: 
Introduction to the Legal
System and Legal Research of the Kingdom of Thailand
By Joe Leeds
Joe Leeds is the manager of the Thailand law
firm of Chaninat & Leeds. He has been working as a consultant and manager in Thailand since 1995
and is licensed to practice law in the State of Hawaii and the U.S. Federal
District.
Published
November/December 2008
Table of Contents
1. Background
2. Government
2.1. Legislative Branch
2.2. Executive
Branch
2.3. Judicial
Branch
2.3.1.
The Constitutional Court
2.3.2.
The Courts of Justice
2.3.2.1. The
Supreme Court of Justice
2.3.2.2.
The Courts of Appeal
2.3.2.3.
The Courts of First Instance
2.3.3.
The Administrative Courts
2.3.4.
The Military Courts
3.1 The
Constitution
3.2 Codified
Laws
3.3 Acts,
Treaties and Administration of Laws
The Kingdom of Thailand is a civil
law country with strong common law influences. Modern Thai law dates back to the reign of King Rama V
(1868-1910), who enacted many reforms of the Thai legal system, such as the
elimination of trial by ordeal, and the establishment of the Ministry of
Justice and the first law school in Thailand. King Rama V (also known as King Chulalongkorn) also began
the process of codifying Thai law, and the Thai Penal Code was enacted in
1908. Many of these reforms were
overseen by King Rama V's fourteenth son, Prince Rapee Pattanasak, who is
considered to be the father of the modern Thai legal system. The codification and
modernization/westernization of Thai law were continued under the reigns of
King Rama VI (1910-1925) and King Rama VII (1925-1935). An analysis of the social changes
influencing the Reformation of Thailand Law
can be found on the Thailand Law Forum website.
The Kingdom of Thailand has been a
constitutional monarchy since 1932.
There have been eighteen constitutions, with the current Constitution having
been enacted on August 24, 2007.
Under the constitution, the King is the head of state and exercises his
sovereign powers through the National Assembly, the Council of Ministers and
the Courts. An article summarizing
the basic structure of the Thailand
government is available online.
Legislative power is exercised by
the National Assembly, which consists of the House of Representatives and the Senate. The House of Representatives has 480
members who serve four year terms.
400 members are elected directly from 157 multi-representative
constituencies. The remaining 80
members are elected from party lists, and are chosen on the basis of the
proportion of votes cast by constituents in eight groupings of provinces. The Senate has 150 members who serve
six year terms. Each of 76
provinces elects one member. The
remaining 74 members are selected by the Senators Selective Committee from persons
nominated by organizations in the academic, public, private and other sectors.
The constitution provides for the
enactment of the following organic acts:
(1) Organic Act on
Election of Members of the House of Representatives and Obtaining Senators;
(2) Organic Act on
Election Commission;
(3) Organic Act on
Political Parties;
(4) Organic Act on
Referendum;
(5) Organic Act on Rules
and Procedures of the Constitutional Court;
(6) Organic Act on
Criminal Proceedings Against Persons Holding Political Positions;
(7) Organic Act on Ombudsmen;
(8) Organic Act on
Counter Corruption; and
(9) Organic Act on State
Audit.
An organic law bill may be introduced
only by:
(1) the Council of
Ministers;
(2) at least one-tenth of
the members of the House of Representatives or one-tenth of the members of the
National Assembly; or
(3) the Constitutional
Court, the Supreme Court of Justice or an independent constitutional organ,
where the President of such Court or independent organ has charge and control
of the execution of such organic act.
A vote of the majority of members of
each House of the National Assembly is required for the promulgation of any
organic law.
A bill other than an organic law bill
may be introduced by:
(1) the Council of
Ministers;
(2) at least twenty
members of the House of Representatives;
(3) a Court or an
independent constitutional organ, but only in respect of a law that is
concerned with institutional organization or a law the execution of which the
President of such Court or such organ has charge and control; or
(4) persons having the
right to vote of not less than ten thousand in number, on matters relating to
rights and liberties or fundamental state policies;
Provided that bills introduced under (2), (3)
or (4) that are money bills are also endorsed by the Prime Minister.
A vote of a majority of a quorum of
each House of the National Assembly is required for the promulgation of any law
other than an organic law.
The King's approval is required to
promulgate any law; however, if
the King does not approve a law, it may still be promulgated with the votes of at
least two-thirds of the members of the National Assembly.
The head of the government is the Prime Minister. The Prime
Minister and the Council of Ministers are responsible for the administration
of state affairs and establishing government policies. The Council of Ministers may propose
legislation for consideration by the National Assembly, and the endorsement of
the Prime Minister is required for the introduction of money bills.
