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Solutions Proposed on Justice System Structural Power Reform; Increase Comprehensive Public Participation and Technology Use to Monitor Progress
“Japanese police officers are supervised by the National and Local Police Commissions which consist of the public as members of such Commissions. The Commissions, therefore, are able to reflect the performance of the officers in each area. Another example is in France, in which relevant commission will be in charge of positional rotation based on the decentralization of power approach. If it is the judicial officers, such rotation will be conducted by a judicial commission which consists of members elected from judges, administrative court, lawyer’s council, representatives elected by the President as well as the House of Representative and Members of the Senate. These mechanisms allow the structural power within the justice system to connect with the people.”
The above statement was delivered by Associate Professor Dr. Pokpong Srisanit, faculty member at the Faculty of Law, Thammasat University in the “TIJ Forum: Way Out – Structural Power in the Justice System” hosted by the Thailand Institute of Justice (TIJ) on the 29th of September 2021. The statement referred to examples of structural power designs in the justice system in some countries which allow public participation to examine the exercise of power by agencies within the justice system.
Asst. Prof. Dr. Pokpong explained that structural power within the justice system can be divided into 2 main parts. The first part concerns the exercise of obligation-based, case-related power in the justice system with which the connection with the public is inevitable. The second part is the exercise of power within the organization regarding the promotion and rotation of positions which can be either positive or negative. The latter exercise of power exists in organizations like the police department, office of public prosecutors and the courts. The exercise of both kinds of structural power are interconnected and shall be consistent with international principle on maintaining public order and protecting public interest.
The first issue concerned the exercise of case-related power in the justice system. With reference to performing police duties, Asst. Prof. Dr. Pokpong viewed that it is inevitable for police officers to exercise power in the stages of apprehension, investigation and interrogation. However, such power play shall follow the fundamental international principles of the justice system which is to establish balance between safeguarding the society and protecting the rights and liberty of the people. Therefore, maintaining public order and apprehension of offenders shall be conducted in tandem with protection of rights and liberty of the people in all stages, despite the challenge. Appropriate punishment shall be imposed if one is found guilty of any offenses, however, without the incriminating evidence, inquiring officials shall cease the prosecution and reinstate the innocence of such person.
Protection of the rights and liberty of the people also includes the right to an attorney in order to fully defend oneself in a trial. Such right is recognized by the criminal procedural code which aligns with the existing international principles. The principles stipulate crucial prohibitions with which police officers and inquiry officials shall comply under all circumstances whatsoever and those are prohibitions against torturing, enforced disappearances and wrongful execution. These are considered the “absolute rights” under the international principles.
In respect of the public participation at the prosecution level, Asst. Prof. Dr. Pokpong provided an example of the public prosecution system in Japan. With its members elected by the people, the People’s Commission has been established to examine cases which are not prosecuted by the public prosecutor. The approach will ensure that there shall be no attempt to protect the offenders who are state officials or influential persons.
“There is an argument on the issue. If the public prosecutor decided not to prosecute the case, the Thai system may be better since the victim is allowed to directly file the case to the court. But if we look at the facts, there are multiple cases that the victims did not proceed with the case, putting an end to the trial without closure. That includes trials against the state which are victimless offenses or the case of Mr. Vorayuth Yoovidhya during which there was a period when neither the police, public prosecutor, the court and the victim filed the case to the court. Therefore, allowing public participation at the prosecution level will be the solution.”, said Asst. Prof. Dr. Pokpong.
Regarding the participation at the court level, Asst. Prof. Dr. Pokpong confirmed that the public is eligible to inspect the performance of duties of the court, even though it is stipulated in the international principles that “The court shall be transparent, independent and cannot be interfered”. For example, the jury in common law countries consist of the members of the public who will take part in rendering a verdict in a criminal prosecution. The court is obliged to respect such verdict. Even in France, the origin of the civil law legal system, the jury consisting of judges and the people will take part in a prosecution of a felony case with more than 10 years of imprisonment. Another example is the Court of England whereby the Court and the Sentencing Council representing the public will impose a broad sentencing standard of each offense. When sentencing discretion is exercised by the Court, the Sentencing Council will conduct a public hearing which will later be disclosed to and accessible by the public.
“We have to separate the independence of the court from public participation. The court’s independence is one thing and allowing the public to be part of trial is a different matter.”
The second issue covered the exercise of structural power within the organizations in the justice system. Asst. Prof. Dr. Pokpong referred to the establishment of the National and Local Police Commissions in Japan. With the members of the public included in such Commissions, the people can reflect the performance of the police officers in each local area unlike Thailand’s centralized approach undertaken in the rotation of positions.
France also employs the decentralized approach through relevant committee in its rotation of officers. For example, in the judiciary side, there will be a judiciary commission chaired by the president of the supreme court and consists of members elected from the panel of judges, administrative court, the lawyer’s council, members elected by the President, House of Representatives and House of the Senates. Originally, Thailand had used similar approach whereby experts from other sectors may be elected as part of the judiciary committee. However, that had been changed by the 2017 Constitution which requires the committee to consist only of the personnel of the court, eliminating public participation.
