JUSTICE SYSTEM IN THAILAND: COURTS, TRIALS, CONFESSIONS AND DERIVATION OF THAI LAWS

JUSTICE SYSTEM IN THAILAND

The legal system in Thailand has been described as a civil law system with common law influences. According to the Library of Congress: “The legal system remains an amalgam of the traditional and the modern. In several southern provinces, for example, Islamic law and custom are applicable to matrimonial and inheritance matters among the Muslims. A large part of the modern legal system is made up of criminal, civil, and commercial codes adopted from the British and other European legal systems with some modifications borrowed from India, Japan, China, and the United States. In addition there is an extensive body of administrative law consisting of royal decrees, executive orders, and ministerial regulations. [Library of Congress ~]

There are no jury trials in Thailand. A single judge decides trials for misdemeanors; two or more judges were required for more serious cases. The constitution provides for the presumption of innocence, and criminal detainees are guaranteed access to legal counsel; however, local police have been accused of ignoring this procedure and conducting interrogations of suspects without providing access to an attorney. Regulations outlined in the Criminal Code require public prosecutors to rely exclusively on the recommendations of the police when determining whether to bring a case forward for criminal prosecution. Police are required to bring criminal cases to prosecutors for the filing of court charges within 48 hours of arrest. Extensions of up to three days are permitted, and police, with court permission, may hold suspects for up to 82 days for serious offenses while investigations are being conducted. ~

Justice is meted on very different terms for ordinary people and members of the elite. While workers and low-level drugs dealers are shot down in the street by police, politicians and generals at the top of the drug business are not even investigated over worries that the traditional power structures might be compromised. The courts in Thailand often make decisions that at least appear to be politically motivated.

Thai courts can move slowly or quickly depending on the situation, namely the number of appeals and delaying tactcis of the defense. The accused are often forced to wear orange prison uniforms and shackles around their ankles during their trials. In some cases they are kept behind bars in the courtroom in cage-like holding cells.

Lawsuits are increasingly being used as political tools in Thailand. Defamation suits and lese majeste laws been used to silence critics of the ruling government and corruption laws have been used to oust one leader (Thaksin), take his money and bring down governments. On how the Thai justice system is dealing with modernity, the Wall Street Journal reported: “lawyers are competing with soothsayers for power and influence. In recent years, two governments have been brought down by legal challenges, and this growing litigiousness is quickly spreading to other parts of life here—up to and including the supernatural.”

Thai Legal System and Constitution

The Constitution provides that the courts are part of three-branch government and they are institution independent from the legislature (National Assembly) and the main government. A Judicial Commission controls the appointment of judicial officials. The trying and adjudication of cases is done in accordance with provisions described by the constitution and other legal codes.

According to the Thai government: “The selection and election process of judicial personnel as judges is a democratic selection process under a very strict judicial system. The trying and adjudication of cases is within the power of the courts, which are obligated to mete out justice in accordance with the Constitution and the law and in the name of the King. All high-ranking judges are appointed by His Majesty the King’s royal command and perform their duties in the name of the sovereign. The Constitution also prescribes that judges make a solemn declaration before the King before taking office.[Source: Thailand Foreign Office, The Government Public Relations Department=]

Judicial power is vested in courts and judges to hear and decide disputes, whether those between state agencies, state agencies and the private sector, or between private agencies themselves. The power of the judiciary is as follows: 1) To interpret the Constitution and legal provisions issued by the legislature; 2) To consider and adjudicate various cases, based on laws enacted by the legislature and the administration; 3) To check the use of power by both the legislature and the administration, to ensure that they comply with the law. =

There have been times when the ruling government has thrown out the existing constitution. The interim constitution of October 1, 2006, was criticized by many for granting legal authority to the junta’s postcoup announcements and orders, including bans against demonstrations and political activities. Following the September 2006, military coup, the 1997 constitution was repealed. The ruling the Council for National Security issued a decree announcing that all courts with the exception of the Constitutional Court (which was dissolved) would continue to operate as before. =

Traditional civil rights are protected by Thai constitutions. See Constitution

Thailand’s Court System

Thailand has a three-level court system collectively known as the Courts of Justice. At the top is the Supreme Court of Justice. Below it are the Court of Appeal and, at the third level, the Courts of First Instance, over which the Supreme Administrative Court, which was established in 1999, presides. The Courts of First Instance include the Central Administrative Court and 16 regional administrative courts. Separate administrative courts adjudicate disputes involving state agencies, state enterprises, and local government organizations or between state officials and private individuals. Administrative appellate and supreme administrative courts operate at higher levels. A separate Military Court deals with military personnel and persons arrested during periods of martial law. Islamic sharia courts hear civil cases involving members of the Muslim minority. [Source: Library of Congress, 2007]

