REFORMATION
OF THE THAI LEGAL SYSTEM AT THE
BEGINNING OF THE 20TH CENTURY: CONTEXT AND ORIGIN
By
Chachapon Jayaphorn(1)
1. INTRODUCTION
In the future, there will be no wars with the Yuan(2) or the Burmese anymore. The only power will be the western nations.
Beware! Steer your course carefully and avoid defeat. Any of their works
which you think should be studied, do so. We shall follow them, but
shall not blindly worship them in all aspects(3).
These dying words of H.M. King Phra Nang Klao in 1851
seem to have become cliché since international relations between
Thailand and western countries have developed into just the future that
the King predicted. Thai lawyers have a difficult time answering the
question whether western influences have already defeated the uniqueness
of the Thai legal system. It seems like defeat to accept the demise
of the traditional Thai legal system, yet it is obviously dodging the
question to deny the impact of western legal systems.
The dawn of the 21st century is one of the most significant
turning points in the modern history, perhaps the greatest event since
the end of World War II. The world has changed rapidly and vigorously.
These changes have exceeded expectations, especially in terms of international
relations, economics, and technology. Thailand has changed just as drastically
as the rest of the world over this period.
From the beginning of the industrial revolution in
Europe until the mid-19th century, cultural, economic and technological
developments from the west have been adopted by eastern countries, including
Thailand. These developments opened Thailand to the west, especially
in the realm of commerce. An early part of the process of Thailand’s
opening to the west was the drafting of the Bowring Treaty with Britain
in 1855, and subsequently other western countries. In order to protect
independence, Thailand had to renounce many of her sovereign powers,
such as the power to extraterritoriality of the judicial system, the
right to monopolize international commerce, and the right to fix tariffs
on imports and exports.
The 21st century is also the time of great change in
Thailand because of the vast improvements in political structures under
tremendous economic pressure. Thailand’s survival has depended
both on the harmony of its citizens and cooperation at an international
level. Looking back 100 years ago, there is a tremendous similarity
between the fate of the Thai people then and modern Thai citizens. In
the late 19th century, Thailand had almost been occupied by the west
under the guise of colonialism. At that time, one of the most important
defenses employed by the Thai government to prevent colonial powers
from taking root in Thailand was to reform its governmental structure
and to modernize the legal system. Today, the government is following
the same path, starting with the promulgation of the new constitution
in 1997, and more recently a major reform of the government service
system in 2002.
Thailand is currently at a great transitional point
in her history. Has the legal reformation of the last two centuries
been appropriate? Unavoidably, this question must be thoroughly pondered
to plan the future course of Thai legal policy. Now is the time that
Thailand must decide whether legal and administrative policies should
follow western models wholeheartedly as did previous reforms, or whether
there are certain traditional concepts to the Thai legal system which
must be preserved.
Analysis of Thai legal history during the last two
centuries could be used to navigate a path for the planning and development
of Thai legal policy in the future, since current legal and political
systems are the result of administrative policies and legal reformations
undertaken in the 19th and 20th centuries. Knowledge of origins and
results of the reformation would also help to protect the sovereignty
of Thailand and the freedom of the Thai people from undue influence
of foreign powers. Additionally, foreign powers would be presented with
an alternative legal policy founded in the characteristics of traditional
Thai legal and administrative policies.
Understanding about each other is the best way to harmonize
the world because now there seems to have no hegemonic legal system
anymore. There is a western scholar’s note that: “it is
based on an impression of “hegemony”. Acknowledging that
individual characteristics of each legal family can be found in any
of the others and thus, in purist’s term, all legal systems are
mixed.”(4)
2. CONCISE THAI LEGAL HISTORY
To appreciate the development of the Thai legal system,
it is helpful to understand the origin of the meaning of the word “Thai”,
which means “free”. The fact that Thailand (formerly Siam)
has never been colonized has influenced the direction of Thai law.
Thailand has a rich history, and a legal system which
functions relatively smoothly. The ancient origins of Thai law before
the SukhoThai Period (13th – 15th centuries) were founded in the
Hindu Code of Manu(5). During the Ayudhya Period (1350-1767),
the modified Code of Manu, called the Dharmasatra, along with
the Rajsatra, formed the Thai legal system. The Dharmasatra and Rajsatra were developed from actual decisions of kings
in administering justice.
After the Burmese invasion of 1764 destroyed Ayudhya,
King Rama I (1782-1806), the founder of Bangkok, appointed a Royal Commission
to revise Thailand’s law. The revised code of 1805, commonly known
as the Law of Three Seals, contained both the Dharmasatra,
the royal decrees, and edicts. It remained in force until the reformation
under the government of King Rama V. in the early 20th century, the
new legal system culminated into the law of Thailand’s current
form, as outlined in civil and commercial codes, the systems of civil
and criminal procedure, and the penal codes. All of these current codes
were based upon existing European principles.
