If you think our legal system is fair by imposing the same penalty on everyone for the same offence, think again.
Take the system of fines. Imposing the same fines on both the rich and the poor for the same violation hurts the poor while leaving the rich virtually unaffected.
To ensure fairness, this outdated system needs urgent reform.
Why focus on the fine system? Because the law mandates that courts use fines for less serious offences. Therefore, fines are the main penalty used by lower courts across the country, affecting the majority of people.
Between 2018 and 2022, the courts used fines in their verdicts far more often than imprisonment and detention, excluding suspended sentences, according to the Office of the Judiciary.
Thailand's rigid fine system uses fixed fines for the same offence for everyone. For example, a particular crime may specify a fixed fine between 500 to 15,000 baht. Imagine the difference a street vendor and a millionaire face when ordered to pay a 10,000-baht fine.
This fixed fine system, which specifies the exact amounts for a violation, creates two problems: unfair penalties and outdated fines that cannot keep up with economic changes.
Firstly, unfair penalties. While imposing the same fine on everyone may seem fair, it definitely is not. Disregarding the country's gross economic disparity, this system does not consider the economic status, income, or financial burden that affects low-income offenders more than the well-off.
Since those with money are not affected by the fines, they may continue to break the law because they are not afraid of the punishment.
Meanwhile, low-income offenders may have to choose imprisonment over paying the fines because they do not have the means to, reflecting disparity and social inequality in Thai society.
The Ministry of Justice and the Office of the Judiciary introduced measures like EM bracelets with bail or instalment payments for fines to address this concern. True, they might help reduce the number of people in jail, but they do not address the problem of disparity and unfair penalties.
Secondly, outdated fines that are out of touch with the present time. Since the fines were set long ago, they have become too low due to inflation over time.
Believe it or not, a study by the Thailand Development Research Institute shows that there are 420 laws that are still enforcing fines set as far back as 1859. One of them is the 1902 Clean Canal Act, which set the fine for littering in canals at just 20 baht.
However, setting the new rate of fines requires new legislation, which can become outdated by the time it is enacted.
To ensure fair and effective fines, Thailand can learn from the initiatives of other countries.
One solution is to eliminate fixed fines and replace them with fines per day that vary with the severity of the offence, the offender's economic status, and their daily income to calculate appropriate fines.
The formula of the day-fine system is: fine = number of offence units (fine days) x the offender's net daily income.
For example, running a red light is punishable by a fine of up to 4,000 baht without a jail term. Since it is not a severe offence, the fine may be calculated as five fine days x 1,000 baht net daily income, resulting in a 5,000-baht fine.
Different countries, however, have different systems for calculating variable fines according to their specific contexts.
For example, Germany uses two main factors to calculate daily fines: the number of fine days and the offender's personal and financial circumstances, including occupation, income, and living conditions. This data, gathered through police investigations, is used to determine the offender's net daily income.
In Finland, the police and prosecutors initially set fines for offenders. If these fines are not paid, the court decides whether to impose a new fine or a jail term. The penalty is based on the offender's net daily income and information from their latest tax return, which can be accessed by the court and state authorities.
Meanwhile, several states in the United States have begun using the variable fine system before and after court procedures. For low-income offenders, the unemployed, and other vulnerable groups, the court may consider using the income of their spouses or carers to calculate their net daily income.
Several changes will be necessary for Thailand to adopt variable fines for a fair and effective system.
Most importantly, new legislation is needed to create a variable fine system, requiring other laws to change their penalties accordingly. This new law should also set rules and criteria on how it works.
First, it must determine which offences should be covered by the variable fine system. Our stance is that it should apply to all offences with fine penalties. In the initial stage, it should start with minor offences, traffic violations, and environmental and economic crimes.
Second, it should establish the rules for calculating the number of offence units or fine days. Our stance is that the fine days should be based on the severity of the offence comparable to the jail sentence. For example, if the jail term is more than one year, the number of fine days may be set at 360 days for each year of the verdict. If the verdict for a lesser offence is only one month, then the fine penalty may be calculated as 30 fine days.
Third, the law should establish criteria for using the offender's economic status in calculating the number of fine days. It should also specify the factors that can reduce fines, such as income level, tax burden, and living expenses. These factors reflect the offender's real net income and help determine proportional fines.
Apart from drafting the new law to institutionalise the fine-per-day system, the government needs to create implementation guidelines for relevant agencies, such as the police, prosecutors, judges, and officials in political administration, to collaborate on the procedures. Officials from the Revenue Department and social security agencies may also take part in determining the net income of the offenders. These proposals are part of what the government, political entities, and state agencies need to prepare to implement a fair and efficient variable fine system.
By updating the fine system to reflect economic and social realities, Thailand can move one step closer to a more just and equitable legal system. It is time for change.
Khemmapat Trisadikoon is a senior researcher at TDRI, and Chattrika Napatanapong is a lecturer at the School of Law at the University of the Thai Chamber of Commerce. Note: A full TDRI report in Thai on 'Reforming the Fine System in Thai Law for Effective Punishment and Social Justice' is available at https://tdri.or.th/2024/07/wb213