Translation:Ruling of the Central Administrative Court in the Black Case No. 671/2554

by the Government of Thailand

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Black Case No. 671/2554 Red Case No. 671/2554

In His Majesty's Name

The Central Administrative Court

Thanwarin Sukhaphisit, the 1st Petitioners Thatchai Wongkiatrungrueang, the 2nd Between The National Film and Video Board, the 1st Respondents The Second Committee for Film and Video Censorship, the 2nd

Re: Dispute as to issuance of unlawful order by administrative agency or state authority

Both Petitioners submitted a petition (“Petition”) containing the following statement. The 1st Petitioner is a producer, director and owner of the copyright of a film entitled “Insects in the Backyard” (“Film”). The 2nd Petitioner represents the Film Viewers’ Network, a collegium consisting of the persons interesting in film viewing. Pursuant to section 25 of the Film and Video Act, BE 2551 (2008) (“FVA”), the 1st Petitioner, on November 23, 2553 (2010), filed an application for broadcasting, letting, exchanging or disposing of the Film inside the Kingdom, together with a proposal to rate the film as “not suitable for viewers under twenty years” according to the Ministerial Regulation on Determination of Film Rating, BE 2552 (2009) (“Ministerial Regulation”). Later on November 24, 2553 (2010), the 2nd Respondent issued an order not allowing the Film to be broadcasted, let, exchanged or disposed of inside the Kingdom, citing that the Film is contrary to the public policy. The 2nd Respondent did not permit the 1st Petitioner to enjoy any opportunity to participate in the consideration process or to give explanation. The 1st Petitioner then appealed such order to the 1st Respondent in compliance with section 66 of the FVA. The 1st Respondent, in her session No. 11/2553 on December 22, 2553 (2010), resolved to deny the appeal of the 1st Petitioner as documented in the letter of the Ministry of Culture No. MC 020431/3680 dated December 28, 2553 (2010) (“Letter”), citing the reason that the Film contains certain contents contrary to the public policy. Deeming that the orders of both Respondents were inconsistent with the process and procedure required by law, that no statement of grounds, considerable issues, premisses and cited legal points has been provided according to section 39 the Administrative Procedure Act, BE 2539 (1996) (“APA”), and that the said orders amounted to an unlawful exercise of discretion, the 1st Petitioner entertained an opinion that both orders infringed his right and liberty of expression as recognised by section 45 of the Constitution of the Kingdom of Thailand and constitute the unlawful administrative acts. Both Petitioners therefore brought this case to an administrative court.

Both Petitioners applied to the Court for a judgment or ruling:

(1) ⁠ Revoking the resolution and the order of the 2nd Respondent not allowing the Film to be broadcasted, let, exchanged or disposed of inside the Kingdom and revoking the resolution in the session No. 11/2553 of the 2nd Respondent^[1] and the Letter;

(2) ⁠ Directing the 1st and the 2nd Respondents to, jointly or severally, compensate the injury arising from performance of the unlawful administrative acts which infringed the 1st Petitioner’s right and liberty of expression by making a payment of 400,000 baht to him.

Having considered, the Court found that the case is subject to the administrative court jurisdiction according to section 9, paragraph 1, (1) and (3), of the Act Establishing the Administrative Courts and the Administrative Court Procedure, BE 2542 (1999) (“AAC”), and that only the 1st Petitioner is capable of suing before an administrative court pursuant to sections 42, paragraph 1, 49 and 72 of the same. By this reason, the Judge Rapporteur accepted the Petition of the 1st Petitioner and the Court denied that of the 2nd Petitioner.

Annexed to the Petitions was both Petitioners’ application for interlocutory relief (“Application”), that is, for an injunction permitting the 1st Petitioner to broadcast the Film in academic forums and/or for academic purposes pending adjudicative judgment or ruling. In making the Application, the 1st Petitioner alleged that the administrative acts grounding the institution of this case are possibly unlawful and ascribe an unlawful exercise of discretion, for the 1st Petitioner has enjoyed no opportunity to be informed of the facts and to raise any objection or produce any evidence, and both the Respondents have performed the administrative acts without being aware of the substantive facts, i.e. both of them have not viewed the entire film, but merely a summary or synopsis thereof. Included in the allegation were the points that, if the 1st Petitioner does not broadcast the Film in any place whatsoever pending adjudicative judgment, the social attention as to the issues presented therein would have changed and ceased to exist when the adjudicative judgment is rendered, and that, as the administrative authority to debar a film from domestic broadcasting has been exercised for the first time since promulgation of the FVA, it is expedient to draw the comments from the academic, legal and mass media sectors by allowing the Film to be broadcasted in academic forums or for academic purposes, citing that the attendants or viewers thereof would be those sui juris and capable of reasoning with respect to film viewing. The allegation also contained the point that interlocutory relief bestowed by the Court upon both Petitioners would not impair the performance of duty of the two Respondents under the FVA.

