Punitive Processes? Judging in Thai Lower Criminal Courts, Duncan McCargo

Although traditional legal scholars tend to focus on the activities of higher courts, lower court justice has been a paradigmatic topic in law and society scholarship. The Anglo-American literature on lower courts, however, often focuses on the unpredictable nature of judicial decision-making or the power dynamics between judges and other participants of litigation (e.g., Silbey 1981; Merry 1990).

Unlike judges in the Anglo-American common-law mode, who typically serve as lawyers or prosecutors for many years before being elevated to the judiciary, most judges in Thailand's nominally civil system are recruited at an early age through a highly competitive examination process. Their exam performance when they enter the profession determines the arc of their subsequent careers. In effect, the examinations distinguish between Bangkok-centred high-fliers destined to end up in the Supreme Court or the upper echelons of the Courts of Appeal and regular judges who will spend more of their working lives in courts of the first instance and in the provinces. In previous decades, judges maintained a strong sense of detachment and tried to avoid socializing that might bring them into contact with politicians or businesspeople who could embroil them in conflicts of interest. More recently, these restrictions have loosened, but many Thai judges still prefer to limit their social entanglements.

Thai trials for relatively minor crimes in the provinces are often quite cursory affairs, in which there is limited witness testimony. The shape of the trial is largely determined by the decision of the defendant concerning their plea. If a defendant confesses to the crime and pleads guilty (rap sarapap), proceedings are generally extremely rapid. In theory, since 2008, defendants cannot be convicted solely on the basis of their own confessions. But, in practice, the Thai police have limited expertise in investigating crimes; the primary modus operandi is to identify a suspect and persuade the suspect to confess. Confession is more than a legal or bureaucratic procedure; it involves an acknowledgement of the sovereignty of the state and a surrender of the rights of the individual. According to Article 78 of the Penal Code, confession and repentance can reduce a sentence by up to half. Defendants place

themselves at the mercy of the judges. In doing so, they are effectively

throwing themselves upon the mercy of the king. Confession is an act of

loyalty. By contrast, a refusal to confess may be construed as an act of

disloyalty, a failure to accept the legitimacy of the legal proceedings, which masks a failure of loyalty to the state and indeed an implicit rejection of the authority of the monarchy.

Inside the courtroom, judges have a great deal of power. Everyone rises when a judge enters the courtroom, from a special door at the rear used only by judges. Defendants and even those attending the trial are not only forbid­den from speaking; they are also not permitted to cross their legs, are supposed to sit up straight, and are not allowed to take any notes. While not all judges enforce these rules strictly, some judges seemed to enjoy exercising their authority.

One explanation for the empty power plays performed by some provincial judges is that most of their work is terribly dull: they spend many hundreds of hours each year listening to testimony that often makes very little sense, much of it delivered by semi-competent or monosyllabic police officers, or by “professional” witnesses who appear implausibly articulate and well rehearsed. Most defendants are sad characters whose lives are in a mess: a significant proportion of them have obvious mental-health problems. Only by imposing an arbitrarily harsh discipline on courtroom conduct can some judges feel in control of the often muddled and even futile cases before them.

The format of Thai trials is highly predictable. Prosecutors and lawyers are not given structured opportunities to present oral opening and closing state­ments, though some judges invite them to explain the basis on which they plan to argue their cases. The defendant has no specific right to speak, unless called as a witness. Typically, prosecution witnesses greatly outnumber those for the defence. Many provincial defendants have court-appointed lawyers who are badly paid and put little effort into lining up witnesses on behalf of their clients. Many Thai feel reluctant to appear in court and contradict testimony by police officers and other prosecution witnesses. Witnesses from both sides frequently fail to show up for hearings, as do defendants. All this results in repeated rescheduling and constant delays. As a result, it is quite unusual for even a very simple criminal trial to be conducted and completed on two or three consecutive days.

The sheer volume of cases in Thailand is astounding: almost 1.4 million new court cases were filed in 2015 - the equivalent of 316 cases per judge. No wonder there were such strenuous attempts to divert as many cases as possible to non-judge mediators, while prosecutors routinely dropped charges if they thought there was a strong chance of acquittal. While a number of Thai judges approvingly cited to me Blackstone's famous ratio that it is better to let ten guilty men go free than to convict one innocent man, none of them mentioned that conviction rates in Thailand are above 95%. Accordingly, most parties to any given court case probably regard conviction - often meaning jail time - as a foregone conclusion. Thailand also has one of the world's largest prison populations.

