Strengthening
the Independence and Efficiency of the Judiciary in Thailand
By
Dr. Thammanoon Phitayaporn
2.
Mediation as a Regular Process of the Court Proceedings Having a presumption
that the parties do not oppose to mediation, some courts refer all or
some types of court cases to mediation before hearing. It is not a mandatory
basis. It any party do not want to use mediation, he can inform the
court. The case will then he referred to hearing process. Under this
basis, there are more cases referred to the mediation program. However,
the rate of dispute settlement may be low if a great number of cases
not proper to be mediated are referred to the mediation program. Some
courts consider that it wastes time and expenses mediating such cases.
Therefore, they only apply this basis to cases which are considered
proper to be mediated.
3.
Select cases to be referred to Mediation To avoid referring cases that
should not be settled by mediation to the Court-Annexed Mediation Center,
various criteria can be used to select cases. A U.S. district court(25) requires parties in civil cases to fill in ADR forms. There are only
2 choices for parties, one is to use ADR and the other is that the party
has not decided whether to use ADR. If the parties choose the first
choice, the case will be referred to the center. In case of the second
choice, the party is required to contact a Court-Annexed ADR Center.
The center will inform the party benefits of ADR and also examine whether
the case should be mediated. At this stage, the Center can convince
a number of parties to use ADR. Moreover, some cases that should not
be mediated will be screened out. Many trial courts in Thailand have
begun to adopt a similar screening process.
C.
Digital Audio Testimony Recording System
Under the present system, judges summerize testimony and record the
summary by tape-cassette recorders. Court reporters then transcribe
the summary in typewriting. Later on, judges read the transcript and
allow witnesses, parties and lawyers to review the transcript. Judges
have the authority to correct the transcript if there are any argument.
The transcript will be signed by all of them by the end of the hearing
session.
Since 1987 the Thai Arbitration Institute (26) has
used tape-cassette recorders to record the whole testimony in arbitration
cases.(27) An official is responsible for recording
the proceedings. Under such system, hearings of arbitration cases take
less time than those of court cases. Transcripts of arbitration cases
are prepared after each hearing session. In 1999, the Central Bankruptcy
Court, which was newly established, has used tape -cassettes and videotapes
to record the whole testimony. Court officials are in charge of recording
testimony.
Digital Audio Testimony Recording System has now been used in a number
of U.S. Courts. In Thailand, the ADR Office, Office of the Judiciary
is conducting a pilot project on Digital Audio Testimony Recording System.
The system has been installed in the Thai Arbitration Institute, the
Central Intellectual Property and International Trade Court, and the
Central Bankruptcy Court in 2003. The major principles the pilot project
are described below:
· Court officials use computers recording the whole testimony
in audio
files. The audio files are stored in computer harddrive in MP-3 and
later
on are loaded in CD-ROM.
· Judges may take notes on some important issues, but not to
summarize the testimony.
· Judges may listen to the recorded testimony or have the court
officials transcribe selected parts of the recorded testimony.
· Lawyers may request for listening to the recorded testimony.
They may also request for a transcript made by court officials and pay
for the service.
· Parties will submit written closing statements summarizing
issues and evidence to the court.
· If the cases are appealed, the whole testimony will be transcribed
and submitted together with the recorded CD-ROM or tape-cassettes to
the higher court.
Evaluation of the project is expected to be complete within 2-3 months
from now. At this stage, it is believed that the new system can save
time on hearings approximately by halt of the existing system. The main
reason for the time reduction is that the courts do not have to conduct
so many processes as under the existing system. Judges do not summarize
the testimony and record it in tape-cassettes. Court reporters do not
transcibe the summary in the courtroom. Judges do not read a transcript
and there is no transcript review by judges, witnesses, parties anti
lawyers. Consequently, each hearing session takes only the real time
that witnesses testify.
In term of searching, it is easier to search audio files of testimony
by witness names or hearing dates than to search from recorded tape-cassettes.
In addition, CD-ROM can last longer and cost less than tape-cassettes.
Besides recording testimony, computers can also be used for other purposes.
Implementation will be considered after evaluating the pilot project.
Unlike the procedure laws of specialized courts, such as the Central
Intellectual Property and International Trade Court and the Central
Bankruptcy Court, allow using the new recording system, the procedure
laws applicable to the courts in general are not clearly open for the
new testimony recording system. Therefore, the bill on this matter has
been proposed to be enacted.
IV.
Recommendations
The three measures cited in this paper will greatly benefit the integrity
and efficiency of the Thai judicial system. However, there are others
steps that need to be considered. For example, assigning more non-judicial
works for which judges are responsible to court officials will reduce
judge workloads. Also, improving information systems, including databases
of court cases, will provide more timely and accurate information to
the court management and judges.
Based on our studies on judicial reform in many countries, it is quite
interesting that major principles of the reforms are similar and can
bring about successful development of the judiciary in many countries.
However, reform has failed in some countries. The major factor of the
failures in those countries is that stakeholders do not comply with
reform initiatives. Therefore, it is a must to have commitments of stakeholder
by promoting good understanding of the reform and using a participatory
approach or a "bottom-up" rather than a "top-down"
approach
Moreover, assessments should be made after new measures have been in
place for a certain period of time. Input from all stakeholders is critical.
Also, concrete indicators such as time spent on the court proceedings
should be identified and tracked. These assessments will assist the
court management in continuing the process of reform.
In the various judicial reforms cited in the U.S. and the U.K., studies
show that successful outcome requires at least five years, Therefore,
it is important to be patient on the reform.
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(25)
U.S. District Court, Northern District of California, California.
