ABUSE OF JUDICIAL POWERS IN THAI FOLKTALES

By Alexander Shytov

          There are, however, problems to be determined as to which judge has an interest in possessing a 'wondrous jar' or in other words has a strong personal interest in the outcome of the case. Because It is almost impossible to get evidence that a particular judge has been biased, the British courts moved in the direction of elaborating different tests (conflicting with each other) which would help to minimise a possibility of bias through exclusion of the suspected decision makers from deciding the matter.(5) Those tests try to modify the narrow concept of bias which would include not only those judges who have personal interests but also those judges who can possibly be biased, or who were probably biased. Those tests gave greater attention to public perception of the legal process trying to ensure the confidence in the outcome of the process. The positive characteristic of English law, and the rules related to bias is that English judges understand the importance of public confidence. Apparently, the Thai public lacks that confidence too. The skepticism about Thai judiciary can be seen not only in Thai folktales but also in contemporary academic writings. It has been asserted that the Thai judicial system is heavily biased in favour of the rich and powerful. (6)It appears that the story of Wondrous Jar supports this conclusion.
          There can be two ways to create public confidence in judiciary. The first is through establishing stricter rules which would not only exclude those judges who have personal interest in the outcome of the case, but also would exclude those judges whom the public may suspect to be biased. The second way emphasizes the importance of moral education of judges, and particularly self-examination. A narrow conception of bias briefly described above already calls judges to examine themselves on the matter of whether they have any personal or institutional interest in the outcome of the case. (7)
          The issue of self-examination becomes more important if one takes a broader conception of bias which includes not only the judges who have or likely have personal interests in the outcome of judicial proceedings, but include every judge. This broad conception of bias does not require that judges disqualify themselves from hearing the case. The broader concept of bias includes the whole complex of moral beliefs and social interests which the judges possess, and therefore bias is understood in the terms of personal prejudices. The main idea of the broader concept is that even without any personal or institutional interest, a judge is not free of bias which includes any preconceived opinion of the decision-maker. In his book Natural Justice, Flick wrote that "if lack of bias is defined to mean the total absence of preconceptions in the mind of a judge, then no one has ever had a fair trial and no one ever will." (8) The U.S. Supreme Court judge, Felix Frankfurter noticed also that because judges are men, 'not disembodied spirits', their judgements are inevitably influenced by judicial character and experience. Such 'bias' necessarily affects all judges. (9) Judge Frankfurter can be seen as an example of a conscientious judge. Once the U.S. Supreme Court was asked to decide whether it was unconstitutional for a street railway company to install loudspeakers in its passenger vehicles for the transmission of music and advertisements. Judge Frankfurter felt so strongly prejudiced against the company because he did not like the whole idea of broadcasting that he decided not to take part in the case. (10) It is clear that in this particular case Judge Frankfurter did not have any personal interest, but he was aware of the other kind of biases or prejudices. Judicial prejudices can be very dangerous if they are not guarded against. Those prejudices can vary from culture to culture. In Thailand for example, there is a danger of a prejudice that a judge must apply law strictly in a machine-like manner without taking seriously the merits of the case. Those prejudices work unconsciously. An English judge, Lord Scrutton spoke of this unconscious partiality that "the habits you are trained in, the people with whom you mix, lead to your having a certain class of ideas of such a nature that, when you have to deal with other ideas, you do not give as sound and accurate judgements as you would wish."(11) The U.S. Supreme Court judge, Benjamin Cardoso followed the same line of thought when he spoke of subconscious forces which may affect the outcome of judicial decision-making. Among them he counted likes and dislikes, predilections and prejudices, the complex of instincts and emotions, and habits
and convictions. (12)
          The problem, however, is whether a judge can, through his self--examination, free himself from those kinds of biases and prejudices mentioned by Scrutton and Cardozo. The fundamental issue which any theory of judicial decision-making is facing is whether judges can be absolutely impartial that is free from any biases and prejudices. The issue was at the centre of academic dispute between a well-known British legal scholar J.A.G.Griffith and also well-known judge Devlin. According to Griffith, a judge cannot be said to act impartially, because, when sitting in court, a judge is required to make decisions which involve his or her own assessment of where the public interest lies, and so to make a political decision.(13) Griffith wrote that there cannot be a homogeneity of interest among the different classes within society.(14) For Thailand, for example, that may mean that poor farmers would have different interests from rich merchants and correspondingly different ideas on how land law should be formulated and interpreted. A judge must give one interpretation of law which cannot favour both classes. According to Griffith the social background of the judge will affect the way law is applied and interpreted, because the judge is inevitably prejudiced in his assessment of public interest in favour of his own class. The response of Patrick Devlin was that: "What matters after all is not whether judges have the political prejudices of their age and upbringing, but whether or to what extent they allow the prejudices to get into their judgements."(15) Patrick Devlin stressed the importance of self-examination of judicial conscience, stating that "The judge who is confident that he has no prejudices at all is almost certain to be a bad judge. Prejudice cannot be exorcised, but like a weakness of the flesh d can be subdued. But it has first to be detected."(16)
