LEGAL PROBLEM RELATING TO THE PROHIBITION OF MEMBERS OF MUNICIPAL COUNCIL AND ADMINISTRATORS FOR HAVING INTEREST WHETHER DIRECTLY OR INDIRECTLY IN THE CONTRACT THAT THE MUNICIPALITY IS A PARTY

Abstract

Section 18 bis and Section 48 quattuordecim (3) of the Municipality Act B.E. 2496 prohibit members of the City Council (alderman) and municipality administrators from having direct or indirect interest in the contract to which that municipality is the party. As those provisions do not provide definition or interpretation of the term “direct or indirect interest”, it is a problem for the Governor as an officer in charge of supervision of the municipality in implementing and interpreting the law when he/she needs to carry out investigation and make decision whether any member of the City Council (alderman) or municipality administrator has contractual interest. This thesis aims to investigate and analyze meaning and scope of interpretation of those provisions. The study will first focus on opinions given by the Council of the State and decisions of the Supreme Administrative Court in order to know what is the meaning and scope given to those provisions by the Council of the State and the Supreme Administrative Court and what principles are applied in answering the question of being an interested person of members of the City Council or municipality administrators and also to ultimately explore the actual intention of those provisions of law.

            Findings from the study and analysis suggest that the criteria applied by the Council of the State in defining the term “interest” is based on the principle of impartiality which aims to prohibit public officer from exercising one’s power to issue decision and order, to grant approval or permission or to give instruction to any matter in which that such officer has an interest as it may cause his/her decision to be rendered with partiality, prejudice or injustice; which is the textual interpretation approach. On the other hand, the criteria applied by the Supreme Administrative Court involves the principle of conflict of interest aimed to ensure that public services are provided properly to the extent that people can benefit of those public services equally and also to prevent possible damage from the situation of conflict of interest and to divert motive to seek for unjust benefit. This represents the interpretation by referring to the spirit of law.