Ser libre

The promulgation of the 1997 Constitution brought about the emergence of many watchdog bodies; amongst them are the Office of the Ombudsman, the National Human Rights Commission (NHRC) and the National Anti-Corruption Commission (NACC).

These bodies were tasked with the missions to hold the executive branch accountable in

72 Kittayarak, Police and the Expectation of Thai Society (n 14) 36.

73 Wanichwiwatana (n 56) 85. My interviews with a number of police officers left me with the clear impression that many police officers see themselves as a powerful force in Thai society. For example, many of them talked [off record] about the way in which they exercise their power in order to obtain cooperation from indigenous peoples and in doing so demonstrated a mindset that they see themselves as being superior to the common people.

Page 18 of 367 various dimensions.⁷⁴ The Ombudsman, the NHRC and the NACC have managed to survive the coups and are therefore still playing a crucial role in the checks and balances system including in handling police complaints in Thailand. To come to grips with the above authorities, we will now outline the history and institutional arrangements of each of them.

The Office of the Ombudsman

Leyland has underlined that ―the primary reason…, for introducing an ombudsman was not to provide a remedy for routine administrative shortcomings, but to provide another weapon to combat the endemic corruption associated with Thailand‘s central and local government‖.⁷⁵ Despite that, the role of the Ombudsman in addressing routine complaints against government wrongdoing has also proven to be important to ordinary members of the public in Thailand.

Paragraphs 1, 5 and 6, section 242 of the 2007 Constitution prescribed the elements of the Ombudsman and members‘ term in office as follows:

There shall be three Ombudsmen appointed, by the King with the advice of the Senate…

Ombudsmen shall hold office for a term of six years as from the date of their appointment by the King and shall serve for only one term..

There shall be the Office of [the] Ombudsmen as an independent agency, with autonomy in personnel administration, budgeting and other activities, as provided by law.

When it comes to the matters of jurisdiction, paragraph 1(1) and (2), section 244 of the Constitution prescribes that:

74 Peter Leyland, ‗Thailand‘s Constitutional Watchdogs: Dobermans, Bloodhounds or Lapdogs‘ (2007) 2 JCL 151, 153.

75 ibid 141.

Page 19 of 367 Ombudsmen have the powers and duties as follows:

(1) to consider and inquire into the complaint for fact-findings in the following cases:

(a) failure to perform in compliance with the law or performance beyond powers and duties as provided by the law of a Government official, an official or employee of a Government agency, a State agency, a State enterprise or a local government organisation;

(b) performance of or omission to perform duties of a Government official, an official or employee of a Government agency, a State agency, a State enterprise or a local government organisation, which unjustly causes injury to the complainant or the public, whether such act is lawful or not;

(2) to take action in connection with ethics of holders of political positions and State officials under section 279 paragraph 3 and section 280;

The above arrangements show that the Ombudsman has as its main statutory responsibility to handle complaints against state officials on grounds of action or inaction that perpetuates injustice. In addition, the remit of the Ombudsman under the Constitution also covers the matters of professional ethics of state officials;for instance, it has dealt with a high profile case of one of the former Metropolitan Police Commanders in 2013 (see chapter 4).

The National Human Rights Commission

The National Human Rights Commission (NHRC)‘s functions are concerned with promoting human rights, including handling and reporting violations and suggesting general reform measures to the government and/or relevant authorities. According to paragraphs 1, 4 and 6, section 256 of the 2007 Constitution:

Page 20 of 367 The National Human Rights Commission consists of the President and

six other members appointed, by the King with the advice of the Senate…

The members of the National Human Rights Commission shall hold office for a term of six years as from the date of their appointment by the King and shall serve for only one term.

There shall be [the] Office of the National Human Rights Commission, with autonomy in personnel administration, budgeting and other activities as provided by law.

