In their book, Tort, Custom, and Karma, Professor David Engel and his wife researched the issue of legal access for the poor in Thailand in Chiangmai, Thailand. The findings are surprising. From the mid 1960’s to 2000, the rate of litigation has declined significantly relative to the general increase in population and the increase number of Thai attorneys.
Professor Engel found that the general public has an antipathy to the legal system. People on a local level feel alienated from the legal system. They believe that there is no justice for them in the courts. In the opinion of those in the middle and lower economic classes, government officials are corrupt and only the wealthy and powerful receive favorable rulings from the courts.
In addition, there are economic hurdles to accessing the court system. Filing a lawsuit is expensive and time consuming without a guarantee of success. The average Thai worker lacks the knowledge and experience to file a lawsuit. Attorneys are generally required to navigate through the court system. Those who lack the funds to hire an attorney usually lack the expertise to file and argue a court case .
In Thai courts, most civil actions do not allow punitive damages (damages exceeding compensation and meant to punish the defendant). This deters people from filing lawsuits and attorneys from accepting cases from low income clients. Even in egregious tort cases that results in a severe injury or loss of life, an imbalance of wealth and power among the parties usually results in a one-sided settlement. This may be the only route for lower income individuals to get any financial recourse.
The lack of a justice system has been exasperated by the reduction of community and the use of village elders to mediate settlements between parties. In an increasing networked world, people are less involved in their local communities which has led to an increased breakdown of community foundations. When there are conflicts, the average Thai person does not have a person or place to assist in settling their disputes.
There are potential solutions to the lack of access to the court system. One solution is to allow punitive damages for torts caused by outrageous or irresponsible conduct by a defendant. If someone is drunk driving and destroys the victim’s property or causes personal injury, the compensation from punitive damages could be an incentive for the victim to seek restitution through the court system.
Another possible solution would be to create a local arbitration system to replace the loss of respected village elders. An arbitrator can resolve conflicts without the legal formalities of a traditional court hearing thereby making it more accessible for regular people. The government arbitrator can issue a court enforceable decision or attempt to prod the parties to negotiate a fair settlement.
A large segment of the population feel that they do not have access to the justice system. Disillusionment in the law has become the norm. This can lead to the breakdown of civil society. Growing disenchantment with the legal system contributes to the feeling of the lack of justice. Something should be done to reform Thailand legal system to allow tort victims greater access to the court system.