I. Introduction
The Office of the Attorney General (OAG) is the principal agency responsible for criminal prosecution, provision of legal advice to state agencies, representation of government in court and for international cooperation in criminal matters. It is also the duty of the OAG to protect civil rights and provide legal aid to the needy. The OAG is an independent agency, not under the control of any ministry, but reports directly to the Justice Minister. The purpose of its independent status is to ensure justice and prevent political influence from interfering with prosecutorial functions. In order to guarantee the independence of public prosecutors, the personnel management is separated from that of civil servants. The personnel management of public prosecutors is the sole responsibility of the Public Prosecutor Commission chaired by a retired senior government official or retired senior public prosecutor elected by public prosecutors nationwide.
The OAG’s vision is to be an intelligent and innovative criminal justice administration organization which represents the state and serves people fairly. The OAG aims to equip and develop personnel with knowledge, skills, competence, responsibility, and integrity to complete all missions and serve people effectively and efficiently
II. History
The history of the Thai public prosecutor can be traced back to the14th century when Ayutthaya was the capital of Thailand. In those days, until the beginning of the Bangkok era, the king appointed an officer to guard the laws as well as to handle the cases and render legal advice to the king. The officer was then known as “the guardian of the laws” in Thai language. In the provinces, officers with similar function known as “Yok-kra-bat” were also appointed to handle criminal cases on behalf of the king and to participate in trials of cases in conjunction with the Provincial Governor. King Rama I, founder of the Chakri dynasty, was Yok-kra-bat of Ratchaburi province before his coronation. All public prosecutors, therefore, respectfully consider him as the “Father of the Thai Public Prosecutor”.
The modern public prosecutor system started when the early system of Yok-kra-bat was replaced by the establishment of the Public Prosecution Department on 1 April 1893. At the beginning, the Public Prosecution Department was part of the Ministry of Justice. Now, the public prosecutors annually celebrate the 1st of April as our establishment day. In 1922, the Department was transferred to be part of the Ministry of the Interior. In 1991, the public prosecutor institution experienced once again major change when the Public Prosecution Department separated from the Ministry of Interior and became an independent agency directly responsible to the Prime Minister. At the same time, the Public Prosecution Department was changed to the Office of the Attorney General to reflect the public prosecutors’ broad scope of functions which are not only criminal prosecution. One of the key purposes of the change was also to guarantee justice and prevent political influence from interfering with the performing prosecutorial function of the public prosecutors.
In 2002, there was a general reform of Thai bureaucratic organizations. The Ministry of Justice was restructured to be the principal agency for coordinating the criminal justice process as a whole. The judiciary was separated from the Ministry. Other criminal justice agencies were regrouped and placed under the Ministry of Justice. However, the Office of the Attorney General still holds the status of an independent agency, but is required to report directly to the Justice Minister. The Minister exercises supervisory functions on administrative matters, but not on prosecutors’ discretion in case handling.
III. Authority and Functions
a) Criminal Justice Administration
i) Investigation
Basically, public prosecutors do not have investigative power. Inquiry officers of the Police Agency assume the principal role for investigation. However, in certain juvenile cases, the Criminal Procedure Code specifies that throughout the process of investigation, there must be a public prosecutor, psychologist or social worker, and any other person (parents or teacher) requested by the young offender(s) present with the inquiry officer as a quorum for the investigation. The investigation of such offences carried out without the participation of these persons is considered invalid and consequently, the public prosecutor cannot take the case to court. For investigation of special cases under jurisdiction of the Department of Special Investigation, the inquiry officials of the Department of Special Investigation have to conduct investigation jointly with public prosecutors in certain cases like organized crime or crime related to influential persons. Moreover, in cases where the offence is alleged to have occurred outside Thailand, the Attorney General or any other official(s) in charge of his functions is the inquiry official.
