Costly justice is justice denied to poor


          The greater the damage done, the easier the justice system should be to help the afflicted, right? Sorry, that’s not how the Thai judicial system operates.The snail-speed court procedures in Thailand are notorious. So is the system that gives the plaintiffs the burden of proof. Yet, there’s still another built-in obstacle in the court system to slam shut the door of justice on ordinary citizens.
          This court mandate says the more financial compensation you seek, the more money you have to pay up front for the court to accept your lawsuit.
          If you don’t have that kind of money, then forget it.
          This filing fee rule needs to change.
          Imagine a community suffering from polluted water from a petrochemical plant’s toxic discharges resulting in severe illnesses, disabilities and deaths.
          At present, the filing fee is 2% of the demanded financial compensation (which can reach 10 million baht), with an extra fee of 0.1% for any compensation amount that exceeds 50 million baht. So, if that community asks for compensation of 100 million baht, then they have to fork out around 250,000 baht for the mandatory filing fee (200,000 baht for the standard filing fee and 50,000 baht for the extra fee.)
          Their quest for justice immediately ends if they cannot afford to pay that required filing fee.
          This rule aims to prevent frivolous lawsuits from drowning the court system, draining court resources, and further slowing down other valid court cases. The rationale is valid.
          But it’s undeniable that this regulation has affected the course of justice, particularly for the powerless. The exorbitant filing fee is an important factor in deciding if they should take their plight to court or not.
          Given the severe disparity in society, the filing fee should not only focus on the effective use of court resources, but should also equally respect citizens’ basic right to access the justice system.
          The civil court case covers both personal interests and public causes.
          There are cases which can be ruled on quickly and ones that are legally complicated and time-consuming.
          Using the same rule for different types of court cases, therefore, may create injustice, especially for the weak and the poor who need access to justice the most.
          When faced with exorbitant filing fees, a plaintiff often reduces the amount of demanded compensation although it cannot cover the real losses.
          Many seek court approval to forego the filing fees on grounds of poverty. But the court decision again puts the burden of proof on the poor.
          Also, the decision depends solely on each individual judge’s opinions without standard rules to go by.
          Given these problems, we have conducted an analysis on the court and ruling fees with an aim to establish a more economically appropriate filing fee system.
          To facilitate the course of justice, it is clear that the court should give up the uniform filing fee rate of 2% of the financial compensation demand. Instead, the filing fee should be adjusted according to different types of court cases so the fee can be increased, reduced, or exempted altogether.
          The types of civil court cases that should allow the reduction or the exemption of the filing fees include those court cases that benefit public interest.
          At present, the filing fee for consumer cases is already exempt because it serves the public interest. It is also difficult for each individual consumer to prove their case about product defects or poor services. Such fee exemption supports consumer rights and subsequently improves product and service standards.
          In the same vein, the court cases serving the public interest, such as those addressing environmental protection, should enjoy a similar filing fee exemption.
          Next, there are court cases that are new and complex such as those involving new technology which requires all parties to learn and understand the complex technical and legal issues.
          The filing fees for these types of cases should be reduced or exempted to serve as an incentive for affected groups to take the matter to court, to create a new ground of knowledge in legal matters, and to strengthen judicial credibility.
          Meanwhile, the filing fee should be increased for the court cases that hurt public interest such as the strategic lawsuit against public participation or SLAPP. At present, companies frequently use this legal tactic to punish engaged citizens who are exposing their misdeeds. High filing fees can discourage such moves. The same goes for frivolous cases with unrealistically high compensation demands. Charging a high filing fee in these situations may help reduce efforts to abuse the court system.
          To be fair, the Thai judicial system realises its duty to protect vulnerable groups. This is why the court has a system to waive the filing fee for the poor. Still, the decision depends solely on the judge’s opinion which varies from one to another.
          It’s useful to have a set of criteria for the judges’ consideration, such as state welfare cards, unemployment insurance, elderly allowances, or household income compared with the poverty line, to name a few. These criteria will streamline and speed up the process better than relying solely on a judge’s opinion.
          The filing fee, however, is not the only expense that the plaintiffs must shoulder. The cost of transportation and the compilation of evidence, plus the loss of income when attending court hearings are often too much for the poor to bear.
          Legally, the plaintiffs can ask the courts to order the defendants to pay for these litigation expenses should they win the court cases. Yet few people make use of this mechanism due to a lack of clear procedures. An effort to make this mechanism more widely known and more easily accessible is itself a form of justice.
          In addition, the court fees should consider the amount of time and work each court case requires. At present, the fees are based only on the monetary value of the claims or the amount of the compensation demands. As a result, many plaintiffs pay much less than the court resources they actually use. Others, meanwhile, pay much more than they should.
          Calculating the filing fee in accordance with the amount of court resources each case requires will make the fee more realistic.
          Here’s another problem: When the court case involves claimed damages that is incalculable, such as the image of a company, the filing fee is only 200 baht across the board.
          Such a low fee has spawned frequent misuse of the judicial system to harass or silence people who are trying to end injustice such as environmental destruction or labour exploitation. It is also used to blackmail.
          If readjusted, the filing fee system will trigger many benefits. For starters, reducing or waiving the filing fee for vulnerable groups will facilitate their legal quests for justice.
          It will also encourage people to take cases involving social benefits to court more often. The rulings may well trigger more positive changes down the line.
          Meanwhile, increasing the filing fee will reduce the number of cases with ulterior motives to silence or blackmail people.
          And if cost-effectiveness is the judicial system’s concern, calculating the fee according to the actual use of court resources is also more practical than using a uniform rate for all types of court cases.
          The judicial system is about delivering justice.When the filing fee rule obstructs the quest for justice, it should change. It is as simple as that. Otherwise, the judicial system risks being seen as part of injustice itself.
          Nonarit Bisonyabut is a senior research fellow and Siranan Dechakupt is a researcher at the Thailand Development Research Institute (TDRI). Policy analyses from the TDRI appear in the Bangkok Post on alternate Wednesdays.

First published: Wednesday, April 10, 2019