Five years ago Thidaporn Kornchoodej, then a 24-year-old lawyer’s assistant, was asked to sit in court to hear the verdict in a case she’d been working on. Her client was an American businessman fighting for custody of his four-year-old son, and Ms Thidaporn ended up sitting alone in the room with the judge as she delivered her ruling.
“The judge looked so young, and said to me at one point, ‘You remind me of myself a few years ago,’ ” recalled Ms Thidaporn.
The court’s decision to give custody to the mother — a waitress at a bar in Pattaya — was based on the principle of maternal love. Ms Thidaporn said the judge failed to consider the best interests of the child and instead relied on the debatable notion that “mothers naturally love their children more than fathers”.
But Ms Thidaporn felt the judge was too young to make life-changing decisions for others. “It didn’t make sense,” she said. “You now have inexperienced people making decisions that affect people’s lives. I don’t think that’s right.”
Ms Thidaporn’s concerns about the judiciary are shared with large numbers of courtroom lawyers who are frustrated with the lack of experience among Thailand’s young judges — many of whom are below the age of 30. Most agree that 25, the minimum age for judges, is too low.
“Twenty five year olds are too immature in terms of decision-making on the behalf of others,” said Niwat Kaewluan, the secretary-general of the Lawyers Council of Thailand.
Previous attempts to increase the minimum age have failed, including most recently last year, when a proposal by the coup-installed Constitution Drafting Committee to raise the minimum age to 35 years was eventually dropped.
Critics say fierce lobbying by both young and old judges has stifled change, showing how reluctant all governments are to overturn the power of the courts, and exposing the influence of elitism in the judicial system.
THE ELITE PATH
Law students who have passed their bar examination can apply to become judges as soon as they turn 25, with many choosing to study overseas in order to increase their chances of being accepted.
Candidates must take one of three types of entrance examinations, including a special exam for those who graduate with a master’s degree from a foreign law school.
The entrance exam for these graduates has been held for the past decade and is widely seen as providing a route into the role for members of the elite who have enough money to study abroad. The Judicial Service Commission (JC) justified it as an opportunity for the country to recruit judges with good English skills and overseas experience. A total of 26 applicants took the exam in 2005 when it was launched. All were accepted.
Since the exam is different, and reportedly easier, many law graduates choose to further their studies overseas, the majority in the US and UK, whose institutions are accredited by the JC. A total of 20 out of 235 people last year passed the written and oral exams for graduates of overseas law schools, compared with 47 out of 7,533 individuals for the other types of entrance exams.
This results in a selection of judges based largely on two aspects: whether they completed their studies in Thailand or overseas, and whether they have an undergraduate or master’s degree.
“There have been many discussions within judicial circles about changing the minimum age of judges, but they were met with protests from judges whose sons and daughters were about to take an exam during that period,” said Poom Moolsilpa, an associate dean at Assumption University’s School of Law.
“But it’s not fair when the selection is done on the basis of education level. We need judges who know Thai law and the tricks of the trade used by lawyers in court, not people who have good English skills or a high education.”
During the year of study in both theory and practice at the criminal and civil courts, successful candidates are referred to as “assistant judges” and train with their “tutors” to learn everything from using a tape recorder to interviewing witnesses and passing down judgements. The final verdict lies with the main judge handling the case.
They have to pass a final examination before being officially appointed as a judge by His Majesty the King.
Those with high scores are given first choice of which courts they would like to be based at. These include both the criminal and civil courts.
“But when some of these children from well-to-do families are not able to cope with the environment when they are forced to work in provinces outside Bangkok, they choose to leave the occupation altogether,” said Mr Poom.
ON THE FAST TRACK
“My friends who earned good grades in Thailand failed the entrance exam multiple times, but not the rich kids who study overseas,” said Ms Thidaporn, who studied law at Thammasat University and now works as a legal adviser at a private firm.
Age no barrier: The push to raise the minimum age for judges has hit several hurdles.
Several of her friends now aged in their late twenties have not worked since graduation and instead devote their free time to studying for exams or, if they have the funds, choose to study overseas.
Arkom Rattanaphojjanard, a 70-year-old lawyer, said that strictly following the textbook might result in no flexibility when it comes to delivering a verdict.
For instance, if a poor single mother steals milk at a department store because she has no breast milk, the judge might sentence her to three years in prison, or reduced it by half if she confesses.
“In this case, the judge may rule that the crime was committed out of necessity, and since the stolen item is not of large value, he or she could choose not to pass a sentence at all,” said Mr Arkom. “But the kids who only focus on studying do not have this kind of common sense.”
Each year at Siam University, more than 80% of freshmen at the law faculty express an interest in becoming a judge during the application process.
“They believe it is the highest honour in the legal profession, and the job is socially and financially secure,” said deputy dean Ekachai Chainuvati.
Judges have a starting salary of about 35,000 baht per month, which eventually reaches 100,000 baht in less than 10 years.
