Strengthening the Independence and Efficiency of the Judiciary in Thailand*

By Dr. Thammanoon Phitayaporn**

1. Introduction
The Thai judiciary is tine of the institutions authorized by constitutional law to exercise the sovereign power of government on behalf of the people.(1) This power has great influence on the rights and liberties of each citizen. For example, in criminal cases, imprisonment may be imposed, while in civil proceedings. property can be foreclosed and distributed to pay debts.

Traditionally, the ability of the judiciary process to uphold the rights and liberties of people has been measured by the independence of the judiciary process. However, in recent years, the efficiency of the judiciary process has been recognized as an equally important measure of the judicial integrity. Process efficiency can have severe implication on the rights and liberties of the people. Lengthy criminal proceedings can cause innocent defendants to be detained for many years. In civil cases, late adjudication can result in delays in payment to plaintiffs. These issues impact both matters of justice and business in Thailand, and directly affect the Thai economy.
The combination of increased caseload and the impacts of a recent change

in constitutional law requiring two or more judges to be seated at hearings has required the Thai judiciary to take a close look at process efficiency. This article will address three major initiatives that have been adopted or considered to be adopted nationwide by Thai courts over the last 5 years.

II. Independence of the Judiciary

The Thai constitutional law recognizes the significance of judicial independence and clearly articulates in section 249, paragraph 1, that "Judges are independent in the trial and adjudication of cases according to the constitution and the law." The constitutional law includes numerous provisions to safeguard judiciary independence, including:

1. Hierarchical Supervision In order to avoid an internal intervention, the constitutional law provides that trial and adjudication by judges shall not be subject to hierarchical supervision.(2)

2. Appointment and Removal of Judges The King appoints and removes judges after the Judicial Commission(3) tenders them to the King. (4)

3. Promotion, Increase of Salaries, and Punishment of Judges The promotion, increase of salaries and punishment of judges shall be approved by the Judicial Commission.(5)

4. Transfer of Judges Transfer of a judge without his consent shall not be allowed except in the case of being termly transferred, being promoted to a higher position, being under a disciplinary action, or becoming a defendant in a criminal case.(6)

5. Allocation, Recall, and Transfer of Court Cases Allocation of court cases to judges shall be in compliance with the rules provided by law.(7) Recall or transfer of court cases is not allowed except in the case where justice in the trial and adjudication of the case shall otherwise be affected.(8)

6. Budgets for the Judiciary The constitutional law provides that the state shall allocate adequate budgets for the independent administration of the Judiciary.(9)

7. Independent Administration Office of the Judiciary In aspect of the organizational structure, a major change has been made according to the constitutional law.(10) The Ministry of Justice, a government agency of the Executive Branch, was responsible for the Judiciary's administration including personnel and budget administration. At present, the Judiciary has its independent agency, the Office of the Judiciary, responsible for those administration. The Ministry of Justice no longer has an attachment with the Judiciary as it did in the past.

III. Efficiency of the Judiciary

In the last decade, caseload in Thai courts has dramatically increased. In addition, a recent change in constitutional law now requires a full quorum of judges - generally defined as two - to be seated at hearings. Prior to this change, one judge was allowed to represent a quorum by a process wherein the seated judge would seek counsel with the other judge out the courtroom for matters requiring judgment by quorum.(11) The change has practically doubled the number of judges required at hearings, and has made problem of managing caseload

Part 2

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* A paper presented at the 8th ASEAN Law Association General Assembly, November 29, 2003- December 2, 2003, Singapore; The author wishes to express his gratitude to the National Assembly, the ASEAN Law Association of Thailand chaired by H.E. Judge Atthaniti Disatha-amnarj, the Chief Judge of the Supreme court for the privilege to participate in the conference.

** LL.B. (Thailand), Barrister-at-law (Thai Bar), LL.M. (Chulalongkorn), LL.M. (Yale), LL.M. and J.S.D. (Columbia); Chief Judge attached to Office of the President of the Supreme Court working at Office of the Judiciary.

(1) Section 3: "The sovereign power belongs to the Thai people. The King as Head of the State shall exercise such power through the Parliament, the Cabinet and the Courts according to the provisions of this Constitution".

(2) Section 249 paragraph 2: "Trial and adjudication by judges shall not be subject to hierarchical supervision."

(3) Section 274: "The Judicial Commission consists of the following persons:
1) the President of the Supreme Court as Chairperson;
2) twelve qualified members of all levels of courts, four persons from each level, who are judges of each level of courts and elected by judicial officials of all levels of courts"
3) two qualified members, not or were not judicial officials, are elected by the Senate Qualifications, prohibitions and procedure for the election of the qualified members shall be in accordance with the provisions of the law."

(4) Section 251 paragraph 1: "The King appoints and removes judges except in the case of removal from office upon death."; Section 273 paragraph 1: "The appointment and removal from office of a judge must be approved by the Judicial Commission before tendered to the King."

(5) Section 273 paragraph 2: "The promotion, increase of salaries and punishment of judges shall be approved by the Judicial Commission."

(6) Section 249 paragraph 5: "Transfer of a judge without his or her prior consent shall not be allowed except in the case of being termly transferred according to laws, being promoted to a higher position, begin under a disciplinary action, or becoming a defendant in a criminal case."

(7) Section 249 paragraph 3: "Allocation of court cases to judges shall be in compliance with the rules provided by law."

(8) Section 249 paragraph 4: "Recall or transfer of court cases shall not be allowed except in the case where justice in the trial and adjudication of the case shall otherwise be affected."

(9) Section 75 paragraph 2: "The state shall allocate adequate budgets for the independent administration of…, the Judiciary…"

(10) Section 275: "The Judiciary shall have an independent secretariat, with the Secretary-General of the Office of the Judiciary as the head responsible directly to the Chief Judge of the Supreme Court. The appointment of the Secretary-General, Office of the Judiciary must be approved by the Judicial Commission. Office of the Judiciary shall have autonomy in personnel administration, budget and other activities as provided by law."

(11) Section 236: "Hearing of a case requires a full quorum of judges. Any judge not sitting at the hearing shall not give judgment or a decision of such case, except for the case of force majeure or any other unavoidable necessity as provided by law."

Originally Published in the Chulalongkorn University Law Journal On June, 2004