Regarding the timely solutions to the issue of human rights violation in the justice system, Asst. Prof. Dr. Pokpong agreed that application of digital technology will modernize the justice system, ensure its efficiency and transparency. Use of camera to record the performance of police officers in the interrogation process may reduce intimidation and torture. It will also protect the government officials who honestly conduct their duties from any allegations of wrongful misconduct. However, the rights of the alleged to privately consult with one’s attorney shall be reserved without being recorded.
“Whenever there are disreputable news concerning the justice system, we will see the head of the relevant organization in a press conference stating that there are good and bad people in every organization. For those with criminology background, you will recognize this as a Bad Apple theory, implying that there is only one bad fruit among other good fruits in the tree. But with the flow of these news, if we take a step back we will see that the problem lies with the tree itself. If we take a further step back, we may realize that the growing condition of the tree is problematic. Therefore, the problem with the justice system has to be viewed comprehensively, taking into account the political and administrative systems, the values and culture of the society.”
Mr. Vipon Kititassanasorachai, public prosecutor and Director of Criminal Law Research and Justice System Development Office, Nitivajra Institute of the Office of Attorney-General, referred to the Bad Apple theory to consider if the solution on the exercise of power in the justice system has been done comprehensively. Particularly, the closed inspection system of officers’ misconduct which allows the inspection to be conducted only among the officers. The existing approach would lead to the repetition of the same problem as the structural power has not yet been solved. The solution to this problem requires the true and honest recognition of the glass ceiling of truth of the Thai society. It has to be admitted that the change to the organizational culture and the shift in the societal attitude would take time.
Mr. Vipon also emphasized the problem with positional rotation and the career growth of the personnel in the justice system. The workforce needs the motivation and standardized career development. That is, the promotional and positional rotation criteria have to be established, career profiling has to be enabled, motivating the staff in their performance. Also, transparent and straightforward inspection system is also required and the ultimate committee of each organization should allow public participation on the matter.
Addressing structural power issue may be time-consuming, Mr. Vipon also suggested that digital technology can be used to facilitate the process and enhance the transparency of government officials’ performance. Regulations and legislations shall be amended to require officers in criminal prosecution to record the work process on a real-time basis which will bring about abrupt change in the working behavior. Similar to the application of VAR (VDO Assistance Referee) in soccer games to assist the referring process, the technology can address the problem of foul simulation or fake injuries within a short period of since its application.
“State officials often use terms that evade the violation of human rights protection law against the alleged or defendant, i.e. “[the person] is only invited as a witness; no arrest record has been made; [the person] is not yet arrested; [the person] is invited only for discussion; [the person] is invited only the sign documents, etc.” This obstructs the people from gaining access to attorney which is the crucial foundation of the justice system. The people need to be aware of their rights and when they enter the justice system, they need to have access to a lawyer as soon as possible. Moreover, the justice system needs to respect human rights on independent and confidential lawyer consultation. The state shall not retrieve any information using means which involve coercion, intimidation, assault or torture.”
Miss Sirikan Charoensiri, attorney at Thai Lawyers for Human Rights, referred to her first-hand experience working in a number of cases in which she found that ensuring justice for the people is still a problematic issue. The issue ranges from the exercise of the rights of the alleged, beginning with the right to have a lawyer from the start. There are “rights” that the police should inform to the alleged, i.e. “you have the right to remain silent” or “your statement may be used against you in the court of law” or “you have the right to privately consult with a lawyer and the lawyer can be present during interrogation” or “if you do not have a lawyer, the state can provide a lawyer for you”. However, most of the time such declarations have not been followed through. Often times, in was found that police officers attempted to evade the law or obstructing the alleged from meeting with one’s lawyer right from the stage of apprehension, detention, put in custody, pre- or during trial detention. The terms used to evade such law include “invite” or “summon as a witness” instead of “arrest”. Without the arrest record and since no allegations have been made, police officers may claim that there is “no need for a lawyer”.
The alleged would have to face many other occurrences of rights violation without a lawyer, i.e. confiscation of mobile phone or force execution of documents. Most of the time the alleged is neither aware of the legal consequences from such conduct or the fact that it can be used against him/her in the prosecution process.
Application of special legislations, i.e. martial law or emergency decree, is another issue that Miss Sirikan viewed as a way for officers to abuse their powers to violate the rights of the people. When the alleged is detained by virtue of any special legislation, the lawyer or even the court will not be able to verify whether the rights of the suspect or the alleged are being violated. The lawyer may petition to the court, requesting the court to examine the detention, the court will be able to only consider whether there is any law allowing such detention. If the detention was made under a special legislation, the court will deem that it has been conducted legitimately without considering whether the rights of the suspect or the alleged are being violated during such detention.