Unlike virtually all other courts around the world, Thai courts do not produce verbatim transcripts of proceedings: while hearing witness testimony or statements from lawyers, judges regularly pause the proceedings to dictate summaries of what they hear into a small tape recorder. Tapes are then passed to a clerk, who types up not what was said in court, but what the judge has summarized. After a witness has testified, the summary is typed up and witnesses are asked to sign the summary. However, there is no explicit opportunity for the witness, or even a lawyer, to ask that the summary be amended or edited - though I saw this happen occasionally. On the very rare occasions on which a witness does not wish to sign - one former judge said he could not remember a single such instance in his ten years on the bench - the refusal of the witness to do so is noted. In theory, the witness signs the summary in the presence of court officials. However, in practice, the state­ments are often signed after judges have left the room. In one case, I saw a court security officer ask a Malay-Muslim defendant who was unable to read Thai to sign the summary of his testimony, even before it had been translated to him.

A significant minority of judges I talked to favoured changes to the system of note-taking (banthuk). The current system means that judges have to focus on note-taking, rather than concentrating on the facts of the case; it also means that, when cases are appealed to higher courts, those courts cannot establish exactly what was or was not said during the trial. One senior judge said he would support a full-transcript system in the interests of consistency and fairness; there were considerable variations in practice between individual judges, which could affect the interests of defendants. Another judge had actually tried to use a full-transcription system for some cases, but the clerk assigned to him could not type fast enough and he was forced to abandon the experiment. A more junior judge said he was extremely meticulous about the banthuk process, not wanting to leave open grounds for appeal. Paper records were used for the transcripts: there were no digital files, other than scans of hard-copy summaries, so it was impossible to search quickly through summar­ies of testimony.

The 200 or so courts in Thailand are literally ranked in descending order of desirability, in a list that closely correlates with their distance from Bangkok. The more senior the judge, the stronger was her or his claim on a higher- ranked assignment. Judges with more seniority are rarely posted to provinces that are very distant from Bangkok so, in more remote parts of the country - such as in the deep South - there is a preponderance of inexperienced judges who often find themselves dealing with very important cases. One of the first Thai trials I attended was in Narathiwat, for the notorious “Khru Juling” case in 2006. A group of Malay-Muslim women from the village of Kuching Rupa were accused of involvement in the kidnapping of two teachers, one of whom later died.

Accessing court cases in the provinces can be a challenge. In theory, virtually all legal cases other than those involving juveniles are open to observers and anyone can show up. This worked pretty well at the main criminal courts in Bangkok, where people were quite used to seeing foreign­ers. However, random Westerners almost never wander into provincial court­rooms and my presence there clearly unsettled some of the judges and court officials I encountered. Before I started fieldwork at one court, a local justice ministry official helped me draft a letter to the chief judge, asking permission to observe some trials. The chief judge seemed rather flummoxed, but even­tually I found a senior judge from another province who could vouch for me, and he reluctantly agreed. I tried to be on my best behaviour, making myself as inconspicuous as possible. But, after about three weeks, I got a call informing me that I was no longer welcome at the court building. Nobody would tell me why, but this particular stint of fieldwork came to an abrupt end.

For my next attempt, embarking on a spell of observations at a court in a different part of the country, I was able to meet the chief judge in advance and sound him out. He seemed completely open to my doing some observations. Nevertheless, on my first day of fieldwork, I decided it was best to submit an official letter in Thai, requesting permission to attend cases. I went to the appropriate office on the ground floor to do so. A woman clerk took the letter and stamped it, ready for signing off by various officials before it could be sent to the office of the chief judge. She asked me to wait upstairs.

Meanwhile, though, I promptly bumped into the chief judge on the second floor. He was running around the building popping into different rooms. He had no jacket on and, unless I had recognized him, I would never have guessed he was the boss. He was very friendly and took me up to his office, asking his secretary to bring us both coffee. He told me that “our house has been closed for too long” and he wanted to open it up. Judges needed to have a chance to talk to people and exchange ideas, he said. During the month that followed, I ran into the chief judge a few times and he was always ready to chat. He did not mention the official letter I sent him requesting permission: in fact, I never heard anything more about the letter. Perhaps the invitation from the chief judge to have coffee with him in his office was already such an obvious green light that the official request became an irrelevance. Or perhaps the letter was simply mislaid. I will never know.

Getting permission to access trials was one matter, but working out what cases were going on was another. At one court building, the list appeared on a single dot-matrix-printed sheet, which was pinned up on a noticeboard. There were no computer screens. Outside each of the courtrooms was a small board, but the different clerks put up information there using varying formats. The main noticeboard tended to list the law under which the person was being charged, instead of the actual charge itself. I sometimes resorted to asking lawyers I encountered in the hallways whether they were conducting any interesting cases. Sometimes, I just followed a friendly looking group of people into a courtroom, with no idea what sort of case was underway. My fieldwork involved a great deal of serendipity.

7.5