The Future of the Thailand Court of Justice: Current Trends and Challenges
Kanok Jullamon1
I. Introduction
For the past four years, Thailand’s Court of Justice (COJ), the main judiciary
body2 with general jurisdiction over civil and criminal matters, has had to cope
with over 1,000,000 cases each year.3 The resources of COJ are limited; there are
4,329 judges and 8,860 legal officers and personnel.4 Thailand’s Court of Justice
employs a three-tier court system: the Court of First Instance,5 the Court of Appeal6
and the Supreme Court. Of the previously mentioned case number, the amounts
considered by the Supreme Court are at least 33,000 cases annually.7 In the
Supreme Court, there are 172 justices and senior justices. With the
disproportionate number of cases and judicial officers, the timely adjudication of
a case is in great difficulty. The clearance rate at the Supreme Court on average is
1
Judge attached to Bankruptcy Division of the Supreme Court of Thailand.
There are four kinds of judicial bodies in Thailand with their own specific jurisdictions, namely
the Constitutional Court, the Court of Justice, the Administrative Court, and the Military Court.
The Constitutional Court reviews the legality of any bill or law as well as verifies the
qualification of the MPs, Senate, and Ministers of the Cabinet. The Administrative Court hears
cases about state contracts and disputes involving state agencies or state officials whether it be
the issuing of the rules, orders, actions or the dereliction of their duties. The jurisdiction of the
Military Court includes cases concerning disciplinary issues of military officers and disputes
between military officers under the related military laws.
3
There are 1,244,091 cases in 2011 (both pending cases from previous years and new filing
cases in 2011), 1,206,481 cases in 2012, 1,348,088 cases in 2013 and 1,411,636 cases in 2014
(The Court of Justice Annual Report 2014; available online at
http://www.oppb.coj.go.th/userfiles/file/Annual.pdf, last accessed 15 Dec 2015).
4
As at 30 September 2015, the Court of Justice Annual Report 2014.
5
The Court of First Instance includes the Civil Court, Criminal Court, Provincial Courts,
Magistrate (or Kwang) Courts, Family Courts and all specialized courts: Bankruptcy Court, Tax
Court, Labor Court, and Intellectual Property and International Court. These are all stand-alone
courts.
6
Thailand has one Central Court of Appeal and nine Regional Courts of Appeal.
7
There are 54,221 cases in 2011 (both pending cases from previous years and new filing cases in
2011), 51,252 cases in 2012, 49,221 cases in 2013 and 38,974 cases in 2014 (See supra note 3).
2
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only 40.90 percent.8 Also, there is no available information regarding the average
case-processing time for the Supreme Court cases. Delay in any justice system –
especially at the Supreme Court level – is one of the greatest vices affecting public
trust and confidence in the justice system. New ways of administering Thailand’s
COJ are much needed, and changes are inevitable.
This paper discusses and evaluates recent amendments in civil procedural
law, the establishment of three new divisions of the Criminal Court and the current
status of the development of an electronic court in Thailand.
II. The Appeal Procedure to the Supreme Court in Civil Cases
As of 8 November 2015, for the first time in the history of the Thai courts,
an appeal to the Supreme Court in civil cases was no longer a right of the party.
It must now be granted a leave to appeal from the Supreme Court. This change
impacts the right to appeal of the party, the public’s long-held perception of
the three-tier court system, and the revenue of the lawyers.
The rationale given behind the new amendment is that the provisions of
current civil procedure law concerning the appeal procedure to the Supreme Court
cannot effectively filter significant cases worthy of consideration by the Supreme
Court, incurring delays in the adjudications by the Supreme Court and affecting
the public trust and faith in the court of justice system. Therefore, in order to allow
the adjudications of the Supreme Court to proceed effectively and be fair to all
8
The Supreme Court case clearance was 29.99% in 2011, 34.41% in 2012, 46.18% in 2013 and
53.03% in 2014 (See supra note 3).