Inaccessibility to the lawyer also leads to further violation of rights. Even though the persons who entered the justice system may have legal knowledge to a certain extent, they will have to, nonetheless, be compliant in the presence of officers. Similarly, in the bailing process, without a lawyer or other circumstantial facts to support such bail, the court may exercise the discretion to either grant or not grant bail. Hence, the rights of the alleged may be violated, i.e. intimidation, torture, during the detention process.
Miss Sirikan emphasized that if the alleged has a lawyer from the beginning of the process, he/she would be able to appoint the lawyer to protect their rights by objecting to the pre-trial detention. In practice, however, the court would still rule in favor of pre-trial detention regardless of the admission by the inquiry officials that it would not be necessary. Pre-trial detentions are sometimes ordered by claiming that it is for the purpose of case development. However, the process might have been completed already by the public prosecutor and it only needs to be submitted to the Office of Attorney-General. Therefore, there should be an inspection process in each step to eliminate the gap enabling the violation of rights of the alleged.
“Since most officers in the justice system are aware of the rights of the alleged, especially the right to meet and consult with the lawyer and its confidentiality, therefore, the process should start by maintaining the respect of such rights. Then the important question is: why are there still statements and claims being made to evade the law, leading to the violation of rights of the people.”, said Miss Sirikan.
Miss Sirikan also viewed that the political situation also affects the independence of the personnel in the justice system. For example, the arrest of young persons from the political demonstration or apprehension of the people based on the critiques made by the public against the government. This is the problem relating to the exercise of rights, liberties under the democratic regime. Therefore, the justice system reform must prioritize this issue as well.
On the technology-assisted solution, Miss Sirikan viewed that technology can in fact increase the transparency but the same concern exists: “Officers must respect the rights of the alleged from the start”, especially the rights to consult the lawyer confidentially. There are multiple cases, particularly political demonstrations, that officers used small recording device to record everything on a real time basis. That includes the audio and visual recordings in the interrogation room, during consultation with the lawyer or even the magnified image of the writings that the lawyer handed to the alleged, all of which constitute violation of rights. Even when the alleged informed the officers that they are uncomfortable with being recorded, the inquiry officials would insist that “they are following orders”.
“Development of technical expertise among the officers is essential. Without the enabling system, we will only have non-skilled personnel working for an expert position either in the operational or executive level. For example, the inquiry officials should have the chance to grow career-wise and improve the skills in the long run. Another obstacle is the career growth based on connection or relationship with the higher-ups. We must believe that systemic solution is possible, even though the reform of the organizational structure of the police and justice system may be time-consuming.”
Police Captain Pirapat Mungkalasiri, Professor at the Faculty of Police Sciences, Royal Police Cadet Academy, also reflected the organizational problem within the police organizations and agencies within the justice system. He viewed that centralized exercise of power is the main issue, i.e. the ability of the Royal Thai Police to command the headquarters country-wide. Even though centralized system expedites the process but it hinders the inspection of power exercised by the Royal Thai Police, particularly so for the power to “assign and rotate positions”.
Pol. Capt. Pirapat made comparisons with other countries such as the England, Germany, United States of America, Canada and Northern Ireland which adopted the decentralized approach within the police performance structure. The approach connects the police work with the people and they can participate in the rotation process.
As an example of centralized power structure in Thailand’s justice system, Pol. Capt. Pirapat referred to the “removal of inquiry official function” during mid-2014. The structural adjustment was based on the principle that officials could then work cross-sectoral. However, this resulted in the unclear career path and growth of commissioned duty officer who should have been promoted to deputy inspector or inspector. Some of them were rotated to work in other field while others who took their positions has very little expertise in the field of inquiry.
The major impact on the people is that instead of having knowledgeable personnel taking the position of deputy inspector or inspector in the local area, they get someone who has no expertise from other area. The work within the local area will be interrupted, lacks the connection and the people will not have the ability to cross-check the background of the officers taking the position in their area.
“Take Germany, for example. After World War 2, the by-product of the Hitler regime also caused structural problem with the centralized positional assignment and rotation. The 2 most hated professions in those days were politicians and police officers. When the problem was recognized, the next generation of leaders therefore adjusted the structure and connected the power of positional assignment and rotation with the people, making an exemplary approach. In order to achieve that, the leader has to have the courage to allow higher public participation and the members of the public, independent organization or justice system shall be involved in the assignment and rotation.”
Another important issue of the Thai police organization is “Those who grow in their career are often connected to the higher-ups but lack the knowledge and expertise”. Pol. Capt. Pirapat viewed that this can be addressed by planting the mindset on “righteousness” to the younger generations. “Choosing the right man for the right job” shall be considered. The right person for the job, who has higher potential than those who please the superior, shall be chosen. Even though the change may take time but it will truly solve the issue.
On the suggestion of using technology to record the interrogation and prevent violation of rights or assault of the alleged, Pol. Capt. Pirapat proposed that CCTV cameras shall be installed at every station. The footage shall be made available to the public upon request in all cases without the “broken camera” excuse. He also proposed that Blockchain can be used for the purpose of data verification, ensuring a more transparent justice system.