In 1855, Thailand signed the Bowring Treaty with Great
Britain. One of the most important points was that this treaty marked
the beginning of the system of extraterritoriality in Thailand. The
treaty provided a condition for the Thai government in Article II that:
Any disputes arising between Siamese and British
subjects shall be heard and determined by the [British] Consul in conjunction
with the proper Siamese officers; and criminal offences will be punished,
in the case of English offenders by their own laws, and in the case
of Siamese offenders by their own laws, through the Siamese authorities.
But the Consul shall not interfere in any matters referring solely to
the Siamese, neither will the Siamese authorities interfere in questions
which only the concern the subjects of Her Britannic Majesty(9)
It was natural that other western countries should
demand similar privileges. Thus, after the Bowring Treaty was signed,
other western countries(10) also made 13 other treaties.
Each of these treaties imposed extraterritoriality upon Thailand similar
to that outlined in the Bowring Treaty. For example, the Portuguese
treaty of 1859 provided that:
Any question which may arise between Portuguese and
Siamese subjects must be laid before the Portuguese Consul, who, in
concert and agreement with the Siamese authorities, will endeavor to
settle it amicably; and in case of not being able to do so, civil questions
will be decided by the Consul or the Siamese authority, according to
the nationality of the delinquent or accused person, and in conformity
with the respective laws. The Consul will never interfere in questions
which solely concern Siamese subjects, nor the Siamese authorities in
questions solely relating to Portuguese subjects, except in the case
of crimes in which the delinquents will be taken into custody by the
local authority and handed over to the Portuguese Consul to be punished
according to the Portuguese laws, or sent to Macao to be tried there.
The Italian treaty of 1868 provided that:
Any dispute or controversy between Italian and Siamese
subjects, shall be settled by the Diplomatic Representative or jointly
by the Consul and the functionaries of Siam. Criminal cases shall be
adjudged by the Legation or the Consulates, if the delinquent be an
Italian and by the local authorities if he be a Siamese subject. But
neither the Legation nor the Consulates shall interfere in the matters
affecting Siamese subjects only, nor shall the local authorities interfere
in questions relating purely to Italian subjects(11)
Besides applying to Siam, these treaties also covered
countries that were western colonies at the time as well.
The Bowring Treaty, however, had a provision stipulating
that “on all articles of import the duties shall be 3%”,
in order to prevent the reduction of British trade through increased
Thai duties. It was further stipulated that “the tax or duty to
be paid on each article of Siamese produce previous to or upon exportation”
should be that specified in a lengthy and minute schedule of export
and in-country duties attached as an appendix to the treaty(12).
Both of these provisions were explained and amplified in an explanatory
agreement signed the following year(13).
After the following modernization and reform of the
legal system of Thailand, the passage of extraterritoriality in Thailand
was increasingly successful until Thailand regained complete judicial
sovereignty from each European country with the amicable help of Dr.
Francis Bowes Sayre, an American consultant hired by the government
of King Rama VI in 1923-1925. King Rama VI was renowned for his skill
in diplomatic and political negotiations(14).
As a historical record, it should be noted here that
H.M. Princess Suvadana, a princess consort of King Rama VI, praised
Dr. Francis Bowes Sayre when he went to Thailand for paying a visit
to H.R.H. Princess Bejaratana, the only child of King Rama VI, in Thailand
in 1962 that: “Chao Khun(15), you are the great
friend of my husband and our country. We are glad to welcome you(16).”
4.2 The Obsolescence of the Old Thai Judicial
There are some who consistently blame western selfishness
in the demand for total extraterritorial rights as the sole reason for
legal reformation in Thailand. Thai students are often taught that Thailand
was forced to change her old laws and traditions only because of the
cruelty of the west. But when we consider reform from another perspective,
apart from the concept of extraterritoriality, it is possible to realize
that another reason of using western legal principles to guide modern
Thai law was due to special characteristics of the western legal systems.