2
parties involved, the Supreme Court should be empowered to grant or not to grant
a leave to appeal to the Supreme Court.9
The new section of the Civil Procedure Code (CPC) stipulates that the
judgment or order of the Courts of Appeal is final.10 An appeal to the Supreme
Court is permissible only in the case that the Supreme Court grants a leave to
appeal. The request for permission starts by the party lodging a request including
the appeal complaint to the Court of First Instance, which renders a judgment or
order, within one month as from the time of such court reading the judgment or
order of the Courts of Appeal.11 The Court of First Instances must then submit
the request as well as the appeal complaint to the Supreme Court as soon as
possible. Also, the Supreme Court must consider the request in an expeditious
manner.12
The request is considered by a panel of justices appointed by the Chief
Justice consisting of the Deputy Chief Justice and at least three Supreme Court
justices. The decision to grant or not to grant a leave for appeal is decided by
a majority vote. In the case of a draw, the request is granted.13
The law does provide the following examples of significant questions or
circumstances whereby the Supreme Court should accept the request:14
(1) The issue involves the public policies or the public order
9
Remark at the end of the Act on Amendment of the Civil Procedure Code (CPC) (No.27) B.E.
2558 (2015 A.D.).
10
Section 244/1 of the CPC.
11
In Thailand, an appeal to the Courts of Appeal is filed at the Court of First Instance that renders
a judgment or an order of the said appeal. Usually once the Courts of Appeal have finished writing the
decisions, the Courts of Appeal will submit the decisions to the original Court of First Instance to read for
the party (Sections 229 and 244 of the CPC).
12
Section 247 of the CPC.
Section 248 of the CPC.
14
Section 249 of the CPC.
13
3
(2) There are inconsistencies on significant questions of law between
the judgments or orders of the Courts of Appeal or between those of the Courts of
Appeals and those of the Supreme Court.
(3) The judgment or order of the Courts of Appeal has rendered on
significant questions of law that do not have a precedent of the Supreme Court
(4) When the judgment or order of the Courts of Appeal is incompatible with
the final judgment or order of other courts.
(5) In order to develop the interpretation of the law
(6) Other significant issues as stipulated by the Rule of the Chief Justice.
Prior to the enactment of this new law, the right to appeal to the Supreme
Court in a civil case is not absolute. There is a restriction based on the disputed
amount at the Supreme Court level. If the dispute amount is less than 200,000 THB
(around 8,000 SGD), the party cannot appeal on questions of facts. Nevertheless,
the parties can always appeal on questions of law.
As from 16 May 2008, in addition to the amount limitation, the Constitution
B.E. 2550 (2007 A.D.) and the Law on Court Organization B.E. 2551 (2008 A.D.)
as well as the Regulation issued by the Grand Chamber of the Supreme Court B.E.
2551 (2008 A.D.) empowers the Supreme Court to dismiss an appeal either on
questions of law or questions of facts if such appeal has “no substantially
reasonable grounds” to be considered by the Supreme Court. The phrase
“no substantially reasonable grounds” means there is no reason for the Supreme
Court to alter the decision of the lower courts.15 Example circumstances are as
follows. Regarding an appeal on questions of law, (1) such question has already
had the Supreme Court’s decision on point and there is no reason to change such
precedent, (2) such question is not complicated and the verdict on this issue will
15
Article 4 of the Regulation issued by the Grand Chamber of the Supreme Court B.E. 2551
(2008 A.D.).
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not change the decision of the lower courts, (3) such question has been decided
correctly by the lower courts and there is no reason to change such verdict, or
(4) such question even if the Supreme Court agrees according to the appeal,
there is still no reason to change the decision of the lower courts. Concerning
appeal on questions of fact, (1) the lower courts have correctly decided and there is
no reason to change the decision of the lower courts, (2) such questions only focus
on the court’s discretion in imposing sentences, suspension of punishment,
suspension of imprisonment in which there is no reason to change the decision of
the lower courts. The example circumstance also entails a broad situation in which
the Supreme Court reviews the whole appeal thoroughly and finds that there is no
reason to change the lower courts’ decisions.16
As of 8 November 2015, in which the appeal to the Supreme Court in a civil
case is no longer a right of the party, there certainly is a question as to why the
Supreme Court has decided to restrict the right of the court users. The remark for
the amendment is also not very helpful. It is stated that because the influx of cases
creates delays in the adjudications of the Supreme Court. This reasoning, in my
opinion, is not sufficient to manifest to the public the necessity of amending the
law. One may interpret this change as the Supreme Court being unable to find
an efficient and effective solution to handle the recent past and current caseloads
and as simply trying to find an easy way out. Also, for over a hundred years the
concept of the three-tier court system has long been in place since the
establishment of the COJ. What I think the COJ needs to communicate directly to
the public is that with the current number of pending cases and the volume of
incoming new cases in the past four years, there is no other option but to change
the role of the Supreme Court within the current system. The Supreme Court is no
longer the always an available institution for deciding civil disputes. Any trial will
16
Id.
