One little known factor that causes significant slowness in Thai criminal courts is overcriminalisation. By overcriminalisation, I mean that some crimes should be recategorised as civil crimes. Two such crimes that need to be decriminalised are defamation and bounced cheques.
As the backlog of cases in the criminal courts pile up, a major concern is the speed with which they can be processed. In hope of achieving greater efficiency, the courts have tried several initiatives to speed up the system, but with limited success. Speed is important to the justice system because redress for a victim becomes increasingly pointless over time. After a certain point, a victim may no longer care about redress. This is the logic behind the saying “justice delayed is justice denied”.
The problem of slowness is definitely not new and various attempts have been made to streamline the justice system. Those include initiatives such as a system for continuous case hearings, alternative dispute resolution, “community justice”, and “restorative justice”. However, the success of these programmes is limited. Research collaboration on criminal law by the Thailand Development Research Institute and the Rabibhadanasak Judicial Research lnstitute (of which I was a part) suggests that decriminalisation could do more than the programmes mentioned.
The generally accepted boundary between a criminal crime and a civil crime is whether or not the crime is considered harmful to society. If yes, the crime is criminal. If no then the crime is a civil one, a failure to uphold what is due to an individual. Because criminal crimes are considered harmful to the society, they emphasise punishment rather than dispute resolution between two parties (ie compensation), require evidence beyond doubt, and can be prosecuted by the state if the victim does not provide a lawyer. Overcriminalisation subjects wrongdoers to unjustified punishments and contributes greatly to the sluggishness of the judicial process.
Worryingly for Thailand, defamation and bounced cheques are categorised with violence, theft and embezzlement. The problem is that bounced cheques and defamation are not always done with malicious intent and often represent failures to uphold what is due to individuals. Not all bounced cheques are attempts to trick victims. Bounced cheques happen for a variety of reasons including unintentional failure to pay the bills. This kind of situation resembles debt cases, which is a civil crime. Cheques that do have malicious intent are already covered by laws related to embezzlement and counterfeit money.
There are historical reasons behind this criminalisation. When cheques were first launched, the law was written excessively strictly out of fears the public would not trust them as a secure payment medium. The law did not add much value to the legal system since bad cheques overlap with broader laws related to embezzlement and counterfeit money. Cheques are now widely used and an amendment to the law is long overdue.
The situation with defamation is worse. In practice, the law is often used by authorities as a tool of harassment against media scrutiny rather than to defend truth or privacy. In a country where patronage runs deep and suspects in high-profile corruption cases are barely held accountable, media freedom and public scrutiny should be promoted rather than discouraged with severe punishments.
Decriminalisation would save both time and money. Since civil cases do not carry custodial sentences, the burden of proof is much lighter and the judicial process quicker. According to our research, the average bounced cheque case lasts for 21 months. This can be significantly reduced. Cost saving-wise, with less time needed from the prosecutor, the judge, and the investigation team, we estimate the courts of justice could save up to 1.1 billion baht. These cost-savings can be used to make the system even more efficient or to compensate areas of the justice system that may be lacking.
I hope society pays more attention to decriminalising bounced cheques and defamation. They are costly cases and make little legal and social sense. Decriminalisation has great potential to help media freedom, reduce penalties, save costs, and quicken the justice system.
Itsakul Unahakate is a researcher with the Thailand Development Research Institute (TDRI). Policy analyses from the TDRI appear in the Bangkok Post on alternate Wednesdays.
First published: Bangkok Post, April 2, 2014