Heading up the news this week, following a rejection of a Thai Government attempt to introduce new laws designed to make ‘frightening’ people through disseminating ‘false’ information a criminal offence [1], the current Thai Government has announced that it intends to try and introduce laws to grant immunity from prosecution for certain persons involved in the medical sector and in relation to the pandemic, denying that such laws could possibly be designed to grant protection for certain officials [2]. There are some complexities when comparing Thai law to other jurisdictions, in particular when considering immunity in civil law and criminal law context, because, in some common law jurisdictions, the immunity from civil law is treated very differently from criminal law immunity. In Thailand, whilst both areas of law are also distinguished, it is common for civil and criminal claims to be brought relating to the similar subject matter with private claims for criminal offences often brought instead of public proceedings and many suits are limited to the administrative law arena [3].
This controversy has arrived close to the point in time when British Ministers have been heavily criticised for a plan to legislate that all prosecutions relating to crimes committed during 30 years of conflict prior to the 1998 Good Friday Agreement would be time-barred [4], so Thailand is not the only jurisdiction where immunity controversies currently exist and history is peppered with immunity controversies abound, globally.
We wish to avoid politicisation of our digest, so we will refrain from comment on this situation in political terms.
Instead, we will provide some context to the international approach on a comparative basis, to the use of ‘immunity’ in law.
In the U.S., there remains much legal debate regarding the parameters of state immunity on a domestic level which is referred to as “local state immunity”. There is a particularly good article written by Fred Smith in the Columbia Law Review which explains within the U.S. federal system, how immunity issues have occurred over time and the controversies of the acts for which immunity was successfully preserved. When reading into the context of immunity, it becomes apparent in the U.S. context that there is a strong interplay between constitutional law, the Eleventh Amendment, the development of common law, an evolving approach to how immunity’s parameters should be defined, and a political swing in the approach according to the Government at any given time [5].
Administrative law is the law by which in many jurisdictions, state agencies can be held to account for negligence, misdemeanours, and causing damage to private citizens and entities. However, immunity is such a wide-ranging principle that it can manifest itself in many guises, and thereby with apparent legal justification, deny the ‘normal’ course of justice that a citizen might expect. The analysis becomes even more complex when cross-jurisdictional matters come into play, and for example when arbitral awards are alleged to contravene the assertion of state immunity in investor-state disputes.
India has increasingly rejected the common law notion that the ‘state can do no wrong’ and has further rejected in some of its case law, the scope of any such notion by rejecting the ‘feudalistic origins’ of such [6].
In Australia, in relation to immunity from civil liability, the overriding principle that ‘no one is above the law’ is a foundation from which limited exceptions can apply, interpreted strictly [7]. Many laws must allow, by their nature, a state to commit a ‘tort’ to carry out a process or exercising power with a primary purpose overriding a general right under the law.
However, such laws are framed in a restrictive manner, require justification, will often involve a great amount of public consultation and must be subject to a form of judicial review and civil oversight before any implementation.
The Administrative Court in Thailand has a well-resourced English language knowledge base including newsletters, in English, on recent Administrative Court cases and issues relating to administrative law. There are news updates including on how electronic proceedings can be conducted and there is also a list of judgments with subjects so that the reader can see and research further into specific areas where decisions of the Administrative Court have been made [8].
Therefore, notwithstanding the media and social storm relating to proposals to grant immunity, it should not be forgotten that a system exists to analyse decisions and acts of officials, and further, there is a system that can overturn any overreaching of the powers of the state in Thailand which has very recently been tested with an outcome against the state.
[1] Atiya Achakulwisut Govt living in fear of its own frightful errors (Bangkok Post Online 10 August 2021 see: https://www.bangkokpost.com/opinion/opinion/2162947/govt-living-in-fear-of-its-own-frightful-errors ) last accessed 13 August 2021
[2] Mongkol Bangprapa & Apinya Wipatayotin Medics’ legal immunity in limbo (Bangkok Post Online 11 August 2021 see: https://www.bangkokpost.com/thailand/general/2163291/medics-legal-immunity-in-limbo ) last accessed 13 August 2021
[3] The transition from Council of State to The Administrative Court (E-Book on
[4] Laura Noonan UK unveils plan to ban prosecutions related to Northern Ireland Troubles (Financial Times Online 14 July 2021 see: https://www.ft.com/content/36676d40-c15b-425e-95c2-7320b181eecb ) last accessed 13 August 2021See https://www.bangkokpost.com/business/2158823/ananda-to-appeal-courts-condo-ruling ) last accessed 6th August 2021
[5] Fred Smith Local Sovereign Immunity (Columbia Law Review Vol.116 No.2 March 2016 see: https://columbialawreview.org/content/local-sovereign-immunity/ )
[6] Nikhil Jain Sovereign Immunity (Academike 1 September 2014 see: https://www.lawctopus.com/academike/sovereign-immunity/ )
[7] Australian Government, Australian Law Reform Commission Traditional Rights and Freedomes – Encroachments by Commonwealth Laws (ALRC Interim Report 127 17. Immunity From Civil Liability – Laws that give immunity from civil liability 31 July 2015 see: https://www.alrc.gov.au/publication/traditional-rights-and-freedoms-encroachments-by-commonwealth-laws-alrc-interim-report-127/17-immunity-from-civil-liability/laws-that-give-immunity-from-civil-liability/)
[8] The Administrative Court of Thailand Decisions see: https://www.admincourt.go.th/admincourt/site/?lang=en&page=04judgmentSAC )