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be tried principally twice; there will be no third level of review except in very
limited circumstances. Any change would certainly need time to acclimate
including this one. With these new provisions, the Supreme Court would be able to
curb the number of new incoming cases. As a consequence, the limited resources
that the Supreme Court has can then be used to focus on pending cases. After some
time, hopefully within the next two years, the Supreme Court will have completed
such a facelift. Also, the Court would then consider only significant cases worthy
of time and energy in circumstances as previously mentioned in the above
paragraphs. Another subsequent effect would be the increasing paramount
importance of the Courts of Appeal – their deliberations could be precedents that
the Court of First Instance needs to uphold. Lawyers as well as law students will
pay a great deal of attention to the Courts of Appeal decisions as guidelines for
using and interpreting the law.
Before the National Legislative Assembly was able to pass this law, there
was very strong opposition from representatives of lawyers in parliament.
In actuality, this new amendment is a compromise. Originally, the COJ proposed to
parliament that both civil and criminal cases should conclude at the court of appeal
level. The opposition mainly asserted that the new procedure would end the right
of the party from being heard three times. What the lawyers did not mention is that
this new process affects their remuneration for cases at the Supreme Court. Simply,
they would be unable to charge their clients as much as they used to do.
Even though they still can be hired to write an appeal request and an appeal, in
case the request is turned down, there is no further grounds for them to charge their
client. Since this law has already been implemented, lawyers simply need to adjust
themselves to the new system. They may need new ways of billing their clients
regarding drafting an appeal request and an appeal. Alternatively and more
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.importantly, their fees should be calculated based on the outcome of the case,
not the times their cases are considered.
III. The Creation of New Specialized Divisions in the Criminal Court
The types and forms of criminal offenses have continuously changed and
many crimes have particularly wider effects than just to the injured party. To better
provide justice to society, the Thailand COJ has established three new specialized
divisions within the Criminal Court, namely the Anti-Human Trafficking Case
Division, the Corruption and Misconduct by State Officials Case Division, and the
Narcotics Case Division. These units take effect in August 2015. This addition
emphasizes the intention of the Thailand government and COJ in tackling these
types of offenses. Judges on these benches are now appointed based on their
specialized knowledge in each field.
The Anti-Human Trafficking Division was set up in direct response to the
evaluation in the 2015 Trafficking in Persons (TIPs) report by the United States
Department of State in which the paper stated that Thailand does not comply with
the US Trafficking Victims Protection Act (TVPA) of 2000 and is not making
significant efforts to do so. The issue of human trafficking is unquestionably
a significant point that requires immediate and forceful handling. Anyhow, any
domestic or international research has its own limitations. These restrictions may
stem from the sources of information, data collection period and subjective criteria
and appraisal. Regardless of the aforementioned, this has resulted in certain forms
of economic sanctions. Thus, the Thai government needs to take on issues swiftly
in order to have the trade ban lifted as soon as possible. One of the criticisms from
the TIPs report is the seriousness of the criminal justice system in dealing with the
issue. So, to enhance the country capacity to implement related laws and
regulations and to ensure that this type of case progresses quickly, the COJ set up
7
the Anti-Human Trafficking Division of the Criminal Court and intends to expedite
these cases as fast as they can. The stories confirm that sometimes pressure from
the international arena can play a part in changes within the local judiciary.
Corruption and narcotics cases have also received a lot of attention from
many governments including the current one. As a signal to the public and to the
potential wrongdoer, the message is clear that the COJ will tackle these problems
vehemently and severely. Lowering and ultimately eradicating these two crimes
would make for a better society for the people to live in.
However, from a different angle, creating these three new divisions may not
make any huge difference in terms of case management. The Criminal Court, with
or without these three new divisions, has to undertake these types of cases with the
same limited manpower.17 Prioritizing these cases will affect the time spent on
other kinds of cases. The comparison of the gravity of each crime is still not
conclusive; it depends on the factors that you use.
