In the interest of clear understanding, this section is devoted to a discussion of the functions of each complaints agency under review of this research and their capacity when handling police complaints.
Within the framework of the NPA, the RTP discharges its main function as a crime fighter where it has the power to investigate crime and commence criminal proceedings.86 It is indeed the sole authority in Thailand possessing the power to deal with everyday crime (eg, crimes against the person and/or property). The RTP is also tasked with maintaining good discipline in the force and a complaints system is run internally to support the fulfilment of this task.87 As a complaints authority, the police are capable of investigating disciplinary offences in parallel to criminal offences.88 Following the investigation, the police authority is able to take disciplinary action against the officer involved provided disciplinary offences have been identified; also, it has the power to institute criminal proceedings if there is an indication that the officer involved may have committed criminal offences (see in-depth discussion in chapter 3). 89
In the previous section, we saw that the constitutional arrangements for the Thai Ombudsman indicate that the key function of the Ombudsman is to tackle
86 NPA (n 63), s 6(3).
87 ibid pt 6 ‗The handling of Misconduct‘.
88 ibid.
89 ibid.
Page 24 of 367 maladministration. 90 Regarding the handling of police complaints, the Ombudsman is given the power to inquire into complaints to find whether action or inaction by any individual police officers and/or police authorities inflicts harm and/or damage or perpetrates injustice to an individual or the public.91 However, distinctions need to be recognised between inquiring into complaints to identify defects in public administration and investigating criminal offences intended for prosecution in the criminal courts.
Therefore, it should be noted from the outset that the Ombudsman of Thailand can neither exercise the power to instigate disciplinary proceedings nor can it assume the responsibility of initiating criminal proceedings during or following its inquiry (see further discussion in chapter 4). Interestingly, the inability of the Thai Ombudsman in relation to disciplinary and criminal processes distinguishes it from the ombudsmen of Sweden and Finland, from which the institution of the ombudsman emanated, as both of those bodies are capable of taking disciplinary action and/or pressing criminal charges against the alleged culprit.92
As part of the oversight mechanisms of Thailand, the NHRC has its main function of defending and promoting human rights and exercises a number of legal powers in doing so.93 As for its capacity as a police watchdog, the NHRC, like the Ombudsman, merely inquires into complaints to determine if the officers involved have violated people‘s rights
— but does not to seek to indicate, specifically, any disciplinary and/or criminal offences.
Subsequent to the inquiry, therefore, the NHRC does not have the remit to commence disciplinary and/or criminal proceedings against the alleged wrongdoer (see chapter 4).
90 Constitution (n 8) s 244.
91 ibid.
92Michael Gøtze, ‗The Danish Ombudsman: A National Watchdog with Selected Preferences‘ (2010) 6 Utrecht L. Rev. 33, 34. See also, Linda C. Reif, The Ombudsman, Good Governance and the International Human Rights System (Springer-Science+Business Media, B.V. 2004) 137.
93 Constitution (n 8) s 256.
Page 25 of 367 The fact that the NHRC does not have this function in relation to disciplinary and/or criminal procedures seems to reinforce Harding‘s conclusion that the Commission had been created out of a political compromise since, similar to the notion previously adopted by governments of many other Asian nations, 94 human rights norms were originally regarded by certain quarters in Thai society (especially the traditional establishment) as alien to Thai values; as a result, the Commission‘s power has been restricted to ensure that national security and traditional values would not be hampered.95
According to the Thai constitution, the NACC is seemingly a formidable force.96 As noted above, the NACC‘s functions extend beyond fighting corruption to include addressing malfeasance in public office.97 To fulfil its function, the NACC is capable of undertaking an investigation into complaints about corruption and malfeasance in office directed at identifying disciplinary and/or criminal wrongdoings; crucially, the NACC commissioners and investigating officers are regarded by law as law enforcement personnel according to the Thai Criminal Procedure Code and this means that they are authorised to exercise
‗police powers‘ (eg, arrest and/or detention powers) during the investigation into complaints.98 This shows that the NACC‘s jurisdiction covers certain areas of criminality even though it does not tackle everyday crime like the police do. Upon the completion of its investigation, the NACC has the power to instruct the police to pursue disciplinary action providing disciplinary offences have been identified; in addition, it also has the
94 Li-ann Thio, ‗Implementing Human Rights in ASEAN Countries: ―Promises to Keep and Miles to Go before I Sleep‖‘ (1999) 2 Yale Hum. Rts. & Dev. L. J. 1, 13-20.
95 Andrew Harding, ‗Thailand‘s Reforms: Human Rights and the National Commission‘ (2006) 1 J. Comp. L.
88, 97-99.