Having looked into the Application, the Court was certain that the true intent of the 1st Petitioner is to apply for a ruling suspending the administrative acts by which both Respondents allowed not the Film to be broadcasted, let, exchanged or disposed of inside the Kingdom. Such ruling, if rendered, would result in provisionally reprieving or abating the enforcement of the administrative acts by operation of article 69, paragraph 2, of the Rules of the Plenary Session of the Supreme Administrative Court on Administrative Case Procedure, BE 2543 (2000) (“Rules”).

The Court heard the parties on April 4, 2554 (2011), in order to rule on the Application.

The Court viewed the Petition, the Application, the facts acquired in the course of the hearing and the documents concerned. Also viewed was section 66 of the AAC which empowers the Court to, subject to the criteria and procedure prescribed in the rules of the Plenary Session of the Supreme Administrative Court, grant interlocutory relief and, by a ruling, instruct the agencies or state authorities to abide by the same, and which requires that, in prescribing such criteria and procedure, regards shall be paid to the responsibility of the administrative agencies or state authorities as well as the problems and impediments which may halt the administration of state affairs. In this respect, article 72, paragraph 3, of the Rules vests the court with the power to, by a ruling, suspend the statute or administrative act grounding the institution of the case had the court deemed that the statute or administrative act is likely to be unlawful, that the continued application of the same would cause such a serious injury to the extent subsequent remedy would be impossible and that suspension thereof would not impair the administration of state affairs or the providing of public service. Thus, the conditions under which an administrative court is permitted to render a ruling on suspension are of three points: firstly, the statute or administrative act in question is possibly unlawful; secondly, the continued application of the same pending trial would cause the Petitioner to sustain such a serious injury to the extent that subsequent remedy would be impossible, that is to say, even a judgment or ruling would subsequently be rendered to revoke the statute or administrative act, it might absolutely not remedy the injury the Petitioner has incurred from the enforcement of such statute or administrative act in the course of the trial; and thirdly, suspension of the said statute or administrative act would not impair the administration of state affairs or the providing of public service.

The facts in this Case could preliminarily be heard as follows. The Pop Picture Company Limited, as a joint owner of the copyright with the 1st Petitioner, has, on November 4, 2553 (2010), made an application for broadcasting, letting, exchanging or disposing of the Film inside the Kingdom (FV form 1) under section 25 of the FVA, with a proposal to rate the Film as “not suitable for viewers under eighteen years” according to section 26 (5) of the same. The 2nd Respondent considered the application and, by an order, denied it without requiring the applicant to edit or modify the Film. At that time, the applicant did not appeal such order to the 1st Respondent and the 1st Petitioner, however, broadcasted the Film and applied it to a contention in the Vancouver International Film Festival, Vancouver, Canada. Also in November, 2553 (2010), the Film was broadcasted in the World Film Festival of Bangkok, Bangkok, in which approximately 400 viewers attended and the broadcasting was limited to the viewers having attained twenty first year only. The 1st Petitioner, as a producer, director and owner of the copyright, once again applied to the 2nd Respondent for broadcasting, letting, exchanging or disposing of the Film inside the Kingdom. The contents of the Film were the same but the notice “This Film is based on an imaginary vision of the maker. Behaviours of the characters are therefore fictitious. No reference is made to any person in the society. Reasoning is required whilst viewing this Film.” has been inserted. A proposal to rate the Film as “not suitable for viewers under twenty years” according to section 26 (6) of the FVA was also made. The 2nd Respondent, consisting of seven members, pleaded that all of them have viewed the Film on November 23, 2553 (2010), and held a session for discussing as to the contents of the same on that very day. Passed was a unanimous resolution not allowing the Film to be broadcasted, let, exchanged or disposed of inside the Kingdom in pursuance of section 29 of the FVA, citing the reason that the Film presents certain issues contrary to the public policy. The 2nd Respondent did not require the Film to be edited or modified as she considered that an order not allowing the broadcasting of the Film has once been issued and, at this time, nothing in the Film has been edited or modified, but the mere notice has been inserted. The 1st Petitioner later appealed such order to the 1st Respondent who forwarded the matter to the Subcommittee for Advisory and Legal Consideration and Opinion and Appeal Adjudication under the FVA for consideration. The Subcommittee considered the appeal of the 1st Petitioner in her sessions No. 46/2553, 47/2553 and 49/2553. The 1st Petitioner was permitted to explain before the Subcommittee in her session No. 47/2553 on December 9, 2553 (2010). In such session, the Subcommittee once asked the 1st Petitioner whether he would cut certain parts of the Film off for, according to section 29 of the FVA, the Committee (the 2nd Respondent) is invested with the power to have the Film edited or modified prior to considering the application if she finds that the Film includes certain inappropriate contents, and the 1st Petitioner replied that he had no intention to cut any part of the Film off, insisting that the notice has been inserted at the beginning of the Film. The Subcommittee then discussed and held that the Film as a whole presents the scenes of homosexual and heterosexual intercourses, of children in student uniforms smoking, consuming alcoholic beverages and offering sexual service and of immoral expressions, including female and male children earning their livings by prostituting themselves instead of going other ways out, children in student uniforms offering themselves for sexual purposes, children being taught about courtship, children dreaming of killing their own fathers etc. The Subcommittee was of an opinion that the subject matter of the Film conveys the acts of intercourse in a manner unsuitable with the Thai society and likely to cause amongst the social circles and the viewers, even having reached the twentieth year, misunderstanding and imitation of homosexual behaviours and other misconducts presented in the Film, and that the Film is therefore contrary to the public policy. The Subcommittee found expedient to deny the appeal of the 1st Petitioner and submitted her opinion to the 1st Respondent for further consideration. In her session No. 10/2553 on December 16, 2553 (2010), the 1st Respondent considered the opinion of the Subcommittee and viewed the Film on that day, 19:00 hours, at the Theatre of the Kantana Group Company Limited (Public). The 1st Respondent did not demand the 1st Petitioner to make a personal appearance and give explanation before her, for she deemed that he has explained to the Subcommittee. Later in her session No. 11/2553 on December 22, 2553 (2010), the 1st Respondent, by a majority of votes, resolved to deny the appeal of the 1st Petitioner, citing the reason that the Film as a whole presents the scenes of homosexual and heterosexual intercourses, of children in student uniforms smoking, consuming alcoholic beverages and offering sexual service and of immoral expressions, including female and male children earning their livings by prostituting themselves instead of going other ways out, children in student uniforms offering themselves for sexual purposes, children being taught about courtship, children dreaming of killing their own fathers etc. The 1st Respondent also pleaded that she was of an opinion that the subject matter of the Film conveys the acts of intercourse in a manner unsuitable with the Thai society and likely to cause amongst the social circles and the viewers, even having reached the twentieth year, misunderstanding and imitation of homosexual behaviours and other misconducts presented in the Film, and that the Film is therefore contrary to the public policy. Whilst instituting this case, the Film has been selected to join a contention in the Torino International Gay and Lesbian Film Festival, Turin, Italy.