How we can measure the success of these three units is another major
question. The establishment is just a starting point. The number of cases filed is not
a clear indication. Having a low number of, or none at all, cases filed may not
signify that we have no problems concerning these particular issues because a large
volume of cases may still be under the investigation of the police, prosecutor, or
other relevant agencies. On the contrary, having a high number of cases may alert
other responsible government agencies to step up their attempts. As the task of the
COJ is in the final step of the criminal justice system, what we can do is to try to
17
The Cabinet approved the Draft Bill on the Establishment of the Criminal Court for Corruption
and Misconduct Case as a stand-alone court on 22 December 2015.
8
adjudicate the cases as efficiently as we can.18 The length of the case processing
would be a decisive factor. This is not only reflects how we allocate the resources,
but also how we protect the rights of the defendants especially those who do not
file a bail request and those who have their request rejected.
IV. Gearing toward the Electronic Court
With over 240 courts nationwide, there are two courts that are in the
beginning steps of an electronic court: Don Muang Magistrate Court and Pattaya
Magistrate Court, which opened in April 2014 and April 2015 respectively. Once
the party within these jurisdictions comes to the court and has their legal
documents scanned, then these records can be retrieved by the computer system
throughout the court process. Nevertheless, the party is still unable to file
complaints, requests, or other legal documents from outside of the court facilities
or by electronic means. So, right now, the Thailand COJ does not have an e-filing
system, but is equipped with some degree of e-workflow.
The electronic court has always been one of the main missions of the
Thailand COJ for the past five years. However, the greatest obstacle is always the
budget issue. Currently, the COJ is able to establish the e-court system with
a newly established court only at the pace of one court per year. With the number
of courts that the COJ has, the pace has to pick up more quickly. Until the COJ can
convince the government that the e-court is the best way forward and this issue has
to be treated as a national agenda, the COJ will be unable to implement the
upgrading and installation of the e-court system more effectively.
18
The COJ policy on anti-human trafficking cases is to render the verdict within six months as
from the case filing (2015 Trafficking in Persons (TIPs) report by the US Department of State
p.332).
9
Besides the court infrastructure, in order to facilitate e-filing and
e-workflow, the current procedural law must be amended. The new change,
effective on 9 October 2015, allows the party to file pleadings and other legal
documents to the courts or to the opposite parties or other relevant individuals or
agencies by electronic means or other communication technology channels.
This amendment also enables the court to inform the party or other related persons
or bodies of the court’s order or instructions via electronic modes.19 The storage of
the court judgments and orders as well as all related case documents will be stored
in electronic form.20 The system is intended to be connected throughout the
country. So, the parties and the court can request or pull up the required documents
at or from any court in Thailand. Nevertheless, these new features are still in the
early stage. The details of each of the previously mentioned steps still have to wait
for the Regulation of the Chief Justice, which must be approved by the Grand
Chamber of the Supreme Court, before having any effect. Legal progress on this
issue thus depends on the speed of the committee nominated by the Chief Justice to
provide details of how the new e-fling and e-workflow will operate in the COJ.
V. Conclusions
The three immediate and major challenges in Thailand’s court
administration are the appeal request to the Supreme Court in civil cases,
the establishment of specialized units in the Criminal Court, and the
commencement of the e-court era. The tentative consequences are as follows. First,
the incoming civil cases at the Supreme Court will drop dramatically. Nonetheless,
the Supreme Court has to show to the public that it can adjudicate the remaining
cases and incoming criminal cases within an acceptable timeframe.
19
20
Section 68 of the CPC.
Section 34/1 of the CPC.
10
After implementing the new appeal regime for a year, a public perception and
satisfaction survey issued by the Court of Justice is necessary. Second, information
on the number of cases in three new units must be collected including the length of
time for finalizing cases as well as grounds to convict and acquit defendants. Third,
the readiness of relevant laws and regulations, court infrastructure and budget will
be key attributes to the successful and continual launch of e-courts. With all these
changes and developments, the Thailand Court of Justice will share the aim of
every judiciary organization around the world to further and cement public trust
and confidence in the judiciary.
11