Even though Thailand has never been officially colonized
by western countries, Thailand did pay a price to keep independence
in the late 19th century by allowing its sovereignty over resident aliens
to be infringed through a series of bilateral treaties. Under these
treaties, foreigners and their dealings with Siamese and with other
foreigners were subject to legal challenges only in Consular Courts
and/or the International Court. The western powers of the day were not
satisfied that their subjects could be subject to the jurisdiction of
the Siamese courts under the Law of Three Seals, which on occasion settled
disputes or determined innocence in criminal proceedings through trial
by ordeal. For example, techniques using fire or water were employed
to determine a tolerance for pain and physical abuse to arrive at true
justice(6).
In the 20th century, Thailand adopted western systems
of laws, courts, and legal education, whereupon the Consular and International
Courts were gradually phased out and finally dissolved. Because of many
legal consultants from various countries, modern Thai laws have characteristics
from numerous western countries, including France, Germany, Switzerland,
England, Italy, Japan and India. It is thus too difficult to label which
legal system is the basis of modern Thai law; instead it is appropriate
to include all of these legal systems under the greater category of
western legal systems to explain the basic principles of modern Thai
laws.
In the late 20th century, there were new reforms of
the Thai legal system to promote and protect civil rights, freedom,
and liberty by the enactment of the new constitution in 1997. Further,
the 21st century has signaled even more changes in terms of political
and economic reforms in the realms of international trade and relations.
Law has played the greatest role in these changes just as it did in
the late 19th century.
3. HISTORICAL LESSONS
3.1 Similar Characters between Past and Present
Situations
3.1.1 Similarities in Terms of Rules
We may compare the GATT, which has as its core principles:
1) reducing tariffs 2) diminishing commercial barriers and 3) reforming
one’s laws to be consistent with all other trading partners, with
the Bowring Treaty in B.E. 2398. The Bowring Treaty forced Siam to reduce
import duties to 3%, to cancel the monopoly of the Royal Treasury, and
to force Siam to grant extraterritoriality for some European countries
until the government had completed legal reforms to match the western
system.
3.1.2 Similarities in Terms of Economic Developments
The Bowring Treaty was the beginning point of great changes
which lasted for more than a century. The opening of the free market,
and the guarantee of certainty of legal relationships between Siam and
foreign countries by the grant of extraterritoriality, linked Siam to
international markets. This development changed the nature of Thailand
from an agrarian society to one based in industry and trade. Because
of this economic change, the government also reformed social organizations,
legal and judicial systems, educational systems, public welfare, monetary
policy, and many more aspects of Thai society(7).
When thinking about the terms and conditions of international
free trade in the present, such as liberalism, free and fair trade,
democracy, multilateral agreements, and information technology that
Thailand is now facing, all characteristics of Thai society must be
reformed in order to assure advancement under the free trade system
as well.
4. MOTIVATIONS AND NECESSITIES OF THE LEGAL
REFORMATION
What were the motivations of the Siamese kings and the governments in
the 19th century to fundamentally reform the country, especially the
legal system? The answer lies in the industrial revolution and colonialism,
which dominated international relations in the 19th century.
Threats of English and French colonization occurred
in every area around the territory of Siam; almost all countries in
Southeast Asia were already colonized. How could Siam prevent European
countries from claiming Siam as their colony as well? The answer for
Siam was multifaceted: 1) the manifestation of Siam as a civilized nation,
which would be able to grant justice to her citizens just as European
judiciary systems were doing in their own territories, 2) making Siam
appear to be as civilized in its social systems as other civilized countries,
3) that Siam could efficiently maintain order and peace, and that Siam
was capable of protecting civil rights in this process, and 4) assuring
that European countries would be able to trade in Siam without major
hindrances(8).
The necessity of legal reformation in Thailand may
be classified in two ways: (1) the external motive: to regain extraterritorial
rights; and (2) the internal motive: to reform the obsolete portions
of the Thai judicial system.
Part
2
(1) Law Lecturer in the Faculty of Law, Chulalongkorn
University, Thailand. LLB (second class honors) Chulalongkorn University,
M.C.L. Indiana University - Bloomington U.S.A., LL.M. Indiana University
- Bloomington U.S.A.
(2) The Vietnamese.
(3) The dying words of King Rama III in 1851.
(4)
Ugo Mattei, Three Patterns of Law: Taxotomy and Change in the World's
Legal Systems, 45 Am. J. Comp. L. 21 (1997).
(5) See Id.at 27. The deeply rooted tradition of Hindu
law, and the strong oriental flavor of the Indian culture limit the
influence of the modern layer and place Indian law within the rule of
tradition law.
(6) Tilleke & Gibbins Ltd., Thailand Legal Basics,
Publications of Tilleke & Gibbins Ltd. (2003), at http://www.tillekeandgibbins.com/Publications/thailand_legal_basics/thai_legal_sytem.pdf
(7) Kittisak Prokati, the Reformation of Legal System
of Thailand (2003).
(8) Id. at 39