Apart from age and education qualifications, candidates must have not less than two years experience as a lawyer, public prosecutor or in another legal profession prescribed by the JC.
“The problem with Thailand is that these minimum qualifications are not enough to generate critical thinking, because many times they don’t take it seriously,” said Khemthong Tonsakulrungruang, a law lecturer at Chulalongkorn University. “For instance, there are those who work as legal officers in government agencies for two years but do nothing apart from reading books to prepare for judge entrance exams.”
Lawyers are required to have acted for clients in 20 cases — 10 for overseas law graduates — which is verified by the signature of the client and the judge presiding over the case. But the practice has been widely criticised as lawyers can usually bypass the whole process by assisting in a case in which more than one lawyer is appointed.
Lawyers, judges and academics interviewed by Spectrum said a popular method that people use to fast-track the process is by becoming involved in inheritance and consumer protection cases. As it is not necessary for the plaintiff to hire a legal adviser, lawyers usually ask to help in the cases for free.
“In the courtroom, they [the lawyers] ask questions that are not complicated, such as the relationship between the plaintiff and the deceased, or the problems related to inheritance management,” said Ms Thidaporn. “Sometimes, you could end up completing three cases in a morning.”
OPPOSITION TO CHANGE
According to the Office of the Judicial Commission, there were a total of 4,395 judges nationwide as of October, but there are no official age statistics.
In 2014, the Constitution Drafting Committee proposed various amendments related to judicial reform, including an external examination of the judiciary power and lowering the retirement age of judges from 70 to 65. It also proposed increasing the minimum age of judges from 25 to 35 years.
“Twenty-five-year-old judges have too little maturity,” said CDC spokesman Gen Lertrat Ratanavanich at the time.
Last year, however, all the proposals were dropped.
Mr Kemthong of Chulalongkorn University said there is a sentiment among judges that the attempts were seen as political interference.
“The court is an organisation with baramee [charismatic morality] and high credibility and the National Council for Peace and Order needs to be cautious of meddling with judicial affairs,” he said.
“Meanwhile, charter writers are legal professionals who have connections to many judges, resulting in a tendency to back out when many judges protest.”
But instead of increasing the minimum age, which is not necessarily a guarantee that one is more capable than another, some academics are proposing that the requirements should be more stringent. Increasing the amount of work experience would automatically increase the minimum age of judges.
“Many judges are used to the old system and they see accepting judges at a young age will be beneficial in terms of assimilating the new judges into the organisational culture easily,” Mr Kemthong said.
The selection of judges is a closed system, with its own application process, its own regulations on age, as well as its own appointment and transferral system.
“Once we’re in the closed system, no outside influence can be involved, which justifies the reason to the principle of independence of the judiciary,” said Mr Ekachai of Siam University. “So the judicial branch has no linkage to the people. When they reach the age of 25 and become a judge, that’s the end of their outside contact.”
Mr Ekachai said the attempt to increase the minimum age of judges will succeed when society at large realises the need for change.
“It means judges must realise that they must not act on behalf of the head of the state, which is HM the King, but that their power derives from people,” he said.
The Courts of Justice did not respond to Spectrum’s request for an interview.
Room for improvement
In most common law countries such as the US, UK, New Zealand, Australia and Canada, an adversarial system of justice is used, with an emphasis on experienced lawyers. In these countries, judges are appointed.
In New Zealand, for instance, judges must have at least seven years of experience as a practising lawyer, but in practice it is usually more.
In inquisitorial systems applied by most countries under civil law, including Thailand and many European nations, the emphasis is on judicial education first, and judges start a career of civil service.
In France, however, the minimum age is 31, followed by 31 months of training.
Somlak Judkrabuanphol, a 75-year-old former judge, said the general consensus among judges is that 25 is an appropriate minimum age.
Training as an assistant judge should be increased to at least three years, up from the present one year.
Meanwhile, judges who preside over cases that are of national importance should be required to have several years of experience.
“We need to admit that new judges are still not that experienced,” said Ms Somlak, who spent 36 years as a judge before becoming a member of the National Anti-Corruption Commission.
For Ms Somlak, one of the biggest problems with the judiciary lies in ideology and she said judges should take additional training in democracy.
In cases related to the lese majeste law or acts of sedition, she said, judges now prefer to hand out tough sentences.
Article 112 of the Criminal Code, also known as the lese majeste law, has been toughened under the junta, which uses a military court instead of a civilian one while ruling on criminal charges that carry maximum jail terms of 15 years for each count.
“When I was a judge, I remember the year when His Majesty the King said he was troubled by the lese majeste accusations,” said Ms Somlak.
She also said she does not agree with the idea that a successful coup justifies the legality of the coup-leader’s orders. Since taking over, the NCPO has made full use of martial law to issue orders, prosecute opponents and ban political activity.
“Not everything they order is right. If they do something wrong, then it’s wrong,” she said.