The Judiciary of Thailand

The Judiciary of Thailand

 

1. Introduction

The history of the Thai legal system and the judiciary can be dated back as far as the Sukhothai period ( A.D. 1238 - 1350 ) where the King was the " Fountain of Justice " who himself adjudicated the disputes between his citizens. During the Ayutthaya period ( A.D. 1250 - 1767 ), the Thai legal system developed and was crystalized in a form of which was to last until the close of the nineteenth century. The Dhammasattham derived from the ancient Hindu jurisprudence was established as the law code of the realm and formed part of the Thai national heritage. It was a fundamental law of individual liberty and private rights dealing with both civil and criminal matters. The concept of royal justice administered during the Sukhothai was also carried through the Ayutthaya. The reign of King Taksin the Great between A.D. 1767-1782 had little development in the legal field since the country was besetted with series of battle. Later at the beginning of the Chakri Dynasty in 1782, the laws derived from the Ayutthaya period were revised and completed in 1805 resulting the written form of law books called " The Law of Three Seals." It had been the authority of the land until the reign of King Rama V, when a reform of the legal and court system was introduced together with an open door policy of trading with foreign nations.


In 1882, King Rama V founded the first building of the Courts of Justice. Later, in 1892, the Ministry of Justice was established and brought about the centralization of all Courts of Justice. Meanwhile, the first law code was promulgated in 1908 on criminal law. The founder of modern Thai law was Prince Rabi of Ratchaburi who played a leading role in introducing a modern system of judicial administration. The drafting of the Civil and Commercial Code was started in the reign of King Rama V and was completed during the reign of King Rama VII. The Revolution of 1932 had an important effect on the Thai legal and judiciary system since it changed the form of government from an absolute monarchy to a constitutional monarchy. The Constitution vested the judiciary power with the Courts. Judges perform their duties in the name of the King and are assured of independence in adjudicating cases according to the law.


The Constitution is the supreme of the country that establishes the powers, functions and duties as well as the structure of the Executive, the Legislative and the Judiciary. The present constitution of Thailand, namely, the Constitution of the Kingdom of Thailand, B.E. 2540 (1997) has substantial impact on the reorganization of the political system as well as the judicial system in Thailand. The types of courts recognized under the 1997 Constitution are: the Constitution Court, the
Court of Justice, the Administrative Court and the Military Court. The Constitution Court and the Administrative Court were recently established as a result of the provisions of such constitution. Although this change decreases the scope of the jurisdiction of the Courts of Justice, most cases fall under the jurisdiction of the Courts of Justice.

 

2. Structure


The structure of the Courts of Justice is divided into two parts: administration and adjudication. Before August 20, 2000, the Ministry of Justice was responsible for the administration works of all courts. The main role of the Ministry of Justice was to provide courts supports, including budget, personnel and office equipment, to enable them to operate their works efficiently. At
present, the Office of the Judiciary, an independent organization and a juristic person, is the only organization responsible for the administration of the Courts of Justice. This change will guarantee independence of the Thai Judiciary from political interference.

With respect to adjudication, the Courts of Justice have power to try and adjudicate criminal, civil, bankruptcy, and all cases which are not within the jurisdiction of other types of courts. When there is a problem of whether a particular case will fall under the jurisdiction of which type of courts, the Commission on Jurisdiction of Courts chaired by the President of the Supreme Court is authorized by the Constitution to make a decision. Such decision is final.

 

3. Judicial System


The Courts of Justice are classified into three levels consisting of the Courts of First Instance, the Courts of Appeal and the Supreme Court. The Courts of Justice have occasionally developed efficiency in handling cases. The developments fall into three ways, i.e., the increase of the number of courts, the emergence of the division and the branch of courts, and the establishment of the specialized courts.

 

3.1 The Courts of First Instance


The Courts of First Instance are categorized as general courts, juvenile and family courts and specialized courts. The general courts are ordinary courts which have authorities to try and adjudicate criminal and civil cases. Those courts are: Civil Courts, Criminal Courts, Provincial Courts and Kwaeng Courts.


3.1.1 General Courts


In the general courts, except the Kwaeng Courts, at least two judges form a quorum. An appeal against a judgment on both questions of law and, subject to some conditions, questions of fact or an order of the general courts lies to the Courts of Appeal.

With respect to the administration of the Provincial Courts and Kwaeng Courts, the Office of the Court of Justice Region headed by the Chief Judge of that Region, is responsible for the courts in the Region in some extents.

