legislative Drafting Department was established within the Ministry of Justice by Royal Proclamation of King Rama VI, King Vajiravudth, to be responsible directly to legislative drafting affair of the country in place of the ad hoc Committee. 

After the Coup of 1932 in which Thailand changed to a system of democratic government with the King as Head of the State, the Legislative Drafting Department was transferred to the Office of the Prime Minister and it had also been entrusted to perform the function to adjudicate the administrative cases (petition or adjudicatory functions) in addition to its consultative function (legal advisory and law drafting functions) as same as French Conseil d’Etat. As a result, the Legislative Drafting Department was renamed the “Council of State” by the Council of State Act, B.E. 2476 (1933). However, the Council of State under the Act of 1933 could not promptly perform the petition function due to the absence of the procedure for adjudication of administrative cases. Aggrieved citizens tried to gain recourse to the Civil Court, but found it too difficult to get access to due process within the established civil procedures because certain technicalities rendered Civil courts impractical for handling administrative cases.

 

In 1979, the Council of State Act, B.E. 2476 (1933) was repealed and replaced by the Council of State Act, B.E. 2522 (1979). The new Act empowered the Council of State to perform both consultative and petition functions. Since then, the Council of State had attained the full status of the Council of State of the European continent. The Act also established the Office of the Council of State as the secretarial unit of the Council of State. 

 

To respond to the need of making laws fairer, more accessible and more cost-effective, in 1991, the Council of State Act (No.3), B.E. 2534 (1991) was enacted to set up the Law Reform Commission to conduct law reform. Since the establishment of the Law Reform Commission, the Office of the Council of State has provided secretarial support to the Commission.

In 1999, the Government and Parliament had come into agreement that the Administrative Court should be established to adjudicate administrative cases. The Act on Establishment of the Administrative Court and Administrative Court Procedure, B.E. 2542 (1999) was therefore enacted to implement such scheme. In addition, the Parliament also passed the Council of State Act (No.4), B.E. 2542 (1999) to transfer the petition function of the Council of State to the Administrative Court. Since then, the Council of State attains only consultative and law reform functions.