Interim Protection in Administrative Litigation: A Study of the Balance of Convenience Principle in Determining Standards for Suspension of Administrative Orders

Abstract

Interim judicial protection in administrative litigation constitutes a vital legal mechanism for guaranteeing the effective realization of individual rights under the rule of law. As a fundamental principle, the initiation judicial review proceedings before the Administrative Court does not automatically suspend the execution of an impugned administrative act. Consequently, aggrieved parties face substantial risks of sustaining severe, irreversible harm prior to the rendering of a final judgment. Within the Thai administrative justice system, the prevailing legal standards governing applications for the suspension of execution remain extensively contested, particularly regarding how courts should strike a legitimate equilibrium between safeguarding subjective private rights and preserving paramount public interests.   This article investigates the Balance of Convenience doctrine as an analytical framework for evaluating interim relief within contemporary administrative law systems and critically assesses the feasibility of integrating this standard into Thai judicial procedure. Employing a rigorous doctrinal and comparative legal research methodology, this study examines statutory provisions, jurisprudence of the Supreme Administrative Court, academic literature,  and comparative legal frameworks across three distinct jurisdictions: the Kingdom of Thailand, the French Republic, and the Federal Republic of Germany. The findings reveal that the Thai standard—anchored in Section 66 of the Act on the Establishment of Administrative Courts and Administrative Court Procedure, B.E. 2542 (1999), and complemented by the General Assembly Rules B.E. 2544 (2001)—applies a rigid, cumulative legal test strictly focused on irreparable harm and potential hindrance to state administration or public service continuity. Conversely, the French and German administrative legal systems prioritize sophisticated multi-factor analyses, actively weighing competing individual and public interests while systematically assessing the prima facie likelihood of success on the substantive merits (fumus boni iuris), thereby facilitating a more equitable and context-sensitive determination. Consequently, this article proposes that Thai Administrative Courts refine their interim adjudication framework by incorporating the Balance of Convenience doctrine alongside the proportionality principle and the constitutional guarantee of effective judicial protection. Such normative alignment would help optimize the balance between administrative efficacy and private rights protection, establishing a more responsive, equitable, and coherent administrative justice system that fully adheres to modern rule-of-law benchmarks.