The King appoints the Prime Minister
and up to thirty-five additional Ministers, who comprise the Council of
Ministers. The Prime Minister must
be a member of the House of Representatives and must have the approval of a
majority of members of the House of Representatives. The Prime Minister my not hold office for more than eight
consecutive years.
The King may, with the approval of the
Council of Ministers, issue emergency decrees having the force of law, for the
purpose of maintaining national or public safety, maintaining national economic
security, or averting public calamity.
The King may also issue emergency decrees if a law on taxes, duties or
currency, requiring urgent and confidential consideration, is necessary. Emergency decrees must be submitted to
the National Assembly for consideration without delay.
The King may also, inter alia,
issue royal decrees not contrary with law, declare and lift martial law in
accordance with the Martial Law, declare war (with the approval of at least
two-thirds of the members of the National Assembly) and enter into treaties
(with the approval of the National Assembly in the case of material treaties).
The Courts have responsibility for
trying and adjudicating cases. The
constitution expressly provides for four types of courts: the Constitutional Court, the Courts of Justice, the Administrative Courts and the Military Courts.
2.3.1. The
Constitutional Court
The Constitutional Court has eight
members, who are appointed by the King with the advice of the Senate, and serve
one nine-year term. The members of
the Constitutional Court consist of three judges of the Supreme Court of
Justice, elected by the general assembly of the Supreme Court of Justice, two
judges from the Supreme Administrative Court, elected at a general assembly of
the Supreme Administrative Court, and four individuals (two experts in the
field of law and two experts in a field of social science) nominated by a
selection committee and approved either by a two-thirds vote of the Senate or,
if not approved by the Senate, by the unanimous vote of a selection committee. The judges of the Constitutional Court
elect one of their members to be the President of the Constitutional
Court. The Constitutional court
has an independent secretariat with autonomy in personnel administration,
budgeting and other activities.
The Constitutional Court has
jurisdiction to determine whether the provisions of any law, rule or regulation
are contrary to or inconsistent with the Constitution. Decisions of the Constitutional Court
are not subject to appeal by any other court.
Courts of Justice adjudicate all cases
except where otherwise specified in the Constitution or other laws. There are three levels of Courts of
Justice: Courts of First Instance,
Courts of Appeal and the Supreme Court of Justice. The Courts of Justice have an
independent secretariat with autonomy in personnel administration, budgeting
and other activities. Judges in
the Courts of Justice are appointed and removed by the King with the approval
of the Judicial Commission of the Courts of Justice.
2.3.2.1. The Supreme Court of Justice
The Supreme Court of Justice has
jurisdiction to hear and adjudicate appeals from the Courts of Appeal and from the
specialized courts of the Courts of First Instance. The Supreme Court can hear appeals on questions of law and,
in certain cases, on questions of fact.
The Supreme Court of Justice has original jurisdiction in cases
involving the removal or revocation of the right to vote of members of the
National Assembly.
The Constitution provides that the
Supreme Court of Justice shall have a Criminal Division for Persons Holding
Political Positions to hear cases brought by, or against, members of the
National Counter Corruption Commission. The Supreme Court of Justice also has
original jurisdiction in those cases.
The Supreme Court of Justice has many
other divisions dealing with specific types of cases. A quorum consists of three judges, but for exceptional
cases, a plenary session (with a quorum consisting of a majority of the judges
of the Supreme Court) may be called.
The Courts of Appeal consist of the
Court of Appeal and nine regional Courts of Appeal. They have jurisdiction to hear and adjudicate appeals from
judgments and orders of the Courts of First Instance, and can hear appeals on
both questions of law and fact. In
addition, the Courts of Appeal have original jurisdiction in cases involving
the removal or revocation of the right to vote of any member of a local
assembly or any local administrator, and the judgment of the Courts of Appeal
in such cases is final. A quorum
of three judges generally hears each appeal.
2.3.2.3. The Courts of First Instance
The Courts of First Instance are the
trial courts. There are three
types of Courts of First Instance:
general courts, juvenile and family courts, and specialized
courts. General courts have
jurisdiction over criminal and civil cases, and are divided into Civil Courts,
Criminal Courts, Provincial Courts and Kwaeng Courts. The juvenile and family courts hear and adjudicate cases
involving a minor, and consist of the Central Juvenile and Family Court, the
Provincial Juvenile and Family Courts, and the Division of Juvenile and Family
Court in the Provincial Courts.