In the case where the office of the Chief Judge of Region becomes vacant or in the case of the Chief Judge's inability to perform official duties, the President of the Supreme Court will appoint a judge to perform duties of such Chief Judge.


The Chief Judge of the Region is regarded as a judge of any court in his region with power to try and adjudicate particular cases, such as cases concerning offence against public security, serious criminal offence, high amount claim and contempt of court. When it is necessary, the Chief Judge of the Region has power to order a judge of the court in his region upon the latter's consent to work temporarily for not more than three month in another court. The Chief Judge, however, must immediately inform the President of the Supreme Court about such order.

 

3.1.1.1 In Bangkok Metropolis


Civil Courts


Under Thai Law, the plaintiff must bring a civil case to the court where the cause of action arises or where the defendant is domiciled. Where an immovable property is involved, the plaintiff has to bring a lawsuit to the court where such property is situated, or where the defendant is domiciled. In Bangkok , Courts of First Instance dealing with civil cases are the Civil Court, the Civil Court of Southern Bangkok, the Thon Buri Civil Court and the Min Buri Provincial Court depending on a district where the cause of action arises or where the defendant is domiciled. Before 1977, the Civil Court was only a court adjudicating civil cases in Bangkok; yet the high increase of caseload in the Civil Court led to the setting up of the other civil courts in Bangkok .


For disputes on civil matters occurring outside the territorial jurisdiction, the Civil Court has discretion either to try and adjudicate those cases or to transfer them to the court having territorial jurisdiction.

 

Criminal Courts

As regards criminal cases, the court in a district where an accused resides or is arrested, or where an inquiry official makes an inquiry has jurisdiction over the cases. In Bangkok, Courts of First Instance handling criminal cases are the Criminal Court, the Criminal Court of Southern Bangkok, the Thon Buri Criminal Court and the Min Buri Provincial Court depending on a district where an accused resides or is arrested, or where an inquiry official makes an inquiry. Like the Civil court, the reason to establish other criminal courts in Bangkok was to alleviate the workloads of the Criminal Court. Also, the Criminal Court has a discretion either to try and adjudicate criminal cases arising outside its territorial jurisdiction but was brought before it or to transfer them to the court having territorial jurisdiction.

  

The Min Buri Provincial Court


The Min Buri Provincial Court, the only provincial court in Bangkok Metropolis, deals with both civil and criminal cases arising in the northern part of Bangkok Metropolis. The character of this court is the same as the general provincial courts.

Municipal Courts
The primary function of Municipal Courts is to dispose of small cases quickly with a minimum formality and expense. The jurisdiction of these courts covers both criminal and civil cases. Criminal cases fallen in the jurisdiction must deal with the criminal offence punishable with a maximum of three years imprisonment, or fine not exceeding 60,000 Baht or both. For civil cases, the amount of claims must not exceed 300,000 Baht.The proceeding in Municipal Courts is emphasized on the speedy trial, therefore, the trial is more simple and oral judgment or summarized judgment is issued.

 

3.1.1.2 In other Provinces

Provincial Courts

Provincial Courts exercise unlimited original jurisdiction in all general civil and criminal matters within their own districts which are generally the provinces themselves. For the purpose of expansion of services of the court to the distance area, some provinces may have more than one Provincial Court. For example, in Nakhon Ratchasima Province, there are three Provincial Courts, i.e., Nakhon Ratchasima Provincial Court, Sekew Provincial Court and Buayai Provincial Court. Where a case within the jurisdiction of Kwaeng Court brought to the Provincial Court, the latter has to transfer the case to the former. Each Provincial Court has a Chief Judge who is the head and responsible for the judicial work of the court. The Director of the Office of such Provincial Court (Registrar) under the supervision of the Chief Judge is responsible for administrative work of the court

 

Municipal Courts

The detail of Municipal Courts in other provinces is the same as Municipal Courts in Bangkok Metropolis explained above.

 

3.1.2 The Juvenile and Family Courts

The Juvenile and Family Courts consist of the Central Juvenile and Family Court, the Provincial Juvenile and Family Courts, and the Division of Juvenile and Family Court in the Provincial Courts. Two career judges and two associate judges, one of those must be a woman, constitute a quorum of the Juvenile and Family Courts. An appeal against a judgment or order of the Juvenile and Family Courts lies to the Courts of Appeal.