Judges of the Supreme Court of Justice and the Supreme Administrative Court are subject to Senate approval. Other judges are members of the career civil service and are not subject to parliamentary review. The Ministry of Justice appoints and supervises the administrative personnel of the courts and institutes reform in judicial procedures; the Judicial Service Commission, which is responsible for the independence of the courts, appoints promotes, and removes judges. As a rule, judges retire at age sixty, but their service can be extended to age sixty-five. [Library of Congress, 1987*]

Thailand is divided into nine judicial regions, which are coextensive with the nine administrative regions (phag), in contrast to the four geographic regions (North, Northeast, Center, and South). At the base of the judiciary system are the courts of first instance, most of which are formally known as provincial courts with unlimited civil and criminal jurisdiction. Petty civil and criminal offenses are handled by magistrates' courts, which are designed to relieve the increasing burden on provincial courts. Offenses committed by Thai citizens on the high seas and outside the country are tried before the Criminal Court in Bangkok. Labor disputes are adjudicated by the Central Labor Court established in Bangkok in 1980. Offenses by persons under eighteen years of age are referred to the Central Juvenile Court and its counterparts in several regional centers. *

The Court of Appeal in Bangkok hears cases from all lower courts (except the Central Labor Court) relating to civil, juvenile, criminal, and bankruptcy matters. At least two judges are required to sit at each hearing. Cases of exceptional importance are heard by plenary sessions of the court. The appellate court can reverse, revise, or remand lower court decisions on questions of both law and fact. The Supreme Court, which is the highest court of appeal, also has original jurisdiction over election disputes. Although decisions of the court are final, in criminal cases the king can grant clemency. A dispute over court jurisdiction is settled by the Constitutional Tribunal. *

After the September 2006 coup a new Constitutional Tribunal, composed of justices from the Supreme Court of Justice and the Supreme Administrative Court, was established on October 1, 2006, to replace the functions of the Constitutional Court. After a new constitution was approved in 2007 the Constitutional Court resumed its former duties.

Types of Courts in Thailand

Courts of Justice have the power to try and adjudicate all cases except those specified by the Constitution or by law to be within the jurisdiction of other courts. The Courts of Justice comprise three levels, the Courts of First Instance, the Courts of Appeal and the Supreme Court of Justice. [Source: Thailand Foreign Office, The Government Public Relations Department=]

Courts of First Instance comprise Civil Courts, Criminal Courts, Provincial Courts, Khwaeng Courts, and other courts of justice set up by acts as courts of first instance, such as Juvenile and Family Court, Labor Court, Tax Court, Intellectual Property and International Trade Court, and Bankruptcy Court. For the Courts of First Instance, the essential courts are the Civil Courts and the Criminal Courts. =

Civil Courts have the power to try and adjudicate civil cases and other cases that are not in the jurisdiction of other courts of justice. The Civil Courts’ jurisdiction covers the Bangkok Metropolitan area, except that under the South Bangkok Civil Court, the Thon Buri Civil Court, the Min Buri Civil Court, and other courts of justice with jurisdiction prescribed in the act establishing the court. Cases that are filed, although occurring outside the jurisdiction of the Civil Courts, are left to the court’s discretion whether to admit the cases for trial and adjudication or to transfer them to other courts of justice that have jurisdiction. =

Criminal Courts have the power to try and adjudicate all criminal cases in Bangkok Metropolis, except those under the South Bangkok Criminal Court, the Thon Buri Criminal Court, and the Min Buri Criminal Court. Cases that occur outside the jurisdiction of the Criminal Courts may be filed and left to the court’s discretion whether to admit the cases for trial and adjudication, with the exception of cases transferred in accordance with the provisions in the Criminal Procedure Code. =

Courts of Appeal. At a higher level than the Courts of First Instance are the Courts of Appeal, which are classified as the general appellate courts and the regional appellate courts. The Courts of Appeal consider appeals on the verdicts or court orders in their jurisdiction, with the power to make decisions on cases under the Courts of Appeal’s jurisdiction in accordance with other laws outside the jurisdiction of the regional appellate courts, while cases outside the Courts of Appeal’s jurisdiction can be appealed to the courts. All these are at the discretion of the court whether to admit the cases for consideration, except those cases transferred in accordance with the provisions of the law. =

Military Court tries and adjudicates cases involving persons within its jurisdiction, as prescribed by the Act for the Organization of the Military Court, B.E. 2498 (1955).