The specialized courts consist of the Labour Court, the Tax Court, the Intellectual Property and International Trade Court, and the Bankruptcy Court. Juries are
not used in trials.
2.3.3. The
Administrative Courts
The Administrative Courts have
jurisdiction to try and adjudicate cases between (i) a government entity or
official and (ii) a private individual or another government entity or
official. Such cases must be a
consequence of the exercise of an administrative power under the law or a
consequence of a pursuit of an administrative act by a government entity or
official. Administrative Courts do not have jurisdiction over the direct
exercise by a constitutional organ of powers granted to it under the
Constitution. The Administrative
Courts have an independent secretariat with autonomy in personnel
administration, budgeting and other activities.
The Military Courts have jurisdiction
to try and adjudicate criminal cases against persons subject to the
jurisdiction of the Military Courts.
The Constitution provides for the
following independent constitutional organs:
(1) the Election Commission;
(2) the Ombudsmen;
(3) the National Counter Corruption Commission; and
(4) the State Audit Commission.
The Constitution also provides for the
following additional constitutional organs:
(1) Public Prosecutors;
(2) the National Human Rights Commission; and
(3) the National Economic and Social Council.
Constitutional organs have autonomy in
personnel, budgeting and other activities as provided by applicable law.
The Kingdom of Thailand is a
constitutional monarchy, and the Constitution is the supreme law of the
country. The Constitution is a
lengthy document and provides for the powers of the King, the National
Assembly, the Council of Ministers, the Courts, and Constitutional Organs. The Constitution also includes
provisions outlining the rights, liberties and duties of the people, and
enumerates directive principles of fundamental state policies relating to e.g. national security, social and
cultural affairs, foreign affairs, the economy and the environment. The Constitution may be amended by vote
of more than one-half of the members of the National Assembly, with the
approval of the King, or if the King shall not approve the amendment, by vote
of not less than two-thirds of the members of the National Assembly. Amendments changing the form of
government are not permitted. A
discussion of the Thailand Constitution of 1997
can be found on the Thailand Law Forum website.
The fundamental laws that form the
backbone of Thai law have been codified into four codes: the Civil and Commercial Code, the
Penal Code, the Civil Procedure Code and the Criminal Procedure Code.
The Civil and Commercial Code
includes provisions relating to general principles, obligations, contract law,
property law, family law and the law of succession. The provisions relating to general principles are
particularly significant because they are often applied to laws outside the
Civil and Commercial Code.
The Land Code (1954)
was the first major legislation systemizing land laws in Thailand.
3.3. Acts, Treaties and
Administration of Laws
Many important social and economic
laws are embodied in Acts, which are laws adopted by the National Assembly,
either with the approval of the King or, in the event the King does not approve
a bill, with the approval of at least two-thirds of the members of the National
Assembly.
Under the current Constitution,
the King may enter into treaties with other countries and international
organizations, but treaties that change the territories over which the Kingdom
of Thailand has sovereignty or jurisdiction require the enactment of an Act for
their implementation. Any other
material treaties must be approved by the National Assembly. These provisions do not affect the
implementation of treaties entered into before August 24, 2007.
Arbitration provisions are
permitted by the Arbitration Act B.E. 2530 (1987). A research paper on arbitration
in Thailand can be found on the Thailand Law Forum website.
Bankruptcies are governed by, inter alia, the Bankruptcy Act B.E. 2483
(1940), as amended by the Bankruptcy Act (No. 7) B.E. 2547 (2004). An article explaining the unique role
of Thailand’s Bankruptcy Courts
is published in the Thailand Law Forum website.
The protection of the environment
is governed by, inter alia, the
National Environmental Protection and Promotion Act B.E. 2535 (1992). This act is administered by the Ministry of Natural Resources and Environment.
Intellectual property rights are
governed by, inter alia, the Copyright Act B.E.
2537 (1994), the Patent Act B.E.
2522 (1979), as amended by the Patent Act (No. 2) B.E. 2535 (1992) and the
Patent Act (No. 3) B.E. 2542 (1999), and the Trademark Act, B.E.
2534 (1991), as amended by the Trademark Act (No. 2) B.E. 2543 (2000). The Kingdom of Thailand is a signatory
of the Berne Convention for the Protection of Literary and Artistic Works (with
certain reservations) and the Paris Convention for the Protection of Industrial
Property and the Patent Cooperation Treaty, but is not a signatory of the Rome
Convention for the Protection of Performers, Producers of Phonograms and
Broadcasting Organizations or the Universal Copyright Convention. These laws are administered by the Department of Intellectual Property under the Ministry of Commerce.
