Thailand Law Forum Law Journal - Reformation of the Thai Legal System at the Beginning of the 20th Century: Context and Origin

This deficient method to prove guilt was the strongest reason for westerners to refuse Thai jurisdiction, and to make provisions for extraterritoriality with Thailand. A Thai lawyer who lived during the reformation, who had a perspective different from nationalists’ opinions, stated that:

As for the circumstance that Thailand was cut off from the judicial sovereignty, if we are fair enough, it seems unfair to say that such westerners were taking advantage of us alone. Surely, they had to protect their benefits as much as possible. Thai laws at that time were insufficient to govern all matters happening in present society. Besides, old Thai laws were never organized so they were hard to study and search. Some provisions, especially proving guilt by the ordeal system, were truly obsolete. Westerners could not stand methods of nailing nail, compressing temples, walking on fire, etc. Losing judicial sovereignty has instead brought many advantages to us. It forced us to improve and reform our laws and our courts to be consistent with other civilized countries(21).

(iii) Severity of punishment

Under old Thai laws, punishments were extremely severe. Not only was there the death penalty, there were also punishments such as the cutting off of limbs, hands and feet, pillory, flogging, tattooing a mark on the face indicating a criminal offence, confiscating all properties of the criminal’s family, and all kinds of public humiliation.

(iv) Arbitrariness

The period of punishment under old Thai laws was not exactly specified. Some criminals were imprisoned lengthily without proper cause. One of the royal duties of the king under the ancient tradition said that the king was the supreme judge who could appoint any punishment as the king pleased upon the accused. This way of punishment had worked for a small society. Yet, when the population and the size of the society grew larger, the deliberation of one person, the king, on the punishment of the accused affected the rights and liberties of the citizenry more and more.

Prince Rabi(22) explained that:

Under the old law, an imprisonment had no limitations. If imprisoned, that meant imprisonment for life, unless the king graciously forgave, or reduced the period of imprisonment. All courts thus always had to bring petitions for the king’s clemency. The king was always diligent to fix a period of punishment case by case for criminals all over the country. This task was too burdensome for one person to execute alone(23).”

There were many examples of suffering from the vagueness of the period of punishment. The first example is the case of Ai Rung, an accused who shared the responsibility for a robbery with other criminals. Ai Rung was imprisoned with his nine other friends. All nine friends later died. Ai Rung was still imprisoned for another 14 years without either a clear offence or limitation of sentence. Second, the case of Ai Shim, accused for the offence of murder. Chao Phra Ya Yommaraj (Shey), the judge for this case, imprisoned Ai Shim for 16 years and 11 months with no limit of imprisonment.

In addition to the two above examples, a letter of Dr. William Willis, the Chief Doctor of the Division of Heavy Penalty in the government of King Rama V, informed King Rama V that:

In Siam, there are so many prisoners who have been imprisoned without judgments, and prisoners who have no idea how long they will have to be imprisoned. They have been so miserable, so anxious. It is a true pity to see long-term prisoners whose bodies are weaker and weaker. And how much would they be whipped? One day, I had a patient who had been imprisoned for 28 years because of a petty offence and he also did not know whether he had even been found guilty(24).

To solve this problem, King Rama V appointed Prince Bijit, Prince Siridhaj, and Phra-Ya Vudhikaraboti to fix limits on punishments. In 1896, King Rama V granted the metropolitan court and provincial courts the power to fix the limitation of imprisonment. As for old cases that had not had limitations set, King Rama V appointed Prince Rabi to help execute this work as well.

(4) As in public law, the modern idea emphasizes “the principle of legality in administration”. Government officials who exercise administrative and executive powers cannot deprive civil rights, liberties, and the right to property unless there are unambiguous laws which enumerate such powers to do so. All processes in depriving civil rights, liberties, and properties also have to be righteous within the scope of law. The modern method of administration thus has to follow the separation of powers doctrine separating the state power as: 1) legislative power, 2) executive power, and 3) judicial power. The separation of powers is not only for a well-organized system in theory, but also for pragmatic purposes in order to guarantee people’s liberties not to be under absolute power of any one branch.

This separation of power doctrine had never existed under the old Thai law and administration because Thailand was ruled by an obsolete monarchy. The absolute monarchy in Thailand, however, was different than the absolute monarchy in western countries where kings might dictate anything as desired since, in Thailand, there was the Dharmasatra as the royal convention that the king was required to strictly follow in ruling the country. Any royal judgment or decision necessarily had to be under the Dharmasatra.

5. MECHANISMS OF THE REFORMATION: THE FIRST LAW SCHOOL

Three significant mechanisms of the administrative reformation in Thailand were: 1) legal reformation, 2) development of legal education, and 3) establishment of new-generation lawyers. Apparently, the efficient mechanism of every change, including of economic and political changes, was law.

Further, in order to determine the relationship between individuals, the system of slavery and feudalism had to be abolished. Ideas about civil rights and equality of people had to be guaranteed. This rapid change of ideas about social structure caused a great cultural shock to Thai people. The government thus became alert to western legal doctrines to continue the plan as western without problems.

One of the greatest methods for keeping up the new appearance of the legal system to continue smoothly towards the future was to produce efficient human resources in the legal field. Even though there were fewer lawyers than soldiers and governors, lawyers were the most significant resource for reformation. Law was the most efficient tool to govern and plan all systems. Since the substance of Thai legal reformation was to form a new relationship in both the government and between individuals, it was too difficult for existing Thai officials to implement reformation themselves. The country needed a new generation of lawyers who were well-educated about western principles of the rule of law.

