ABUSE OF JUDICIAL POWERS IN THAI FOLKTALES

By Alexander Shytov

          The rich man, who filed the case, also argued that he had some legitimate rights. In England, it was decided once that articles embedded in the soil and discovered in the course of operations were held to belong not to the discoverer, but to the owner of the soil.(18) The legal principle of accession can be used to support the claim of the rich man. Under accession a person becomes owner of something of an accessory nature by reason of his ownership of another, the principal, subject.(19) In the given case, the principal object was the land, and therefore, everything found in the land should belong to the owner. In fact, this is exactly the reasoning which the rich man used as it is recorded in the folktale. In Thai Civil and Commercial Code the doctrine of accession can be traced for example in the provision of Section 1348: "Fruits falling naturally upon adjoining land are presumed to be fruits of such land." If a judge would follow blindly the doctrine of accession he would satisfy the claim of the greedy rich person against the claim of the poor man.

          The poor man also could put forward a legal argument. According to law, the property can be acquired either by occupation or by a derivative title from the former owner. Occupation is the taking possession of a thing with the intention of becoming owner of it. Therefore, the poor man could claim that he is the owner on the basis of occupation. He could invoke Section 1318 of Thai Civil and Commercial Code which says that "a person may acquire the ownership of an ownerless movable by occupation, unless the occupation is forbidden by law or is in violation of another person's right to occupy such movable." He could argue that the claim of the rich man is not justified, since there was no connection between the principal object - the land and the jar. For example, in England, it was held in the past that bank-notes accidentally dropped in a shop by an unknown person belonged not to the shop-keeper but to the finder.(20) He also could argue that the object was not 'hidden' or 'buried' in the meaning of Section 355 of the Penal Code and Section 1328 of the Civil Code, since the act of hiding and burying (Thai word in the Code for burying: fang) presumes an Intentional act, while the jar was an object being covered (thookglob) or embedded in the soil.

          Thus, law can hypothetically support everyone of the claims of the poor man, the rich employer, and the judge who confiscated the jar. Considering the merits of the case, however, one would favour the claim of the poor man who was not greedy and used the jar to help others. It is true that not all of the legal arguments listed above have the same strength, and it is likely that judges have a strong pressure to favour one legal interpretation at the expense of the other without regarding the merits of a particular case. For example, the political authorities may have a strong interest to possess the jar. But it is considered as one of the fundamental principles of the rule of law that judges must be free from political pressures. On the other hand, the political authorities should be even more bound to take into account the merits of the case, and conduct policy according to justice and public (folk) conscience. Judges are more bound by the strength of legal arguments than the political authorities are. The first must adjudicate cases according to law. The latter must carry out their policy within the framework imposed by law. The political authorities are free to choose any of the courses which do not violate any legal provision. For example, even if a judge would decide that the poor man did not have any proprietary rights in the jar, but the rights should be granted to the state, the latter has freedom to dispose of the jar as it thinks appropriate for public good. For example, it can give the jar into the possession of the poor man since the activities of the latter were conducted in the public interest and not for selfish gain.

          The fundamental difficulty with deciding cases on their merits is that it is impossible to make a clear-cut rule applicable to every case. If a judge decides in the given case that the jar should be given to the poor man, he must decide the next case in the same way, for example when a terrorist found the jar and used it to produce weapons to kill, instead of the means to help the needy. The reason for that is that the law requires that similar cases should be decided similarly. It is clear, that according to the Thai folktale, the rightness of the claim of the poor man did not originate in the legal idea of occupation, but in the fact that he was needy and that he was willing to help the needy. A moral judge may use all his wits to enforce a just claim of the poor man but he still has to do it stealthily. The same tricks can and In fact are used by immoral judges. There can be only one solution to the problem if moral principles as they are articulated in the folktales will be binding on judges. In other words, if law allows judges to turn down the claims of the one who Is acting out of greed, and satisfy the claims of those who are acting out of need and solidarity with other people, only then will judges have a stable soil to adjudicate the cases according to justice, and not according to the rules which favour greed and selfishness. But that would mean a genuine revolution in law.

UNFAIR(21)

          Content: There were two otters who were close friends. They lived in a big river and always shared their food with each other. But once, one otter became greedy and did not want to share a fish, which he had caught, with his friend in a just manner. The argument arose between the friends, how much the one who caught the fish should share with his friend. Before, they had equal shares. But now, the first otter was willing to give only an insignificant part. At the time of the quarrel, a fox was passing by. They appealed to the fox to adjudicate the dispute. The fox first denied help, saying that he was busy and goes to the court of the king to make decisions. But eventually, he consented, providing that the parties to the dispute agree to be bound by the fox's decision. The otters agreed. The fox, then, gave the head of the fish to the one who caught it, and the tail to the other, leaving the rest for himself, and went his way. The otters felt sorry and concluded that it would have been better for them to settle the dispute by themselves.

           Interpretation: It is interesting to compare this story with a Burmese law tale of a rabbit as the judge, which was used in the past to train low ranking judges in Burma.(22) In that story the rabbit was commended for his adjudication of a similar case between an otter and a jackal, who were friends and could not share one fish. The rabbit in the capacity of a judge wisely divided the fish in the middle so that the half of the tail and the half of the head would be given to each party. The story ended with an appeal to the judges to follow the example of the rabbit. The Burmese story points out that the moral content of the tale has a great importance for judges. The same can be said about the Thai story about the fox as a judge.