Labor laws are provided by, inter alia, the Labour Relations Act
1975, the Act of Establishment of Labour Courts and Labour Court Procedure
1979, the Provident Fund Act 1987, the Social Security Act 1990, the
Compensation Fund Act 1994 and the Labour Protection Act 1998.
Financial institutions are
regulated by, inter alia, Financial
Institutions Businesses Act B.E. 2551(2008), as amended, the Life Insurance Act
B.E. 2535 (1992) and the Casualty Insurance Act B.E. 2535 (1992), the Act
Forbidding the Charging of Interest at Excessive Rates B.E. 2475 (1932), and
the Interest on Loans by Financial Institutions Act B.E. 2523 (1980). Financial institutions are also subject
to regulation by the Ministry of Finance and the Bank of Thailand.
The issuance and trading of
securities is governed by, inter alia,
the Securities and Exchange Act B.E. 2535 (1992), which provides for the
creation of the Securities and Exchange Commission. Derivatives contracts and markets are
governed by, inter alia, the
Derivatives Act B.E. 2546 (2003) and are also subject to regulation by the
Securities and Exchange Commission.
The business operations of
foreigners in Thailand are governed by the Foreign Business Act
B.E. 2542 (1999).
International Treaties
· US – Thailand Treaty of
Amity and Economic Relations 2005
· US – Thailand Treaty of Amity and Economic
Relations 1966
· Treaty Between the US and
Thailand on Mutual Assistance in Criminal Matters
In the Kingdom of Thailand,
judicial precedent is not binding on lower courts. The Supreme Court of Justice is not bound to follow its own
decisions, and lower courts are not bound to follow precedents set by higher
courts. In practice, however, the
decisions of the Supreme Court of Justice do have significant influence on the
Supreme Court of Justice itself and on lower courts. A selection of Thailand Supreme Court published
decisions are updated on the Thailand Law Forum website.
Government Gazette – All
Acts, Royal Decrees, Ministerial Orders, Regulations and official government
notices are published in the Government Gazette.
Codes, Acts, Treaties and
Judgments – The website of the Law Reform Commission of the
Council of State includes a searchable database with the following
data:
· Constitution (Council
of State English translation available)
o Subordinate Legislation
(Thai only)
§ Royal Proclamations
§ Ministerial Regulations
§ Orders
§ Notifications
§ Royal Decrees
§ Rules
o Comments (Thai only)
§ Other Rulings
§ Legal Opinions of the Council
of State
· Acts of Parliament
(Thai only, searchable by English name or year)
o Subordinate Legislation
(Thai only)
o Comments (Thai only)
· Civil Procedure Code
(Thai only)
o Subordinate Legislation
(Thai only)
o Comments (Thai only)
· Civil and Commercial
Code (Thai only)
o Subordinate Legislation
(Thai only)
o Comments (Thai only)
· Penal Code (Thai only)
o Subordinate Legislation
(Thai only)
o Comments (Thai only)
· Criminal Procedure Code
(Thai only)
o Subordinate Legislation
(Thai only)
o Comments (Thai only)
· Emergency Decrees (Thai
only, searchable by English name or year)
· Revenue Code (Thai
only)
o Subordinate Legislation
(Thai only)
o Comments (Thai only)
· Palace Laws (Thai only)
o Subordinate Legislation
(Thai only)
· Constitutional Court
decisions (1997-2003, broken links, Thai only)
· Judgments of the
Supreme Court of Justice (1957-1997, broken links, Thai only)
· Administrative Court
Rulings (no links)
· Legal Opinions of the
Council of State (1922-2003, broken links, Thai only)
· Treaties (many in
English, searchable by English name or year)
Constitutional Court – The
website for the Constitutional Court
provides Court Rulings for 1998 and summaries of rulings for 1999-2003 in
English.
Courts of Justice – Selected Acts and Rules relating to the Courts
of Justice are available from the Courts of Justice website.
Various Thailand Acts and Regulations are
available in the database section of Thailand Law Forum website.
5. Treatises and Law Reviews
The Lawyers Council of Thailand
Thailand Law Forum (has a database of selected
laws, summaries of opinions of the Supreme Court, legal news and a law journal)
AsianLII (has links to the Constitution,
Supreme Court decisions, legislation, Constitutional Court decisions, Central
Intellectual Property and International Trade Court decisions)
NATLEX (labor laws)
Energy Policy & Planning Office Thai Government
Links (website directory of Thai government offices)
Thailand Law Source (has legal news, articles and a database
of selected laws.