The matters in issue are: Whether the continued application of the orders not allowing the Film to be broadcasted, let, exchanged or disposed of inside the Kingdom pending trial would cause the 1st Petitioner to sustain such a serious injury to the extent that a subsequent judgment or order revoking the said administrative acts would absolutely not remedy the injury the 1st Petitioner might have incurred from the enforcement of those administrative acts pending the trial; and whether suspension of the administrative acts in dispute would impair the administration of the state affairs or the providing of public service.

Having viewed the facts concluded from the documents in the file and from the statements given by the parties in the course of the hearing, especially, from the Application, the Court entertained an opinion that the injury the 1st Petitioner alleged in the Application and in his statement in the course of the hearing is that against his reputation, for the general public and the film circle personnel would understand that he has produced and directed a film having the contents contrary to the public policy to the extent that the domestic broadcasting thereof cannot be allowed. The 1st Petitioner stated, however, that both Respondents’ orders not allowing the domestic broadcasting of the Film do not affect the international contention or broadcasting of the same. Having learnt this, the Court found that even it would render a judgment to the effect that the administrative acts of the two Respondents are unlawful, such judgment will be capable of absolutely remedying the reputational injury the 1st Petitioner might have incurred pending trial. The continued application of the said administrative acts in the course of the trial therefore entails no serious injury against the 1st Petitioner. Furthermore, it appeared from the statement given by the 1st Petitioner in the course of the hearing that the broadcasting of the Film in academic forums and/or for academic purposes as indicated in the Application is intended to be made without commercial costs so that the general public taking interest therein would view the Film and provide comments, the broadcasting is not to be limited to the specific group of viewers who are from academic or artistic sectors or whose comments are required. Should the Court rule that the Film shall be permitted to be broadcasted in academic forums and/or for academic purposes in the manner stated by the 1st Petitioner before the Court, it could be conjectured that the great number of people would attend the said open broadcasting to view the Film. This kind of ruling would produce the same effect as that directing the two Respondents to allow the Film to be broadcasted inside the Kingdom, by which the legal enforcement of both Respondents would be jeopardised in consequence. The case, for these reasons, does not fall under the conditions under which any administrative court may render a ruling suspending the administrative act grounding the institution of the case according to article 73, paragraph 2, of the Rules.

The question as to whether the administrative act in dispute is lawful is an issue of the case, with respect to which the Court is required to ascertain the facts for further decision.

Now, therefore, the Court, in virtue of section 77, paragraph 2, of the APA, incorporating article 72, paragraph 3, of the Rules, does hereby deny the Application which, if granted, would result in suspension of the administrative acts.

Saithip Sukhatiphan ⁠ ⁠ ⁠ ⁠ ⁠ ⁠ ⁠ ⁠ Judge Rapporteur

Judge of the Central Administrative Court

Pranai Wanitchanon

Chief Judge of the Central Administrative Court

Wachira Choptaeng

Judge of the Central Administrative Court

Prakai Wibunwipha

Judge of the Central Administrative Court

Footnotes

1. Correctly, it should be “the 1st Respondent”. ― [Note by Wikisource]

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