ii) Prosecution and Trial
The OAG has the main authority to conduct prosecution and trial. Upon receipt of the inquiry file from the inquiry officials giving their conclusions as to the case, the public prosecutors will examine the file and then decide whether to issue a prosecution or non-prosecution order. But if such an investigation is deemed to be incomplete, they will direct the inquiry official to make additional investigation before issuing an order. If a prosecution order is made, the public prosecutors will refer a charge against the alleged offender and take witnesses before the court to prove the guilt of the accused. Should any witnesses need protection under the witness protection law, it is at the discretion of the public prosecutors to ask the Ministry of Justice to issue an order of protection. Also, as public prosecutors are deemed as the check and balance mechanism to counter the exercise of judicial power, they can appeal to a higher court if they believe that the judgment of the lower court is incorrect or inappropriate.
The terms of the indictment can include claim for the forfeiture of property used or possessed for use in the commission of an offence and the forfeiture of property acquired by a person through the commission of the offence as well as application for restitution of property or its value on behalf of the injured person.
For juvenile prosecution, there is a unique feature different from adult criminal procedure. If the Director of the Observation and Protection Center considers that the juvenile can be reformed or rehabilitated and provided that the juvenile consents to be kept in custody in the Center, the public prosecutors can decide to drop the charge(s) upon the suggestion of the Director of the Center. The public prosecutors can then give an order of non-prosecution and in such a case the juvenile will be kept in custody for not more than 2 years. If the public prosecutors decide to prosecute, they have to prosecute the juvenile at the Juvenile and Family Court within 30 days from the date of the juvenile’s arrest.
b) Safeguarding of National Interests
The safeguarding of national interests is one function of the OAG. We fulfill this task through three channels: rendering legal advice to government agencies and state enterprises, reviewing draft contracts for government agencies or state enterprises interacting with the private sector, and representing government agencies or state enterprises in litigation. In Thailand, governmental agencies may sue or be sued in several types of cases, whether civil, tax, labor, or administrative. The OAG represents the government in these cases. The public prosecutors also act as legal counselors to government when negotiating government contracts, in particular concession contracts.
c) Civil Rights Protection and Legal Aid Provision
With regard to the protection of civil rights, the public prosecutors represent any person seeking a court order to endorse his or her legal rights such as the right of an heir to manage the property of an ancestor, as well as any person seeking court permission to carry out certain activities, including adoption of a child, or appointing a guardian for an orphaned child. Furthermore, in the case where a person is barred from bringing an action, both civil and criminal, against his or her parents, the public prosecutors may represent the case on behalf of such a person. As for the provision of legal aid, OAG renders legal assistance to the poor, residing both in Thailand and foreign countries, who are required to take legal action but cannot afford the lawyer fees. Legal services include legal advice and settlement of disputes. For example, in case of the 2004 tsunami disaster, the OAG provided legal assistance for tsunami victims, for example, to help with problems relating to property of the deceased, disappearance, orphaned children, problems of post-mortem autopsy, and contract disputes.
d) International Cooperation in Criminal Matters
The OAG plays a significant role in international cooperation in criminal matters; extradition and mutual legal assistance. For extradition, public prosecutors are responsible for seeking from a court an order for extraditing a person to the requesting state and for making a request to foreign countries to extradite fugitive to Thailand. Our prosecutors also occupy a key role in the national committee on extradition whose main function is to negotiate extradition treaties with potential parties. Currently (Jan. 2005), Thailand has extradition treaties with 10 countries, namely, UK, Belgium, Indonesia, Philippines, USA, China, Cambodia, Bangladesh, Lao PDR, and Republic of Korea.
