According to an article in The Nation newspaper of June 12, the attorney general of Thailand has proposed to increase the powers of the Department of Special Investigation (DSI) under the justice ministry so that the department could overrule the public prosecutor in cases where the latter decides not to go to court on the basis of its inquiries. If reported correctly, this is a very ill-considered proposal that would only make many more problems for criminal justice in Thailand, and solve none.
The Asian Human Rights Commission (AHRC) has for some years pointed out that the DSI has ample powers to investigate and bring criminal charges against alleged perpetrators of special offences, especially police and other state officers in human rights cases. That it has failed to get charges lodged in court can be attributed largely to its own internal failures caused by its being politicised and manipulated by successive administrations for their own advantage. Thus, the first problem is not that the DSI lacks powers; rather, it is that it and its powers have either not been used or have been misused.
The AHRC has also for some time pointed to problems in the role of the public prosecutor in Thailand when handling human rights cases. The prosecutor often works closely with investigating agencies to ensure that cases are derailed, particularly where the accused are state officers. Many strategies are used, including deliberate non-appearance of witnesses and other techniques to force delays. Prosecutors also may refuse to proceed in cases where the DSI genuinely believes that it has sufficient evidence to press charges. But where that is so, the solution does not lie in bypassing the prosecutor but in finding out what is malfunctioning in the public prosecution and making changes. Thus, the solution to the second problem lies in detailed examination and reforms within the public prosecution itself, not in avoiding an integral part of the criminal justice system.
Public prosecutors in Thailand exist for the very purpose of being a break on the work of police investigators. It is in the nature of their obligations that they scrutinise the inquiring officers’ work, and decline to lodge cases in court where insufficient evidence or cause exists. Thus, for investigators to complain that prosecutors are an obstacle to their getting cases in court is disingenuous; but for them to suggest that they should be able to override prosecutors is very dangerous indeed. There can be no effective prosecutions without a functioning, strong prosecution department. Where the prosecution is malfunctioning, to suggest that it should simply be overruled is nonsense.
If the justice ministry in Thailand wishes to understand how an independent investigator and a functioning prosecutor can and must coexist then it need look no further than Hong Kong. The Independent Commission Against Corruption (ICAC) operates with its own personnel, on its own budget, free from interference by any government department. However, every single case that it takes to court goes through the public prosecutor. The standards set by the prosecutor are extremely rigorous, and thus the ICAC only submits cases for prosecution that have been thoroughly investigated, and of which it is confident. The high requirements of the prosecutor cause the ICAC to perform to a high standard: together they ensure a conviction rate of over 80 per cent in cases brought before the courts. The success of the one depends upon the proper functioning of the other. Public confidence depends upon the success of both.
The current administration of Thailand is rushing around in search of quick fixes to long-term criminal justice problems. There are none. Nor will this government be able to come up with any serious measures for lasting change, as it is answerable not to the public but to a military junta that has–and it should be obvious by now–only its own interests at heart. Any measures to address problems of justice at this time, especially those that undermine ordinary criminal procedure, are destined only to make matters worse; and this particular proposal most of all.
The Asian Human Rights Commission unequivocally opposes any calls that would allow investigating agencies in Thailand to bypass ordinary criminal procedure. To address the problems of criminal justice and obstacles to prosecutions in human rights violation cases there, it is necessary to address the bigger systemic impediments by asking the real questions: what are the problems within the DSI that since its inception in 2004 up to now it has been unable to bring even one single human rights case to the courts? What are the real problems with the public prosecution that so many cases without merit are lodged in the courts and needlessly pursued against patently innocent persons, while on the other hand the perpetrators of blatant gross abuses escape criminal action? Many persons may find that the answers to these questions are too difficult. But it is in the difficult questions and their answers that solutions to the problems besetting Thailand’s criminal justice system lie, not in simplistic bureaucratic measures that will create even bigger difficulties than the ones that they propose to surmount.