Since western legal systems had developed over time, they were proven
and tested by the principles of modern society through systematic reasoning
About non-western legal systems, a western scholar
recently noted that:
To the degree that non-western cultures were mired
in what Max Gluckman was fond of calling “the kingdom of custom”,
they obviously lacked a corpus juris
, a modern sense of right-bearing
selfhood, and most seriously of all, anything approaching “civilized”
judicial procedures. It was appropriate, therefore, that in the name
of universal “progress”, they be subordinated to a superior
European legal order(18)
European countries always stated that the only reason
for demanding the extraterritorial provisions was that Thai laws, particularly
criminal law and criminal procedure, were obsolete and barbaric. Indeed,
it is hard to judge whether the Thai judicial system at that time was
truly barbaric since western views and eastern views were quite different.
We may not say that old Thai laws were all wrong and null because the
mother of Thai laws – Dharmasatra, a natural jurisprudence
of the East, was still valid eternally; whereas, most technical laws
or some specific provisions of laws were not suitable to a society stepping
into the modern age anymore.
Principle of the old Thai law and the western law were
quite different from each other in many aspects, namely(19):
(1) The modern law believes that persons
are “equal before the law”, and enjoy equal protection under
the law. Also, people are “subjects of the law”. Yet, Thailand
at that time had the slavery system and people were labeled in different
classes. Although slaves in Thailand were not treated like property
as they were in western countries, and could enjoy some rights, Thai
slaves were still their owners’ property in other manners, and
their human dignity was not guaranteed.
(2) The modern law very much guarantees
that property rights and the sanctity of a person’s dwelling are
protected. There are clear rules about obligations, contracts, rights
of ownership upon property, etc., in the modern law, while old Thai
law had only some basic rules about property such as loan and deposit.
In short, old Thai law did not govern the all-inclusive area of human
(3) Modern criminal justice has a
principle that government officials can arrest and punish a person where
there is a law clearly indicating that an action is unlawful. The doctrine
where there is no guilt if there is no law, Nulla Poena, Sine Lege,
was not known in Thailand at that time. Further, as a modern idea, the
arrest as well as the punishment of an accused must follow considerations
of fundamental human rights. Interrogation through torture and punishment
were totally unacceptable in the western view.
These modern principles had gradually developed in
western countries over a long period. Arising under the fear or torture
as existed in the Middle Ages, modern principles of criminal law and
criminal procedure that respected human dignity were heavily emphasized.
Even so, before the 20th century Thailand still interrogated suspects
and proved the guilt of the accused by methods of torture dating back
to ancient civilization.
Comparing old criminal law and criminal procedure in
Thailand to modern principles of criminal law and procedure in the west,
there are four dominant differences as follows:
(i) Substantive criminal law
Some consequences of criminal offences under old Thai
laws go against modern law. Sometimes, members of the criminal’s
family or neighbors were punished along with the criminal himself. For
instance, neighbors of the place that was robbed were guilty if they
themselves could not arrest robbers. Since this offence prevented neighbors
from providing refuge to criminals from officials, it was appropriate
for the community’s peace and security. However, under a modern
view of law, the responsibility for a criminal offence must be particular
to the one who committed the crime, not an innocent person. Also, the
application of punishment throughout the family line prevented revenge
from the executed criminal’s relatives, and frightened others
who were thinking about committing a rebellion. However, it conflicted
with the principle that a criminal offence must be particular to the
criminal. Old Thai criminal law still made a criminal offence for a
person who merely behaved suspiciously, called Nilumparajon. The offence
of Nilumparajon is totally contrary to the modern principle of presumption
of innocence that requires unambiguous facts and evidence before punishing
an accused. As a western principle, in dubio pro reo, in case
of doubt, the court shall decide in favor of the accused.
