Hong Kong: Thailand - Legal System - The Organisation of the Courts

Last Updated: 20 November 1995
Most Read Contributor in Hong Kong, November 2017
This heading will be divided into four sub-headings as follows :

1. The main core

The Thai judiciary has a three-tier system. The Supreme Court (Sarn Dika) at the top of the hierarchical pyramid, followed by the Appeal Courts of the first instance lien to the Appeal Court and from the Appeal Court, with further restrictions, to the Supreme Court.

There is only one Supreme Court, the highest and the Final Court of the realm, and also only one Appeal Court.

With regards to the Courts of First Instance, classification is to be made in accordance with the nature of their jurisdiction. They are three in number.

The first category of the Courts of First Instance consists of the Civil Court, the Criminal Court, the Thonburi Civil Court and the Thonburi Criminal Court, all of which are situated in Bangkok. Each has civil or criminal jurisdiction according to the name given. But the first two possess a higher status, in that not only do they have the original jurisdiction over parts of Bangkok, but also discretionary power to accept, for trial those cases outside Bangkok i.e. everywhere in Thailand in which a cause for action may arise.

The second category is the Provincial Court. Each province outside Bangkok has at least one Provincial Court whose jurisdiction is one of both Civil and Criminal. In some provinces, owing to their sizeable population and the vast area of land, more than one Provincial Court may have been established. Even Bangkok, although the main Courts of First Instance are those mentioned above, there is a suburban area allocated to fall within the jurisdiction of a Provincial Court.

The third category is the District Courts. District Courts are additional Courts whose jurisdiction is only over small cases i.e. civil cases in which the value of the claim does not exceed 10,000 baht and in criminal cases in which the offence charged carries the maximum punishment of not more than three years imprisonment and/or a fine not exceeding 60,000 baht.

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2. Specialised courts

Apart from those courts mentioned above there exist three other types of specialised courts. They are the Juvenile Courts, the Labour Court, and Tax Court.

For the Juvenile Courts, which are less than ten in numbers, the first mentioned is the Central Juvenile Court situated in Bangkok. The remainder spreads out into the larger provinces and under supervisory power, in so far as administration is the concern of the Central Juvenile Court. Their jurisdiction covers cases where a child or a young offender is involved and where a minor's interest is effected in civil matters.

The Labour Court has been constituted to deal with labour-related issues. So far as there is only one of its type, namely, the Central Labour Court in Bangkok. Its jurisdiction covers the entire nation. If a province labour case is brought to the Provincial Court in a province outside Bangkok, the case will be reported to the Central Labour Court, which will send its judges forming a complete quorum to hear and decide it. It is thought that the system of moving the judges around the country is comparatively inexpensive.

The last type of specialised courts are the Tax Court. There is only one i.e. the Central Tax Court. As of now, the Central Tax Court's jurisdiction covers the entire nation. The majority of cases involved in disputes between a private citizen and the Tax Department or the Custom and Excise Department, are residing in Bangkok. Since it is always the private citizen who is the plaintiff and the law requires that an action must be brought within the court of the defendant's residence, all tax cases are now being tried in the Central Tax Court in Bangkok.

There is an anomaly in the procedural rules in connection with the appeal from the Labour Court and the Tax Court. Roughly speaking, since appealing on point of fact is prohibited or stringently restricted, as the case may be, practically only appeal on point of law are allowed. Therefore, the law prescribes that appeal from both courts, relies on the Supreme Court for it is thoughts on what point of law should be dealt with there. For the sake of completeness, it may be added that there is no separate administrative courts and all administrative cases fall within the jurisdiction of ordinary courts. There is a Constitutional Court chaired by the President of Parliament to which constitutional issues may be referred for determination. So far, there have been hardly any case referred to the Constitutional Court.

3. The Quorum

For the Supreme Court, the required quorum is not less than three judges. As regards the Appeal Court, the Civil Court, the Criminal Court, the Thonburi Civil Court, the Thonburi Criminal Court and the Provincial Court, at least two judges are required to form a quorum in determining and adjudging cases. but in practice the Appeal Court sits in only three. Lastly, in the District Court, only one judge is required because it is thought sufficient for small cases. There are other detailed rules to variations in the District Court, but they demand no examination here.

