Strengthening the Independence and Efficiency of the Judiciary in Thailand

By Dr. Thammanoon Phitayaporn

become more severe.
In addition, traditional hearing process in Thai courts has encouraged scheduling on an intermediate or "piecemeal" basis. If a hearing is not finished in one day, a continuation hearing will typically be scheduled for one to two months out. Suppose the first hearing day is February 3. 2003 the second and third hearing days may he March 3, 2003 and April 3, 2003. Parties, lawyers, public prosecutors, or even judges do not know how long the proceeding will take and when it will finish.

In order to promote access to justice and address increasing delays in court proceedings, the Thai judiciary recognized the need to consider new measures to increase process efficiency. Delay in the court proceedings is a common problem in many other countries, including various jurisdictions in the U.S. and the U.K. It is noted that several measures have commonly been used in those jurisdictions to solve the delay, including Case Management and Alternative Dispute Resolution (ADR). (12)

Several projects were piloted in the last five years to determine their applicability to the Thai judiciary system and acceptance by Thai culture. With pilot projects completed, numerous techniques were determined acceptable and have since been implemented. Chief among these techniques are Case Management, Court-Annexed Mediation (a form of ADR), and Digital Audio Testimony Recording System.

A. Case Management
Case Management is considered as one of the most significant means to improve efficiency of the judiciary in the U.S. and U.K. In order to be convinced that the technique could be used effectively in Thai courts, a pilot project was conducted by Office of the Judiciary, Office of the Court of Justice Region 1 (13) and Provincial Court of Ang-thong. (14) Major initiatives of the pilot project were identified as Fast Track/Regular Track case allocation and pre-trial conferencing. These initiatives are described below.

1. Allocation of Court Vases into Tracks The Provincial Court of Ang-thong allocated court cases into two tracks, a fast track and a regular track. Fast track cases were defined as those that would typically be tried and adjudicated within one day. These include default civil cases, non-contentious civil cases and criminal cases which the defendants plead guilty with or without taking further evidence. Cases requiring more than one day to be tried and adjudicated fell into the regular track. These cases include civil cases which defendants filed answers and criminal cases which defendants plead not guilty.

2. Pretrial Conference Before hearings, a pretrial conference is arranged in order to set up an action plan for the case. At the conference a judge discusses with the parties to narrow or settle some disputing issues as possible. Evidence to he heard is also discussed. The judge asks the parties to pre-identify witnesses and evidence. In addition, all hearing days are scheduled as continuously as possible.
The Provincial Court of Ang-thong has used the Case Management technique since August 2000. A working group of Asian University gathered data of the court from November 2000- June 2001 and made an evaluation. It reported that court time was radically reduced for criminal cases, and was cut by over a half on criminal proceeding.(15) For criminal cases, average times from arraignment to decision of guilt or innocence was cut from 171 days to 22 days. In terms of civil cases, the court had spent an average of 117 days from case filing to adjudication while it took 79 days tinder the new system.

The following factors can have significant implication reducing time on the court proceedings. (16)
· The number of disputing issues and evidence were more limited, thus reducing unnecessary workload.
· Allocating court cases into a fast track and a regular track was also an important factor. Generally 70-80% of all court cases are simple cases which can be tried and adjudicated within one day. If these cases are not separated from regular cases, many of them will be ranked behind regular cases which take much longer time to finish. Under the new system, these cases are allocated into a different track. Therefore, they are tried and adjudicated at the earlier time.

· Wish regard to Regular Track cases, which account for 20-30% of all court cases, hearing schedules are made at the pretrial conference. The number of hearing days were set in compliance with the number of witnesses, and were scheduled as continuous as possible.

· Advance outreach by the chief judge of the court is important to obtain cooperation front all stakeholders and decrease hearings postponements. Consultation should he conducted with judges, court officials, public prosecutors, policemen, parties and witnesses. All stakeholders are asked to comply with the hearing schedule, with adjustments made by the judge based on limited grounds.
· Credible hearings schedules, established in consultation with all stake holders, is a key element of success. Moreover, stockholders who perceive these schedules as credible will appreciate and stay committed to the timeframes.

At present, judges schedule to hear 5-12 cases in each day. Each party may request to change the schedule. If the other party does not oppose to the request, the court may permit the change. In practice, 70-80% of scheduled cases are postponed. This practice must be changed if the techniques of Case Management are to work effectively. Judges should schedule only 1-3 cases a day and not allow any change of the schedules unless it causes injustice. In addition, if a party requests postponement, the court should consider ordering such parties to reimburse the other party and witnesses for expenses associated with their hearing attendance.

There are many methods to manage the Fast Track/Regular Track Allocation. Theca methods include: (17)

1. Assigning judges to try fast track cases Some judges may he assigned to try and adjudicate only fast track cases for a certain period of time, for example 3 months or a months. To consider how many judges should he in the fast track section. the court may take into consideration the number of cases in the regular track and the fast track as well as the number of judges working in the court. Judges in the fast track section could gain expertise since they try only fast track cases everyday. Their experiences assist them to work faster and to give suggestions on how to improve the fast track system. However, judges in the fast track section may be tired of simple cases. The court, therefore, may set a term for judges working in the section.

2. Rotating judges to try fast track cases on a daily basis A court may rotate judges to try last track cases on a daily basis. The number of judges to be rotated depends on the number of fast track and regular cases as well as the number of judges in the court. Daily rotation may help judges not to be tired of fast track cases. Under this method, judge, however, may not gain so much expertise as under the first method.

3. Fixing days for trying fast track cases A court play fix specific days or times for all or most of the judges to try fast track cases. This precludes judges from becoming tired of fast track cases. However, there are dangers to apply this method on criminal cases in which defendants plead guilty because They could he detained for many days until the fast track day.

In the implementation of pre-trial conferencing, a meeting of a judge and parties is scheduled in order to set an action plan for the case. Significant activities to be settled are as the following,

1. Settle disputing issues In examining and discussing information with the disputing parties, the court may ask the parties to admit some facts or issues. The court tries to narrow and limit the scope and number of disputing issues as possible.

2. Settle on evidence to he taken Alter examining information and disputing issues, the judge will discuss with the parties to specify evidence to be taken. The judge may limit number of witnesses, for example 4 plaintiff's witnesses and 3 defendant's witnesses will he taken.

3. Set a schedule or court proceedings All hearing days will be scheduled in advance. Some judges suggest that scheduling one-day hearings rather than half-day hearings helps expediting proceedings and reducing expenses for all stockholders.
Under the pilot program, the Provincial Court of Ang-thong scheduled hearing days as continuously as possible, for example, hearing days of plaintiff's witnesses were scheduled on March 5, 9 and 12, 2001 and hearing days of defendant's witnesses were on March 15, 19 and 23, 2001. Hearing days were not

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(12) See "Access to Justice : Final Report. by the Right Honourable the Lord woolf", July 1996; the U.S. Civil Justice Reform Act; the U.S. Federal Rules of Civil Procedure; and the U.S. Alternative Dispute Resolution Act; James G. Apple, "Case Management in the Courts of the United States" Botbundit (Thai Bar Journal) Vol. 56 No. 2, 185-197 (2000).

(13) Judge Boonrod Tanprasert was Chief Judge of Office of the Court of Justice Region 1 when the pilot project was conducted.

(14) Judge Pratanporn Yodpanya was Chief Judge of Provinial Court of Ang-thong when the pilot project was conducted.