Administrative Courts in Thailand

Administrative Courts are of the same status as the Courts of Justice, with jurisdiction over disputes between government agencies, state agencies, state enterprises, and local government organizations, or between state officials and private individuals, and between state agencies or state officials themselves. [Source: Thailand Foreign Office, The Government Public Relations Department=]

The judicial power of the Administrative Court is meant to protect the people’s rights and liberties, and to set proper standards in official work. Administrative cases include the following: 1) Disputes resulting from unilateral administrative acts, with state agencies or officials deliberately using their authority without seeking prior approval from the private sector; 2) Disputes related to administrative contracts, such as a concession contract in which a state agency hires a private company; 3) Acts of administrative violation or other liabilities for violation by administrative units or officials, such as the case of official’s neglect or delay in renewing a license, causing damage to an entrepreneur; 4) Disputes caused by neglect or delay in official duties, such as when officials fail to complete any task as scheduled; 5) Other administrative disputes, such as cases prescribed by law to be in the jurisdiction of the Administrative Court. =

The consideration of cases in the Administrative Courts takes place in an inquisitional system. Each case is considered by a panel of judges. The Administrative Courts are divided into the Administrative Courts of First Instance and the Supreme Administrative Court. The Administrative Courts of First Instance comprise the Central Administrative Courts and the Regional Administrative Courts, which are the first courts where cases are filed, with the general powers to adjudicate administrative cases, while the Supreme Administrative Court has the power to adjudicate cases directly filed with the Supreme Administrative Court, certain cases of special significances, and the appeals on the judgments or decisions of the Administrative Courts of First Instance =

Thailand’s Supreme Court

The highest court in the land is a Constitutional Court—The Dika, or the Supreme Court— with 15 judges. It has jurisdiction over legal issues pertaining to the Constitution, the supreme law of the state. The consideration of cases by the Constitutional Court follows an inquisitional system, with the court empowered to seek facts and additional evidence. It is regarded as relatively independent. The decision of the Supreme Court is final and cannot be further appealed.

The Supreme Court has jurisdiction over the following: 1) Cases appealed from the Courts of Appeal, or decisions of the Courts of Appeal and the Regional Courts of Appeal, under the conditions of related law; 2) Cases directly appealed to the Supreme Court on the verdicts or decisions of the Courts of First Instance, bypassing the Courts of Appeal or the Regional Courts of Appeal, in accordance with specific laws, such as cases on labor, tax, intellectual property and international trade, and business bankruptcy; 3) Cases prescribed by law to be in the jurisdiction of the Supreme Court; 4) Rulings or decisions on petitions submitted to the Supreme Court in accordance with the law, order, or a verdict. [Source: Thailand Foreign Office, The Government Public Relations Department=]

The court has also jurisdiction over the following cases: 1) Ruling on the constitutionality of draft acts, or draft organic laws and draft regulations of the House of Representatives, the Senate, or the National Assembly which have been approved but not yet published in the Royal Gazette. 2) Ruling on the constitutionality of the provision of any law on any case, both found out by the Court itself and raised in objection by a party to a case. Ruling on the authorities of constitutional agencies. The decision of the Constitutional Court shall be deemed final and binding on the National Assembly, the Council of Ministers, and other state organs.

The panel of judges comprises at least three justices, but in cases without major problems, the President of the Supreme Court has the authority to order that the problems be considered in a general conference comprising all Supreme Court judges present on duty on the day of the conference, but no less than half the entire number of Supreme Court judges. Apart from Supreme Court judges who make the final rulings, the Supreme Court of Thailand also has the Division of Assistant Supreme Court Judges, serving to check the facts, to conduct research on legal issues, and to review and improve draft verdicts of the Supreme Court, so as to ensure accuracy, promptness, and fairness for the people. =