In dealing with human rights issues, paragraph 1 (1) and (4) of section 257 authorises the NHRC:

(1) to examine and report the commission or omission of acts which violate human rights or which do not comply with obligations under international treaties to which Thailand is a party, and propose appropriate remedial measures to persons or agencies committing or omitting such acts for taking action. In the case where it appears that no action has been taken as proposed, the Commission shall report it to the National Assembly for further proceeding;

(4) to file a lawsuit to the Court of Justice on behalf of the injured person when a request is made by the injured person and it is deemed appropriate to find a solution to violation of human rights vis-à-vis the public at large, as provided by law;

These institutional arrangements point to the fact that the NHRC does not just deal with complaints but may also act on behalf of the complainants in court. Whilst this has proven helpful for individual complainants (especially those who are vulnerable) it is important to

Page 21 of 367 recognise that the NHRC will represent the complainants in court only when it is of the view that the legal action will lead to the benefit of the society as a whole.⁷⁶

The National Anti-Corruption Commission

Having been established as a leading corruption fighter, the National Anti-Corruption Commission (NACC), within the framework of the Constitution, was thrust into ―the role of a specialist criminal investigatory body‖.⁷⁷ The structure of the NACC was specified as follows:

The National Counter [Anti-] Corruption Commission consists of the President and eight other members appointed by the King with the advice of the Senate.⁷⁸

Members of the National Counter [Anti-] Corruption Commission shall hold office for a term of nine years as from the date of their appointment by the King and shall serve for only one term.⁷⁹

The National Counter [Anti-] Corruption Commission shall have its independent secretariat, with the Secretary-General of the National Counter Corruption Commission as the superior responsible directly to the President of the National Counter [Anti-] Corruption Commission.⁸⁰ There shall be [the] Office of the National Counter [Anti-] Corruption Commission, with autonomy in personnel administration, budgeting and other activities as provided by law.⁸¹

The jurisdiction of the NACC encompasses political and administrative areas. It investigates allegations of corruption and unusual wealth;⁸²also, it verifies asset disclosure

76 Andrew Harding and Peter Leyland, The Constitutional System of Thailand: A Contextual Analysis (Hart Publishing 2011) 229.

77 ibid 174.

78 Constitution (n 8) s 246.

79 ibid s 247.

80 ibid s 251 para 1.

81 ibid s 251 para 3.

82 ibid s 250 (3).

Page 22 of 367 of those holding political positions.⁸³ Last but not least, the NACC also has the remit to do the following according to section 250 (3) of the Constitution:

(3) to inquire and decide whether State officials, from high-ranking executives or Government officials holding positions of Director or its equivalent upwards, have become unusually wealthy or have committed an offence of corruption, malfeasance in office or malfeasance in judicial office, and take action against State officials or Government officials holding lower positions, who have committed offences in conspiracy with the aforesaid holders of positions or with persons holding political positions…

It can be seen that the NACC has formidable investigatory powers that enable it to look into a wide-range of cases involving government wrongdoing. Nevertheless, the Commission no longer shoulders the burden of dealing with complaints about corruption and malfeasance in office alone because some power was devolved to the Public Sector Anti-Corruption Commission (PACC) in 2008. ⁸⁴ The devolution of power has consequently made the handling of police complaints involving corruption and misconduct a shared responsibility between the NACC and the PACC. To draw a clear line of responsibility between the two bodies, the NACC Declaration lays out police complaints that fall within its purview are the ones relating to misconduct allegedly perpetrated by:⁸⁵

[A] Superintendent or an investigating officer in the advisory level and other levels upwards;

83 ibid s 250 (4).

84 This research does not explore the work of the Public Sector Anti-Corruption Commission (PACC);

therefore, the PACC will not be discussed.

85 National Anti-Corruption Commission Declaration of the Classification of the Lower Level of the

Directorial or Equivalent Positions in accordance with Organic Act on Counter Corruption 1999, 2011, no. 9 (1).

Page 23 of 367 This means complaints against the police holding a superintendent or of a higher rank such as the police chief need to be registered with the NACC whilst those made against officers whose ranks are lower than a superintendent will be handled by the PACC.

V. The Statutory Functions of the Complaints Bodies and their Capacity to Handle