As with extradition, the OAG takes the lead in the subject of mutual legal assistance in criminal matters. Specifically, under the Act on International Cooperation in Criminal Matters B.E. 2535 (1992), the Attorney General is the Central Authority with a number of responsibilities of which the most important is the making of decisions as to whether Thailand would request assistance from other countries or would provide assistance sought by other countries. There are many types of assistance Thailand can provide, such as locating persons, searching and seizing objects or documents as evidence, taking statements of witnesses, and confiscation of assets. Currently (Jan. 2005), Thailand has mutual legal assistance treaties with 10 countries, namely, UK, Canada, USA, France, Norway, India, Poland, Republic of Korea, China, and Sri Lanka.
e) Research and Legal Development
The Ministerial Regulation for Organization of the Office of the Attorney General 2546 B.E. (2003) provides research and legal development as a function of the OAG. The OAG recognizes a need for constantly reviewing and, if necessary, improving laws for better carrying out our responsibilities. We set up the Thailand Criminal Law Institute a few years ago to conduct research in fields related to criminal law and procedures. Recent research topics include transnational organized crime and securities-related offences. Further, in 2004, the Legal Development Division was established and tasked with modernizing any other fields of outdated laws and regulations to ensure Thailand stays abreast of the many new issues which will arise in the ever-changing world. At the moment, the OAG has proposed a Bill on Suspension of Prosecution which the government is now considering.
IV. Organization Structure
a) Central Offices
All central offices are located in Bangkok. Basically, they have jurisdiction only over cases which occurred in Bangkok, but subject to some conditions, the central offices can handle some serious cases which occurred in the provinces. The Department of Criminal Litigation, the Department of Southern Bangkok Criminal Litigation and the Department of Thonburi Criminal Litigation are responsible for ordinary crime cases. For economic crimes, the Department of Economic Crime and the Department of Intellectual Property and International Trade Litigation have jurisdiction. The Department of Special Litigation is in charge of corruption, money laundering and cases investigated by the Department of Special Investigation under the Ministry of Justice.
The OAG has 3 civil litigation departments in Bangkok, namely, Department of Civil Litigation, Department of Southern Bangkok Civil Litigation and Department of Thonburi Civil Litigation.
Moreover, there are other offices dealing with the other types of litigation including Department of Tax Litigation, Department of Labour Litigation, Department of Administrative Litigation, Department of Narcotics Litigation, Department of Juvenile and Family Litigation, Department of Bankruptcy Litigation, Department of Summary Litigation and Department of Appellate Litigation.
Apart from these litigation offices, there are other offices that have other different functions. For example, the International Affairs Department mainly deals with international criminal matters such as extradition, international co-operation, and mutual legal assistance in criminal matters. The Thailand Criminal Law Institute is responsible for legal research and development, while the Department of Technical Affairs looks after policy and planning, evaluation of staff, and the OAG information service. The Training and Development Institute is responsible for training and personnel development. The Department of the Public Prosecutor Commission takes care of personnel management of public prosecutors, while the General Administrative Office is in charge of personnel management of administrative officers. For legal advice, the Department of Legal Counsel gives legal advice to government and state enterprises whereas the Department of Civil Rights Protection and Legal Aid provides legal aid and advices to people.
b) Regional Offices
i) Regional Offices
The regional offices outside Bangkok are grouped into 9 regions; 3 in the central region and 2 each in the north, the northeast and the south. The nine Departments of the Regional Public Prosecutor, (Region 1-9) cover and oversee the work of all provincial offices in their jurisdictions. There are also 9 Departments of Regional Appellate Litigation in charge of appellate cases in 9 regions. At the moment, only 7 Departments of Regional Administrative Litigation and 6 Departments of Regional Labour Litigation are set up to handle administrative cases and labour cases in the provinces.
ii) Provincial Offices
There are 103 Provincial Public Prosecutor Offices established in 75 provinces. The large provinces, such as, Chiengmai, Nakornratchasima, Ubonratchatani, Chonburi and Nakornsithammarat, have more than one office. The Offices of Provincial Summary Litigation are set up to deal with summary cases in 21 highly populated provinces. There are also 51 Offices of Provincial Juvenile and Family Litigation taking care of juvenile offenders and family matters.
V. Personnel, Qualifications and Ethics
a) Personnel
The OAG employs 2 groups of staff; public prosecutors and administrative officers.