(ii) Criminal Procedure
Old Thai laws used the method of bodily infliction
and torture, called Jareet Nakornbarn, to prove guilt. An accused
might be nailed through his nails, or have the temple of his head compressed
for confession. To prove guilt, an accused might be forced to walk through
fire, or to submerge himself in water. These methods were based on the
principle that an accused was already a criminal. This way of proof
brought an accused excessive suffering as Prince Rabi noted:
At that time, whoever was accused in a criminal suit,
would violently suffer. First of all, he would be imprisoned. Unlike
now, a case was not tried speedily. Whoever was an accused, he was a
criminal indeed. Officials thus might flog or hit or do any kind of
abuse to an accused for evidence. If the accused could bring evidence
proving his innocence, he would be saved…..the accused himself
was the one who investigated his offence. Judges at that time had never
made any kind concession to people at all. People felt that judges were
truly cruel ogres. It might be because judges at that time had noble
power. Low-ranking judges also wanted to show their results of work
to higher-ranking noblemen so judges themselves became prosecutors who
prosecuted the accused(20).
Interrogation through torturing the accused is certainly
contrary to modern law due to the fact that modern law assumes an accused
innocent until there is clear proof of guilt. If no clear proof of guilt,
the accused cannot be punished. Also, the officials are not allowed
to deceive or coerce the accused for a confession.
Francis Bowes Sayre, The Passing of Extraterritoriality in Siam,
Am. J. Int'l L. 71 (1929)
(10) Id. (In 1856, with the United States and France.
In 1858, with Denmark. In 1859, with Portugal. In 1860, with the Netherlands.
In 1862, with Germany. In 1868, with Sweden, Norway, Belgium, and
Italy. In 1869, with Austria-Hungary. In 1870, with Spain.)
(11) Id.at 72.
(12) Id. at 71.
(13) Article II of the supplementary agreement of
1856, explaining the meaning of Article II of the treaty of 1855,
[A] ll criminal cases in which both parties are British subjects,
or in which the defendant is a British subject, shall be tried and
determined by the British Consul alone. All criminal cases in which
both parties are Siamese or in which the defendant is a Siamese, shall
be tried and determined by the Siamese authorities alone....
[A]ll civil cases in which both parties are British subjects or in
which the defendant us a British subject, shall be heard and determined
by the Siamese authorities alone....British subjects, their persons,
house, premises, land, ships, or property of any kind, shall not be
seized, injured, or in any way interfered with the Siamese.
(14) See Francis Bowes Sayre, Siam's Fight for
Sovereignty, The Atlantic Monthly, Nov. 1927, at 674.
(15) Chao Khun is an informal pronoun for addressing
a person who has the title of nobility of Phra-Ya (similar to "Lord"
in British nobility). King Rama VI bestowed the noble rank of Phra-Ya
Kalyanamitri, which means Phra-Ya, on Dr. Francis B. Sayre, who is
the "true friend".
(16) The National Identity Board, In the Honors of
HRH Princess Bejaratana on the Occasion of Her Royal Highness's 72nd
Birthday Anniversary in November 24, 1997. at 177 (1998)
(17) Contra Mattei, supra note 3, at 19:
The first assumption is that the western centrism cannot be the foundation
of a classification of legal systems that aims to cover the whole
world. In order to serve its scholarly purpose, any classification
must take into account the deep-rooted differences between all models
of social organization. Most classifications proposed so far have
placed the Western Legal Tradition in a privileged position. This
is in accordance to a pattern now defied by anthropological studies
and which should be abandoned.
(18) John L. Comaroff, Colonialism, Culture and
the Law: A Foreword, 26 Law & Soc. Inquiry 306 (2001)
(19) Saweang Boonchalermvipas, Thai Legal History,
at 139-19 (2d ed. 2000).
(20) Prince of Rajburi, Acts in the Present Vol
I, Lectures for Graduate Students in Thai Legal History by Phra-Ya
Nitisatrabaisalya, at 165 (3d ed. 1954).