The Supreme Court comprises altogether 11 sections: 1) Administrative Cases (Internal) Section; 2) Juvenile and Family Cases Section; 3) Labor Cases Section; 4) Tax Cases Section; 5) Intellectual Property and International Trade Cases Section; 6) Bankruptcy Cases Section; 7) Commercial and Economic Cases Section; 8) Environmental Cases Section; 9) Consumers’ Cases Section; 10) Election Cases Section; 11) Criminal Section for Political Position Holders. =

Foreigner in a Thai Court

In his blog, Richard Barrow wrote: In Thailand, the Courts of Justice don’t quite work in the same way. In the Criminal Courts, there are always at least two judges and no jury... A few days ago I was in court for the trial of a defendent who had been accused of attempted murder. This was a Westerner who was being put on trial in a foreign land. Everything was conducted in Thai. At the beginning of the case, there was a discussion between the judges and the defence team as to whether there should be translations for the defendent during the trial. The judge was of the opinion that it would slow the proceedings down too much and asked the lawyer to only translate what she felt was necessary. Really, John was lucky to have a lawyer that spoke English. Another prisoner that I spoke to said he couldn’t afford his own lawyer. So, the court appointed one for free ,who unfortunately didn’t speak any English. He said there was a court interpreter, but all he said was “You, come here. Sit down. Stand up. Sign here” etc. Other than that, he had no idea what was going on or even how much time he was sentenced to. In fact, he was the last to know. [Source: Richard Barrow, ThaiPrisonLife.com May 27, 2007~]

“The courtroom wasn’t very large. There were probably about six or so of these rooms on this floor alone. At the front was the raised platform where the judges sat. Above them is a portrait of H.M. The King. Below it is the symbol of the court, a downward pointing dagger with scales balancing on it. In front of the bench sat the court clerk. On the judges right was the table for the prosecution. On the left was the table for the defense. In the middle of the room, facing the judges bench, was the chair and table for the witness. The room was roughly split in half with a low railing. Behind this were the benches where members of the public and interested parties sat. In Thailand, courts are usually open to the public. So, in theory, if you are respectfully dressed, you could go and watch a trial. Just remember no cameras are allowed and you should turn off your mobile phone. ~

“At about 9.35 a.m., John (not his real name) was escorted into the courtroom by a policeman. He was barefoot and chained at the ankles. A piece of string was attached to the chains which enabled him to pick them off the floor as he hobbled along. The policeman told him to sit down on the front bench next to where I was sitting. I asked him whether he remembered me visiting him in prison and he said “yes” but he didn’t remember my name. While we were waiting for the judges to arrive, I tried to have a conversation with him. He wasn’t looking too good. ~

“Shortly later, the two judges arrived through their private entrance at the front of the court. No-one announced their arrival, but everyone stood up anyway. They wore a black robe with a dark velvet edging around the neck and down the front. People didn’t wai the judges, but bowed instead. The public prosecutor was sat on my left. I recognized her instantly as she was also in Gor’s trial. The first day was reserved for the prosecution. The burden of proof rests on the prosecution and she has to prove the crime beyond a reasonable doubt. In the morning, she called three witnesses: the victim, the arresting officer and a witness to the crime. Each one was called forward where they then put their hands together in a prayer like gestured and promised to tell the truth and nothing but the truth. As in Western courts, the prosecutor asked a series of questions and then the defence were allowed to cross examine. However, there were some notable differences. ~

“In Western courts, there would be a stenographer who would make a record of everything that was said. However, in Thailand, this is left up to the judge. In front of him was a tape recorder. This wasn’t to record the witness. What happened is that after the witness had answered the question, the judge would then paraphrase what he had just said. But, he didn’t do this for everything. Only what he deemed to be relevant. During the cross-examination, I could see the defence lawyer pausing before he asked each question so that the judge could have time to record the answer. However, sometimes the judge didn’t bother to record anything which obviously annoyed the defence. He just told them to ask the next question. The witness had said he was in hospital for four days. However, under cross examination, he said he was only in ICU for the first day. The judge didn’t record that.~

“I also noticed that the judges participated more in the questioning of the witness. Sometimes they asked questions that they felt the prosecutor should have asked. Or a question to clarify an answer. Like in my previous trial, the prosecutor sometimes left the courtroom during cross-examination. Although there were two judges, there was only one lead judge. The other was there as support. Every now and then he would change tapes and the court clerk would then take this to type up. At the start of each tape he would record something and then quickly rewind it to see if it recorded properly. The last witness of the morning was supposed to be the doctor. However, he didn’t turn up which seemed to annoy the judges. After a few phone calls, they decided to postpone the next trial date. The prosecution were supposed to finish on this day and then the following week the defence team would have their turn. But, as the doctor couldn’t come the trial was put off for just over two weeks. ~