The public prosecutors perform all main functions of the OAG. In January 2005, the OAG has 2,575 public prosecutors. All public prosecutors are classified into 8 levels, starting from assistant public prosecutors at level 1 to the Attorney General at level 8. Deputy Attorney Generals and Inspector Generals are at level 7. Director-Generals of Departments and senior management personnel are at level 6. Middle level management personnel, such as Chief Provincial Public Prosecutors, are at level 5. The main work forces that carry out the field works are at levels 2-4. From 2000, due to the lack of work force in the OAG, the Act on the Appointment of Senior Public Prosecutor 2543 B.E. allows the retirement age of public prosecutors to be extended from sixty to seventy years old. After the age of sixty, subject to good physical and mental condition verified by medical examination, public prosecutors can take the position of senior public prosecutor. However, these senior public prosecutors can work only on operational work, such as prosecution, advising and training, but not management.
All personnel management, i.e., promotion, appointment, transfer, and discipline of public prosecutors is the sole responsibility of the Public Prosecutor Commission. The Public Prosecutor Commission consists of 15 members, chaired by a retired high-ranking government official or retired high-ranking public prosecutor elected by public prosecutors nationwide. The Attorney General and four Deputy Attorney Generals are members ex officio. Six members are elected by public prosecutors nationwide from retired public prosecutors and public prosecutors, three members from each group. Two members are elected by the Senate and one member is appointed by the cabinet.
The administrative officers provide administrative services to support the public prosecutors in all areas of operation, management and administration. This includes budget and finance, procurement, supply and record management, facilities, and litigation support. In January 2005, there were approximately 3,001 administrative officers, including short-term contract staff. The General Administrative Office headed by a Director is in charge of all matters of the administrative officers, in particular personnel management. Distinct from the public prosecutors’ personnel management, the Civil Service Commission under the Prime Minister ’s Office regulates and oversees the administrative officers’ personnel management.
b) Qualifications and Ethics
Under section 303 of the Constitution, public prosecutors, unlike many other government officials, are subject to scrutiny by the Senate for dismissal on the grounds of malpractice. This section
underlines the importance of the position of public prosecutor. Hence, the qualifications required for public prosecutors are stringent. Candidates must have a Bachelor of Law degree and a Thai Barrister certificate, be at least 25 years of age, and have at least two years of legal practice experience. They then have to pass a selective and demanding recruiting examination. After passing the exam, they can be assigned to be assistant public prosecutors while undergoing intensive one-year training. If they can pass the training evaluation, they will be appointed as public prosecutors.
For ethics, the Act on Code of Conduct for Prosecution Officials 2521 B.E. (1978) covers the status and conditions of service, qualifications, selection and training of public prosecutors, as well as disciplinary actions in line with the UN Guidelines on the Role of Prosecutors. The OAG also issues the Ethical Code of Conduct of Public Prosecutors, consisting of 27 rules of obedience. The Code is divided into four ethical parts, namely, ethical duties to the public, ethical duties in discharging their responsibilities, ethical duties to supervisors, colleagues and subordinates, and ethical duties in properly maintaining themselves and families. For example, public prosecutors shall perform duties with honesty, integrity, fairness, transparency, accountability, and without political, social, religious, racial, cultural, sexual or any other kind of discrimination. Further, public prosecutors and their family members shall not take any gift or any kind of benefits from others in return for carrying out their duties.