          The Thai story, however, is directed not to the judges but to the ordinary people, and its main implication is that it is better to solve disputes by themselves without going to court. The same moral lesson was given by Jesus who said: "why don't you judge for yourselves what is right? As you are going with your adversary to the magistrate, try hard to be reconciled to him on the way, or he may drag you off to the judge, and the judge turn you over to the officer, and the officer throw you into prison. I tell you, you will not get out until you have paid the last penny."(23) It seems that both Thai folk and Jesus had great pessimism in official justice. It is good to remember that Jesus himself, according to Christian beliefs, was later unfairly accused in crime and then executed.

          The story teaches more than a mere mistrust in the official justice system, It calls listeners to make their own judgements and not to trust the judgement of others. It points out that when someone makes a judgement, like the fox, he or she is expected to pursue one's selfish goals. It also points at the danger of selfishness. The selfish person will loose what he tries to save.
           Application to law: The fox is a lawyer. His first step was to make an impression that he is an impartial judge. He made his victims beg for a settlement of the dispute. His next step was to make them bind themselves with a promise, or in other words, to be legally bound by the decision which the fox would make. Such as in the story of Wondrous Jar, there is no idea of a judge as a servant of impartial justice. In both stories, the judge is a greedy and selfish person pursuing his goals. The impartiality of the fax is a deceit. From the legal point of view, the decision of the fox was perfect. By giving the head of the fish to the otter who caught the fish he acknowledged the preferential right of the latter, and by the giving of the tail to the second otter, he acknowledged the rights which had arisen in the relationship between the otters. The fox could also claim that the rest of the fish was taken by him as the cost of adjudication, and that was done with the previous consent of the parties. From the point of view of formal law, everything was fine, but from the point of view of folk morality the practice of the fox was unfair.

           The unfairness of the judgement consisted in the abuse of trust of the parties who hoped to receive a fair determination of their rights and duties in the relationship between them. The reason the otters appealed to the fox's arbitration was the belief that in case of a disagreement the impartial judgment would be the best way to reconcile the parties. They called the fox an uncle (Thai word lung), which in Thai cultural context means acknowledging his social superiority and the greater life experience. This manner of addressing someone is a call for friendly and trustworthy treatment. The parties in the end realized the mistake of this presumption. Thus, the folktale runs against the fundamental principle of adjudication and arbitration, that in the case of a dispute the parties must refer the matter to an impartial judge. However, the whole system of adjudication and arbitration in every system of law, in every country and in any time must be based on this idea. If there is no confidence in an impartial judgement which is fair and just, no legal system can exist and work efficiently. Law then would cease to be an integrating power of the society, being left to be a property of the foxes, which is devised to fool the simple-minded.

          Thus, the story indicates the fundamental problem which every legal system faces, and not only Thailand. It is about creating trust in the integrity and justice of judges. In the story of Archers considered above, there is a positive image of a judge who is called to turn the suffering of the people into happiness. Therefore, it would be a mistake to present Thai folk morality as rejecting the ideal of impartial tribunal. What Thai folk wisdom denies is the judges who are outwardly impartial and obedient to law, but inside they are greedy and wicked. Just and fair law must begin with just and fair judges. Law on the paper can be nice and good, but if the judges are like the fox in the folktale, then law would remain to be an instrument of injustice and oppression.
          The history of law teaches a lesson that the most efficient law does not need many rules and institutions which guard against possible abuses of power. In fact, the abundance of the latter is a sure sign of the disease of law. An efficient law needs, firstly, a body of clear rules understandable by an average member of the society, and not merely by the caste of lawyers; and secondly, the moral will to follow those rules, or in other words to apply those rules with regularity, justice and equity. Modern law becomes too complicated in meaning for an ordinary citizen to understand. As long as there is trust in legal experts, the law can function. But in the absence of such trust, an over-complicated system of law is similar to a huge building built without foundations. When the wind blows, and the waters rise, the building will surely collapse, and woe to them who will be under its rubble.

CONCLUSION

          In the stories of Wondrous Jar and Unfair the abuse of judicial powers takes place when a judge acting in his judicial capacity, turns the matter of the dispute for his own selfish gains. Both judges did not have any direct relationship to the matter in such a way that any legal rules on bias could be applied to exclude them from deciding the cases. This fact underlines the idea that the abuse of judicial powers can take place in any case. Moreover, selfishness and greed of the judges could acquire not only the form of taking possession of the object or a substantial part of it which was at the centre of the dispute. Selfishness and greed can play an unseen role in the outcome of the decisions. Greedy judges can be bribed. Selfish judges can decide cases under influence with view of promotions and benefits received from those in whose favour they decide the cases. Judicial corruption is more than taking bribes. It always takes place when any considerations except those of justice creep into judicial decision making. The problem of corrupted judges, which is so brightly highlighted by the Thai folktales, exists not only in Thailand; it is a problem of every human society where there are such things as greed and selfishness. Society and justice desperately need judges who are fully committed to serve justice with genuine impartiality. By exposing the nature of judicial partiality Thai folktales convey the true meaning of what judicial impartiality is: it is a state of judicial mind where there is no place for greediness and selfishness. The way to reach this state cannot be paved by legal rules and safeguards. It requires transformation of the inner being of the decision makers.

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(18) Elwes v. Brigg Gas Co. (1886) 33 Ch.D. 562.
(19) Erskine J. An Institute of the Law of Scotland. - Edinburgh: Law Society of Scotland, 1989.II.1, 14-15.
(20) Bridges v. Hawkersworth (1851) 15 Jur. 1079.
(21) 'Maipentham' in: Nithaanphynbaan. - Ed. By Wichian Getpratum. - Bangkok: Samnakphimpattanaasygsaa, 2000.-P.107.
(22) Maung Htin Aung. Burmese Law Tales: The Legal Element In Burmese Folk-lore. - Oxford University Press, 1962. - P. 65.
(23)Luke 12:57.59.