“It is doubtful that the verdict will be read out on that day. From previous experience, I would say it would take them two to three weeks before they set a date for the verdict to be read. By about 12 p.m., the court clerk had finished typing up the testimonials from the witnesses. These were then read out in court. Each witness was then asked if what had been read was a true account. They said it was. Then each relevant party had to sign these statements. At first John didn’t want to sign this document. It was all written in Thai. He said that he was being framed and didn’t want to be a part of all this. The lawyer managed to persuade him in the end by saying that he was only signing to witness this document. Not to say what was written was the truth.” ~

For more information on Thai courts in action check the article on Arms Smuggling and Viktor Bout Under the Military.

High Confession Rates and Corruption in Thailand

Joel Brinkley wrote in the McClatchy Newspapers: “Once suspects here are arrested for crimes, a surprisingly high percentage of them are said to have confessed. I asked Visut Vanichbut, a major general in the Thai police, if it had ever happened that a suspect who had confessed to a crime turned out to be innocent. "Not in Thailand," he insisted with clench-jawed certainty. "They know the punishment is very serious." [Source: Joel Brinkley, McClatchy Newspapers, September 21, 2008. Joel Brinkley is a former Pulitzer Prize-winning foreign correspondent for The New York Times and now a professor of journalism at Stanford University~~]

“In other countries, however, confessions are notoriously unreliable. An organization called the Innocence Project in the United States uses DNA evidence to find innocent people who have been convicted of crimes. And after 16 years of research, the project has come up with a startling conclusion: DNA evidence shows that 25 percent of the people who confess or plead guilty to committing a crime are irrefutably innocent. The organization offers several explanations for this, among them: The suspects were coerced, drunk, mentally impaired, ignorant of the law, afraid of the police or simply exhausted after hours of aggressive interrogation. ~~

“Thailand's legal system has glaring shortcomings, too. For one thing, Thai police are thoroughly corrupt. The Asian Human Rights Commission recently noted that some criminal cases "have been deliberately concocted against innocent people in exchange for cash or favors." The commission regularly finds evidence of "torture to obtain a confession," as the group puts it. And it notes that police generally "are only interested in getting a confession, not in proper investigation." That certainly makes their jobs easier.”~~

Re-enactments of Crimes Before the Media in Thailand

Joel Brinkley wrote in the McClatchy Newspapers: “Almost immediately, after they are arrested suspects are led to the scene of the crime and told to re-enact it. Newspapers and television stations are invited to cover the event. Dozens of other people flock to the scene. Often a confessed murderer is photographed plunging a fake knife into the heart of a stand-in victim, and cameras record the act as television boom microphones hang just over his head. These photos have long been staples of newspapers and television newscasts across Thailand. [Source: Joel Brinkley, McClatchy Newspapers, September 21, 2008]

“Over the summer, the Pattaya People newspaper published a photo of two young men, Tamarat Leungsiri and Sirawat Sateung, who were said to have confessed to killing an 18-year-old acquaintance. The photo showed one of them pretending to stab a man lying on the ground, and the newspaper's story left little doubt about the defendants' guilt. "Two confessed murderers were taken to the scene of their crime on the afternoon of the 6th of July to re-enact their terrible deed," it wrote. ~~

I asked Visut Vanichbut, a major general in the Thai police, why the police insist on these re-enactments. "We have to let the public know that this criminal has violated the law, and we are serious about enforcement," he said. What is wrong with this? The "perpetrator" has confessed, right? ~~

Image Sources:

Text Sources: New York Times, Washington Post, Los Angeles Times, Times of London, Lonely Planet Guides, Library of Congress, Tourist Authority of Thailand, Thailand Foreign Office, The Government Public Relations Department, CIA World Factbook, Compton’s Encyclopedia, The Guardian, National Geographic, Smithsonian magazine, The New Yorker, Time, Newsweek, Reuters, AP, AFP, Wall Street Journal, The Atlantic Monthly, The Economist, Global Viewpoint (Christian Science Monitor), Foreign Policy, Wikipedia, BBC, CNN, NBC News, Fox News and various books and other publications.

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© 2008 Jeffrey Hays

Last updated May 2014

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