VI. Caseload and Statistics
In 2003, the OAG handled 590,507 cases nationwide. Narcotics offenses were the most numerous cases with 107,671 cases, accounting for 18.98 % of the total. Most of narcotics offenses relate to the illegal consumption of narcotics, in particular amphetamine. The second most common offenses were crimes against property, such as theft, burglary, robbery, fraud, embezzlement, etc., numbering 101,160 cases or 17.13% of the total. Gambling offenses, 81,774 cases, accounted for 13.85%. Immigration offenses totaled 44,102 cases, accounting for 7.47%. There were 43,886 cases of offenses against the body, such as assault and battery, injury by negligence, rape, etc., accounting for 7.43%. Offenses against life, such as murder, attempted murder, manslaughter, and death by negligence accounted for 26,760 cases, 4.53%. Firearms offenses amounted to 23,414 cases, or 3.97% of the total. The rest were other offenses, such as forgery, offenses relating to the use of cheques, forestry and national resources offenses, military service offenses, serious road traffic violations, and offenses against other specific laws, with 157,311 cases, accounting for 26.64% of the total.
In addition, the OAG also has to review all the fines imposed by the police to check whether they comply with relevant laws. Most of the fines relate to road traffic violations and other petty offenses which can be cleared up by paying fines to police. In 2003, the police submitted 2,807,838 cases to the OAG for verification.
VII. Criminal Justice Process
The criminal justice process in Thailand is divided into 4 parts as follows:
a) Investigation
In Thailand, there is almost a complete separation between investigative and prosecutorial functions. Unlike investigation in most countries where police and prosecutors are jointly responsible, the main investigative authority in Thailand is police who play the role of “inquiry official”. In addition, for special cases under the Act on Special Investigation 2547 B.E. (2004), like organized crimes, financial crimes, large-scale fraud and money laundering, the inquiry officials of the Department of Special Investigation have principal investigation power. The public prosecutors participate in investigation with the inquiry officials in certain cases of juvenile cases and special cases. The court is not generally involved in the investigation stage except in the issue of search and arrest warrants.
To begin the case, if an offence is suspected, inquiry officials shall commence an inquiry by collecting evidence, interviewing witnesses, conducting search and seizure, and arresting the accused. When the inquiry is complete, the inquiry officials shall submit to the public prosecutors the “inquiry file” together with an opinion whether or not the accused should be prosecuted. Where the public prosecutors consider that further investigation is necessary for a decision to be made as to whether or not to issue a prosecution order or to drop the case, the public prosecutors have the power to direct the inquiry official to carry out further investigation.
b) Prosecution
The Criminal Procedure Code divides prosecution into two types: private prosecution and public prosecution. For private prosecution, an injured person institutes a criminal suit while for public prosecution a prosecutor files a criminal action. For private prosecution, the court has to conduct a preliminary hearing to determine a prima facie case. In public prosecution, such a preliminary hearing is not necessary; however, public prosecutors can only file a case if investigation with respect to the case has already been conducted.
When the public prosecutors receive the inquiry file, it is at their sole discretion whether to prosecute the accused or to drop the case by making a non-prosecution order. Upon issuing a prosecution order, the public prosecutors will file an indictment with the court. If the public prosecutors decide to drop the case, a non-prosecution order will be made. However, a non-prosecution order, unless made by the Attorney General, is not final. The prosecutors have to submit the inquiry file together with the order to the Police Commissioner where the offence took place in Bangkok or to the Provincial Governors where the offence took place in the provinces for review. If disagreeing with the public prosecutors, the Police Commissioner or the Provincial Governors shall send the file with conflicting opinion to the Attorney General for a final decision. If, on the other hand, the Police Commissioner or Provincial Governor agrees with the public prosecutors, the non-prosecution order will be final with the result that any further inquiry as to the case be barred unless there is important new evidence. A final non-prosecution order, however, does not bar an injured person from filing private prosecution to the court. In a case where the Criminal Procedure Code authorizes the offence to be settled, the public prosecutors have the power to direct the inquiry officials to impose a fine in lieu of prosecution.
c) Trial
Pursuant to the Constitution, the defendant is guaranteed the rights to a public trial and to be present at that trial. The law also adopts the principle of presumption of innocence, whereby the defendant must not be treated as a criminal until found guilty by the Court. The prosecutors bear the burden of proof and must prove beyond a reasonable doubt that the defendant actually committed the crime before the Court can penalize him.