96 Harding and Leyland (n 76) 172-174.
97 Constitution (n 8) s 250.
98 Organic Act on Counter Corruption 1999, s 31 para 2.
Page 26 of 367 power to instigate criminal proceedings against the alleged culprit if there is an indication of criminal wrongdoings (see chapter 4).99
As this research aims to gain some inspiration from the Independent Police Complaints Commission (IPCC) of England and Wales (see below, the Scope of the study),100 it is important to also explain the function and the role of the IPCC in handling police complaints. The IPCC discharges its function as a specialist police watchdog tackling police malpractice throughout England and Wales.101 The IPCC has a wide range of powers akin to that of the police when they investigate police complaints; the powers include arrest, search and surveillance powers to name but a few.102 On the completion of the investigation, the IPCC has the power to direct the police to take disciplinary action against the wrongdoer; in the meantime, it is also capable of referring the investigation report to the Crown Prosecution Service (CPS) for further criminal proceedings (see chapters 4 and 5).103
The above discussion sets out the functions of each complaints body in question and the powers each of them have when dealing with complaints against the police. This paves the way for readers to understand the subsequent analysis contained within the rest of this thesis of the different complaints systems from two distinct jurisdictions.
99 ibid ss 93, 97. See more detail in ch 4.
100See also, s II. Proposed Design in ch 2.
101 IPCC statutory guidance to the police service on the handling of complaints 2015, 3 para 1.1. See also, Police Reform Act 2002, pt 2 s 10(1)(a), (2)(a); this Act will hereinafter referred to as the ‗PRA‘.
102PRA (n 101) sch 3, para 19(4)(b), s 19. See also, IPCC, ‗Consultation Pack‘ on Review of the IPCC‘s Work in Cases Involving a Death 2012, 10, para 4.1-4.3.
103 ibid sch 3 paras 23, 24.
Page 27 of 367 VI. An Overview of the Research
This research is concerned with the handling of police complaints in Thailand. Harrison and Cunneen underline that:104
If citizens are to have confidence in the police service as a whole, they must feel that when they complain about individual instances of police misconduct their allegations will be investigated thoroughly and impartially.
Considering the level and nature of police malpractice in Thailand, the importance of Thai society having an effective system for dealing with police malpractice and complaints against the police is unquestionable. This research will critically examine the mechanisms for handling complaints against the police in Thailand. The examination centres around the internal system of the police themselves and the three independent complaints systems described in section four above. In order to consider the effectiveness of these systems from an appropriately critical standpoint, reference will be made to international standards for the handling of police complaints.
Research Question
To investigate the Thai police complaints system, the overarching research question is therefore formulated as follows:
To what extent does the operation of the Thai system of handling complaints against the police correspond to international standards laid down for this form of police accountability?
104 James Harrison and Mary Cunneen, An Independent Police Complaints Commission (Liberty 2000) vii.
Page 28 of 367 Following on from the overarching question are the following related questions:
1) How are the Thai systems supposed to work?
2) How do they actually work in practice?
3) Do the systems (in theory or practice) correspond with institutional arrangements for the handling of police complaints called for by international standards?
4) What could be changed to make them correspond with such standards?
5) Could the Thai systems draw inspiration from the English model (the Independent Police Complaints Commission)?105
Answers for all of these questions can be found in each subsequent chapter of this thesis.
Aims and Objectives
1. To describe and provide evidence in relation to the current situation of police complaints as a form of police accountability in Thailand;
2. To analyse how the complaints mechanisms under the regulatory oversight of the RTP, the NACC, the NHRC and the Ombudsman, actually work in practice;
3. To understand whether the foregoing mechanisms, in theory or practice, correspond with the institutional arrangements for handling police complaints called for by international standards;
4. To suggest any possible changes that could be made to the Thai complaints mechanisms in order for them to correspond with international standards (drawing inspiration from the UK model where appropriate).
The Scope of the Study
In Thailand, there are many mechanisms for dealing with police complaints ranging from the Office of the Inspector General (OIG) or the Crime Suppression Division (CSD) as the
105 See sub-s the Scope of the Study.
Page 29 of 367 internal ones; the Department of Special Investigation (DSI) (answerable to the Ministry of Justice, Thailand) as the external one; and the Ombudsman, the NACC and the NHRC as the independent ones that would-be complainants may seek to register their complaints with.106
This research confines its attention to the internal system under the control of the RTP and the independent systems of the Ombudsman, the NHRC and the NACC. The RTP system is significant in this study as it shows the arrangements that the police use for dealing with complaints against themselves. We will need to consider whether those arrangements are effective for tackling abuse within the police force. It is also important to examine the mechanisms of the independent bodies in order to understand whether and how the element of independence enhances the effectiveness and impartiality of the handling of complaints. Although the NACC has devolved some power to the PACC since 2008, the latter will not be examined in this research. The reasons are, first and foremost, it is not an independent body;107in addition, it has very much the same arrangements as the NACC.