As for the specialised courts, to begin with, the Juvenile Court's quorum consists of two professional Judges plus two associate judges, at least one of which must be a woman. The underlying idea rests in that motherly instinct is a pre-requisite when juvenile matters are dealt with. The Labour Court has a different kind of forum. It usually comprises of one professional judge, at least one associate judge drawn from those having employer's status. As a matter of course the employers' associations and the employees' unions will submit lists of eligible candidates for the Labour Court with which to make selections and nominations.

Last but not least is Tax Court whose quorum is two professional judges as is usual in the case of courts of the first instance. It is worth mentioning that originally the Draft Law for the setting up of the Tax Courts was for the setting up of the Commercial and Tax Courts but in the process of legislation the commercial jurisdiction was cut out, allowing only jurisdiction over tax cases. One salient feature is that the Tax Court can summon an expert to come and give advice at the trial. The expert will get special remuneration, comparatively higher than those called in ordinary courts.

4. Judges

The Method of recruiting judges is one of competitive examination, known as "the Judge Trainee Examination". A candidate is only eligible if possessing a "first" degree in law, having passed the Bar examination, having practical experience for at least two years and being 25 years of age. Success in the examination will only entitle him to attain the status of "a Judge Trainee". He will not be appointed a Judge unless and until he has undergone approximately two years training under the supervision and observation of some senior Judges. If the assessment of his performance warrants a place in the Judiciary, then he will be appointed a fully-fledged Judge. Even so before taking office, he must be sworn in or give an affirmation to act honestly before the king. A newly appointed Judge will be sent out to various provinces. He will gradually move up to Bangkok as his seniority advances with time, then to the Appeal Court and to the Supreme Court respectively. In other words, promotion is mainly by seniority. The age of retirement is 60 years old.

5. The Judicial Committee

The question is always raised whether or not, and to what extent, independence of the judiciary exists in the system in point. In answer to this, apart from the words of guarantee enshrined in the constitution, the Thai Judicial System has created its own device, known as the Judicial Committee consisting of twelve members: four being ex officio, four being elected among Senior Judges and the last four being elected among Senior Judges and the last four being elected among retired Judges. The four ex officio are the President of the Supreme Court, the Chief Justice of the Appeal Court, the First Vice President of the Supreme Court and the Permanent Secretary for Justice. This independent body of the Judicial Committee bears the responsibility of making appointments, promotions, demotion and dismissal of Judges. It is thought that in this way Judges in disposing of their duties are protected from possible outside influence, may it come from politics or otherwise.

C. The Ministry of Justice

It is said, and rightly so, that the court's area of responsibility is one of adjudication, and the Ministry of Justice's, supplementary administration. Structurally, the Ministry of Justice belongs to the administrative branch of Sovereign Power. It is headed by the Minister of Justice who has a seat in the cabinet. It is divided into four departments:

The Office of the Minister's Secretary, the Office of the Permanent Secretary, the Office of the Judicial Affairs, and the Execution Department.

As regards the normal functions of the Ministry of Justice, it prepares court's annual budget, recruits Judge-Trainees subject to the approval of the Judicial Committee, provides the Courts of Justice with administrative personnel, maintains courthouses in good repair, takes care of Law Reforms and renders some legal advice to various competent authorities etc. Another particular function worthy of separate dealing is the execution of Courts' decisions and orders in Civil and Bankruptcy Cases.

In Criminal actions, the duty of enforcing judgements falls on the Correction Department, Ministry of Interior, not the Ministry of Justice. Moreover, the Police Department and the Public Prosecutors Department are also with the Ministry of the Interior. It is thought that by separating the Police and the Public Prosecutors from the Ministry of Justice where the courts belong, the public at large can rid themselves of a fear of bias or collaboration among those in the same ministry. This peculiarity exists probably because of a close link between the courts and the Ministry of Justice. In other systems where the Courts form an entirely separate entity as in Japan, such arrangement may not be deemed necessary.

D. Civil Procedure

This heading will be divided into two main parts. The first part will lay out the governing principles which form the basis of the civil procedural rules, and the second, the sequence of civil proceedings in courts.

1. The principles

The civil procedure in court is regulated by the Code of Civil Procedure which postulates four main principles, that is to say, the requirement of trial in open court, the rule of natural justice, the paramount importance of compromise, and the hybrid system between the adversary and the inquisitorial rules on examination of witnesses.