On the first appearance at trial, defendants have to be brought before the Court. If they plead guilty, the Court may render sentences right away. The Court will mostly reduce the sentence by half if the defendant pleads guilty. However, for offences having imprisonment terms of 5 years or more, even if the defendant pleads guilty, the Criminal Procedure Code requires that there has to be proof beyond a reasonable doubt that he is the one who actually committed the offense.
The Court’s hearing of witness testimony in criminal trial is conducted in consecutive periods. The Court is vested with full discretion to decide both questions of fact and law. If the Court is of the opinion that the defendant has committed the offence without any lawful exception from punishment, the Court will determine appropriate sentence to be imposed on the convicted.
d) Execution of Sentence
The guilty defendant will be detained in a state prison administered by the Department of Corrections. If the Court of First Instance imposes a sentence of capital punishment or life imprisonment on the defendant, the Court of First Instance has to send to the Appellate Court all files of the judgment for review; even if no appeal has been lodged against such a judgment. Capital sentence and sentence of life imprisonment are not final unless they have been confirmed by the Appellate Court.
Execution of sentence may be suspended when the defendant is insane, or it is feared that the life of the defendant will be endangered by imprisonment, or if the defendant is seven months or more pregnant, or has given birth to a child and a period of one month has not yet elapsed.
In cases where the defendant has been sentenced to death, the execution of capital punishment may not be executed until the provisions of the Criminal Procedure Code governing pardon have been complied with. If a person sentenced to death becomes insane before being executed, the execution has to be suspended until such a person has recovered.
VIII. Thai Public Prosecutor Museum
The Thai Public Prosecutor Museum or Library of old law books is considered to be the first legal museum in Thailand. It was established in 1993.The collections shown in the museum were selected from 177 Public Prosecutor Offices in 73 provinces around the country. Many invaluable items have been found and saved from ruin such as precious old legal texts, and manuscripts called “Yok-kra-bat”, Annual Report of Public Prosecutor of 1935, etc. Approximately 25,000 volumes of old legal texts, 5,000 pieces of old documents, several rare archives and 200,000 pages of historical case files along with other articles of interest have been found and are preserved in over 90 old-style teak cabinets.
Within the cabinets, old legal texts have been systematically collected by category. The works and masterpieces of famous lawyers in the past include “The Law of Siam”, and the compilation of the so-called “The Old Laws of the Three Great Seals”, published around 1842. In addition, there are the Cabinet of “A Collection of Thai Laws” by Khun Luang Phraya Kraisri, the first Attorney General, and the Cabinet of “Government Gazette Volume 1-25”, the first publication of the Thai Government, etc. In one corner, a model office of a public prosecutor in the past is arranged to capture the imagination of visitors and take them back to the atmosphere of the work and functions of public prosecutors in the old days.
Furthermore, there is an exquisitely decorated room to store many ancient images of Buddha inherited from various historic eras of Thailand since the era of Dava-Ravati, Chiang Saen, Sukhothai, Ayutthaya, and Ratthanakosin. The most remarkable thing in the Museum is the half-sized statue of King Rama I. This statue was built to commemorate the Centennial Celebration of Thai Public Prosecutor in 1993. The reason is that King Rama I was once “Yok-kra-but” (the public prosecutor in the past) of Ratchaburi province before coronation.
The museum is on the 11th floor of the Office of the Attorney General, Ratchadapisek Road, Bangkok. It is open to the public from Monday to Friday between 8.30 a.m. and 4.30 p.m. Admission is free.
IX. EMBLEM
The Great Crown of Victory (Pra Maha Pichai Mongkut) placing over the Sacred Magnifying Glass (Pra Van Suriyakan) and the Balance of Justice having the Royal Sword at the core (Tra Chu Rup Pra Kan) laying over the Wreath of Victory Leaves (Chor Chaiya Pruk) means the authorities and functions of the Public Prosecutor in the thorough, fair and decisive application of laws to overcome the injustice.
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