Therefore, the study of the NACC proves sufficient for our understanding.
It should be noted that England has made successive attempts to improve its own police complaints system over the last four decades, generating much debate and research.108 This study accordingly draws inspiration (where appropriate) from the English complaints system, now under the regulatory oversight of the Independent Police Complaints
106 Internal complaints mechanisms denote those within the RTP, whilst the external complaints mechanisms represent those independent of the police but are part of the government, but the terms ‗external‘ and
‗independent‘ will be used interchangeably from time to time to differentiate the RTP system and the systems under the control of the Ombudsman, the NHRC and the NACC.
107 Act on Administrative Measures for Anti-Corruption 2008, s 4. See also, Benjawan Phothong, ‗Legal Problems regarding the Prosecutorial Power in relation to Section 47 of the Act on Administrative Measures for Anti-Corruption 2008‘ (LLM Thesis, Ramkhamheang University 2010) 1-2 [in Thai].
108 Graham Smith, ‗A Most Enduring Problem: Police Complaints Reform in England and Wales‘ (2005) 35 J Soc Pol 121, 122.
Page 30 of 367 Commission (IPCC). The study concludes by proposing reforms designed to ensure the better handling of complaints against the police in Thailand.
The Significance of the Research
The significance of this proposed research project can be claimed to be profound. This project constitutes trailblazing social research that investigates fully the major, existing police complaints mechanisms in Thailand to see how they actually work and to identify if there is any room for improvements. To do so, the criteria for an effective mechanism for handling complaints against the police laid down by the United Nations Office on Drugs and Crime (UNODC); the principles distilled from the caselaw of the European Court of Human Rights (ECtHR); and the Principles relating to the Status of National Institutions (the Paris Principles) will be used for benchmarking the systems under review in order to help us understand the Thai police complaints system from a wider perspective. The findings of this study will offer fresh insights into the police complaints mechanisms in Thailand. Moreover, the findings can help raise public awareness of the issues around the major, existing complaints mechanisms in Thailand and thus contribute to creating the right political environment in which fundamental reform of the police complaints mechanisms could finally be introduced.
The Organisation of the Thesis
Chapter two relates to research design and methodology. The discussion in this chapter includes the overall research strategy, the methods adopted in this research, sampling, the conduct of the research fieldwork, potential ethical issues and limitations of the research.
Chapter three discusses the scale of police misconduct in Thailand and the root causes of it.
It also critically evaluates the internal complaints systems of the RTP at local and national levels to see if they are sufficiently effective against police malpractice.
Page 31 of 367 Chapter four examines the systems under the regulatory oversight of the Ombudsman, the NHRC and the NACC. The study aims to investigate if these systems are effective in handling complaints against the police and also identify any outstanding problems. In addition, the theory of regulatory capture will be adopted as the conceptual framework to assess whether their systems are truly independent.
Chapter five lays out the criteria for an effective mechanism for handling police complaints outlined by the UNODC; the principles from the caselaw of the ECtHR; and the Paris Principles, and examines whether the Ombudsman, the NHRC, the NACC and the RTP satisfy these international standards on a police complaints system. The IPCC will also be used as a benchmark in order to provide some new perspectives on the Thai system.
Chapter six considers a package of reforms measures that would improve the current system in Thailand.
Page 32 of 367 CHAPTER 2: RESEARCH DESIGN
I. Introduction
Research design is crucial because it functions as a ―blueprint of research‖1 that ―deals primarily with aim, purposes, intentions and plans within the practical constraints of location, time, money and availability of staff‖.2 Research design therefore enables researchers to construct a logical plan to identify what questions to study, what data is required, and how an analysis can be done. Having research design in place will ultimately ensure that researchers are able to use the evidence obtained to answer the initial research question as clearly as they possibly can.3 In the following sections, we will document key elements of the research design relevant to this research-based thesis. To do so, this chapter begins by explaining how the proposed design works to achieve the aims and objectives of the project. We will then discuss research methodology including methods and sampling to demonstrate the practicality of this research. Ethical issues, research access, and difficulties encountered during the fieldwork are then examined. The approaches taken for analysing the data in this research will be underlined in the final part of this chapter.