Translation:Constitutional Court Order No. 57/2555

by the Constitutional Court of Thailand

Garuda emblem

Order No. 57/2555

Case No. 49/2555

In His Majesty's Name

The Constitutional Court

Re: Khunying Charuwan Menthaka's application for a decision of the Constitutional Court under the Constitution, section 214, as to whether an Ombudsman is competent to bring before an administrative court a case against the Auditor General

The facts derived from the application and its supplementary documents are as follows, in summary: Mr Pramot Chottimongkhon, Ombudsman (Petitioner), brought before the Central Administrative Court the Black Case No. 1306/2553 against Khunying Charuwan Menthaka, Auditor General (Respondent). According to the petition, the Petitioner received a complaint and documentary evidence from Mr Rueangkrai Likitwatthana, Senator, who questioned the functioning of the Respondent. On 18 August 2012, the Respondent issued the Order of the Office of the Auditor General No. 184/2553, Re: Cancellation of the authorisation of the Deputy Auditor General to serve as the Auditor General ad interim. The Senator was of an opinion that the Respondent issued such order without legal authority, because she had vacated the office of Auditor General when she issued it. The Petitioner considered that it is the authority of the Auditor General to adopt and issue such an order as the Order of the Office of the Auditor General No. 184/2553, Re: Cancellation of the authorisation of the Deputy Auditor General to serve as the Auditor General ad interim, according to the Administrative Procedure Act, BE 2539 (1996), section 12. The Respondent, when issuing the Order of the Office of the Auditor General No. 184/2553 on 18 August 2010, was the caretaker Auditor General because she has vacated the office of Auditor General after she reached the age of sixty five on July 2012, pursuant to the Organic Act on State Audit, BE 2542 (1999), section 34 (2). For the reason that the Respondent was no more competent to deal with the Deputy Auditor General's authority to give instructions or carry out official business according to the Organic Act on State Audit, BE 2542 (1999), section 37 (1), and article 11/1 of the Rules of the State Audit Commission on Personnel Administration, BE 2543 (2000), as amended by the Rules of the State Audit Commission on Personnel Administration (No. 3), BE 2552 (2009), the Respondent was not empowered to issue the Order of the Office of the Auditor General No. 184/2553, causing the Order to be unlawful under the Administrative Procedure Act, BE 2539 (1996), section 12. Having found so, the Petitioner exercised his power under the Constitution, section 245 (2), to refer the matter to the administrative court for further decision.

The Supreme Administrative Court later passed the judgment of 30 August 2012 in the Black Case No. A 1079/2553 and the Red Case No. A 472/2555, by which the Court decided that, by operation of the Organic Act on State Audit, BE 2542 (1999), section 34 (2), the Respondent vacated the office of Auditor General when she reached the age of sixty five on 5 July 2010. Since the Order of the Office of the Auditor General No. 184/2553 was issued on 18 August 2010, the date after the Respondent vacated office, the Order was thus unlawful. The Supreme Administrative Court concurred on and affirmed the decision of the administrative court of first instance which revoked the Order in question.

Khunying Charuwan Menthaka (Applicant) filed the application of 1 October 2012 with the Constitutional Court, stating as follows: The Ombudsman brought the case to the administrative court, for the reason that he regarded the Auditor General as a government officer whom he is competent to deal with by virtue of the Constitution, section 244 (1) (a). But the Applicant, in her capacity as the State Audit Commission and the President of the State Audit Commission, deemed that the Auditor General is not a government officer against whom an Ombudsman may enter an action before an administrative court, because the Organic Act on State Audit, BE 2542 (1999), section 32, prescribes that "A person to be elected as Auditor General must (1) not being a government officer with regular post or salaries." When the opinion of the Ombudsman and that of the State Audit Commission are conflicting as such, there arises a conflict of authority between two constitutional organs or more. The Applicant therefore referred the matter and her opinion to the Constitutional Court for further decision pursuant to the Constitution, section 214.

The preliminary issue the Constitutional Court needs to handle is whether or not the Applicant is competent to request the Constitutional Court to deal with her application according to the Constitution, section 214.

Having carefully considered, the Constitutional Court entertained the following opinion. The Constitution, section 214, provides: "Where arises a conflict of authority between the National Assembly, Council of Ministers or two or more constitutional organs other than the courts, the President of the National Assembly, Prime Minister or organs in dispute shall refer the conflict and their opinions to the Constitutional Court for decision." In this regard, the State Audit Commission is a constitutional organ invested with the authority under the Constitution, sections 252 to 254, and the transitory provisions of sections 301, 302 and 309, whilst the Ombudsmen are also the constitutional organs under the Constitution, sections 242 to 245, and the transitory provisions of sections 299 and 302. If an officer existing the authority of the President of the State Audit Commission and the State Audit Commission finds a conflict of authority between the State Audit Commission and an Ombudsman, both being the constitutional organs other than the courts, he or she may then present the matter and his or her opinion to the Court for further decision in pursuance of the Constitution, section 214.

The Constitution, section 301, paragraph 2, prescribes that "Whilst the State Audit Commission is not yet set up, the Auditor General shall exercise the authority of the President and Members of the State Audit Commission." The Applicant held the office of Auditor General on 18 September 2006, and continued to hold such office for the time being by virtue of the Announcement of the Council of Democratic Reform No. 29 dated 30 September 2006, article 3, paragraph 2. But the Applicant later reached the age of sixty five on 5 July 2010, she must give up the office of Auditor General as required by the Organic Act on State Audit. BE 2542 (1999), section 34 (2). In this respect, the Constitutional Court, by its Decision No. 51/2554, has ruled that the provision of the Organic Act on State Audit. BE 2542 (1999), section 34 (2), is not contrary to or inconsistent with the Constitution of the Kingdom of Thailand, Buddhist Era 2550 (2007), section 309, and the Constitution of the Kingdom of Thailand (Interim), Buddhist Era 2549 (2006), section 306. The two sections contain the transitory provisions which allow the Announcements of the Council for Democratic Reform to continue to constitutionally be in force, so that the public administration and the examination of the exercise of public authority would not be interrupted during a transitional period. All actions having been governed by the Announcements of the Council for Democratic Reform thus continue to be so governed. However, these sections do not conflict with the Organic Act on State Audit, BE 2542 (1999), section 34 (2), which requires the Auditor General to vacate office upon reaching the age of sixty five, in addition to the grounds under section 33, because they are intended to deal with different matters.

When the Applicant reached the age of sixty five on 5 July 2010 according to the judgment of the Supreme Administrative Court, she was required by the Organic Act on State Audit, BE 2542 (1999), section 34 (2), to leave the office of Auditor General. As she is no further the Auditor General by operation of law, she is no longer entitled by the Constitution, section 301, paragraph 2, to exercise the authority of the President and Members of the State Audit Commission to file any application with the Constitutional Court on behalf of the State Audit Commission, a constitutional organ. Therefore, the Applicant is not permitted by the conditions and criteria of the Constitution, section 214, to refer the matter to the Constitutional Court.

For these reasons, the Constitutional Court does hereby refuse to address the application.

Wasan Soiphisut

President of the Constitutional Court

Charan Phakdithanakun

Constitutional Judge

Charun Inthachan

Constitutional Judge

Chaloemphon Ekuru

Constitutional Judge

Chat Chonlawon

Constitutional Judge

Nurak Mapranit

Constitutional Judge

Bunsong Kunlabuppha

Constitutional Judge

Suphot Khaimuk

Constitutional Judge

Udomsak Nitimontri

Constitutional Judge

---