 


3.1.3 Specialized Courts

There are four specialized courts in Thailand, i.e, the Labour Court, the Tax Court, the Intellectual Property and International Trade Court, and the Bankruptcy Court. The establishment of the specialized courts is to ensure that specific or technical problems will be solved by an appropriate judge. A judge in the specialized courts is appointed from a judge who possesses competent knowledge of the specific matters.


A quorum of two specialized courts, namely, the Labour Court and the Intellectual Property and International Trade Court consists of both career judges and associate judges. Associate judges are laymen recruited separately to work together with career judges in adjudicating cases. It should be noted that at present each specialized court has only the central court, except the Labour Court which now has branches situated in other provinces.

 

3.2 The Courts of Appeal

The Courts of Appeal consist of the Court of Appeal and nine Regional Courts of Appeal. The Court of Appeal handles an appeal against the judgment or order of the Civil Courts and the Criminal Courts. Meanwhile, the Regional Courts of Appeal handle an appeal against the judgment or order of the other Courts of First Instance. The jurisdictions of the Regional Courts of Appeal are consistent with the jurisdictions of the Courts of First Instance Regions 1-9. Each Courts of Appeal is headed by the President of the Court assisted by Vice Presidents of the Court. The Court is divided into divisions. Each division has one chief justice and two other justices. At least three justices form a quorum.

An appeal on point of law and, subject to certain specified restrictions, on point of fact lies from the Courts of Appeal to the Supreme Court.

Each Courts of Appeal has a Research Division consisting of research judges. Primary functions of the Division are to assist justices of the Courts of Appeal by examining all relevant factual and legal issues of the cases, conducting legal researches and discussing with those justices to ensure uniformity and fair results.

  

3.3 The Supreme Court

The Supreme Court is the final court of appeal in all civil and criminal cases in the whole Kingdom. The Court consists of the President, Vice - Presidents, the Secretary and a number of justices. It is divided into divisions with three justices in each division. The President of the Supreme Court is also the head of the Courts of Justice. In the present system of the Courts of Justice, the President of the Supreme Court plays a great role in judicial and administrative works.

Like the Courts of Appeal, the Supreme Court also has the Research Division consisting of research justices.

At least three justices of the Supreme Court form a quorum. The court may, however, sit in plenary session to determine cases of exceptional importance and cases where there are reasons for reconsideration or overruling of its own precedents. The quorum for the full Court is not less than half of the total number of justices in the Supreme Court.

As a result of the 1997 Constitution, the Criminal Division for Holders of Political Positions was set up in the Supreme Court to act as a trial court in a case where the Prime Minister, a minister, member of the House of Representatives, senator or other political official is accused of becoming unusually wealthy, committing malfeasance in office according to the Criminal Code, performing duties dishonestly, or being corrupted according to other laws.

In trial, a member of the House of Representatives or a senator is unable to claim the immunity provided in the constitution. The Criminal Division for Holders of Political Positions in the Supreme Court must rely on the record of the National Counter Corruption Commission and may investigate to receive additional facts and evidence as it thinks fit.

The quorum of this special division of the Court consists of nine justices of the Supreme Court who hold position of not lower than justice of the Supreme Court, and are elected by a plenary session of the Supreme Court justices on a case by case basis. A judgment will be made by a majority of votes; provided that each justice constituting the quorum will prepare the written opinion and make oral statements to the meeting before making decision. Orders and decisions of the Criminal Division for Holders of Political Positions in the Supreme Court will be disclosed and final.


4. Judge


4.1 Types of Judge

There are four types of judge in the current system, namely, a career judge, senior judge, associate judge , and Datoh Yutithum or Kadis.

4.1.1 Career Judge

Career judges are recruited by the Judicial Commission and are appointed by His Majesty the King. Besides having certain qualifications such as being of Thai nationality, passing the examination of the Thai Bar Association to become a Barrister-at-law, and having not less than two years working experience in legal professions, a candidate must pass a high competitive examination given by the Judicial Commission. Once the candidates are recruited, they have to be trained as judge - trainees for at least one year. Those candidates who complete the training with satisfactory result will be approved by the Judicial Commission and tendered to His Majesty the King for royal appointment to be a judge. A solemn declaration before His Majesty the King is also required before taking office as a judge.