          The folktale Wondrous Jar does not address directly the problem of the broad concept of bias and the need to identify one's prejudices and biases which unconsciously affect any decisions including the judgements of courts of law. It, however, points at one source of sin which the judges should guard against: greediness and selfish ambition. It also points at the second tool to exclude harmful prejudices and biases. The second tool can be seen in the attitude of the poor man. As soon as he had gotten some means of living, he tried to help other people. That can be an example for judges. In deciding particular cases, judges often have neither time nor ability to examine every preconception they have. There may be no end to self-examination. Instead, they may concentrate on one particular moral impulsion: to meet the need of those who come to the courts of law. That is the most certain way to win public confidence in a judiciary system in every part of the world.
          Apart from this general implication for the legal principles and rules related to judicial bias, the folktale draws attention to the morality of legal claim. The rich man sued the poor man - his employee, demanding that he hand him the jar which was found on his land in Thailand. The problem is whether a judge when deciding the case should look at the merits of this case, and not merely apply a legal rule. If one considers Thai law, there are several rules which can be applied to the case. According to Section 1328 of Thai Civil and Commercial Code, "where a movable of value which has been hidden or buried is found under such circumstances that no person can claim to be its owner, the ownership is vested in the State. The finder is bound to deliver it to the police or other competent official, in which case he is entitled to receive a reward of one-third of its value." If the person fails to do that, there is a punishment according to Penal Code Section 355: "Whoever, having found a valuable movable property hidden or buried under the circumstances in which no person may claim to be the owner, converts such property to himself or the other person, shall be punished with Imprisonment not exceeding one year or fine not exceeding two thousand baht, or both." Thus, if a judge must follow this rule, the poor man should be imprisoned or fined. That would run against the morality of the folktale. The man was poor, honest and possessed high moral character. He did not misappropriate the property. The godsend was considered as a reward for his virtue. He did not keep the wealth which had been generated by the jar, but shared with others. A judge who applies legal rules blindly without considering the merits of the case would act against the sense of justice so clearly articulated in the tale of Wondrous Jar. It is an interesting fact that the seizure of the jar by the greedy judge was done in accordance with the legal rules articulated above. One can only guess whether the narrative of the folktale is not a fruit of folk imagination, but a record of an event which took place in real life, at least in relation to the seizure of the property.
          Other than the law on the hidden movables, the judge could invoke the provisions related to lost property. According to the latter, the finder has a legal obligation to hand the property over to the police.(17) The provision of Section 1325 says that the finder of lost property can claim the ownership of the property if the person entitled to receive it has not claimed it within one year from the day of the find. "However, if the unclaimed property is an antique object, the ownership is vested in the State, but the finder is entitled to receive a reward of ten percent of its value." Since this does not seem to be the case with the poor man, the judge could argue that he has no proprietary rights in the object. The poor man, however, could object to that by pointing at special characteristics of the object: a big jar embedded in the soil Indicates that the jar was forsaken for a long time rather than lost.

Part  3

---

(5)See leading English case: R. v. Gough. [1993]. A.C. 646.
(6) Pasuk Phongpachit ,Baker Ch. Thailand's Boom and Bust. -Chiang Mai: Silkworm Books, 1998.-
P. 303.
(7) See, fcr example: Localail (UN) Ltd. v. Bayfeld Proproties Ltd. [2000] 1 All E.R. 65. - At 75, 76, 86.
(8) Flick G.A. Natural Justice. - Sydney: Butterworth, 1984. - P. 158.
(9) Frankfurter F. Of Law and Men. - N.Y.: Harcou rt Brace, 1956. - P- 40.
(10)Public Utility Commission v. Pollak.343. U.S. 451, (1952).466-7.
(11) Cited by: Pannick D. Judges.-Oxford University Press, 1987. -P.
(12) Cardoso B. The Nature of the Judicial Process.- New Haven: Yale University Press, 1921.-P.167.
(13) Griffth J.A.G. The Politics of the Judiciary.- London: Fontana Press, 1997. -P.57.
(14) ibid., p.336.
(15) Devlin P.'Judges, Government and Politics'. In: Modern Law Review. 41 [1978] - P.507.
(16) ibid., p.511.
(17) Thai Civil and Commercial Code.-Section 1323.