The 1997 Constitution brought with it many reforms aimed at improving the delivery and management of criminal justice in Thailand. It contained specific provisions of obtaining evidence before someone can be arrested and the inadmissibility of confessions extracted through torture or other illegal means. Notwithstanding, the judicial system continues to rely disproportionately on police and witness testimony. This makes it easy for the police to fabricate charges against innocent persons.

One important way to address this imbalance is to place a greater emphasis on forensic evidence obtained by independent professionals. In Thailand, the Central Institute of Forensic Science has been a pioneer in this field. however, as it has challenged the established authority of the police it has been subjected to heavy attacks and its work unnecessarily hampered.

Hence a serious effort needs to be made to develop the institute as well as the requisite laws and procedures to admit and utilise reliable forensic evidence from reputed experts in conjunction with ordinary witness testimony. As Thailand is a modern and advanced society with more resources compared to many other countries in Asia, there is no acceptable reason for its criminal justice system to be left behind and thus much more attention must be paid to scientific methods of investigation and to bring specialist testimony into the courts in Thailand.

d) What is wrong with the public prosecution system?

The responsibility of the public prosecutor is to review cases before taking them to trial. However, it is widely known that in Thailand the prosecutor acts with little independence and relies almost exclusively upon whatever is given by the police or other criminal investigators. The prosecutor is not involved in the investigation work, except in some special cases.

One person working for the office has described it as a "meatball factory": whatever it gets, it grinds up and serves to the courts without question. The unprofessional behaviour and lack of independence of the prosecutor's office also is a serious barrier to addressing the high number of false cases going to the courts.

One of the recent notable examples of how the public prosecutor in Thailand can be used for almost any purpose is the malicious prosecution of 58 victims of the crackdown by security forces outside Tak Bai police station, Narathiwat on October 25, 2004. The incident ended with some 84 death—78 in army custody—and many more permanent physical injuries. Those military and police officials responsible for the mass killing at Tak Bai, just like those at Krue Se in April of the same year, have never been charge or punished. In fact, they have been promoted. By contrast, the victims were hauled before the court on allegations of having incited the military and police violence that led to the deaths and injuries that day.

Justice was played for a fool in the Narathiwat courtroom where the public prosecutor consistently failed to ensure the appearance of witnesses and where the chief investigating officer—the former Tak Bai police chief—could not identify even one of the defendants (two of whom have died), or tell what evidence had been brought against them. Although in November the interim administration imposed by the military regime that came to power on September 19 had the charges against the 58 dropped, it has neatly avoided the real issues. That is, why were the men charged in the first place? And, how was the case against them dragged on by police and the public prosecutor for two years without any evidence?

The Asian Legal Resource Centre (ALRC) is of the opinion that prosecution in Thailand does not have to be this way. Contrary to complaints by public prosecutors and police that they lack money, time and other precious resources with which to perform their jobs more admirably, the main obstacle to the effective handling of criminal cases—against persons of any stature—is the political and administrative will to do it. That was most clearly illustrated by the recent conviction of former police chief Pol. Lt. Gen. Chalor Kerdthes to 20 years in jail in the now infamous case: The the 'Saudi gems' scandal.

One of the significant characteristics of that case, which is ongoing, has been that a public prosecutor has been assigned to handle the prosecution full time for more than 13 years. Just one competent and determined prosecutor full time on the job has yielded results that stand in stark contrast to countless other cases in the courts.

The ALRC is aware that the United Nations Office on Drugs and Crime (UNODC) has offered to assist the Thai government in reforming its police force. In February in a communication it was also pointing out that police reform has been a subject of debate in Thailand since at least the 1970s and that the office should first pay serious consideration to some of the key obstacles to police reform in Thailand such as:

(i) No command responsibility:

The notion of command responsibility, although an integral part of policing anywhere in the world, is quite absent from policing in Thailand. Superior officers are not held liable for the acts or omissions of their subordinates. On the contrary, they invariably act to defend their men against accusations of alleged criminal acts. For instance, a senior forensic scientist was charged with criminal libel by a police station commander after implying that in her professional opinion his officers may have killed someone whom they said committed suicide; one of five police officers accused of abducting and disappearing a human rights lawyer was reappointed to his position and even promoted while the criminal trial against him was ongoing; and a former head of the immigration police in a television interview defended the use of torture by his subordinates as the only way to deal with "bad people".

Without command responsibility being enforced within the police hierarchy, superior officers are untouched by allegations that their subordinates have tortured suspects, falsified evidence, doctored records, and otherwise ignored procedure. Without command responsibility, there is no way to combat the intimate relationships between the police and organised crime in Thailand, the line between which has been described as being so fine as to be non-existent. Without command responsibility it will be impossible to introduce the notion of accountability into the police force, and without accountability there can be no reform. The key issue for all police reform must therefore be command responsibility.

(ii) No complaints mechanism:

No one in Thailand can make an effective complaint against a state officer for alleged abuse. For this reason, to the knowledge of the ALRC, no police officer in Thailand has in recent years been prosecuted over an alleged human rights violation—with the exception of the five accused in the case of abducted human rights lawyer, Somchai Neelaphaijit. Given the size of the Thai police force and the scale of alleged abuse, this is truly remarkable. The ALRC recalls the Human Rights Committee's recommendation to Thailand (CCPR/CO/84/THA) that it "actively pursue the idea of establishing an independent civilian body to investigate complaints filed against law enforcement officials", and suggests that meaningful police reform must take this into account.

(iii) Non-compliance with international law:

Institutional changes must be accompanied by legal reforms to lend them support. The government of Thailand has indicated for years that it would ratify the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment and introduce it into domestic law but has so far failed to do so. Although section 31 of the abrogated 1997 Constitution of Thailand made torture illegal, it remained unenforceable for want of an enabling law and measures to permit complaints. A law to prohibit the commission of forced disappearances in accordance with the new international convention is also necessary.

Existing domestic laws too require reform—such as section 143 of the Criminal Procedure Code, which allows only for the Director General of the Public Prosecution Department to instigate legal action against a state officer accused of killing someone in the course of his official duties. Other laws that permit impunity, especially the Emergency Decree over the southern provinces, must be lifted without delay.

In Thailand, as in other countries in Asia, whether or not someone is investigated and prosecuted is first and foremost a political decision. Whether they are investigated and prosecuted efficiently or not is also a political decision. It is a political decision not in the narrow sense of the word, but in its widest sense—i.e. the police and public prosecutor are subject to the whims, demands and influences of one another as well as soldiers, administrators, businesspeople and mafia figures, in addition to politicians. So too the aim of any police reform in Thailand must be much more than to break the nexus between the police and politicians.

It must be informed by serious understanding of the deep problems in policing, prosecution and the judiciary developed over the last century—not merely the last few years and aim to break the links between the police, organised crime and the military that have been forged and multiplied throughout this period. The success or failure of any work on these issues must be measured in these terms.