Under Thai Law, a judge may be vacated from the office by the following reasons:

death;
resignation;
wvacating from the office under the law on government pension fund;
.being transferred to serve in a position of a government official which is not judicial position;
resignation for being in military service;
being ordered by law to resign;
being expelled, dismissed, or removed by law from the office;
being removed from office by a resolution of the Senate.
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4.1.2 Senior Judge

According to the Rules of Appointing and Holding Senior Judge Position Act, B.E. 2542 (1999), when judges reach sixty years of age, they can remain in office to perform duties, but merely in the Courts of First Instance, provided that they are approved by the Judicial Commission and are appointed by His Majesty the King. When they become sixty-five years old, and pass the assessment of fitness performance, they are able to remain their senior judges status until they reach seventy years of age.

A senior judge cannot be appointed to hold an administrative position; namely, a Chief Justice, or even to perform duties in place of such person. Further, a senior judge is prohibited not only from being elected to be a Judicial Commissioner, but also to vote in electing such commissioner.

 

4.1.3 Lay Judge

Lay judges are laymen recruited separately to perform duties in the Juvenile and Family Courts, the Labour Court or the Intellectual Property and International Trade Court. The aim of having lay judges is to have an experienced person or an expert in a relevant field who can work closely with a career judge in adjudicating cases. Unlike a career judge, becoming a lay judge is not a permanent position. Each lay judge holds the office for a term of certain years depending on which specialized court he or she is working for.


4.1.4 Kadi

According to the Act on the Application of Islamic Law in the
Territorial Jurisdictions of Pattani, Narathiwat, Yala and Satun Provinces, B.E. 2489, the Islamic Law on Family and Succession except the provisions on prescription in respect of succession shall apply instead of the Civil and Commercial Code in giving a judgment in civil cases concerning family and succession of Muslims. In such case, career judges and a Kadi who is an expert in Islam will sit on the bench together to adjudicate the case to comply with the principle of Islam. A kadi must not be less than thirty years of age, know Thai language at the prescribed level , and have knowledge in Islam to enable him to apply the Islamic laws relating to family and succession.


5. Office of the Judiciary     


According to the 1997 Constitution, the Courts of Justice have an independent secretariat, namely, the Office of the Judiciary headed by the Secretary - General who will report directly to the President of the Supreme Court. The Office of the Judiciary has autonomy in personnel administration, budget, and other activities as provided by law. It has its own staffs and is divided into several offices and divisions. Office of Information Technology, Alternative Dispute Resolution Office, Office of Judicial Technical Affairs, and the Judicial Training Institute are also under the Office of the Judiciary. The work of the Office of the Judiciary concerning international judicial cooperation is under responsibility of the International Affairs Division.

In administering personnel and budget of the Courts of Justice, the Office of the Judiciary has done through three separate Commissions, i.e., the Judicial Commission, the Judicial Administration Commission, and the Commission for Judicial Service. The Judicial Commission chaired by the President of the Supreme Court composed of the Commissioners elected from judges in all levels of the Courts of Justice deals with appointment, transfer, promotion and disciplines of judges whereas the Commission for Judicial Service chaired by the most senior Vice - President of the Supreme Court consisting of both the Commissioners appointed by the Judicial Commission from judges in all levels and the Commissioners elected from senior judicial officers handles appointment, transfer, promotion and disciplines of judicial officers. The Judicial Administration Commission chaired by the President of the Supreme Court composed of the Commissioners elected from judges in all levels of the Courts of Justice is mainly responsible for approving budget plan and managing the budget, issuing regulations and notifications concerning administrative and secretarial works of the Office of the Judiciary. The work of the three Commissions is transparency since the law requires that each Commission must have at least certain number of Commissioners who are qualified persons and are not judges.

     

5.1 Vision

By B.E. 2555 (2012) the Courts of Justice will be an intelligence organization with systematic and efficient judicial and administrative works. This aim will be pursued with honesty, impartiality, equality, rightfulness, convenience, speed and modern in accordance with international standards towards leadership as a model in justice process, legal academic and services, ethic and virtue widely recognized domestically and internationally.

 
5.2 Mission

Missions of the Office of the Judiciary are as follows :

Laying down policies concerning personnel, budget, and development plan in compliance with the principle of the Good Governance;
Serving as a secretary to the Judicial Commission, the Judicial Administration Commission, and the Commission for Judicial Service;
Recruiting qualified judges and judicial officials as well as developing the work potential and skills of those persons systematically and continuously;
Promoting research programs for the development of laws and system of the Courts of Justice;
Monitoring and evaluating the output of works, defining the effective indicators and unit cost;
Cooperating with other relevant agencies for the purpose of human right protections.


 

 

[ Jun 4, 2007 ]

 
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