King Rama V complained about the crisis of human resources in Thailand:

In our country nowadays, there seems to lack nothing much more except efficient human resources. Nothing will achieve our goal unless we have good personnel. Since we do not have well-educated personnel, we have to hire foreigners. Working with foreigners is not easy and we are indeed aware how much foreigners’ loyalty to our country is. They just come to make money, and go back home….Our human resources are truly impossible to use. It does not mean that they do not have energy or brains. But it means they do not have the requisite knowledge(25).

After the establishment of the Ministry of Justice, the Thai government hired Mr. Rolin Jacquemyns, a Belgian law professor, to be a consultant in 1892. Mr. Jacquemyns suggested that King Rama V found a law school for producing the new generation of lawyers. When Prince Rabi, a law graduate of Oxford University, returned to Thailand, King Rama V appointed Prince Rabi and Mr. Jacquemyns to work on founding the first law school of Thailand, which finally occurred in 1897. It may be considered that the establishment of the law school was the first step of the legal development of the country.

The curriculum and textbooks of the law school at that time mostly followed the English legal model since Prince Rabi, the founder of the law school, and all Thai law professors graduated from English universities. Also, the English influence played the most significant role in the development of the school. An obvious example showing the Thai preference for English culture and education was that most Thai royals as well as noblemen preferred to send their children to study in England.

The first law school performed the work of producing human resources wonderfully. In a letter written by Prince Rabi to his father King Rama V, he reported his delight about the law school and his students: “the law students who just graduated have very good capacity. Although some of them were very young, they nonetheless surprised me by their efficiency. There are only 30 graduates from the school. But I am certain these 30 graduates will make great changes for the government service of Your Majesty.(26)”

6. CONCLUSION

There is truth to the axiom that the past always repeats itself in the present and future; the most significant way to determine the administrative policy of the country is to look back at our history, and use lessons from the past to decide which path the country should take in order to survive as successfully as our ancestors.

Apparently, no country can stand alone without concerning itself with the policies of other countries in this era of globalization; Thailand is in the same position as other countries. There are no advantages to Thailand to arrogantly isolate herself from the international legal world. Every little principle and occurrence, even accidental one, of each legal system can surely be affecting others as a comment that: “legal systems are the result of a layered complexity that stems from the accidents of legal history and from legal transplant.(27)”

Although to entirely adopt all legal principles from the western world as the model for the whole of the Thai legal system might not be suitable for the country, western influence is still the most significant topic to be considered. Because of the developments of the last two centuries, Thailand has greatly followed western guidelines, and those principles have become the mother of the modern Thai legal system, nourishing it as a growing child of western ideas in the present toward the future would thus not be successful without maintaining its own mother’s characteristics. Therefore, western ideas shall still remain as the centerpiece of the system.

In addition to the reason that Thai laws have mainly followed western footsteps for more than a century already, the answer to the question why non-western countries should not make their own independent characteristics as well as principles for their own legal systems is that because of the western legal traditions which are proper to this modern era. There is a well-fitting conclusion about the western legal tradition that:

The homogeneity of the western legal tradition is largely due to two factors: 1) the legal arena is clearly distinguishable from the political arena; and 2) the legal process is largely secularized. In other words, the legitimacy of the law is neither of religious nor of political origin, but rather of a technical nature. The western legal tradition is based on two “great ideological separations”: the separation between law and politics and the separation between law and religious and/or philosophical tradition(28).

National pride is a significant ideal to maintain the sovereignty and harmony of the nation, but blindly being chauvinistic to every custom of the nation without careful consideration of the outside world and international developments could prove to fatally harm the country.

Under the colonial pressure from the powerful western countries, the kings and governments of Thailand over the past two centuries chose to follow the western legal system as a model, and they directed the country past colonialism and safeguarded Thailand’s freedom and independence, which has survived to this day. Under economic and political pressures from powerful western countries in the present, why should Thai lawyers entirely ignore many good laws from those powerful foreign countries as a guide to lead the country forward, shoulder to shoulder with advanced, modern countries in this era of multilateral relationships?

(21) Luang Chakrapanisrisilavisudhi, The Judicial Sovereignty, 40-41 (Namngarn Boonpiam ed. 1987).
(22) H.R.H. Prince Rabi of Rajburi was a son of King Rama V. He graduated from the Oxford Law School in England. King Rama V appointed him as a privy councillor and the Ministry of Justice, having duties to reorganize and manage all judicial works.
(23) Prince Rajburi, Acts in the Present Vol I, Thai Legal History, 142 (2d ed. 2000).
(24) Letter from William Willis to H.M. King Chulalongkorn (Nov. 28 1891), Thai Legal History, at 144 (2d ed. 2000).
(25) H.M. King Chulalongkorn, the Royal Letter ro Chao-Phra-Ya Pra Sadej Surendradhiboti Ror_Sor_113-118 (1961), Legal Education in Thailand (Dusdi Hiramian ed., 1991).
(26) Ugo Mattei, Three Patterns of Law: Taxotomy and Change in the World's Legal Systems, 91-92 Am. J. Comp. L. 21 (1997).
(27) Id. at 13-14.
(28) Id. at 23.

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