The first principle is common and self-explanatory requiring no further discussion. The second concerning the rule of natural justice, is in turn two fold. In the first place, one cannot be a Judge of his own cause; a Judge will be precluded from trial if he has some vested interest in the case before him. In the second place both sides must be heard. From the second part of the rule, it necessary to follow that the notice of action must be given to the defendant at the outset of the action, allowing him sufficient time to answer the plaintiff's claim, and both sides must be permitted to state their own cases. The third principle of compromise being of paramount importance furnishes guidelines that genuinely compromises the parties involved, stands almost always to be the best solution. And fourthly, the system of examining the witnesses is one of a hybrid between the adversary and the inquisitorial systems. It seems that the court may take an active role or a passive one at the trial on its own volition.

2. The Sequence of Civil Proceedings

Having dealt with the main underlying notions, one may turn to the sequence of civil proceedings which would give a clearer picture of how a civil case proceeds. For the sake of convenience, one may divide the proceedings into three stages: the pleading, the trial and judgement, and the appeal. The first two take place in the Court of First Instance and the third in the Appeal Court or Supreme Courts as the case may be.

3. Pleading

Actions in turn are subdivided, according to how they are instituted, namely into contested actions and uncontested actions.

In a contested action, the plaintiff starts his case by lodging a plaint embodying statement of claims directed against a specific person or group of persons, known in legal terms as the defendant. The question to which court the plaint has to be lodged depends upon the nature of the claim itself; if it is connected with a property, then it is the court within the jurisdiction of which the property in point has a fixed location. If otherwise, the defendant's residence is the main deciding factor for the court in question. Having accepted the plaint, the court will then issue a summons to the defendant giving him notice of the action so that he may submit his answer to the plaint. The defendant can also counter-claim and reply "are parties' pleas". After the pleading is finished but before the trial begins, the court has a discretionary power to hold a session for what is known as "settlement of issues" in which the court will try to draw agreement or admission on certain facts thus narrowing down the issues in dispute. At the same time, this session normally opens up the opportunity for the court to reconcile the differences between the plaintiff and the defendant, for it is the first time they come face to face in court. If a compromise is reached in the process of reconciliation, the court will enter a judgement accordingly. No appeal is allowed against the judgement except on the grounds of fraud, irregularity and/or disparities in substance between the compromise and the judgement. On the other hand in the event that no compromise is achieved, then the court will proceed to the stage of trial by appointing the first hearing date. Then, the parties wishing to cite evidence will have to submit their "lists of evidence" three clear days beforehand. Failing that, the parties would run the risk of losing their right to cite evidence.

As regards uncontested cases, they begin with a petitioner lodging an ex-parte petition mostly requesting declarative judgement or an order over his particular right or state of affairs. Public notification by the means of advertisement in newspapers is to be ordered by the court on the petitioner's own expense allowing any member of the public who is interested in the action to make an objection. If no objection is made, the court will hear the petitioner's case ex-parte. On the other hand, if an objection is lodged, then this will have the effect of turning the uncontested case into a contested one, consequently the petition and the objection will be deemed to be the plaint and answered respectively, and the case will proceed in exactly the same way as a contested case from then onwards.

4. Appeal

Subject to certain conditions, as a general rule, the party discontented with the Trial Court's judgement is entitled to appeal to the Appeal Court and then to the Supreme Court. Appeal to the Appeal Court must be made within one month from the date of the decision of the court of the First Instance, so must appeal to the Supreme Court from the date of the decision of the Appeal Court. If neither side appeals within the time limit, then the decision of the Trial Court or the Appeal Court, as the case may be, becomes final. While the case is on appeal, the losing party can apply for stay of execution but it has to be done in a separate motion.

The last point to be made is that the Supreme Court is the highest and the final appellate court and in civil cases no appeal, in whatever form it is, lies further. In contrast, in criminal cases, final as the decision of the Supreme Court may be, the accused convicted may seek a royal pardon.

NOTE: The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

If you would like further advice please contact: David Ellis, Johnson Stokes & Master, 16th Floor, Princes Building, 10 Chater Road, Hong Kong; Tel 2843 4226; Fax no. : 2845 9121. Alternatively do a text search "Johnson Stokes and Master" and "Business Monitor".

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